Last Updated: November 2010
THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN LICENSEE, PURCHASER AND CLAUDIA VEJA IMAGES IDENTIFIED IN SECTION 10.10 BELOW WILL BE THE PARTY ENTERING INTO THIS AGREEMENT ("CLAUDIA VEJA IMAGES") WITH LICENSEE. THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
1. Definitions. In this Agreement the following definitions apply:
1.1 "Licensed Material" means any still image, film or video footage, audio product (if any), visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by Claudia Veja 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.
1.2 "Editorial Licensed Material" means Licensed Material relating to events that are newsworthy or of public interest and identified as such on the Claudia Veja Images website.
1.3 "Invoice" means the computer-generated or pre-printed standard form invoice provided by Claudia Veja Images and the terms agreed with the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.4 "Licensee" means the entity purchasing a license hereunder or, if there is a separate Purchaser, the entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.
1.5 "Licensee Work" means an end product or service that has been created by or on behalf of Licensee using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
1.6 "Purchaser" means an entity purchasing the license hereunder on behalf of a third-party Licensee.
1.7 "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, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.8 "Rights and Restrictions" means the information available to Licensee at the time of Licensed Material selection, either: (i) accompanying the Licensed Material on the Claudia Veja Images' website (including all areas of the purchase process); (ii) in a written quote issued by Claudia Veja Images; 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 restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material ("License Fee"). 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. Subject to the terms of this Agreement:
2.1 Claudia Veja Images grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to use and Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee (including Purchaser) for preparation of the Licensee Work, 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 as may be necessary for the intended use specified in the Rights and Restrictions, including as set forth in Section 2.1 above. Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed Material contained therein) as part of any distribution process as may be necessary or appropriate for the intended use specified in the Rights and Restrictions solely as part of the distribution process contemplated in the Rights and Restrictions in connection with the intended use specified therein.
2.3 Unless additional rights are stipulated in the Rights and Restrictions or granted pursuant to a separate license agreement, Editorial Licensed Material may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement use of Licensed Material in an "editorial" manner means use relating to events that are newsworthy or of public interest and expressly excludes any advertorial sections (i.e. sections or supplements in relation to which Licensee receives a fee from a third-party advertiser or sponsor).
2.4 Editorial Licensed Material may be cropped, provided that the editorial integrity of the Licensed Material is not compromised, but shall not, under any circumstances, otherwise be rotated, altered, changed or tampered with, either manually or electronically, without Claudia Veja Images' prior written permission.
2.5 While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, Claudia Veja Images does not warrant the accuracy of such information.
2.6 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
2.7 If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person (except for Editorial Material used in an editorial manner), 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.
2.8 Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of Claudia Veja Images.
2.9 Licensee may not make the Licensed Material available in any medium in a manner intended to allow or invite a third party to download, extract or access the Licensed Material as a standalone file, such as for a screensaver.
2.10 Editorial 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 and/or the Licensee Work on mobile devices, without obtaining the prior written consent of Claudia Veja Images, which consent might require payment of an additional License Fee. For clarification, this restriction on mobile use is not breached if Licensed Material that is licensed for website use can be viewed via mobile devices in a "pull" (as opposed to "push") fashion, provided it is not so specifically modified, reconfigured or repurposed for this purpose.
2.11 Unless otherwise specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the Licensee Work in any secondary Reproductions, such as compilations, screen shots, in-context promotions or on file-sharing or social networking websites such as YouTube, Facebook, MySpace, Bebo, etc.
2.12 Licensed Material shall not be used contrary to the Rights and Restrictions.
2.13 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 subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 2.13 shall excuse Purchaser's obligation to make payment to Claudia Veja Images of the License Fee.
2.14 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
2.15 If the Rights and Restrictions include website use, Licensee shall post terms and conditions on its permitted websites that include restrictions on downloading the Licensed Material for purposes other than personal use, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.
3. 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, Claudia Veja Images grants Licensee no right or license, express or implied, to the Licensed Material.
3.2 Trademarks. In connection with the use of "Claudia Veja Images" or any other of Claudia Veja Images' or its partners' trade names, trademarks, logos or service marks, including the names of all Licensed Material collections ("Marks"), Licensee acknowledges and agrees that (i) such Marks are and shall remain the sole property of Claudia Veja Images or its partners; (ii) except as expressly required in order to satisfy the credit obligations under this Agreement, nothing shall confer upon Licensee any right of use in or to the Marks; and (iii) Licensee shall not now or in the future contest the validity of the Marks.
3.3 Photo Credit. Except as otherwise noted in Section 10, all Licensed Material used in an editorial context must include the following credit line adjacent to the Licensed Material: "[Photographer's Name]/[Collection Name]/Claudia Veja Images" or as otherwise shown on the Claudia Veja Images website. If Licensee omits the credit, an additional fee in an amount up to one hundred percent (100%) of the License Fee may be payable by Licensee, at Claudia Veja Images' sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Claudia Veja Images may have at law or in equity.
3.4 Audio/Visual Production Credit. If Licensed Material is used in an audio/visual production in either an editorial context or a non-editorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s) substantially in the following form: "[Footage] [Imagery] supplied by [Collection Name]/Claudia Veja Images".
3.5 Notice of Violations. Licensee will immediately notify Claudia Veja 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 Claudia Veja Images' intellectual property rights, including, but not limited to, Marks and copyrights.
4.1 Claudia Veja Images will notify Licensee in the Rights and Restrictions if it has obtained a model release and/or a property release for Licensed Material. The warranty and indemnity set forth in Sections 5.1(iv) and 6.1 below are only provided if and when such written notification is given. If no such notification is given, then no such model or property release has been obtained. No releases are generally obtained for Editorial Licensed Material. 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 responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as Screen Actors Guild in the US) as a result of Licensee's use of the Licensed Material.
4.2 Except where Licensee is specifically notified that a model and/or property release has been obtained, Claudia Veja Images 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. 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).
5. Warranty and Limitation of Liability.
5.1 Claudia Veja Images warrants that: (i) 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); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Claudia Veja Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by Claudia Veja Images pursuant to Section 4.1, Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Claudia Veja Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not, where a property release is provided, infringe on any trademark or other intellectual property right and/or will not, where a model release is provided, violate any right of privacy or right of publicity.
5.2 CLAUDIA VEJA IMAGES DOES NOT MAKE 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. CLAUDIA VEJA IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF CLAUDIA VEJA IMAGES HAS 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. CLAUDIA VEJA IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
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 breach of the warranties set forth in Section 5.1(ii)-(iv) above, Claudia Veja Images shall, subject to the terms of Section 5.2 above and Sections 6.3 and 11.4 below, defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or as a result of claims by third parties ( “Claims”) relating to any actual or alleged breach by Claudia Veja Images of its warranties set forth in Section 5.1(ii)-(iv) above. Claudia Veja Images shall have no obligation under this Section 6.1 for any Claims that arise out of or are a result of: (i) Licensee’s modification, overlay or re-focusing of the Licensed
Material, where the Claim would not have arisen but for the modification, overlay or re-focusing made by Licensee; (ii) the context in which Licensed Material is used in a Licensee Work; where the Claim would not have arisen but for such context; or (iii) Licensee’s failure to comply with the terms of this Agreement. The foregoing states Claudia Veja Images' entire indemnification obligation under this Agreement.
6.2 Licensee shall, subject to the terms of Section 6.3 below, defend, indemnify and hold harmless Claudia Veja Images and its parent, subsidiaries, commonly owned or controlled affiliates, and content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), 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.
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 as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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 and Claudia Veja Images shall not be liable for any losses arising from Licensee's failure to discontinue use pursuant to Section 11.4 below.
7. 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(i) above, Claudia Veja 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.
8. License Cancellation Fee. If Licensee or Purchaser requests in writing to cancel this Agreement within 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, Claudia Veja Images may cancel this Agreement and issue a credit to Licensee's or Purchaser's account or credit card as follows: (i) with respect to non-footage Licensed Material only, an amount up to 100% of the License Fee may be credited if the request is received within 7 days of receipt of the Licensed Material; or (ii) an amount up to 50% of the License Fee may be credited if the request is received between 8 and 30 days of receipt of the Licensed Material (or any time within the first 30 days for footage); in each case an administration fee of US$50 (or local currency variation) will be charged. No credits are available for any cancellation request received after 30 days from receipt of Licensed Material. Nothing in this Section 8 shall apply to research, lab, service, or subscription fees which shall be payable according to the terms stated on the Invoice and shall be non-refundable.
9. Electronic Invoicing; Interest on Overdue Invoices. Licensee and Purchaser agree to receive invoices from Claudia Veja Images electronically via the email address associated with Licensee’s and/or Purchaser’s Claudia Veja Images account. If Licensee fails to pay Claudia Veja Images' Invoice in full within the time specified in the Invoice, Claudia Veja 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.
10.1 Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Claudia Veja 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 Claudia Veja Images' other remedies under this Agreement, Claudia Veja Images reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times Claudia Veja Images' standard license fee for the unauthorized use of the Licensed Material. Claudia Veja Images reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from Claudia Veja Images relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Claudia Veja Images, return to Claudia Veja Images the Licensed Material and, in the case of termination by Claudia Veja Images for cause, the Licensee Work in the possession or control of Licensee.
10.2 Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Claudia Veja Images. In addition, upon reasonable notice, Claudia Veja 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. If any such audit reveals an underpayment by Licensee to Claudia Veja Images 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 Claudia Veja Images the amount of such underpayment, Licensee shall also reimburse Claudia Veja Images for the costs of
conducting such audit. Where Claudia Veja Images reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Claudia Veja Images' request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Claudia Veja Images.
10.3 Electronic Storage. For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of Claudia Veja Images, the Licensed Material's identification number and any other information as may be embedded in the electronic file containing the original Licensed Material. 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.
10.4 Withdrawal. Upon notice from Claudia Veja Images, or upon Licensee's knowledge, that any Licensed Material may be subject to a claim of infringement of another's right for which Claudia Veja Images may be liable, Claudia Veja Images may require Licensee to immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. Claudia Veja Images shall provide Licensee with comparable Licensed Material (which comparability will be determined by Claudia Veja Images in its reasonable commercial judgment) free of charge, but 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 New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be finally settled by binding arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association ("AAA") or of the International Chamber of Commerce ("ICC") (the applicable rules to be at Licensee’s discretion) to be held in one of the following jurisdictions (whichever is closest to Licensee): Seattle, Washington; New York, New York; Los Angeles, California; London, England; Paris, France; Frankfurt, Germany; Tokyo, Japan; or Singapore. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Claudia Veja 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 Claudia Veja Images, such action is necessary or desirable.
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 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.
10.8 Entire Agreement. This Agreement is intended for business customers of Claudia Veja Images and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Claudia Veja Images and accepted in writing by an authorized representative of Licensee. 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.
10.9 Taxes. All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).
10.10 Claudia Veja Images PFA (Persona Fizica Autorizata) equivanent of a DBA (Doing Business As) from USA .