The following E-Commerce License Agreement (“Agreement”) constitutes a legal agreement between you (including your successors, assignees and/or designees) (collectively, “Licensee”) and FootageBank (“FootageBank”). By using any visual, audio-visual, audio, and/or any other content owned and/or controlled by FootageBank, including, without limitation, any footage, pictures and/or clips (collectively “Footage”) from www.footagebank.com (“Site”), Licensee agrees to be bound by all of the terms and conditions of this Agreement. Licensee may not use any Footage from FootageBank without agreeing to the terms and conditions of this Agreement. If Licensee does not agree to any term and/or condition contained in this Agreement, then Licensee should cease using the Site and should not continue with the purchase of any license hereunder.
TERMS AND CONDITIONS OF USE
1. In consideration of Licensee’s acceptance of the terms and conditions of this Agreement and payment of the required license fee, FootageBank hereby grants to Licensee the non-exclusive right to incorporate and use the Footage, solely as specified herein and on Licensee’s transaction receipt/purchase order. This non-exclusive, non-transferable license granted to Licensee hereunder to use the Footage is subject to the following terms and conditions.
1. This Agreement is a license, not an agreement for sale. Licensee does not acquire any right, title or interest in or to any Footage or other licensed material, and will not make, authorize or permit any use of the Footage or other licensed material other than as specified herein. Accordingly, FootageBank and/or the copyright owner (as applicable) shall retain all right, title and interest in and to the Footage, including, without limitation, the copyright thereto.
USE/RESTRICTIONS ON USE
1. Licensee's right to use the Footage shall be only on the terms specified herein and in Licensee’s transaction receipt/purchase order, and Licensee shall not make, authorize and/or permit any use of the Footage and/or any other licensed material hereunder, other than as specified therein. Notwithstanding anything to the contrary contained herein, Footage may not be used in any way by Licensee, and no rights are granted to Licensee, until payment of all license fees stated on the transaction receipt/purchase order are paid in full by Licensee and received by FootageBank.
2. FootageBank agrees to license the Footage only on the condition that Licensee agrees to only use it in the specific context, extent and time period set forth herein and on Licensee’s transaction receipt/purchase order. Any use by Licensee (or third parties) other than the use explicitly herein permitted hereunder shall be deemed a material breach of this Agreement, which shall entitle FootageBank to immediately terminate and rescind this Agreement, as set forth below.
3. Licensee may not sell, rent, lend, distribute, sublicense and/or otherwise transfer to any other person or entity the right to use and/or reproduce the Footage in any production other than for the production stated on Licensee’s transaction receipt/purchase order (“Licensee’s Production”), and Licensee will make reasonable best efforts to prevent any and all third parties from doing same. Notwithstanding the foregoing and for purposes of clarification hereunder, nothing herein shall be construed to prevent and/or prohibit Licensee assigning, licensing and/or otherwise transferring this Agreement and/or from selling, renting, licensing and/or transferring Licensee’s Production (with the Footage herein licensed contained in such Licensee’s Production) to any person or entity in connection with and for the purpose of the distribution and/or exploitation of the Licensee’s Production.
4. Licensee may not superficially modify, edit and/or change the Footage in any manner and/or sell it to others for consumption, reproduction and/or resale (e.g., reselling the Footage as a screensaver and/or desktop background). In addition, Licensee agrees that the Footage may not be used: (i) for any pornographic, libelous, defamatory or other unlawful purpose; or (ii) in a manner that would tarnish, damage or harm the rights of another; or (iii) as a trademark or service mark; or (iv) in violation of any law in any jurisdiction and/or in violation of any trademark and/or copyright rights of others.
5. No model releases and/or other releases exist on any Footage (e.g., appearance releases and/or location releases) unless the existence of such release is specified on the Site or in writing by FootageBank. In addition, FootageBank gives no rights or warranties with respect to the use of any names, trademarks, logo types, designs and/or works of art depicted in the Footage. As such, it shall be Licensee’s sole responsibility for obtaining any and all necessary consents, permissions and/or authorizations from any persons, entities, corporations, and/or locations appearing in the Footage, and Licensee must satisfy for itself that all necessary rights, consents and/or permission as may be required for reproduction are secured. Furthermore, where the Footage is video footage, any music, dialogue and/or other ambient audio contained in such Footage (if any) may be incidental and/or may require Licensee (and not FootageBank) to acquire additional clearances for a given usage unless the existence of such release is specified on the Site or in writing by FootageBank.
REPRESENTATIONS, WARRANTIES AND INDEMNITIES
1. Licensee represents and warrants that it has the power and authority to enter into this Agreement and to perform all of its obligations hereunder. In addition, Licensee also represents and warrants that it is Licensee’s sole responsibility to obtain any and all necessary consents, permissions and/or authorizations from any persons, entities, corporations and/or locations appearing in the Footage. Licensee hereby agrees that it will abide by all of the terms and conditions of this Agreement and also agrees to assume full responsibility for the use of the Footage hereunder. In connection herewith, Licensee shall defend, indemnify and hold FootageBank and its parent, subsidiaries and affiliates, and their respective owners, offices, directors, agents, employees, attorneys and representatives (collectively the “FootageBank Entities”), harmless from and against any and all damages, losses, lawsuits, claims, liabilities, costs and expenses, including reasonable outside attorneys’ fees and court costs, whether or not in connection with litigation, arising out of or in connection with any breach or default by Licensee hereunder or any claim for a third party, including, without limitation, any claims arising out of Licensee’s use of any Footage outside of the permitted use of this Agreement, or from Licensee’s failure to obtain from third parties any and all permissions, consents and/or authorizations (if any) to use the Footage, and/or for any other breach or default by Licensee of any of its representations, warranties and/or agreements hereunder.
2. FootageBank represents and warrants that it has the power and authority to enter into this Agreement. Except as expressly set forth herein, FootageBank makes no other representation or warranty, express or implied, regarding the Footage, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, or as to the legality or validity of Licensee’s use of said Footage. In connection herewith, Licensee shall defend, indemnify and hold FootageBank harmless up to the “Limits of Liability” (as hereinafter defined), from and against any and all damages, losses, lawsuits, claims, liabilities, costs and expenses, including reasonable outside attorneys’ fees and court costs, whether or not in connection with litigation, arising out of or in connection with any breach by FootageBank of any of its representations, warranties and/or agreements hereunder.
FOOTAGEBANK’S LIMITATION ON LIABILITY/REMEDIES
1. Notwithstanding anything to the contrary contained herein, in no event shall FootageBank’s total aggregate liability to Licensee, or any third party claiming through Licensee, arising out of or in connection with Licensee’s use of or inability to use the Footage, or from any breach or default by FootageBank hereunder, exceed the monetary amount actually received by FootageBank from Licensee for the use of the Footage (the “Limits of Liability”).
2. Neither FootageBank nor the FootageBank Entities shall be liable to Licensee or any other person or entity for any general, punitive, special, indirect, consequential and/or incidental damages, or lost profits or any other damages, costs or losses, arising out of Licensee’s use of the Footage, or from FootageBank’s breach of this Agreement, or otherwise.
3. The right to use the Footage is valuable. However, Licensee agrees that it would be difficult and impracticable to determine the actual value of such right, and accordingly, Licensee and FootageBank hereby agree that in addition to all other rights and remedies available to FootageBank hereunder, including, without limitation, Licensee’s obligation to indemnify FootageBank hereunder, Licensee shall also be required to pay FootageBank reasonable liquidated damages in an amount equal to three times (3x) the license fee paid by Licensee for use of the Footage if Licensee uses the Footage outside of the scope of the license granted herein.
1. Notwithstanding anything to the contrary contained herein and for purposes of clarification hereunder, FootageBank shall have the right to terminate the license contained in this Agreement if Licensee is in breach or default hereunder or otherwise fails to comply with any of the terms and/or conditions of this Agreement. Such termination shall be in addition to FootageBank’s other rights and remedies at law and/or in equity. In connection with any termination hereunder, FootageBank shall be under no obligation to refund any fees paid by Licensee in connection with the license hereunder. Upon termination of this Agreement, Licensee must immediately: (i) stop using the Footage; (ii) destroy and/or, upon request by FootageBank, return the Footage to FootageBank; and (iii) delete or remove the Footage from Licensee’s Production.
1. In any works incorporating the Footage hereunder where credit is customary, or where other such credits are provided to vendors of similar services, Licensee shall accord FootageBank with a credit substantially in the form of “Stock footage provided by FootageBank”.
1. All rights not specifically granted herein to Licensee herein are specifically reserved for FootageBank's use and disposition without any limitations whatsoever.
2. This Agreement contains all the terms and conditions concerning Licensee’s use of Footage, and no term or conditions may be added or deleted unless made in writing and signed by both parties. These terms and the terms of any subsequent purchase order between FootageBank and Licensee shall supersede any and all prior agreements and understandings pertaining hereto. FootageBank offers no kill fees or refunds on Footage ordered. After release of Footage to Licensee, all fees must be paid in full whether the Footage is used or not.
3. No waiver by FootageBank of any breach or default hereunder will apply to any subsequent breach or default by Licensee, whether of a similar nature or not, nor will any such waiver be construed as a waiver of any other provision of this Agreement.
4. If any provision, or portion thereof, of this Agreement, or its applcation to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
5. FootageBank reserves the right to change the terms and conditions of this Agreement at any time, and Licensee agrees to be bound by such changes.
6. Licensee agrees that Licensee may not assign and/or otherwise transfer this Agreement, the Footage and/or any of Licensee’s rights hereunder to any third party (except as expressly permitted hereunder), without FootageBank’s prior written approval in each instance.
CLAIMS OR DISPUTES
1. Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this Agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Los Angeles, California, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the State having jurisdiction. This Agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of California.
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