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Blend Images Rights Managed End User License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN LICENSEE, PURCHASER (IF ANY) AND A SUBSIDIARY OF BLEND IMAGES, LLC. ("BLEND IMAGES"). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE "AGREEMENT").
1. Definitions. In this Agreement the following definitions apply:
1.1 "Invoice" means the computer-generated or preprinted standard form invoice provided by Blend Images or an authorized distributor setting out terms agreed with the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.2 "Licensed Material" means any still image, film or video footage, audio product, 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, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by Blend Images under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
1.3 "Licensee" means the person or entity purchasing a license hereunder or if there is a separate Purchaser, the person or entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.
1.4 "Purchaser" means a person or entity purchasing the license hereunder on behalf of a third party Licensee.
1.5 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, and the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
1.6 "Rights and Restrictions" means the information: (i) accompanying the Licensed Material on the Blend Images’ website (including all areas of the purchase process); (ii) in the Invoice; (iii) in the editorial feed; or (iv) in any other written communication accompanying the Licensed Material. Such restrictions may include, without limitation, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
2. Grant of Rights & Restrictions.
2.1 Blend Images grants to Licensee a non-exclusive, non-sublicensable and nonassignable right to use and Reproduce the Licensed Material identified in the Rights and Restrictions, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee (including Purchaser) for preparation of the final product for the licensed use, provided that such subcontractors agree to abide by the terms of this Agreement.
2.2 Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions. Licensee may utilize the Licensed Material in any production process that may be necessary for the intended use specified in the Rights and Restrictions.
2.3 While efforts have been made to correctly caption the subject matter of the Licensed Material, Blend Images does not warrant that such information is accurate.
2.4 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter.
2.5 Licensed Material shall not be incorporated into a logo, trademark or service mark.
2.6 Licensee may not make the Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Material.
2.7 Licensed Material may not be modified, reconfigured or repurposed for use in any mobile-directed web sites or mobile applications that are specifically created for viewing of Licensed Material on mobile devices, without obtaining the prior written consent of Blend Images.
2.8 Unless otherwise authorized by applicable law or specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the final product of the licensed use in any secondary Reproductions, such as compilations or screen shots. Such Reproductions require an additional license from Blend Images and may be subject to payment of additional license fees.
2.9 Licensed Material shall not be used contrary to any restriction on use that is provided to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the Rights and Restrictions or in any other written communication from Blend Images. Any such restriction provided to Licensee shall be incorporated into and become part of this Agreement.
2.10 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee disputes Purchaser’s power and authority to act on behalf
of Licensee with respect to this Agreement, Purchaser shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section
2.12 shall serve to excuse Purchaser’s obligation to make payment to Blend Images for the Licensed Material.
3. Photo Credit and Intellectual Property.
3.1 Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Blend Images grants Licensee no right or license, express or implied, to the Licensed Material.
3.2 Trademarks. In connection with the use of "Blend Images" or any other of Blend Images’ trade names, trademarks, logos or service marks ("Marks"), Licensee acknowledges and agrees that (i) Blend Images’ Marks are and shall remain the sole property of Blend Images; (ii) nothing in this Agreement shall confer upon Licensee any right of ownership in Blend Images’ Marks; and (iii) Licensee shall not now or in the future contest the validity of Blend Images’ Marks.
3.3 Notice of Violations. Licensee will immediately notify Blend Images if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of Blend Images’ intellectual property rights, including, but not limited to, Marks and copyrights.
4. Warranty and Limitation of Liability.
4.1 Blend Images warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material 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 Material); (iii) Licensee’s use of the Licensed Material in its original form, and when used in accordance with this Agreement, will not infringe on any copyrights or moral rights of any person or entity.
4.2 NEITHER BLEND IMAGES NOR ANY LICENSOR MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER BLEND IMAGES NOR ANY LICENSOR SHALL BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIALOR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF BLEND IMAGES OR ITS LICENSORS, AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
5. Indemnification.
5.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement and as Licensee’s sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Section 5 above, Blend Images 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 (except punitive damages not directly attributable to acts of Blend Images), liabilities and expenses (including reasonable attorneys’ fees and permitted and authorized costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Blend Images is in breach of its warranties set forth in Section 5 above. The foregoing states Blend Images’ entire indemnification obligation under this Agreement.
5.2 Licensee shall defend, indemnify and hold Blend Images and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys’ fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee’s failure to obtain any required release.
5.3 The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
6. Condition of Licensed Material.
Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to Section 5.1.(ii) above, Blend Images 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 Material or its caption or in any way from its Reproduction.
7. License Cancellation Fee.
If Licensee or Purchaser requests in writing to cancel this Agreement within thirty (30) days of the date of receipt by Licensee or Purchaser of the Licensed Material, and such Licensed Material has not been used by Licensee, Blend Images may cancel this Agreement and issue a credit to Licensee’s or Purchaser’s account or credit card in an amount up to one hundred percent (100%) of the license fee minus a composite/layout fee that will be charged at Blend Images’ then standard rate. Nothing in this Section 8 shall apply to research, lab, service fees, administration fees or editorial subscription fees which shall be payable according to the terms stated on the Invoice and shall be non-refundable.
8. Interest or Cancellation on Overdue Invoices.
If Licensee fails to pay Blend Images’ Invoice in full within the time specified in the Invoice, Blend Images 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. Blend Images also
reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.
9.Miscellaneous Terms.
9.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Blend Images 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. In addition and without prejudice to Blend Images’ other remedies under this Agreement, Blend Images reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times Blend Images’ standard license fee for the unauthorized use of the Licensed Material.
9.2 Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Blend Images. In addition, upon reasonable notice, Blend Images may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where Blend Images reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Blend Images’ request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Blend Images.
9.3 Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Blend Images and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file containing the Licensed Material that is stored on Licensee’s computers. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete and remove the Licensed Material from Licensee’s premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise.
9.4 Withdrawal. Upon notice from Blend Images, or upon Licensee’s knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Blend Images may be liable herein, or if Blend Images withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Blend Images shall provide Licensee with comparable Licensed Material (which comparability will be determined by Blend Images in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
9.5 Governing Law. This Agreement will be governed in all respects by the laws of the State of Nevada, U.S.A., 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 to be held in the State of Nevada, U.S.A. The United Nations Convention on
Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Blend Images shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Blend Images, such action is necessary or desirable.
9.6 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.
9.7 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 exercise 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.
9.8 Entire Agreement. This Agreement contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. 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.
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