THIS IS A LEGAL AGREEMENT BETWEEN LICENSEE, PURCHASER (IF ANY) AND THE ARTIST OR
COPYRIGHT HOLDER. THIS AGREEMENT APPLIES TO LICENSES ISSUED ELECTRONICALLY, AND
IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL
(THE "AGREEMENT").
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Definitions.
In this Agreement the following definitions apply:
1.1 Invoice means the invoice provided by ArtSales.com.au or The
Artist/Rights Holder that may include, without limitation, the Licensed Material
selected, any limitations on the license in addition to those specified herein and
the corresponding price for the license of such Licensed Material. The Invoice shall
be incorporated into this Agreement and all references to the Agreement shall include
the Invoice.
1.2 Licensed Material means any image, 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 The Artist/Rights
Holder 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.
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Grant of Rights.
Subject to the terms of this Agreement:
2.1 The Artist/Rights Holder grants to the Licensee a perpetual, non-exclusive,
non-transferable, non-sublicensable, worldwide right to Reproduce the Licensed Material
identified in the Invoice an unlimited number of times in any and all media for
all purposes other than those uses prohibited under Section 3 of this Agreement.
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.
Licensee must purchase additional licenses if there are more than ten (10) Users
before such additional use begins.
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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; (iii)
include the Licensed Material in an electronic template intended to be Reproduced
by third parties on electronic or printed products; or (iv) 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 devices, without obtaining the prior
written consent of The Artist/Rights Holder.
3.6 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, 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, defamatory or otherwise unlawful use of Licensed Material is strictly
prohibited, whether directly or in context or juxtaposition with specific subject
matter.
3.8 Licensed Material shall not be used contrary to any restriction on use provided
to Licensee, including, without limitation, any restriction provided to Licensee
prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions
may be included either in the information provided with the Licensed Material on
ArtSales.com.au's website or in any other written communication from ArtSales.com.au
or The Artist/Rights Holder. Any such restriction provided to Licensee shall be
incorporated into this Agreement.
3.9 If the Licensed Material is Reproduced in an editorial manner, Licensee must
include the following credit adjacent to the Licensed Material: "[Artist's name]/ArtSales.com.au"
or as otherwise notified by ArtSales.com.au and The Artist/Rights Holder.
3.10 While efforts have been made to correctly caption the subject matter of the
Licensed Material, ArtSales.com.au and Artist/Rights Holder does not warrant the
accuracy of such information.
3.11 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
3.12 shall serve to excuse Purchaser's obligation to make payment to The Artist/Rights
Holder for the Licensed Material.
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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, The Artist/Rights Holder grants Licensee no right or license,
express or implied, to the Licensed Material. In connection with the use of ArtSales.com.au
or any registered or recognized marks of Artist/Rights Holder or any other these
partie's trade names, trademarks, logos or service marks ("Marks"), Licensee acknowledges
and agrees that (i) ArtSales.com.au and The Artist/Rights Holder's Marks are and
shall remain the sole property of ArtSales.com.au and Artist/Rights Holder; (ii)
nothing in this Agreement shall confer upon Licensee any right of ownership in ArtSales.com.au
and The Artist/Rights Holder's Marks; and (iii) Licensee shall not now or in the
future contest the validity of ArtSales.com.au and The Artist/Rights Holder's Marks..
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Warranty and Limitation of Liability.
5.1 The Artist/Rights Holder warrants that: (i) it has all necessary rights and
authority to enter into and perform this Agreement; (ii) the Licensed Material will
be free from defects in material and workmanship for thirty (30) days from delivery
(Licensee's sole and exclusive remedy for a breach of this warranty being the replacement
of the Licensed Material); (iii) Licensee's use of the Licensed Material in its
original form and when used in accordance with this Agreement, will not infringe
on any copyright, moral right, trademark or other intellectual property right and
will not violate any right of privacy or right of publicity; and (iv) all necessary
model and/or property releases for use of the Licensed Material authorized under
this Agreement have been obtained. Neither ArtSales.com.au nor The Artist/Rights
Holder 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.
5.2 Neither ArtSales.com.au nor The Artist/Rights Holder 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 ArtSales.com.au nor The Artist/Rights Holder 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 ArtSales.com.au or The Artist/Rights Holder, 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.
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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, The Artist/Rights Holder 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 ArtSales.com.au
or The Artist/Rights Holder), 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 ArtSales.com.au or
The Artist/Rights Holder is in breach of its warranties set forth in Section 5 above.
The foregoing states ArtSales.com.au and The Artist/Rights Holder's entire indemnification
obligation under this Agreement.
6.2 Licensee shall defend, indemnify and hold ArtSales.com.au and The Artist/Rights
Holder 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 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.
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Condition of Licensed Material.
Licensee should examine all Licensed Material for possible defects (whether digital
or otherwise) before sending any Licensed Material for Reproduction. Without prejudice
to Section 5.1.(ii), ArtSales.com.au and The Artist/Rights Holder 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.
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Interest or Cancellation on Overdue Invoices.
If Licensee fails to pay The Artist/Rights Holder's invoice in full within the time
specified in the invoice, The Artist/Rights Holder 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 The Artist/Rights Holder also reserves the right,
at their sole discretion, to revoke the license if payment is not made in full on
time.
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Termination and Revocation.
The license contained in this Agreement will terminate automatically without notice
from ArtSales.com.au or The Artist/Rights Holder 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 ArtSales.com.au
or The Artist/Rights Holder, return the Licensed Material to The Artist/Rights Holder;
and (iii) delete and remove the Licensed Material from Licensee's premises, computer
systems and storage (electronic or physical).
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Miscellaneous Terms.
10.1 Unauthorized Use.
Any use of Licensed Material in a manner not expressly authorized by this Agreement
or in breach of a term of this Agreement constitutes copyright infringement, entitling
The Artist/Rights Holder to exercise all rights and remedies available to them 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 The Artist/Rights Holder's other remedies under
this Agreement, The Artist/Rights Holder reserves the right to charge and Licensee
agrees to pay a fee equal to up to five (5) times The Artist/Rights Holder's original
license fee for the unauthorized use of the Licensed Material.
10.2 Audit/Certificate of Compliance.
Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing
Licensed Material to The Artist/Rights Holder. In addition, upon reasonable notice,
The Artist/Rights Holder may, at their discretion, either through its own agency
or through a third party, audit Licensee's records directly related to this Agreement
and use of Licensed Material in order to verify compliance with the terms of this
Agreement. Where The Artist/Rights Holder reasonably believes that Licensed Material
is being used outside of the scope of the license granted under this Agreement,
Licensee shall, at The Artist/Rights Holder's request, provide a certificate of
compliance signed by an officer of Licensee, in a form to be approved by The Artist/Rights
Holder.
10.3 Electronic Storage.
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee
must retain the copyright symbol, the name of ArtSales.com.au and The Artist/Rights
Holder and the image number or other identification number associated with the Licensed
Material as may be included as part of the electronic file containing the Licensed
Material that is stored on Licensee's computers. Licensee may not make additional
high-resolution copies of the Licensed Material and Licensee shall maintain a robust
firewall to safeguard against unauthorized third-party access to the Licensed Material.
Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup
copy of the Licensed Material for security purposes only. Upon the expiration or
earlier termination of this Agreement, Licensee shall promptly delete and remove
the Licensed Material from Licensee's premises, computer systems and storage (electronic
or physical) and shall ensure that its subcontractors do likewise.
10.4 Withdrawal.
Upon notice from The Artist/Rights Holder, 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 The Artist/Rights Holder may be liable
herein, or if The Artist/Rights Holder withdraws any Licensed Material for any good
reason, Licensee will physically remove the Licensed Material from its premises,
computer systems and storage (electronic or physical) and, if possible, cease any
future use at its own expense. The Artist/Rights Holder shall provide Licensee with
comparable Licensed Material (which comparability will be determined by ArtSales.com.au
and The Artist/Rights Holder 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 Victoria,
Australia, without reference to its laws relating to conflicts of law. Any disputes
arising from this Agreement or its enforceability shall be settled by binding arbitration
to be held in Melbourne, Victoria, Australia. The United Nations Convention on Contracts
for the International Sale of Goods does not govern this Agreement. Notwithstanding
the foregoing, The Artist/Rights Holder 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 The Artist/Rights Holder, 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 contains all the terms of the license agreement and no terms or conditions
may be added or deleted unless made in writing and signed by an authorized representative
of both parties. In the event of any inconsistency between the terms contained herein
and the terms contained on any purchase order sent by Licensee, the terms of this
Agreement shall govern.