Overflightstock End User License Agreement
This End User License Agreement is a legal and binding agreement (“Agreement”) between You ("Licensee") and Overflightstock Ltd. (“Overflightstock”). This Agreement governs access and use of all material, images and footage (collectively, “Content”) available from Overflightstock. By obtaining, using or paying for any Content from Overflightstock, Licensee agrees to be bound by and to comply with all of the terms of the Agreement. The term Licensee includes the client if the agent is acting on behalf of the client and provided both agent and client are jointly and severally liable to Overflightstock under the Agreement. By accepting and using the Content and by downloading the Content You agree to be bound by the terms of this Agreement.
a) “Content” means all types of visual content, including, without limitation, still photography, motion, film or video and may include audio elements, whether generated optically, electronically, digitally or by any other means, and shall include all metadata, keywords, descriptions and captions associated therewith. Any reference to Content includes the whole or the part.
b) “Invoice" means the agreement provided by Overflightstock or an authorized distributor that includes among other terms, the permitted scope of use of the Content selected, any limitations on the use of the Content, and the Licensee fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
c) “Royalty Free” means Content licensed for an unlimited number of uses by one client or end user for a one-time flat fee and expressly designated as “Royalty-Free” or “RF”.
d) “Rights Managed” means Content licensed for a fee on a per-use basis and expressly designated as “Rights Managed” or “RM”.
e) “Comps” means Content licensed solely for Licensee’s evaluation to determine whether the Content is appropriate for Licensee’s intended End Use.
f) “End Use” means the final work product created with the Content as authorized hereunder and excluding Comp uses, and in the case of Rights Managed Content as specified on the Invoice.
g) “License” means the permission granted by Overflightstock to Licensee to use the Content as specified in and subject to the terms and conditions of the Agreement.
h) “Model Release” means that the contributor/photographer of Content has obtained permission for all permitted licensing type uses from people who are visible and recognizable in the Content.
i) “Property Release” means that the contributor/photographer of Content has obtained permission for all permitted licensing type uses from the owner of the tangible property depicted in the Content. “Property Release” does not include any permission for any intellectual property depicted in the Content.
2. Grant of License
2.1 Generally: Any and all Licenses granted by Overflightstock are conditioned upon (i) Licensee’s compliance with all material provisions of this Agreement, including without limitation Overflightstock's receipt of full payment of the applicable Invoice, and (ii) Licensee entering into this Agreement without having received notice of unauthorized use of the Content.
2.2 Who May Use the Content: The Licenses granted are limited and Licensee may not sell, rent, loan, give, sublicense 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 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 may assign its rights in this license to the producer(s), distributor(s) or any purchaser(s) or assignee(s) of the End Use, solely for the purpose of creating and/or enabling use of 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 producer(s), distributor(s) or any purchaser(s) or assignee(s). Limited, temporary transfers of the Content are permitted to third parties integral to the creation of the End Use, provided such third parties agree to abide by the terms of this Agreement.
2.3 Royalty Free License Terms: Subject to the terms of this License Agreement, Overflightstock grants Licensee a limited, non-exclusive, perpetual, worldwide right to use the Royalty-Free Content (except as may otherwise be specified in the applicable Content Specific Web Page(s) or Invoice) to create and exploit any End Use in any and all media now known or hereafter devised, for all uses other than the use restrictions in Section 4 described below. Licensee may store the Content on a server, image library or network configuration to be viewed by Licensee, subcontractors or its clients provided that no more than ten (10) persons can access the Content. Before permitting access to more than ten (10) persons, Licensee must purchase an additional seat license from Overflightstock.
2.4 Rights Managed License Terms: Subject to the terms and conditions of this Agreement, but excluding the rights granted in Section 2.3 and 2.5, Overflightstock 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). Unless otherwise stated in the Invoice, the License granted provides one (1) year from the date the applicable Invoice is issued to incorporate the Rights Managed Content into the End Use.
2.5 Comps License Terms: Subject to the terms and conditions of this Agreement, Overflightstock grants Licensee the right to use the Content solely for Licensee’s evaluation to determine whether Licensee intends to obtain an applicable Rights Managed or Royalty-Free License for the Content. No other use is allowed. Unless otherwise stated in the applicable Invoice, the Comps License automatically expires sixty (60) days from the date of download or receipt (“Comps Term”). Licensee may not store, copy, distribute, publish, display or otherwise use in any way the Content upon the expiration of the Comps Term without obtaining an appropriate License for that Content. If Licensee does not obtain such a License, upon expiration of the Comps Term, Licensee must destroy all copies of the Content. Overflightstock reserves the right to charge Licensee an administrative fee if Licensee fails to confirm to Overflightstock its destruction of such Content within 10 days of the expiration of the Comps Term.
2.6 Backup Copies: Licensee may make a back-up copy of the content for internal back-up purposes provided Overflightstock's copyright and any Content identifying information embedded with the digital file is retained with the file.
3. Ownership and Intellectual Property: All other rights to the Content, including, without limitation, copyright, are reserved to Overflightstock and the copyright holder. Except as expressly stated herein, this Agreement does not and is not intended to confer rights or remedies upon any person other than the parties. Overflightstock and its Content sources retain all right, title, and interest in and to all of the copyrights and any other proprietary rights in the Content. No rights in any Content are granted 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. For the avoidance of doubt, the parties acknowledge and agree that Overflightstock shall be the sole owner of all right, title and interest in and to the Content, and Licensee shall be the sole owner of all right, title and interest in the End Use.
4. Restrictions on Use: Except as provided herein, Licensee may not:
- Include the Content in an electronic template intended to be used by third parties on electronic or printed products, without obtaining the prior written consent of Overflightstock and the payment of an additional license fee.
- Create multiple impressions or “on-demand” products, including, but not limited to, website designs, presentation templates, electronic greeting cards, business cards, t-shirts, mugs, calendars, posters, screensavers or wallpapers for mobile devices or any other electronic or printed matter, without first obtaining an extended license for such purpose (if available).
- Make the Content available in any medium in a manner intended to allow or invite a third party to download, extract or access the Content as a standalone file. For Content displayed on a website, Licensee shall post terms that prohibit the republication or transmission of the Content as a stand-alone file.
- Incorporate the Content into a logo, trademark or service mark.
- Use any Content in a pornographic, defamatory, libellous or otherwise illegal manner, or infringe on any third party intellectual property rights, whether directly or in context or juxtaposition with other subject matter and materials.
- Use any of the Content in any manner prohibited by any export laws, restrictions or regulations.
- Falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Content.
- Use content identified as “Editorial Use Only” for non-editorial purposes.
- If the Content is used on a social media or other third-party website; the Content may only be used as part of another work and not as a stand-alone file; and any rights shall automatically be revoked in the event that the third-party website seeks to exploit purported rights to the Content contrary to the terms of this Agreement.
- Use the Content for multiple clients without obtaining an additional license.
5. Credit Line and Copyright Notice: In the case of Images, for editorial uses, Licensee shall include a copyright notice and credit adjacent to each Image, or in a manner consistent with industry standards, (in the format: “© photographer’s name/Overflightstock” or as specified on the Content Specific Web Page) with each publicly distributed Image. Receiving credit is a material aspect of the Agreement for Overflightstock. For commercial uses, Licensee agrees to include the credit described above when such crediting is customary and appropriate. If the Content consist of footage or audiovisual material, credit shall be provided, in equal size and comparable placement to credit(s) accorded to licensors of other similar content, substantially in the form "[Footage] supplied by Overflightstock".
6. Marketing: Unless Overflightstock receives written notification from You to the contrary, You hereby grant Overflightstock the right to display any User Work Product or other derivative works within Your possession or control that incorporates any Content, at trade shows, in collateral, and/or via electronic distribution for Overflightstock marketing, educational, and promotional purposes as examples of customer usage. At Your request, Overflightstock will identify You as the author of such derivative work. 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.
7. Releases/Captions: Overflightstock will notify Licensee if it has obtained a model release and/or a property release for the Content, either in the release status information accompanying the Content on Overflightstock's website, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Overflightstock 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, or with respect to any music or audio included with the Content. Licensee shall be solely responsible for determining whether a release is sufficient for the proposed use or is required in connection with any proposed use of such Content or if additional permissions or clearances are necessary from person, entity, association, guild or other organization. Licensee may not rely on any statements made by any Overflightstock employee or representative other than those provided in this Agreement. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Overflightstock used commercially reasonable efforts to identify the caption for each Content, but cannot be held responsible for erroneous or incomplete caption information.
8. Warranties and Disclaimers: Overflightstock warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Content will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Content); (iii) Licensee’s use of the Content in accordance with this Agreement and in the form delivered by Overflightstock (i.e., excluding any modifications, by Licensee) will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by Overflightstock pursuant to Section 7, Licensee’s use of the Content and in accordance with this Agreement and in the form delivered by Overflightstock (i.e., excluding any modifications by Licensee) will not, where a property release is provided, infringe on any trademark and/or will not, where a model release is provided, violate any right of privacy or right of publicity.
General Disclaimers and Limitation of Liability
OVERFLIGHTSTOCK MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OVERFLIGHTSTOCK SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE CONTENT OR OTHERWISE, EVEN IF OVERFLIGHTSTOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
OVERFLIGHTSTOCK'S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE IMAGE/FOOTAGE (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF THE LICENSE PAID BY THE LICENSEE FOR THE USE OF THE CONTENT.
THE REPRESENTATIONS AND WARRANTIES MADE BY OVERFLIGHTSTOCK IN THIS AGREEMENT APPLY ONLY TO THE CONTENT AS DELIVERED BY OVERFLIGHTSTOCK AND WILL BE INVALID IF THE CONTENT IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT, OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT. OVERFLIGHTSTOCK SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY LICENSEE OR THE CONTEXT IN WHICH CONTENT IS USED BY LICENSEE.
9.1 Overflightstock Indemnity: Provided Licensee is not otherwise in breach of this Agreement and subject to Section 8, as Licensee's sole and exclusive remedy for any breach of the representations and warranties above, Licensor shall defend, indemnify and hold harmless Licensee from all third party damages (excluding punitive damages), liabilities and expenses (including reasonable outside attorney fees), arising out of or connected with any actual lawsuit or legal proceeding alleging that Overflightstock is in breach of its warranties set forth above. No other indemnification is offered by Licensor under the Agreement.
This indemnification also does not apply:
- should You knowingly continue use of the content if an infringement claim is made by a third party.
- if a notification is made by Overflightstock to You to discontinue use of the Content.
9.2 Licensee Indemnity: Licensee agrees to defend, indemnify and hold Overflightstock and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or as a result of claims by third parties relating to Licensee's use of any Content outside the scope of this Agreement or any other breach by Licensee of this Agreement.
9.3 Notification: The party seeking indemnification shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defence of any claim or litigation, in which event indemnified party shall cooperate in the defence of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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.
9.4 Alterations to Editorial and Fine Art Content: Special ethical considerations apply to editorial, news, and fine art Content. When using such Content, Licensee is solely responsible for, and shall indemnify Overflightstock for any claims related to or arising from any modifications to or alterations of the Content (except for standard colour correction or minor cropping for space limitations) or to the caption information.
10. Payment Terms: No license is granted until full payment of Overflightstock's invoice is received. Unless credit arrangements are made, all payments will be required in full prior to downloading.
11. Cancellation/Termination: All licenses are final; no refunds or credits will be allowed
12. Copyright Infringement and Liquidated Damages : In the event that the Licensee utilizes any Content without or prior to the granting of a license, Overflightstock reserves the right to seek damages through legal means unless the Licensee agrees to reimburse Overflightstock a sum equal to ten (10) times the market value price charged for such use of a Content as liquidated damages. If the Licensee fails to make the payment as outlined above, within thirty (30) days of Overflightstock's invoicing such fee, this liquidated damage provision shall be void and Overflightstock reserves the right to sue for copyright infringement, including attorneys' fees and all associated costs.
13. Termination and Withdrawal
13.1 Termination: Overflightstock reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee or its client fails to comply with any provision of this Agreement. Licensee and its client must immediately discontinue all use now and in the future of the Content, delete the Content and all copies from all magnetic/electronic media and destroy all other copies in its possession or control.
13.2 Withdrawal: Overflightstock at its sole discretion may withdraw the Content based on a potential or actual legal claim. Upon notice from Overflightstock of Termination or Withdrawal, Licensee and its client must immediately and at your expense, discontinue all future use of the Content, delete the Content and all copies from all magnetic/electronic media and destroy all other copies in its possession or control. Overflightstock will replace the Content with an alternate Content upon its discretion, subject to the terms of this agreement.
14. 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 reformed only to the extent to make it enforceable.
15. Choice of Law/Attorney’s fees: This Agreement will be governed in all respects by the laws of the Province of British Columbia Canada, without reference to its laws relating to conflicts of law. Licensee agrees that the Provincial Courts of the Province of British Columbia are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. If Overflightstock is obligated to go to court to enforce any of its rights, the Licensee agrees to reimburse Overflightstock for its legal fees and disbursements if Overflightstock is successful.
16. Waiver: No action of Overflightstock, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
17. Confidentiality: During this Agreement, one party (“Disclosing Party”) may provide the other (“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.
18. 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 or other writing sent by Licensee, the terms of this Agreement shall govern.
Overflightstock EULA 06212018