THIS IS AN AGREEMENT BETWEEN NBC UNIVERSAL PHOTO BANK ("NBCUPB") A DIVISION OF NBC UNIVERSAL, INC. AND THE PARTY LICENSING, DOWNLOADING OR OTHERWISE OBTAINING PHOTOGRAPHIC IMAGES OR OTHER CONTENT FROM NBCUPB ("AGREEMENT"). THIS AGREEMENT SHALL APPLY TO ALL MATERIAL LICENSED, DOWNLOADED OR OTHERWISE OBTAINED FROM NBCUPB, INCLUDING MATERIAL LICENSED VIA photobank.nbcuni.com OR ANY OTHER SITE, NBCUPB SALES REPRESENTATIVES AND AGENTS OR VIA ANY OTHER METHOD ("LICENSED MATERIAL").
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACQUIRING ANY LICENSED MATERIAL FROM THIS SITE YOU ARE AGREEING THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO ALL OF THE TERMS AND CONDITIONS SPECIFIED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN EMPLOYER OR AS AN AGENT OR REPRESENTATIVE OF ANOTHER PERSON OR ENTITY, THE LICENSE GRANTED AND THE RIGHTS AND RESTRICTIONS IN THIS AGREEMENT APPLY TO YOU AND THAT PERSON OR ENTITY.
1. Definitions. The following terms, as used herein, have the following meanings:
1.1 "Invoice" means the a computer-generated or preprinted standard form invoice provided by NBCUPB or an authorized distributor setting out terms, including payment for use of the Licensed Material.. The terms of the Invoice are incorporated into this Agreement by reference and shall constitute a part of this Agreement.
1.2 "Licensed Material" means photographs or other visual still images, footage or other audiovisual or audio content, whether generated optically, electronically, digitally or by any other means now known or hereafter devised, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, or any other materials protected by copyright, trademark, patent or other intellectual property rights and owned or controlled by NBCUPB, which Licensee obtains by download or other delivery and/or licenses from NBCUPB under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall include each individual item within the Licensed Material as well as the Licensed Material as a whole.
1.3 "Licensee" means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a governmental entity, who or which obtains Licensed Material or a license from NBCUPB.
1.4. "Licensed Use" means the use, media, period of time, print run, placement, territory and any other restrictions specified in this Agreement or any Rights and Restrictions.
1.5 "Reproduction" and "Reproduce" mean any form of copying of the whole or any part of any Licensed Material, via any medium or by any means.
1.6 "Rights and Restrictions" means any information: (I) accompanying the Licensed Material on the Site; (II) in the Invoice; (III) in the editorial feed; or (IV) in any other written communication accompanying the Licensed Material. Such restrictions may include, without limitation, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material. 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.
2.1 NBC Universal Photo Bank grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to use and Reproduce the Licensed Material identified in the Rights and Restrictions for the use, term and territory set forth in this Agreement and in any Rights and Restrictions that are provided to the Licensee. The rights granted under this agreement may include the provision of the Licensed Material to subcontractors or sublicensees, solely for the purpose of creating or processing the Licensed Materials for the Licensed Use, provided that such subcontractors are bound by and agree to abide by the terms of this Agreement. Licensor agrees that it is responsible for any uses of the Licensed Material by such subcontractors or sublicensees.
2.2 Use of the Licensed Material is strictly limited to the Licensed Use set forth in the Agreement and any other restrictions specified in this Agreement or any Rights and Restrictions. The Licensed Material shall not be included in other productions, articles or issues or be otherwise reused or repurposed out of context without obtaining an additional license from NBCUPB. For the avoidance of doubt, such additional uses include anthologies, recaps or the inclusion of segments of productions, articles, reproduction in any form in other media (i.e.-online, wireless, etc.) or other uses of the Licensed Materials that feature the Licensed Materials in other productions, articles or other uses. Notwithstanding the foregoing, Licensee and any sublicensees or subcontractors may utilize the Licensed Material in any production process that may be necessary for the intended use specified in this Agreement and any Rights and Restrictions.
2.3 Unless set forth specifically in this Agreement, the Licensed Material is licensed solely for editorial, educational or the other specific uses and shall not be used for any commercial, promotional, advertising or merchandising use, including without limitation the promotion or advertising of the Licensed Use.
2.4 Unless rights are specifically granted in this Agreement, Licensed Materials (I) shall not be made available for download separate and apart from any production or publication in which the Licensed Materials are included; (II) shall not be separately archived or made available by Licensee such that that they can be extracted or accessed as a standalone file; and (III) shall not be modified, reconfigured or repurposed for use in any mobile-directed web sites or mobile applications that are specifically created for viewing on mobile devices.
2.5 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 the express written permission of NBCUPB.
2.6 While efforts have been made to correctly caption the subject matter of the Licensed Material, NBCUPB does not warrant that such information is accurate.
2.7 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited. NBCUPB also reserves the right to revoke any License where the use is deemed objectionable or offensive in our sole discretion.
2.8 Licensed Material shall not be incorporated into a logo, trademark or service mark.
2.9 Licensed Material shall not be used contrary to any restriction on use that is provided to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the Rights and Restrictions or in any other written communication from NBCUPB. Any such restriction provided to Licensee shall be incorporated into and become part of this Agreement.
2.10 Where the person or entity entering into the Agreement is doing so on behalf of Licensee (whether as an employee, agent or otherwise), Licensee hereby represents and warrants that: (I) such person 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 such person's power and authority to act on behalf of that Licensee with respect to this Agreement, such person shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement and be responsible for compliance with all terms of this Agreement, including payment of any Invoices. Nothing in this Section 2.12 shall serve to excuse such person or entity's obligation to make payment to NBCBP for the Licensed Material.
3. Photo Credit and Intellectual Property.
3.1 Copyright. Licensee shall not acquire any copyright or any other right, title or interest in the Licensed Material as a result of the license granted under this Agreement.
3.2 Photo Credit. Except as otherwise noted in Section 11, Licensed Material must include the following credit line adjacent to the Licensed Material: [Photographer's Name]/[Special Collection Reference, if any]/NBCUPB or as otherwise notified by NBCUPB. If Licensee omits the credit, an additional fee in an amount up to one hundred percent (100%) of the original invoiced amount attributable to the Licensed Material may be payable by Licensee, at NBCUPB sole discretion. The foregoing fee shall be in addition to any other rights or remedies that NBCUPB may have at law or in equity.
3.3 Notice of Violations. Licensee will immediately notify NBCUPB if Licensee 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 NBCUPB intellectual property rights, including, but not limited to, Marks and copyrights.
4.1 NBCUPB will notify Licensee if it has obtained a model release and/or a property release for Licensed Material, either in the Rights and Restrictions or by written notice to Licensee. 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. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Neither NBCUPB nor any party on whose behalf NBCUPB licenses Licensed Material (each, a "Licensor") 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.
4.2 Except where Licensee is specifically notified that a model and/or property release has been obtained by NBCUPB, neither NBCUPB nor any Licensor grants any rights or makes any warranties 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 a release is required in connection with any proposed use of Licensed Material, and Licensee shall be responsible for obtaining any required release. As to any release delivered with any Editorial Licensed Material, neither NBCUPB, nor any Licensor, makes any representation, warranty or guarantee as to its sufficiency with regard to any use of the Licensed Material made by Licensee. Licensee shall obtain all necessary individual, property, team logo, trademark, audio and other releases, approvals and clearances from third parties as may be required for the Licensee's use of the Licensed Material prior to using the Licensed Material.
5. Warranty and Limitation of Liability.
5.1 NBCUPB 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 copyrights of any person or entity; and (IV) if a release is provided by NBCUPB pursuant to Section 4.1, Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement will not infringe on any right of privacy or right of publicity.
5.2 NEITHER NBCUPB NOR ANY LICENSOR 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 NBCUPB NOR ANY LICENSOR SHALL BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIALOR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF NBCUPB OR ITS LICENSORS, 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.
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, NBCUPB 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 (except damages not directly attributable to acts of NBCUPB), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding brought by a third party alleging that NBCUPB is in breach of its warranties set forth in Section 5 above. The foregoing states NBCUPB's entire indemnification obligation under this Agreement.
6.2 Licensee shall defend, indemnify and hold NBCUPB and Licensor, and their respective parent companies, subsidiaries and commonly owned or controlled affiliates and the respective officers, directors and employees of each of them harmless from all damages (except 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: (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 ("Indemnitee") pursuant to this Section 6 shall promptly notify the other party ("Indemnitor") of such claim. At Indemnitor's option, Indemnitor may assume the handling, settlement or defense of any claim or litigation, in which event Indemnitee shall cooperate in the defense of any such claim or litigation. Indemnitee shall have the right to participate in such litigation, at its expense, through counsel selected by Indemnitee. Indemnitor will not be liable for legal fees and other costs incurred prior to the Indemnitee giving notice of the claim for which indemnity is sought.
7. Condition of Licensed Material. Licensee shall 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) above, NBCUPB 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 requests in writing to cancel this Agreement within thirty (30) days of the date of receipt by Licensee of the Licensed Material, and such Licensed Material has not been used by Licensee, NBCUPB, in its sole discretion, may cancel this Agreement and issue a credit to Licensee's account or credit card in an amount up to one hundred percent (100%) of the license fee minus a composite/layout fee that will be charged at 25% of the agreed upon License Fee. Nothing in this Section 8 shall apply to research, lab, service fees, administration fees or editorial subscription fees which shall be payable according to the terms stated on the Invoice and shall be non-refundable.
9. Payment; Interest or Cancellation on Overdue Invoices. Licensee shall pay NBCUPB the amount set forth on the Invoice within the time period specified in such Invoice. If Licensee fails to pay the NBCUPB Invoice in full within such time period, NBCUPB may, in its sole discretion, add a service charge of one-and-one-half percent (0.015%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. NBCUPB also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.
10. 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 NBCUPB to exercise all rights and remedies available to it under copyright laws around the world. To the maximum extent permitted by law, 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 NBCUPB's other remedies under this Agreement, NBCUPB reserves the right to charge and Licensee agrees to pay a fee equal to up to three times (3) times the agreed upon 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 NBCUPB. In addition, upon reasonable notice, NBCUPB 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. Where NBCUPB reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at NBCUPB's request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by NBCUPB.
10.3 Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee shall retain the copyright symbol and language, the name of NBCUPB 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 shall 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 NBCUPB, 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 NBCUPB may be liable herein or if NBCUPB withdraws any Licensed Material for any good reason, Licensee shall physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and shall cease any future use at its own expense. NBCUPB shall provide Licensee with comparable Licensed Material (which comparability will be determined by NBCUPB in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
10.5 Licensee's Remedies. Licensee's sole and exclusive remedy for NBCUPB's breach, termination or cancellation of this Agreement or withdrawal of Licensed Material shall be an action for damages; provided that the maximum amount payable by NBCUPB under any theory other than indemnification pursuant to Section 6.1 arising from NBCUPB's breach of warranties set forth in Sections 5.1(III) or (IV), if applicable, shall be limited to the invoiced amount attributable to the Licensed Material. Licensee irrevocably waives any right to equitable or injunctive relief against NBCUPB.
10.6 Assignment. Licensee may not assign this Agreement without the prior written consent of NBCUPB, which consent may be granted or withheld at NBCUPB's sole discretion.
10.7 No Third Party Beneficiaries. The agreement between the parties hereto is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
10.8 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 settled by binding arbitration to be held in one of the following jurisdictions (whichever is closest to Licensee's corporate headquarters, if Licensee is an entity, or principal residence, if Licensee is an individual): New York County, New York or Los Angeles County, California.
10.9 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.
10.10 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.
10.11 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 or on behalf of Licensee, the terms of this Agreement shall govern.