Agreed conditions for Use of Images and Footage of GreenScreen Animals (“Licensor”).
1. Definitions. In this Agreement the following definitions apply:
1.1 “Licensed Materials” means any still image, film and video footage, audio project, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, including without limitation, metadata, captions, text or other information or any other material protected by copyright, trademark, patent or other intellectual property rights, which is / are licensed to Licensee by Licensor pursuant to the terms of this Agreement. Any reference in this Agreement to the Licensed Materials shall be to each individual item within the Licensed Materials and also to the Licensed Materials as a whole. In the event that Licensor elects to provide to Licensee any Sample Materials hereunder, such Sample Materials are NOT part of the Licensed Materials and are provided on a loan basis only as more specifically set forth herein.
1.2 “Licensee” or “you” means the person or entity purchasing a license hereunder as defined in the Deal Terms.
1.3 “License Fee” is the amount of money specified in the Deal Terms as the amount to be paid by Licensee to Licensor in connection with the license of the Licensed Materials hereunder to Licensee on the terms and conditions set forth herein.
1.4 “Licensor” means GreenScreen Animals, LLC
1.5 “Project” means the singular one creative or promotional vehicle that incorporates the Licensed Materials (e.g. a motion picture, TV show, TV commercial, a web advertisement etc.) and not including the advertising, marketing, promotion or publicity for any such singular creative vehicle. Multiple projects cannot incorporate some or all of the Licensed Materials without the prior written consent of Licensor which may be granted or withheld in Licensor’s sole discretion and without the payment of additional fees to Licensor by Licensee.
1.6 “Reproduction” and “Reproduce” mean any form of copying or publication of the whole or a part of any “Licensed Materials” via any medium and by whatever means.
1.7 “Rights and Restrictions” means the information with respect to the limitations of use of the Licensed Materials which Licensee must observe which are provided to Licensee in one or more of the following ways: (i) accompanying the Licensed Materials on the Licensor’s website (including all areas of the licensing process); (ii) in the Deal Terms/Invoice; (iii) in the editorial feed; or (iv) in any other written communication accompanying the Licensed Materials which written communication from Licensor to Licensee may be by email. The Rights and Restrictions are hereby incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
1.8 “Sample Materials” means a low resolution still image or low resolution film or video footage which is provided by Licensor to Licensee upon request by Licensee on a sample basis only for use by Licensee to test said materials in the context for which Licensee would like to use the Licensed Materials version of said Sample Materials. Under no circumstances may Sample Materials be used, exhibited or exploited in any way by Licensee unless and until said Sample Materials become part of the Licensed Materials hereunder for which an agreed upon License Fee is paid by Licensee to Licensor. Sample Materials shall be made available by Licensor to Licensee upon payment of a one time, non-refundable, flat fee payment by Licensee to Licensor of One Hundred Dollars ($100) per individual Sample Material. Said fee payable for the Sample Materials shall be subject to increase by Licensor at any time with any such increase disclosed to Licensee at the time that Licensee applies for permission to access the Sample Materials. Permission given by Licensor for Licensee to test the Sample Materials as set forth herein is not an implied or express agreement by Licensor to license the Licensed Materials version of the Sample Materials to Licensee. Specifically, Licensee understands and agrees that Licensor has the sole and absolute right to determine whether or not any requested purpose / use of Licensed Materials by Licensee will be acceptable or not to Licensor and that the providing of Sample Materials by Licensor to Licensee is not an agreement by Licensor that the proposed use by Licensee of the high resolution version of any Sample Materials as Licensed Materials is acceptable to Licensor.
2. Grant of Rights and Restriction on Rights.
2.1 Subject to full payment received by Licensor in a timely manner of all sums due and payable with respect to the Licensed Materials, Licensor hereby licenses to Licensee a limited, non-exclusive, non-sub-licensable, non-transferable and non-assignable right to use and Reproduce the Licensed Materials identified in the Deal Terms and/or Invoice attached to these Standard Terms with such license being subject to the Rights and Restrictions set forth therein (“Licensed Rights”).
2.2 Use of the Licensed Materials is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Materials, territory and any other restrictions and specifications set forth in the Deal Terms and/or Invoice. Licensee may utilize the Licensed Materials in any production process that may be necessary for the intended use specified in the in the Deal Terms.
2.3 Unless additional rights are stipulated in the in the Deal Terms or licensed to Licensee pursuant to a separate license agreement, the Licensed Materials may not be used in or for any merchandising use with respect to any products or services (as the term “merchandising” is understood in the entertainment and advertising industries in and around Los Angeles California).
2.4 While efforts have been made to correctly caption the subject matter of the Licensed Materials, Licensor does not warrant such information is accurate.
2.5 Pornographic, defamatory or otherwise unlawful use of the Licensed Materials is strictly prohibited, whether directly or in context or juxtaposition with a specific subject matter.
2.6 Licensee may not make the Licensed Materials available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Materials, and Licensee shall take all steps necessary to ensure that such downloading and/or extraction is not possible in whole or in part.
2.7 Unless otherwise authorized by applicable law or specified in the Deal Terms, Licensee may not, directly or indirectly, Reproduce the Licensed Materials in any other manner except as specifically set forth in this Agreement.
2.8 Licensed Materials shall not be used contrary to any restrictions on use set forth in the Rights and Restrictions provided to Licensee and/or that are provided to Licensee prior to or at the time the Licensed Materials are downloaded or otherwise delivered to Licensee. Any such restriction provided to Licensee whether in the Rights and Restrictions or whether provided separately shall be incorporated automatically into and become part of this Agreement.
2.9 Where Licensee is licensing Licensed Materials from Licensor on behalf of a third party, Licensee shall disclose that third party (“Third Party”) in writing to Licensor prior to Licensee’s signature of the Agreement and again prior to the finalization and signature of any Deal Terms and Invoice. Further, Licensee hereby represents and warrants as follows: (i) it is authorized to act as an agent on behalf of the Third Party and has full power and authority to bind the Third Party to this Agreement; (ii) the Third Party will comply in all respects with the terms of this Agreement; and (iii) the Third Party will not dispute Licensee’s power and authority to compel the Third Party to comply with the terms of this Agreement. Nothing in this Section 2.9 shall serve to excuse Licensee’s obligation to make payment to Licensor for the Licensed Materials and any Sample Materials (if applicable).
2.10 Licensor retains all right, title, and interest in and to all of the copyrights, patent rights, trademarks, trade secrets, and all other proprietary rights in the Licensed Materials and Sample Materials. No rights in any Licensed Materials are granted to Licensee except the limited, non-exclusive use license specified in the Agreement. Any right, title, or interest arising in any compilation or derivative work created using any Licensed Materials shall not entitle Licensee or any Third Party to use any Licensed Materials except as specifically licensed in this Agreement. Licensee does not acquire any copyright ownership or equivalent rights in or to any Licensed Materials or Sample Materials (if applicable) or to any other property of Licensor or its suppliers as a result of any use licensed to Licensee hereunder by Licensor.
3. Credit and Intellectual Property.
3.1 Copyright. No ownership or copyright in any Licensed Materials or Sample Materials (if applicable) shall pass to Licensee by the issuance of the license contained in the Agreement. Except as expressly stated in this Agreement, Licensor does not grant and does not license to Licensee any right or license, express or implied, to the Licensed Materials or the Sample Materials (if applicable).
3.2 Trademarks. In connection with the use of “GreenScreen Animals” or any other of Licensor’s trade names, trademarks, logos or service marks (collectively “Marks”), Licensee acknowledges and agrees as follows: (i) Licensor’s Marks are and shall remain the sole property of Licensor; (ii) nothing in this Agreement shall confer upon Licensee any right of ownership in Licensor’s Marks; and (iii) Licensee shall not now or in the future contest the validity of Licensor’s Marks. Except for credits as set forth herein, Licensee may not use the trademarks or service marks of Licensor without Licensor’s prior written consent which may be granted or withheld in Licensor’s sole discretion.
3.3 Credit. Licensee shall provide an on-screen credit to Licensor and/or its designee(s) as specified in the Deal Terms equal in all respects to any credit accorded to any other provider of comparable services.
3.4 Notice of Violations. Licensee will immediately notify Licensor if it becomes aware of or suspects that any third party has gained access to the Licensed Materials and/or Sample Materials (if applicable) through Licensee or otherwise or is wrongfully using the Licensed Materials or Sample Materials (if applicable), in whole or in part, or is violating any of Licensor’s intellectual property rights, including but not limited to, Licensor’s Marks and copyrights.
4. Controversial Use Statements.
4.1 If any Licensed Materials are used in connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a statement indicating that (i) the Licensed Materials are being used for illustrative purposes only; and (ii) any person, bird, reptile or animal depicted in the Licensed Materials, if any, is a model.
5. Warranty, Limitation of Liability and Termination.
5.1 Licensor warrants as follows: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Materials will be free from material defects in materials and workmanship for thirty (30) days from delivery (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Materials); (iii) Licensee’s use of the Licensed Materials when used in accordance with this Agreement, will not infringe on any copyrights of any person or entity; and (iv) Licensee’s use of the Licensed Materials in its original form, an when used in accordance with this Agreement, will not infringe on any trademark or other intellectual property right and will not violate any right of privacy or right of publicity.
5.2 Licensor makes no warranties, nor shall Licensor be liable for any claims, related to or arising from Licensee’s use of Licensed Materials if Licensor has notified Licensee not to use the Licensed Materials prior to the beginning of the Term of the license for the applicable Licensed Materials.
5.3 Except as may be otherwise expressly stated in this Agreement, Licensor, on behalf of itself and its content sources/licensors makes no other warranty, express, implied or statutory regarding any Licensed Materials, its online systems, or any rights or licenses under this Agreement including, with limitation, any implied warranties of merchantability or fitness for a particular purpose.
5.4 Except for any indemnity, obligation or other liability which cannot by law be excluded or limited, neither Licensor nor any of Licensor’s subsidiaries, successors, predecessors, parents, joint venturers, affiliates, officers, directors, employees, contractors, content course, licensors or licensees (collectively “Licensor Indemnitees”) shall be liable to Licensee or any other Third Party claiming through Licensee for indirect, incidental, special, punitive, statutory or consequential, damages arising out of, or relating to this Agreement and/or Licensee’s use or inability to use the Licensed Materials, whether framed as a breach of warranty or merchantability, title, non-infringement, or fitness for a particular purpose, in tort, contract, failure of essential purpose, or otherwise. Except for indemnity obligations in Section 6.1, in no event shall the total aggregate liability to Licensee or any Third Party claiming through Licensee of Licensor and/or the Licensor Indemnitees arising from this Agreement, its termination or expiration, and/or Licensee’s use of any Licensed Materials/content provided hereunder, exceed three (3) times the monetary amount actually received by Licensor for the use of the applicable Licensed Materials. The foregoing limitations are applicable notwithstanding any failure of essential purpose.
5.5 Licensor may, without further obligation or any liability to Licensee or any other Third Party person or entity, terminate this Agreement and Licensee’s license to use the Licensed Materials by written notice (email is acceptable) in the event Licensee fails to comply with any provision of this Agreement. Upon any termination, cancellation or expiration of this Agreement, neither Licensee nor any other Third Party person or entity covered by the license provided pursuant to this Agreement shall have any further right to make any use of the Licensed Materials. The representations, warranties, indemnities and other obligations of Licensee shall survive the termination of this Agreement and the revocation of the rights of Licensee hereunder. Licensee shall be jointly and severally liable for any breach of the terms of this Agreement by any Third Party, employee or other person or entity authorized pursuant to the terms of this Agreement to use the Licensed Materials.
6.1 Provided the Licensed Materials are only used in accordance with this Agreement and that Licensee is not otherwise in breach of this Agreement and as Licensee’s sole and exclusive remedy for any alleged or actual breach of Licensor’s representations and warranties set forth in Section 5 above, Licensor shall defend, indemnify and hold Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (but not including indirect, incidental, special, punitive, statutory or consequential damages), liabilities and expenses (including reasonable attorney’s fee and permitted and authorized costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Licensor is in breach of its warranties set forth in Section 5 above. The foregoing states Licensor’s entire indemnification obligation under this Agreement.
6.2 Licensee shall defend, indemnify and hold Licensor and the Licensor Indemnitees harmless from all damages, liabilities and expenses (including reasonable attorney’s fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to any of the following: (i) Licensee’s use or failure or the use or failure of any of Licensee’s authorized employees, contractors, employers, agents, clients, principals, or other authorized users of any Licensed Materials outside the scope of this Agreement; (ii) any other actual breach or alleged breach by Licensee of this Agreement; (iii) Licensee’s failure to obtain any required release with respect to the Licensed Materials; and/or (iv) Licensee’s use or modification of any Licensed Materials or the combination of any Licensed Materials with any text or other content.
6.3 The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim in writing. At the indemnifying party’s option, indemnifying party may assume the handling, settlement or defense or any claim or litigation, in which event the indemnified party shall cooperate in the defense of any such claim or litigation. The indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for attorney fees and other costs incurred prior to the indemnified party’s having given notice of the claim for which indemnity is sought.
7. Condition of Licensed Materials.
7.1 Licensee should examine all Licensed Materials for possible defects (whether digital or otherwise) before sending any Licensed Materials for Reproduction. Without prejudice to Section 5.1 (ii) above, Licensor shall not be liable for any loss or damage suffered by Licensee or any Third Party whether directly or indirectly, arising from any alleged or actual defect in any Licensed Materials or its caption or in any way from its Reproduction. Licensor provides Licensee access with its online system on an “as is” basis without warranty of any kind, including warranty of continued access or availability or against interruption of service.
8. License Cancellation Fee.
8.1 If Licensee requests in writing to cancel this Agreement within ten (10) days of the date of receipt by Licensee of the Licensed Materials, and such Licensed Materials have not been used by Licensee, Licensor may agree to cancel this Agreement (which determination shall be in Licensor’s sole and absolute discretion) and issue a credit to Licensee’s account or credit card in an amount of up to fifty percent (50%) of the License Fee minus a composite/layout fee that will be charged at Licensor’s then standard rate. Nothing in this Section 8 shall apply to any refund of research fees, lab fees, service fees, Sample Materials fees (if applicable), and/or editorial subscription fees all of which shall be payable according to the terms stated on the Deal Terms/Invoice and shall be non-refundable under any circumstance.
9. Interest or Cancellation on Overdue Invoices.
9.1 If Licensee fails to pay Licensor’s License Fee or Invoice in full within the time specified in the Deal Terms, Licensor may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. Licensor also reserves the right, in its sole discretion, to revoke the license with respect to any Licensed Materials hereunder if the License Fee payment is not made in full and on time. Any such revocation shall not relieve Licensee from its obligations hereunder.
10. Miscellaneous Terms.
10.1 Unauthorized Use. Any use of Licensed Materials in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
10.2 Electronic Storage. Licensee may only use the high-resolution materials provided by Licensor hereunder with respect to the Licensed Materials, and Licensee may not make additional high-resolution copies of the Licensed Materials for any purpose whatsoever except as specifically set forth herein. Licensee shall maintain a robust firewall and other security features to safeguard against unauthorized third-party access to the Licensed Materials. Notwithstanding the foregoing, Licensee may make a high-resolution backup copy of the Licensed Materials for security purposes only. If use of Licensed Materials is permitted on the Internet or any other online or interactive media, Licensee shall use Licensee’s best efforts to protect the Licensed Materials to ensure that it cannot be copied, and in the case of Licensed Materials comprised of footage (as compared to still images), ensure that such footage remains in the linear production for which it was licensed and that it cannot be searched by shot, removed and/or downloaded or broadcast separately.
10.3 Removal of Elements. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete and remove the Licensed Materials from Licensee’s premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise. Upon request from Licensor, Licensee shall provide Licensor with an affidavit signed by the top officer of Licensee certifying such removal and shall obtain a comparable affidavit signed by the top officer of any subcontractors who were permitted access to the Licensed Materials.
10.4 Withdrawal. Upon notice from Licensor, or upon Licensee’s or Licensor’s knowledge that any Licensed Materials are subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, and if Licensor withdraws any Licensed Materials, Licensee will physically remove the Licensed Materials from its premises, computer systems and storage (electronic or physical), provide Licensor with the affidavit of removal described in Section 10.3, and, if possible, cease any future use of the Licensed Materials. Licensor shall provide Licensee with comparable Licensed Materials (which comparability will be determined by Licensor in its reasonable commercial judgment) with such replacement materials being provided subject to the other terms and conditions of this Agreement.
10.5 Governing Law. This Agreement will be governed in all respects by the laws of the State of California without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration subject to the rules of JAMS, with Los Angeles, California being the venue for exclusive jurisdiction. Notwithstanding the foregoing, Licensor shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain equitable or other relief against Licensee. Licensee agrees that its sole remedy hereunder is an action at law for money damages, and Licensee specifically waives all rights to seek or obtain equitable relief against Licensor.
10.6 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
10.7 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercises of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
10.8 Entire Agreement. This Agreement together with any Deal Memo and Invoice with respect to the Licensed Materials contain all the terms of the license of rights to Licensee, supersede all prior and contemporaneous discussions, understandings, negotiations and agreements (oral or written) with respect to the subject matter hereof, and no terms or conditions may be added or deleted to the Agreement, the Deal Memo and/or to any Invoice unless made in writing and signed by an authorized representative of both parties. It is understood and agreed that no purchase order or similar document issued by Licensee or Licensor shall modify this Agreement even if signed by Licensor. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern. This Agreement may be signed by “Docu-Sign” or other comparable electronic means, and such electronic signatures shall be binding upon the parties in the same way that an originally executed “wet-ink” signature would be binding.
10.9 Taxes. All Licensee Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee. Licensor does not accept resale certificates without prior written approval, and the acceptance or non-acceptance of any such resale certificates by Licensor shall be in Licensor’s sole and absolute discretion.
10.10 Force Majeure. If Licensor’s performance of any of its obligations hereunder is delayed by labor dispute, war, government action, acts of terrorism, flood, fire, explosion, other acts of nature, public enemy, Internet related disruptions, including, without limitation Denial of Service attacks or any other matter not within Licensor’s reasonable control, then the date for performance hereunder shall be extended by the time of such delay.