End User License Agreement
This End User License Agreement incorporates and is governed by: (a) the following terms and conditions, (b) the Content-specific invoice ("Invoice"), and (c) the Content-specific online webpage(s) located at cncollection.com ("Content Specific Web Page") (collectively, the "Agreement"). This Agreement governs access and use of all images and other material (collectively, "Content") available from Condé Nast at each Content Specific Web Page. By obtaining, using or paying for any Content from Condé Nast, licensee agrees to the license terms contained herein, including payment of the applicable license fee on a per-use basis, and agrees to be bound by and comply with all of the terms of the Agreement.
1. Definitions: All capitalized terms shall have the meaning set forth in this Section 1 or otherwise defined herein.
(a) "End Use" means the final work product created with the Content as authorized hereunder and as specified on the Invoice.
(b) "License" means the permission granted by Condé Nast to Licensee to use the Content as specified in and subject to the terms and conditions of the Agreement.
(c) "Images" and "Footage" mean all images and footage clips, respectively, and related informational materials in any medium obtained from or furnished by Condé Nast hereunder, including without limitation related metadata, text, captions, or information.
2. Parties: This Agreement is binding between Advance Magazine Publishers Inc. d/b/a Condé Nast ("Condé Nast") and Licensee. "Licensee" means: (a) the individual listed as the registrant of the Condé Nast Content Specific Web Page account through which the License is granted ("Registrant"), and (b) if Registrant is entering into this Agreement for the benefit of, or as an agent on behalf of, Registrant´s employer ("Employer") or a third party ("Principal"), then such Employer or Principal. If Registrant is entering into this Agreement for the benefit of his/her Employer, or as an agent on behalf of Principal, then Registrant (x) represents and warrants that such Employer or Principal has authorized Registrant to enter into this Agreement, that the Licenses granted hereunder are on such Employer´s or Principal´s behalf, that such Employer or Principal has agreed to be bound hereby; (y) represents and warrants that the Content and End Use is solely for the benefit of Employer or Principal, and that Registrant will not use the Content or End Use for the benefit of any other person or entity without entering into a separate License with Condé Nast; and (z) hereby acknowledges and agrees that in the case of an agent/Principal relationship, Registrant shall be jointly and severally liable for any breach of the terms of this Agreement by Principal.
(a) Generally: Any and all Licenses granted by Condé Nast are conditioned upon Licensee´s compliance with all material provisions of this Agreement, including without limitation Condé Nast´s receipt of full payment of the applicable Invoice.
(b) Who May Use the Content: The Licenses granted are limited and Licensee may not sell, rent, loan, give, sublicense, assign or otherwise transfer the Content or any right to use the Content except as may otherwise be specifically stated herein or on the applicable Invoice, and only insofar as the Content has been incorporated into the permitted End Use. Only Licensee may use the Content and the End Use must be solely for Licensee´s own use. Licensee´s employees and contractors (if any) may use the Content as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that Licensee remains liable for any breach of the terms of this Agreement by such employee(s) or contractor(s).
(c) License for Rights Managed Content: This Agreement is for rights managed Content, licensed for a fee on a per-use basis. Subject to the terms and conditions of this Agreement, Condé Nast grants Licensee a limited, non-exclusive right to incorporate the Rights Managed Content licensed hereunder in the End Use solely as specified in the Invoice, and as limited in the Content Specific Web Page(s). Licensee may distribute, publish, display or otherwise exploit the End Use for the length of time and in the manner as specified on the applicable Invoice. In the event that the applicable Invoice does not specify the length of time or manner of use, then the following restrictions apply to the License granted:
(i) the License is for one (1) year from the date the applicable Invoice is issued,
(ii) the License is to incorporate the Content into the End Use for editorial use only and not for any advertising, promotion or publicity or in any serializations or other derivative work without Condé Nast´s prior written consent.
(d) Alterations to Content: (1) When using the Content, Licensee is solely responsible for, and shall indemnify Condé Nast for any claims related to or arising from any modifications to or alterations of the Content (except for standard color correction or minor cropping for space limitations) or to the caption information; (2) Images in the Content shall not, under any circumstances, be manipulated, altered, or changed in a manner that compromises the editorial integrity of the images, or combined with other images, including overlay type, cropping (except as permitted above), retouching or other modifications, without Condé Nast´s express prior written permission.
4. Ownership of Intellectual Property: Condé Nast (or its Content sources, to the extent applicable) retain all right, title, and interest in and to all of the copyrights and any other proprietary rights in the Content. As between Condé Nast and Licensee, no rights in any Content are granted to Licensee except the Licenses specified in this Agreement. Any right, title or interest arising in any compilation or derivative work created using any Content shall not entitle Licensee to use any Content except as permitted hereunder.
5. Releases and Clearances: Content may contain listed restrictions (either on the Invoice or Content Specific Web Page), including, without limitation, restrictions as to time, manner, industry and territory of use, and required pre-approval by depicted people or their representatives. Subject matter depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. Except as may be specifically stated in the Invoice or the Content Specific Web Page applicable to the licensed Content, the rights Condé Nast grants to Licensee do not include a license to, and Condé Nast makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. Licensee is solely responsible for determining whether Licensee´s use of any Content requires the consent of any other party or the license of any additional rights. Licensee is solely responsible for obtaining any and all releases and clearances as may be required, including without limitation (a) rights from any representative guild, union, professional organization, or other authorized representative; and (b) if any music is included in the Content, master use, synchronization and performance licenses from the copyright proprietors of the applicable master recording(s) and composition(s) and such other persons, firms or associations, societies or corporations as may own or control the performing or other rights. Licensee is responsible for consulting with its own legal counsel to determine whether additional rights are needed for the intended End Use. Licensee may not rely on any statements made by any Condé Nast employee or representative other than those made in the Agreement.
6. Limited Warranty and Disclaimer:
(a) Condé Nast hereby warrants that:
(i) the Content, when used as authorized under this Agreement, will not infringe the rights of the copyright holder of the Content;
(ii) it has sufficient rights to enter into this Agreement and grant the rights provided herein; and
(iii) the digital copy of the Content provided by Condé Nast will be free from defects in material and workmanship (but not visual artifacts inherent in the original Content). Ninety (90) days following delivery, Condé Nast will, as Licensee´s exclusive remedy for Licensee´s inability to use any Content as the result of such material and workmanship defects, provide a replacement of the digital copy of such Content or, in Condé Nast´s sole discretion, terminate the License and refund any fee actually paid by Licensee to Condé Nast, provided Licensee has not made any use the Content.
(b) Condé Nast makes no warranties, nor shall Condé Nast be liable, for any claims related to or arising from Licensee´s use of Content which:
(i) except for the explicit warranties stated in Section 6(a) above, arise from any third party rights, including without limitation any copyright, trademark, trade dress, personality right or right of privacy, depicted in the subject matter of the Content or as specified in Section 5 above;
(ii) but for Licensee´s modification of such Content or combination of such Content with other Content, products, text, content or materials, such claims would not have arose; or
(iii) arose after Condé Nast has otherwise notified Licensee not to use the applicable Content.
(c) While Condé Nast makes efforts to use accurate caption information, Condé Nast does not warrant that such information is accurate. Condé Nast provides Licensee with its online system on the Content Specific Web Page on an "as is" basis without warranty of any kind, including warranty of continued access or availability or against interruption of service.
EXCEPT AS IS EXPRESSLY STATED HEREIN, CONDé NAST, ON BEHALF OF ITSELF AND ITS CONTENT SOURCES MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Condé Nast´s Indemnification of Licensee: Condé Nast agrees to indemnify and hold harmless Licensee, its officers, directors and employees (collectively, the "Licensee Indemnified Parties") from any and all loss or damage arising out of any claim by a third party based on Condé Nast´s breach of the warranties in Section 6 ("Licensee Claim") by paying that portion of the final judgment (including reasonable outside attorneys´ fees and costs awarded, if any) entered against the Licensee Indemnified Parties by a court of competent jurisdiction on such Licensee Claim. Condé Nast shall have the right, but not the obligation to defend and control the defense of any such Licensee Claim and to choose counsel for such purpose, provided that the Licensee Indemnified Party may participate at its own cost and expense. Notwithstanding the preceding, Condé Nast shall have no obligation under this Section 7 if Licensee does not provide Condé Nast with prompt written notice of Licensee´s receipt of any Licensee Claim and such delay impairs Condé Nast´s ability to defend its rights. Condé Nast will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the part of any Licensee Indemnified Party without Licensee´s prior written consent. Condé Nast will not settle any Licensee Claim on any Licensee Indemnified Party´s behalf or publicize any settlement without Licensee´s prior written consent.
8. Licensee´s Indemnification of Condé Nast: Licensee agrees to indemnify and hold harmless Condé Nast and its officers, directors and employees (collectively, the "Condé Nast Indemnified Parties"), from any and all loss or damage arising out of any claim by a third party based on (i) Licensee´s material breach of any terms, conditions or restrictions of this Agreement, (ii) to the extent that it gives rise to the claim, Licensee´s use or modification of any Content, or combination of any Content, with any text or other content, (iii) Licensee´s failure to obtain from third parties all permissions necessary to use the Content, and (iv) Content which Condé Nast has notified Licensee not to use (collectively, the "Condé Nast Claim") by paying that portion of the judgment (including reasonable outside attorneys´ fees and costs awarded, if any) entered against the Condé Nast Indemnified Parties by a court of competent jurisdiction on such Condé Nast Claim. Licensee shall have the right, but not the obligation to defend and control the defense of any such Condé Nast Claim and to choose counsel for such purpose, provided that the Condé Nast Indemnified Party may participate at its own cost and expense. Notwithstanding the preceding, Licensee shall have no obligation under this Section 8 if Condé Nast does not provide Licensee with prompt written notice of Condé Nast´s receipt of any Condé Nast Claim and such delay impairs Licensee´s ability to defend its rights. Licensee will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the part of any Condé Nast Indemnified Party without Condé Nast´s prior written consent. Licensee will not settle any Condé Nast Claim on any Condé Nast Indemnified Party´s behalf or publicize any settlement without Condé Nast´s prior written consent.
9. Limitation of Liability: EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER CONDÉ NAST NOR ANY CONDÉ NAST SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, JOINT VENTURE, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SOURCE, AGENT OR SUBAGENT 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 CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL CONDÉ NAST'S OR ANY ITS SUBSIDIARIES´, SUCCESSORS´, PREDECESSORS´, PARENTS´, JOINT VENTURES´, AFFILIATES´, OFFICERS´, DIRECTORS´, EMPLOYEES´, CONTRACTORS´, CONTENT SOURCES´, AGENTS´ OR SUBAGENTS´ TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY CLAIMING THROUGH LICENSEE ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE´S USE OF ANY CONTENT PROVIDED HEREUNDER, EXCEED THE LESSER OF (X) $25,000 AND (Y) FIVE TIMES THE LICENSE FEE PAYABLE UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
10. Unauthorized End Uses:
(a) Content may not be used as a trademark or logo, for use as pornography, unlawful purpose or use in a manner that defames any person, or violates any person´s right of privacy, publicity or moral rights, or infringes upon any copyright, trade name, trademark or other right. Licensee does not acquire, and shall not claim, any rights in the Content itself apart from the End Use. Licensee may not use any Content in any manner prohibited by any export laws, restrictions or regulations. Unauthorized use of Content may constitute infringement of copyright and other applicable rights and shall entitle Condé Nast to seek all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. Condé Nast in its sole discretion reserves the right to pursue any damages or other remedies Condé Nast may be entitled to under applicable law. The foregoing is not a limiting statement of Condé Nast´s or its Content sources´ rights or remedies in connection with any unauthorized use of the Content or breach of the Agreement.
(b) Condé Nast reserves the right to withdraw any image from its Content Specific Online Webpage library at any time at its sole discretion and agrees to extend its best efforts to notify Licensee of such removal. Upon notification by Condé Nast of the withdrawal of an image from Condé Nast´s Content Specific Online Webpage library, Licensee agrees to extend its best efforts to remove the withdrawn image received from Condé Nast from any and all of Licensee´s print media in which the withdrawn image was included so long as notice is provided by Condé Nast prior to printing. Licensee further agrees to extend its best efforts to immediately remove the withdrawn image from all electronically distributed media and to destroy all electronic and physical copies of withdrawn images. Condé Nast agrees to credit Licensee an amount equal to the license fee paid by Licensee to Condé Nast for the withdrawn image if the image is withdrawn prior to publication.
(c) Licensee may not use the Content in any manner that would be deemed offensive to a person pictured in the Content (a
Subject"). Offensive uses include but are not limited to the use of an Image that involves or implies illegal activities, adverse medical conditions or procedures, other adverse health or mental health issues, substance abuse, welfare or economic aid, dating agencies, sexual preference, teen pregnancy, abortion and adoption, political or religious affiliation, smoking or alcohol usage, feminine hygiene, incontinence, or impotence. If any Image featuring a Subject is used in: (i) a manner that would lead a reasonable person to believe that the Subject personally uses or endorses a product or service; or (ii) in connection with a topic that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person so pictured is a model and the Image is used for illustrative purposes only.
11. Payment/Reporting: If credit is granted to Licensee so that Licensee may obtain the Content before paying the fees hereunder, then the following shall apply: Licensee hereby agrees to and is required to pay Condé Nast for all Content that Licensee obtains, regardless of whether Licensee uses the Content unless cancelled pursuant to Section 12 below. Payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days. Condé Nast may change its payment terms at any time on notice to Licensee.
(a) By Licensee: If Licensee requests in writing to cancel this Agreement within thirty (30) days of the date that Licensee receives the Content licensed under this Agreement, and such Content has not been used, Condé Nast may cancel this Agreement and issue a credit to Licensee´s account or credit card as follows: (i) an amount up to 100% of the License fee may be credited if the request is received by us within 7 days of Licensee´s receipt of the Content; or (ii) an amount up to 50% of the License fee may be credited if the request is received by between 8 and 30 days of Licensee´ receipt of the Content. No credits are available for any cancellation request received after thirty (30) days from receipt of Content. Nothing in this paragraph shall apply to research, lab, service, or subscription fees (if any) which shall be payable according to the terms stated on the Invoice and shall be non-refundable.
(b) By Condé Nast: Condé Nast may, without further obligation or any liability to Licensee or any other person or entity, terminate this Agreement and Licensee license to use the Content by written notice 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 person or entity covered by the license granted to Licensee under this Agreement shall have any further right to make any use of the Content.
13. Copies: At Condé Nast´s reasonable request, Licensee shall provide to Condé Nast free of charge one (1) copy of any End Use made of the Content as authorized hereunder to verify License compliance. In addition, upon consent by Condé Nast, Licensee hereby allows Condé Nast to use, without charge, Licensee´s End Use in displays and presentations for Condé Nast´s marketing purposes, solely to demonstrate how Licensee has used the Content.
14. Taxes: All amounts due for the licensing of Content are reflected before any Applicable Sales Tax, for which Licensee is solely responsible. "Applicable Sales Tax" means any sales tax, use tax, value added tax, goods & services tax or any other similar tax computed on an ad valorem basis. Condé Nast will add any Applicable Sales Tax to its Invoice when required to do so.
15. Footage: All Content that is Footage is licensed by the "cut" unless specifically noted. A "cut" shall be defined as one continuous scene from camera start to camera stop.
16. Storage of Content: In producing the End Use as authorized hereunder, Licensee shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized End Use. Upon termination and/or expiration of the License, Licensee agrees to cease use of all Content and shall promptly delete or destroy any digital copies.
17. Protection of Content: If use of Content is permitted on the Internet, or any other online or interactive media, Licensee shall use commercially reasonable efforts to protect the Content to ensure that it cannot be copied, and in the case of Footage, ensure that it remains in the linear production for which it was licensed and cannot be searched by shot and downloaded in broadcast or substantially comparable quality. Licensee may not make the Content available in any medium in a manner intended to allow or invite a third party to download, extract, or access any of the Content as a standalone file.
18. Credit Line and Copyright Notice: Whenever Licensee makes editorial use of Images, with each publicly distributed use of the Content, Licensee shall include a copyright notice and credit adjacent to each Image, or in a manner consistent with industry standards (in the format: "Photographer / Brand; © Condé Nast"), or as specified on the Content Specific Web Page, or as specified in the Invoice. Receiving credit is a material aspect of the Agreement for Condé Nast. For commercial uses, Licensee agrees to include the credit described above when such crediting is customary and appropriate. In the case of Footage, Licensee shall provide copyright attributions in the production and on-screen credits as specified in the Content Specific Web Page or in the Invoice equal in all respects to any credit accorded to any other provider of comparable services.
19. Notification of Misuse: Licensee will immediately notify Condé Nast if it becomes aware or suspects that any third party that has gained access to the licensed Content through Licensee is wrongfully using the Content, in whole or in part, or is violating any of Condé Nast's intellectual property rights, including, but not limited to, trademarks, trade names, trade dress, service marks, and copyrights.
20. Choice of Law / Jurisdiction / Attorneys´ Fees: This Agreement and any dispute, litigation, claim, lawsuit, or controversy that arises under or is related to this Agreement, the relationship between the parties, or the interpretation or enforcement of the rights or duties of the parties herein, will be governed by the laws of the State of New York and by applicable federal law (including, without limitation, Titles 15 (Commerce and Trade) and 17 (Copyrights) of the United States Code, as amended). The parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York City, New York, regardless of conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. In any dispute between Condé Nast and Licensee, the prevailing party shall be entitled to recover its reasonable attorneys´ fees.
21. Confidentiality: During the term of this Agreement, either party ("Disclosing Party") may provide the other party ("Receiving Party") with certain pricing, technical, marketing and other confidential information. The Receiving Party agrees to maintain the confidentiality of any Confidential Information and shall not use or disclose the same without the prior written consent of Disclosing Party. "Confidential information" includes any information that is either designated as confidential by Disclosing Party or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
22. Trademarks: Except for credits as required above, neither party may use the other party´s trademarks or service marks without such party´s prior written consent.
23. Survival: Notwithstanding any termination or expiration of this Agreement, all terms and conditions of this Agreement which by their terms or their nature should survive any such termination or expiration, shall so survive, including but not limited to Sections 3-5, 6(b) and (c), 8, 9, 14, 17-20, 24 and 25.
24. Audit and Compliance: Upon reasonable notice, Licensee shall provide sample copies of Images or Footage as used by Licensee, including any End Use. In addition, upon reasonable notice, Condé Nast 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 Content in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to Condé Nast of 10 percent or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Condé Nast the amount of such underpayment, Licensee shall also reimburse Condé Nast for the costs of conducting such audit. Where Condé Nast reasonably believes that Content is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Condé Nast's request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Condé Nast.
25. Miscellaneous: If either party´s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, act of public enemies, or any other matter not within such party´s reasonable control, then the date for performance shall be extended by the time of such delay. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that Licensee may not assign or transfer this Agreement without Condé Nast´s prior written consent and any purported assignment without consent shall be null and void. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Condé Nast, provided that no purchase order or similar document issued by Licensee shall modify this Agreement even if signed by Condé Nast.