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 LICENSE AGREEMENT APPLIES TO LICENSES ISSUED ONLINE (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.
“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.
“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.
“Royalty Free” means Content licensed for an unlimited number of uses for one Production for a one-time flat fee and expressly designated as “Royalty-Free” or “RF”.
“Rights Managed” means Content licensed for a fee on a per-use basis and expressly designated as “Rights Managed” or “RM”.
2.1 RF License Terms
Subject to the terms of this License Agreement, Overflightstock grants Licensee a perpetual, worldwide, revocable, non-transferable, non-exclusive right to reproduce, transmit and display, in whole or in part, an unlimited number of times for one client, in any and all media for all uses other than the use restrictions in Section 4 described below. 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. The Content may be incorporated into any derivative work including, but not limited to, feature films, promotional videos, programs, advertisements, documentaries, podcasts, websites, event displays, or presentations, intended for theatre, cable, wireless or satellite broadcast, disk or web distribution or live performance, display or print project.
2.2 RM License Terms
Unless stated otherwise in the Invoice, Overflightstock grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit, or create a derivative work (collectively “use”) the Content identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. The use of the licensed Content is strictly limited to the use, medium, print run, placement, size of Content, and any other restrictions specified in the Invoice. Licensee may not use nor permit the use of the licensed Content beyond the terms of the limited license agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.
Licensee of an RF or RM license may alter, crop, modify or adapt the Content, except for Content identified as “Editorial Use Only” in which instance only minor alterations may be made that do not alter the meaning of the Content. 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. Limited, temporary transfers of the Content are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement.
If Licensee desires to use RF or RM Content for an additional client, Licensee must contact Overflightstock to purchase an additional license. If the intended use is a restricted use, you may contact Overflightstock firstname.lastname@example.org to see if the use may be granted. Do not use the Content prior to permission and restricted use rights may not be available.
2.3 Comping License Terms
A Comping License allows you to download and use watermarked, low resolution Content, for a period of 60 days. The Comping License is made available for the sole purpose of giving the client an opportunity to evaluate the Content for suitability within the intended Production. You must never remove any copyright, trademark or service mark notice from where it is placed or embedded within the Content, whether it be visually or electronically.
2.4 Art Print License Terms
The copyright to the Image on the Art Print remains the property of the original photographer and is never sold or transferred to the party purchasing the print. Art Prints are for the sole purpose of display within private homes or commercial offices. The Art Print purchased cannot be copied or be used to make other prints, posters, cards or used within or in conjunction with any other products. They cannot be scanned or photographed to produce electronic files or film products. The image cannot be uploaded to any social media website such as Facebook, Flickr etc.The image on the Art Print cannot be used in any editorial or commercial project or displayed at a trade show or other commercial venue. The print can be resold to others as an Art Print with the express understanding that the buyer receives no additional rights except for those outlined for by this agreement for Art Prints and that this agreement is transferred and accepted by the new owner.
3. Number of Users / Seat License
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 twenty five (25) persons can access the Content. Before permitting access to more than twenty five (25) persons, Licensee must purchase an additional seat license from Overflightstock.
4. Restrictions on Use
Except as provided herein, Licensee may not:
• Sublicense, sell, assign, convey or transfer any of its rights under this Agreement, but Licensee may sell or license derivative works incorporating the Content.
• 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.
• Fail to comply with the Product Endorsement or Sensitive Disclaimer in Section 5.
• 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. Product Endorsement or Sensitive Use Disclaimer
If any Content featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person is a model and the Content is being used for illustrative purposes only. These requirements are without prejudice to the obligations of the Overflightstock regarding use of the Content contained elsewhere throughout this Agreement.
6. Editorial Credit and Marketing
If any still Image is used in an editorial manner, the credit line, "Overflightstock", must appear adjacent to the Image or as otherwise indicated by Overflightstock. 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".
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.
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 consents 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.
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.
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.
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.
10. Payment Terms
No licenses are 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.
If an Art Print is damaged at the time of delivery, an RMA (Return Merchandise Authorization) is required prior to it being accepted for replacement. Please contact us at email@example.com
11. Cancellation Policy
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 five (5) 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
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.
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.
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.
No action of Overflightstock, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
17. 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.
Effective March 3, 2018
Contact Overflightstock for information about, or a copy of, the FILM AND TV RIDER