RIGHTS MANAGED License Agreement
As used in this Agreement, Content means, collectively, (a) any photographic image, still image(s), moving images, animations, films, videos or other audio/visual representations recorded in any format, and (b) music, sound and sound effects recorded in any format, that are controlled by or obtained, directly or indirectly, from Thought Equity Motion. The various rights restrictions for the Content licensed pursuant to this Agreement are set forth on the applicable Invoice accompanying this Agreement.
1. Grant of Rights Managed License to the Content. In consideration of payment of the Licensee Fee by Licensee and subject to the terms of this Agreement and any restrictions noted in the specific Invoice for the Content, you are granted a non-exclusive, non-transferable, non-sublicensable rights managed license to use, reproduce, create derivative works, perform and distribute the Content as part of another work in any medium for the term as set forth on the Invoice. Anything you produce using the Content must be for your own use, or for the use of your employer, client or customer, who must be the end-user of your work. Please review our Legal Issues and Copyright Clearance Checklist
2. License Fee. The license fee charged for Content will depend upon your particular use as set forth on the Invoice, which includes the relevant rights restrictions associated with Content which are incorporated into the terms of this Agreement by reference.
3. Single User License. The Content may only be used by you as Licensee as a single user and may not be shared, transferred, leased, licensed, sold, sublicensed or otherwise distributed by you, except as part of and in connection with the display of your derivative work. This Agreement is not intended for multiple users or uses of the Content and only one user may access the account licensing the Content or use the Content as licensed hereunder. If the Content is used outside the rights restrictions set forth on the Invoice or by multiple users Thought Equity Motion shall be entitled to enforce its rights under this agreement including all equitable and legal remedies available for copyright infringement. Please contact Thought Equity Motion for a multi-seat, multi-user or multi-site license if you need to use the Content over a network for multiple users or to share with other locations of your company.
4. Payment. All orders must be paid by credit card, unless explicitly approved in writing by Thought Equity Motion for credit terms. Acceptable credit cards are: VISA, MasterCard, Discover and American Express. Content will not be shipped or considered licensed until credit charges or terms have been approved. All Content sales are final and cannot be returned. Except for material defects (see the Limited Warranty below), there are no refunds on Content sales. Prices, offers and products are subject to availability and may change. It is agreed that a failure to pay the Licensee Fees on the Invoice will be considered a material breach of this Agreement and if payment is not made in accordance with this Agreement, including the terms on the Invoice, Thought Equity Motion shall have the right to revoke the license and you and your end users must cease using any Content as soon as possible and/or charge interest at the rate of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, each in Thought Equity Motion’s sole discretion. You shall have no obligation to use the Content; however, payment is still required for any Content whether or not such Content is used.
5. Express Delivery. For deliveries on Tape or DVD or other physical media, rather than downloading, you agree to pay, in addition to our costs, any express delivery charges described on the Invoice. Express delivery is by UPS, FedEx or other express delivery service as mutually agreed to by the parties.
6. Termination of License. If you do not comply with the terms and conditions of this Agreement, then this Agreement and the Licenses granted hereunder will automatically terminate and you and any of your end-users must cease using any Content immediately and delete, destroy and/or return all copies of the Content to Thought Equity Motion and to the extent possible and within Licensee’s control, cease future use of the Footage in derivative works. Such termination will not affect your payment obligations under this Agreement.
7. Revocation of License. Thought Equity Motion reserves the right to revoke the license to use any Content for good cause and may elect to replace it with alternative Content. Upon notice of any revocation of a license for any Content. You agree to cease using such Content immediately and will take all reasonable steps to discontinue the use of the revoked Content in your derivative works and will inform all of your end-users and customers of the same.
8. Condition of Content. You should examine all Content for possible defects (whether digital or otherwise) before licensing it. Thought Equity Motion shall not be liable for any loss or damage suffered by you or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Content or in any way from its reproduction.
9. Unauthorized Use. Any use of Content by you or your customers in a manner not expressly authorized by this Agreement or in breach of any term of this Agreement constitutes copyright infringement, entitling Thought Equity Motion to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any breach or alleged breach of this Agreement or any term of this Agreement, including any claims by third parties. In addition to the foregoing and without prejudice to Thought Equity Motion’s other remedies under this Agreement, Thought Equity Motion reserves the right to charge you and you agree to pay a fee equal to five times Thought Equity Motion’s then-current normal license fee for use of the Content.
10. Taxes and Duties. You are responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the license granted to you, or your use of the Content, pursuant to this Agreement in addition to the price paid for Thought Equity Motion’s Content.
a. You are not allowed to sub-license, sub-distribute, resell, re-record, transfer, assign, sell, resell, redistribute or provide to others any portion of the Content or its accompanying materials except as part of Licensee’s derivative work. The Content may not be shared by creating a database, disc library, image, video or audio storage jukebox, network configuration or similar arrangement. The Content may not, in whole or in part, and any derivative work thereof may not be used, sold, licensed, reproduced, distributed or displayed or made available as (a) templates, (b) stand-alone backgrounds, (c) stock elements or effects imagery elements, (d) downloadable files or (e) any other clip media/stock product, each as part of another library, collection, or set of clips for distribution or resale. Except as permitted herein, you may not post any Content on any electronic bulletin board, post it on-line in a downloadable or FTP format, or use it in a website at a resolution higher than 72 dpi.
b. Content may not be modified, reconfigured or repurposed for use in any mobile-directed websites or mobile applications that are specifically created for viewing of Content on mobile devices, without obtaining the prior written consent of Thought Equity Motion.
c. Unless otherwise set forth in the Invoice, Licensee may not reproduce the final product or derivative work containing the Content in any secondary work such as compilations or screen shots, such reproduction requires an additional license fee.
d. You may not use the Content in any way that might be considered defamatory, libelous, obscene, immoral or illegal. This includes the use of the Content for pornographic purposes. The Content may not under any circumstances be used in a way that would defame, malign, slander, asperse, libel, or vilify any persons, property, countries, races, customs, cultures, religions, governments or military visible in the Content or the copyright owners of the Content. Content shall not be incorporated into a logo, trademark or service mark. All copyrights, trademarks and service marks remain the exclusive property of the copyright, trademark or service mark owner. If there are any incidental trademarks or logos contained in the Content, you may not alter or use such marks in any way which implies an association with or an endorsement by the owner(s) of such logos or trademarks, and the inclusion of these incidental trademarks in the Content does not in any way imply such association with or endorsement of this Content.
e. Any audio or music to certain performances that are included as part of or embedded in any motion/video content is ambient sound only and may require additional clearances from the performer of such audio or music. Unless authorized in writing by Thought Equity Motion authorizes no such use of copyrighted music or performances as embedded in any motion/video Content.
f. Nothing contained herein shall be deemed to constitute a waiver of any fee which shall become due and payable as a result of the use of any Content that is music, sound or sound effect, as contemplated by this Agreement, to the relevant performing rights or collection society, such as ASCAP or BMI, or other society or organization with jurisdiction in one or more foreign countries. Licensee hereby agrees to submit, and to instruct any third party acquiring rights to the Content or any derivative work using the Content to submit, to all relevant performing rights and collection societies in any part of the world in which the use is to be broadcast, performed, transmitted or otherwise distributed, such information as requested in order to enable such performing rights and other societies to monitor and administer those performing rights and similar fees payable to the copyright owners of any Content that is music, sound or sound effect embodied in the use.
g. You may not use the title or subtitle of the Content as the title of an item that incorporates the Content.
h. You may not use the Content in any downloadable format intended for multiple distribution, including without limitation and by way of clarification, a product that enables an end-user to create his/her own soundtrack using the Content, in a template-based system that resells products including the Content, or in a “build-it-yourself” media tool. You may not use the Content as a component of a larger musical composition, including but not limited to, “sample-based” musical productions. To find out about a special license for these purposes, please contact Thought Equity Motion.
i. If the Content is used in connection with promoting any product or service, any Content featuring a model that is used in a manner that (i) would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) would be defamatory or offensive to a reasonable person, you must accompany such use with a statement that indicates that the person so pictured is a model and is used for illustrative purposes only.
j. Content shall not be used contrary to any restriction on use that you are notified of prior to or at the time the Content is delivered to you. Such restrictions may be included in the information provided with the Content or in any other communication by Thought Equity Motion. Any such restriction provided to you shall be incorporated in this Agreement by reference.
k. The Content is strictly prohibited from being used as screen savers and Licensee may not rerecord any Content containing music or sound effects.
l. Special licensing to obtain additional rights is available by contacting Thought Equity Motion.
12. Releases and Clearances. Thought Equity Motion will notify you in writing where it has obtained a model release and/or a property release for Content. You agree not to use any Content in a politically partisan manner without written permission from Thought Equity Motion, such approval may be withheld for any reason. Except as specifically notified by Thought Equity Motion to you, Thought Equity Motion does not provide any copyright clearance or model or property releases with respect to the Content and grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Content. You shall be solely responsible for determining whether a clearance or release is required in connection with any proposed use of such Content. You acknowledge that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes without their consent. Thought Equity Motion makes no representations or warranties as to whether or not any additional fees or payments may be due to any trade union, trade organization or model depicted in Content. Please review our Legal Issues and Copyright Clearance Checklist.
13. Electronic Storage. For all Content that you take delivery of in electronic form, you must retain the copyright symbol, the name of Thought Equity Motion and the image number or other identification number associated with the Content as may be included as part of the electronic file. You may not make additional high-resolution copies of the Content, except for normal backup and archiving purposes, and you will maintain a robust firewall to safeguard against unauthorized third-party access to the Content. Upon the expiration or earlier termination of this Agreement, you shall promptly delete the Content from your computers or other electronic storage systems and shall ensure that your sub-contractors do likewise.
14. Inspection. Upon reasonable notice, Thought Equity Motion may inspect any records, accounts and books relating to the use of any of the Content to ensure that the Content is being used in accordance with this Agreement. Thought Equity Motion reserves the right to monitor Licensee’s downloads from its website and suspend and/or terminate Licensee’s account privileges if Licensee, in Thought Equity Motion’s sole discretion, continues to violate the terms of any license agreement with Thought Equity Motion.
15. Copyright and Copyright Notice. All Content is copyright Thought Equity Motion or its licensors and is protected by United States Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Content are transferred to you. Thought Equity Motion and its licensors retain all rights not expressly granted by this Agreement. You agree to provide copyright attribution as requested.
16. Credit. When incorporating the Content in print, film features, broadcast productions, or video products, Thought Equity Motion requests a credit line that reads “Motion Content provided by Thought Equity Motion” or “Motion Imagery provided by Thought Equity Motion” or “Thought Equity Motion.”
17. Withdrawal. Thought Equity Motion shall have the right to withdraw Content because of actual or threatened litigation with respect to the Content; circumstances involving any third party creative or financial participants in the Content; any binding declaration or order issued by an competent court or government authority that prevents the content from being distributed; or any reason beyond Thought Equity Motion’s control. Thought Equity Motion shall give you as much advance notice as practicable of any such withdrawal. You acknowledge that Thought Equity Motion’s right to withdraw content pursuant to this paragraph is of a special and unique character which gives it a peculiar value and that your license or other exploitation of content after the effective date of a notice of withdrawal could cause Thought Equity Motion irreparable injury and damage. You, therefore, agree that in addition to any right or remedy granted Thought Equity Motion hereunder, Thought Equity Motion shall be entitled to injunctive and other equitable relief against you to prevent any exploitation after the effective date of a notice of withdrawal. In the event of any notice of withdrawal by Thought Equity Motion, you agree to physically remove the Content from your premises, computer systems and storage (electronic or physical) and, to the extent possible, cease any future use at your own expense.
18. LIMITED WARRANTY. THOUGHT EQUITY MOTION WARRANTS (A) IT HAS ALL NECESSARY RIGHTS AND AUTHORITY TO ENTER INTO AND PERFORM UNDER THIS AGREEMENT; AND (B) THE CONTENT TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 30 DAYS FROM THE DATE OF LICENSE SALE.
19. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, THOUGHT EQUITY MOTION, ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE IN TRADE.
20. EXCLUSIVE REMEDY. THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE LIMITED WARRANTY IS THE REPLACEMENT OF THE CONTENT OR REFUND OF THE PURCHASE PRICE, AT THOUGHT EQUITY MOTION’S OPTION.
21. LIMITATION OF LIABILITY. THOUGHT EQUITY MOTION’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY YOU AND UNDER NO CIRCUMSTANCES SHALL THOUGHT EQUITY MOTION BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGE. THE PRICE STATED FOR THE CONTENT IS A CONSIDERATION IN LIMITING THOUGHT EQUITY MOTION’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
a. You are at least eighteen years of age and have the full right and authority to enter into this License on behalf of you and/or your company, employer or principal;
b. You do not reside in any country to which export of US products are prohibited or restricted and you may not ship, transfer or export any of the Content into any country or use any of the Content in any manner prohibited by any laws, restrictions or regulations;
c. You will not use the Content in any way that is not permitted by this License;
d. Your use of the Content will not violate any applicable law or regulation of any country, state, or other governmental entity;
e. The information that you provide to Thought Equity Motion is accurate and true, including, without limitation, all credit card or other payment information and you shall update such information as necessary;
f. You are solely responsible for determining whether your use of any Content requires the consent of any other party or the license of any additional rights. If you are unsure whether additional rights are needed for your use of the Content you are responsible for consulting with competent legal counsel; and
g. If you are acting as an agent, you represent and warrant that you have authority to enter into the terms of this Agreement and you have full power to bind Licensee.
23. Indemnification. A) You assume full responsibility for the use of the Content. You agree to defend, indemnify and hold Thought Equity Motion (including its licensors, officers, directors, employees, affiliates, successors, assigns, distributors and agents) harmless against all claims, lawsuits, demands, damages, torts, loss, liability, or expenses (including reasonable attorneys’ fees) arising out of your use of the Content, by reason of any breach or alleged breach of the terms and conditions and warranties of this Agreement by you, your end-users or customers, or your failure to obtain any releases or pay any amounts owed to any trade association, guild or similar organization, if applicable, for your use of the Content. B) Provided that the Content is only used in accordance with this Agreement, including the terms set forth in the Invoice, and you are not otherwise in breach of this Agreement, Thought Equity Motion shall defend, indemnify and hold you harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable outside 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 Thought Equity Motion is in breach of its warranties set forth in section 18 above. The foregoing states Thought Equity Motion’s entire indemnification obligation under this Agreement and Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in section 18 above.
24. Claim Process. The party seeking indemnification pursuant to Section 23 shall promptly notify the other party of such claim. At the indemnifying party's option, the indemnifying party may assume the handling, settlement or defense of 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 legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
25. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
26. Consent to Jurisdiction. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the State of Colorado.
27. Choice of Law. This Agreement will be governed in all respects by the laws of the State of Colorado, U.S.A., without reference to its laws relating to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Thought Equity Motion 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 you in the event that, in the opinion of Thought Equity Motion, such action is necessary or desirable.
28. Copy of Usage. To ensure compliance with the terms and conditions of this agreement, Licensee agrees that upon completion of the final version of this production and upon request of Thought Equity Motion, you shall furnish Thought Equity Motion with a copy of such work at no cost. To the extent possible, this delivery shall be made prior to distribution of this final work and on one of the following formats: BetaSP, Digital Betacam or DVD.
29. Enforcement of Rights. You agree to reimburse Thought Equity Motion for its legal fees, costs and disbursements if Thought Equity Motion is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
30. Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.