SundayPhoto's End User License Agreement (Rights-Managed)
THIS IS A LEGAL AGREEMENT BETWEEN SUNDAYPHOTO EUROPE A.S. („SUNDAYPHOTO“), LICENSEE AND PURCHASER (IF ANY). THIS AGREEMENT 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 standard
form invoice provided by SundayPhoto or an authorized distributor that may
include, without limitation, the Licensed Material selected and the
corresponding price for the license of such Licensed Material.
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 right, which is licensed to Licensee by
SundayPhoto 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
part of any Licensed Material, via any medium 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 "User" means any employee or
subcontractor of Licensee who: (i) downloads, manipulates, edits, modifies or
saves the digital file containing the Licensed Material; (ii) is otherwise
directly involved in the creative process utilizing the Licensed Material; or
(iii) incorporates the Licensed Material within any derivative work.
1.7 "Rights and Restrictions"
means the information available to Licensee at the time of Licensed Material
selection, either: (i) accompanying the Licensed Material on the SundayPhoto ' website (including all areas of the purchase
process); (ii) in a written quote issued by SundayPhoto; or (iii) in the editorial feed (if so delivered), and
as might also be reflected in the Invoice. Such restrictions may include,
without limitation, the permitted scope of use, duration of license, any
territory or other use rights and restrictions applicable to the Licensed
Material selected.
2. Grant of
Rights. Subject to the terms of this Agreement:
2.1
SundayPhoto grants to Licensee a non-exclusive, non-transferable,
non-sublicensable,right
to Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this
Agreement, and 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. Licensed Material shall not be used
contrary to the Rights and Restrictions.
2.2 Licensee may have the Licensed Material
Reproduced by subcontractors of Licensee for preparation of a final product,
provided that such subcontractors agree to abide by the provisions of this
Agreement.
2.3 Licensee may store the Licensed
Material in a digital library, network configuration or similar arrangement to
allow the Licensed Material to be viewed by employees, partners and clients of
Licensee, so long as there are no more than ten (10) Users.
3.
Restrictions.
3.1
Licensee may not sublicense, sell, assign, convey or transfer this Agreement or
any of its rights under this Agreement.
3.2
Licensee may not:
(i) make the Licensed Material available
(separate from the end product into which it is incorporated) in any medium accessible
by persons other than authorized Users;
(ii) sell, license or distribute any end
product containing the Licensed Material in a way that is intended to allow or invite
a third party to download, extract or access the Licensed Material as a
standalone file, including posting the Licensed Material online in a
downloadable format, posting the Licensed Material on any electronic bulletin
board or using the Licensed Material in electronic greeting cards;
(iii) include the Licensed Material in an
electronic template intended to be Reproduced by third parties on electronic or
printed products; or
(iv) use the Licensed Material in any
products for sale or license where the primary value resides in the Licensed Material
itself or use or display the Licensed Material on websites or in any other
medium designed to induce or involving
the sale, license or other distribution of "on demand" products,
including, without limitation, postcards, mugs, t-shirts, calendars, posters
and other items.
3.3 Licensee may not falsely represent,
expressly or impliedly, that Licensee is the original creator of a work that is
a stand-alone pictorial, graphic or sculptural work or motion picture or other
visual work that derives a substantial part of its artistic components from the
Licensed Material.
3.4
Licensed Material shall not be incorporated into a logo, trademark or service
mark.
3.5 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 device.
3.6 SundayPhoto will
notify Licensee in the Rights and Restrictions if it has obtained a model
release and/or a property release for Licensed Material. If no such
notification is given, then no such model or property release has been
obtained. No releases are generally obtained for Licensed Material. The
warranty and indemnity set forth in this Agreement are only provided if and
when such written notification is given. Licensee acknowledges that some
jurisdictions provide legal protection against a person's image, likeness or
property being used for commercial purposes when they have not provided a
release. Licensee shall be solely responsible for determining whether
release(s) is/are required in connection with any proposed use of Licensed
Material, and Licensee shall be responsible for obtaining such release(s). Irrespective
of whether a model release has been obtained, Licensee shall be responsible for
payment of any amounts that may be due under, and compliance with any other
terms of, any applicable collective bargaining agreement(s) as a result of
Licensee's use of the Licensed Material. SundayPhoto does not grant any right nor make any warranty with
regard to the use of names, people, trademarks, trade dress, logos, registered,
unregistered or copyrighted audio, designs or works of art or architecture
depicted in any Licensed Material. If any Licensed
Material featuring a model or property is used in connection with a subject that
would be unflattering or unduly controversial to a reasonable person, or is
used in a manner that would lead a reasonable person to believe that the model
personally endorses or uses a product or service, or if the depiction of the
model is used in connection with "Sensitive Issue" subjects,
including, but not limited to subjects such as contraception, sexual or implied
sexual activity, sexual preferences, dating services, chat lines, substance
abuse, physical or mental abuse,violence, poverty, homelessness, dysfunctional
family matters, alcohol, tobacco, AIDS, cancer or other serious physical or
mental ailment or disability or serious physical or mental disease or any
diagnostic test for same, Licensee must accompany each such use with a
statement that indicates that: (i) the Licensed Material is being used for
illustrative purposes only; and (ii) any person depicted in the Licensed
Material, if any, is a model.
3.7
Pornographic, libelous, defamatory or otherwise unlawful use of Licensed
Material is strictly prohibited, whether directly or in context or
juxtaposition with specific subject matter.
3.8 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 3.8 shall serve to excuse Purchaser's obligation to make payment to
SundayPhoto for the Licensed Material.
4. Copyright and Trademarks. 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, SundayPhoto grants Licensee no right or license, express or implied, to the Licensed Material.
5.
Warranty and Limitation of Liability.
5.1 SundayPhoto 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);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),
SundayPhoto 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.While efforts have been made
to correctly caption the subject matter of, and to provide other information
(including metadata) related to, the Licensed Material, SundayPhoto,
nor any party on whose behalf SundayPhoto licenses Licensed Material (each,a
"Licensor"), makes any representations or warranties as to the accuracy of such information.
5.2 Neither SundayPhoto, nor any party on
whose behalf SundayPhoto licenses Licensed Material (each, a "Licensor"),
makes any representations or warranties as to whether any additional fees or
payments may be due to any person depicted in Licensed Material pursuant to the
requirements of any applicable trade union, and Licensee shall be solely
responsible for any such additional fees or payments to such trade union.
NEITHER SUNDAYPHOTO 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 SUNDAYPHOTO NOR
ANY LICENSOR MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE USE
OF NAMES, TRADEMARKS, TRADE DRESS, REGISTERED, UNREGISTERED OR COPYRIGHTED
DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN THE LICENSED MATERIAL AND
SUNDAYPHOTO GIVES NO WARRANTY AS TO THE ACCURACY OR AUTHENTICITY OF THE
LICENSED MATERIAL OR ANY DESCRIPTION OF THEM OR THE IDENTIFICATION OF PERSONS, OBJECTS
OR SCENES APPEARING IN THE LICENSED MATERIAL AND SHALL NOT BE LIABLE FOR ANY OF
THE FOREGOING, AND LICENSEE MUST SATISFY ITSELF THAT ALL THE NECESSARY RIGHTS
OR CONSENTS REGARDING ANY OF THE ABOVE, AS MAY BE REQUIRED FOR REPRODUCTION,
HAVE BEEN OBTAINED. THE REPRESENTATIONS AND WARRANTIES MADE BY SUNDAYPHOTO IN
THIS AGREEEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY SUNDAYPHOTO
AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER
NOT SPECIFICALLY AUTHORIZED IN THE AGREEMENT OR IF LICENSEE IS OTHERWISE IN
BREACH OF THIS AGREEMENT. NEITHER SUNDAYPHOTO NOR ITS LICENSORS SHALL BE LIABLE
TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES,
COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF SUNDAYPHOTO 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.
6.
Indemnification.
6.1 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, SundayPhoto 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 (excluding punitive
damages not directly attributable to acts of SundayPhoto), liabilities and expenses
(including reasonable attorney's fees and permitted and authorized costs), arising
out of or connected with any actual or threatened lawsuit, claim or legal
proceeding alleging that SundayPhoto is in breach of its warranties set forth
in Section 5 above. The foregoing states SundayPhoto's entire indemnification obligation
under this Agreement.
6.2 Licensee shall defend, indemnify and
hold SundayPhoto and its parent, subsidiaries and commonly owned or controlled
affiliates and their respective officers, directors and employees harmless from
all damages (excluding 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 Licensee's use of any Licensed Material outside the
scope of this Agreement, Licensee's
failure to obtain any required release or any other
actual or alleged breach by Licensee of this Agreement.
6.3 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 or other costs incurred prior to the other party
giving notice of the claim for which indemnity is sought.
7.
Miscellaneous Terms.
7.1 Termination and Revocation. The license
contained in this Agreement will terminate automatically without notice from
SundayPhoto if Licensee fails to comply with any provision of this Agreement. Upon
termination, Licensee must immediately (i) stop using the Licensed Material;
(ii) destroy or, upon the request of SundayPhoto, return the Licensed Material
to SundayPhoto; and (iii) delete and remove the Licensed Material from
Licensee's premises, computer systems and storage (electronic or physical).
7.2
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 SundayPhoto 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 SundayPhoto's other remedies
under this Agreement, SundayPhoto reserves the right to charge and Licensee
agrees to pay a fee equal to five (5) times SundayPhoto's standard license fee for
use of the Licensed Material.
7.2.1
Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide
sample copies of Reproductions containing Licensed Material to SundayPhoto. In addition, upon reasonable notice, SundayPhoto 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. If any such audit reveals an underpayment by
Licensee to SundayPhoto of five percent (5%) or more of the amount Licensee should have paid
for the time period that is the subject of the audit, in addition to paying SundayPhoto the amount of such underpayment, Licensee shall also
reimburse SundayPhoto for the costs of conducting such audit. Where SundayPhoto reasonably believes that Licensed Material is being used
outside of the scope of the license granted under this Agreement, Licensee
shall, at SundayPhoto ' request, provide a certificate of compliance signed by an officer of
Licensee, in a form to be approved by SundayPhoto.
7.3 Withdrawal. Upon notice from SundayPhoto,
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 SundayPhoto may be liable herein, or if SundayPhoto
withdraws any LicensedMaterial for any good reason, Licensee will immediately and at its own expense: stop using the
Licensed Material, physically remove the Licensed Material from
its premises, computer systems and storage (electronic or physical). SundayPhoto
shall provide Licensee with comparable Licensed Material (which comparability
will be determined by SundayPhoto in its reasonable commercial judgment) free
of charge, but subject to the other terms and conditions of this Agreement.
7.4
Governing Law. This Agreement will be governed in all respects by the laws of
Czech republic.
7.5 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.
7.6 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.
7.7 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 or other communication
sent by Licensee, the terms of this Agreement shall govern.
© SundayPhoto Europe a.s., v2010.1
