Steve Marsel Stock.com License Agreement


THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND STEVE MARSEL STOCK.COM, LLC, ("LICENSOR"); READ THIS AGREEMENT IN ITS ENTIRETY BEFORE YOU DOWNLOAD ANY IMAGE. BY DOWNLOADING ANY IMAGE FROM THIS WEBSITE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE APPLICABLE INVOICE. IF YOU DO NOT AGREE, CLICK ON YOUR BROWSER'S BACK BUTTON. BY DOING SO YOU WILL DECLINE THIS AGREEMENT AND WILL NOT BE GRANTED A LICENSE TO THE IMAGE(S). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. THEREFORE, CERTAIN TERMS MAY BE INAPPLICABLE. IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT OUR SALES REPRESENTATIVE.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, THE LICENSE GRANTED AND RESTRICTIONS AND LIMITATIONS RECITED HERIN APPLY TO YOUR EMPLOYER AND TO YOU AS A REPRESENTATIVE OF YOUR EMPLOYER.

1. Definitions
In this Agreement the following definitions apply: a) "Licensed Material" means any still image, film, or video footage, audio product, 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 rights, which is licensed to Licensee by Licensor under the terms of this Agreement.

b) "Invoice" means the computer-generated or pre-printed invoice provided by Licensor that sets forth, without limitation, the specific party contracting as Licensor, the specific areas of use for the Licensed Material selected, the Reproduction rights granted to Licensee, the limitations on the license (if any) and the corresponding price(s) for the license of such Licensed Material, The Invoice shall be made a part of this Agreement and shall be incorporated by reference herein and together with this Agreement shall constitute the entire agreement between Licensor and Licensee regarding the Licensed Material. All references to the Agreement shall include the Invoice.

c) "Reproduction" and "Reproduce" includes any form of copying or publication of the whole or a part of any Licensed Material, now known or hereinafter developed, whether by printing, photography, photocopying, slide projection (whether or not to an audience), layout or presentation, use in a production process, electronic, digital or mechanical means, use as a reference by an artist or in an artist's illustration or by any other means. Reproduction further includes the distortion or manipulation of the whole or a part of the Licensed Material (for example, by computer, electronically, digitally by and artist or by any other means), even though the resulting Licensed Material my not appear to a reasonable person to be derived from the original Licensed Material. Reproduction also includes distribution in whole or in part of any Licensed Material via television, cable, telecommunications network, intranet, computer network, or internet transmission.

2. Grant of Rights
Unless stated otherwise in the Invoice, Licensor grants to Licensee a nonexclusive non-sublicensable, non-transferable and non-assignable right to reproduce, display and distribute the Licensed Material identified in the Invoice to the extent explicitly stated therein. Licensor further grants to Licensee the right to have the Licensed Material Reproduced by subcontractors of Licensee, solely to the extent explicitly stated in the Invoice, provided that such subcontractors agree to abide by the restrictions of this Agreement.

Licensee's rights in the Licensed Material are strictly limited to the use, medium, period of time, print run, placement, size of image, territory and other restrictions specified in the Invoice. Licensor grants Licensee the right to utilize the Licensed Material in the sales and production process as may be necessary for the intended use specified on the Invoice. THE TERMS SPECIFIED IN THE INVOICE, OR IN THIS AGREEMENT, SHALL NOT BE MODIFIED WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, AND ANY ATTEMPT TO MODIFY THIS AGREEMENT OR THE INVOICE WITHOUT SUCH EXPRESS WRITTEN CONSENT, OR ANY ATTEMPTED DEVIATIONS FROM THE TERMS OF THIS AGREEMENT OR THE INVOICE, SHALL NULLIFY LICENSORÕS INDEMNITY OBLIGATIONS, AND THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR HEREUNDER. Fees assessed for Licensee's use of the Licensed Material depend on the nature of the rights granted. Licensee shall not undertake any expanded use of the Licensed Material without the prior approval of Licensor and the payment of any additional license fee required by Licensor for such expanded use. Licensee shall promptly notify Licensor of any expanded use of the Licensed Material for which Licensee has not received Licensor's prior approval, and shall pay to Licensor any additional license fee required by Licensor for such expanded use. The rights and remedies of Licensor hereunder shall be in addition to, and not in lieu of, any other rights or remedies that Licensor may have at law or in equity.

Licensor grants no right and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material, and Licensee must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for Reproduction, have been obtained.

Use of Licensed Material in a manner not expressly authorized by the Invoice and this Agreement (i) may constitute infringement of the proprietary rights of Licensor or a third party, and (ii) may result in Licensee incurring or being responsible for any damages resulting from any such use, including any damages resulting from any claims for infringement of the intellectual property or proprietary rights of Licensor or a third party.

In the event that any Licensed Material featuring a model is used in a manner that implies endorsement of, use of, or a connection to a product or service by that model or in a manner that is potentially unflattering or controversial, Licensee must accompany each such use with a statement that indicates that the person is a model and is used for illustrative purposes only. Licensor's grant of rights regarding use of Licensed Material on or in a product does not grant Licensee the right to use that Licensed Material in any manner, directly or indirectly (such as, without limitation, in any image or illustration of such product) in the advertising of such product unless that right is also specifically granted.

While Licensor makes efforts to correctly caption the subject matter of the Licensed Material, Licensor does not warrant that such information is accurate.

Use of Licensed Material directly, in context or in juxtaposition with pornographic, defamatory, libelous or otherwise unlawful material is strictly prohibited.

3. Limitations on Reproduction Rights and Credit Lines

Except as set forth below, the following credit line must appear adjacent to any Licensed Material utilized in an editorial manner: (Steve Marsel/Steve Marsel Stock.com

4. Copyright
No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the License contained in the Agreement. Except as expressly set forth in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Licensed Material. Licensee shall provide applicable copyright notice and/or protection. Upon demand, Licensee shall immediately assign to Licensor (or Licensor's designee) any copyright of or to the Licensed Material arising out of the publication of the Licensed Material. No copyright information shall be removed from any digital file.

Unless otherwise agreed in writing, if any Licensed Material reproduced by Licensee for editorial purposes (i.e. for any non-promotional purposes omits the credit line specified in Section 3 above, or any other credit line specified by Licensor, an additional fee equal to twenty percent (20%) of the original amount invoiced shall be payable by Licensee at Licensor's discretion. The foregoing fee shall be in addition to, and not in lieu of, any other rights or remedies that Licensor may have at law or in equity.

5. Warranties and Limitation of Liability.

THE REPRESENTATIONS AND WARRANTIES OF LICENSOR MADE HEREIN WILL HAVE NO FORCE OR EFFECT IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THE AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

Licensor warrants to Licensee that the digital or analogue copy of the Licensed Material in the form downloaded by Licensee or delivered by Licensor by any means to Licensee will be free from defects in material and workmanship (not including "artifacts" or other flaws inherent in prints of the particular vintage) for 30 days from the date of delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the digital or analog copy of the Licensed Material or refund of the Reproduction fee paid by Licensee, at Licensor's option.

Licensor represents and warrants to Licensee that: It has all necessary rights and authority to enter into and perform this Agreement in accordance with its terms, including, but not limited to, the right and authority to license the use of any Licensed Material as expressly set forth in the invoice, including the rights to license the copyrights in and to the Licensed Material on the terms and conditions set forth in this Agreement;

The rights of Reproduction granted hereunder do not infringe on any copyrights to the Licensed Material or moral rights of any person or entity. Licensor makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union. Licensee shall be solely responsible for such additional fees or payments.

The foregoing representations and warranties apply only to the Licensed Material as delivered by Licensor when used in accordance with the terms of this Agreement and the used expressly provided for tin the Invoice.

EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 5(a) AND 5(b) ABOVE, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMIATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABITLITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT, THE INVOICE OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Indemnification

Provided that Licensee uses the Licensed Material only as permitted under the terms of this Agreement and as specified on the Invoice and is not otherwise in material breach of the Agreement, and subject to section 7, Licensor 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 punitive damages), 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 alleging that the possession, distribution or use of the Licensed Material by Licensee pursuant to and in accordance with this Agreement* infringes on the copyright rights of any third party.

7. Notice of Defense
Licensor's indemnification obligation set forth in Section 6 is expressly contingent upon the following requirements; (1) if any such actual or threatened lawsuit, claim or legal proceeding arises, Licensee must give Licensor written notice within five (5) business days after receipt of notice of such lawsuit, claim or legal proceeding, whether threatened or initiated; (2) Licensor shall have the right, at its expense and in its sole discretion, to select and employ counsel to defend Licensee against such lawsuit, claim or legal proceeding for which indemnification is sought; (3) Licensor shall have the right to control the legal defense and shall have sole discretion as to whether or not to compromise, settle or otherwise dispose of any such lawsuit, claim or legal proceeding; and (4) Licensee agrees to cooperate fully in defending any such lawsuit, claim or legal proceeding (including, without limitation, making available to Licensor such books and records as Licensor reasonable requests and making available its employees, agents, officers and directors for depositions, consultations and otherwise when requested).

Licensor will not indemnify Licensee for legal fees and other costs incurred prior to Licensee giving notice to Licensor of the pending action for which indemnity is sought, and Licensor will not indemnify Licensee for the cost of any salaries, wages, or benefits payable to LicenseeÕs personnel involved in any legal action for which indemnity is sought.

8. Parties' Obligation
Upon notice from Licensor, or upon Licensee's knowledge, that any Licensed Material is subject to a threatened or actual claim or infringement or any other claim for which Licensor may be liable, or if Licensor retires any Licensed Material for any reason, Licensee will cease all use of the Licensed Material at its own expense. Licensor shall provide Licensee with comparable Licensed Material (which comparability will be determined by Licensor in its sole reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement and the applicable Invoice.

Licensor's indemnification obligation shall continue for use of any Licensed Material that occurred prior to the date on which Licensor notified Licensee of any threatened or actual claim involving the Licensed Material.

9. Electronic Storage
For all Licensed Material that Licensee takes delivery via download, Licensee must maintain the copyright symbol, the name of Licensor and the Licensed Material identification number as part of the electronic file. In addition, Licensee may only use a single copy of the Licensed Material on a single computer. Licensee may only download the Licensed Material onto one (1) computer hard drive or other computer medium and my not otherwise make, use or distribute copies of the Licensed Material for any purpose except as otherwise provided in this Agreement and the Invoice. Notwithstanding the foregoing, Licensee shall be allowed to make one (1) backup copy for security reasons only. Licensee may not use the Licensed Material on any image storage jukebox, network configuration or similar computer network arrangement. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage system.

10. License Cancellation Fee
If Licensee requests in writing to cancel this Agreement regarding the licensing of Licensed Material from Licensor's Motion Collections within thirty (3) days of the date of delivery of the Licensed Material, Licensor may cancel this Agreement and issue a credit to LicenseeÕs account of r credit card which unless otherwise agreed in writing is equal to fifty percent (50%) of the Reproduction or license fee. Nothing in this Section 10 shall apply to research, lab and administration fees, which shall be payable according to the terms stated or this invoice.

11. Interest on Overdue Invoices
IF LICENSEE FAILS TO PAY LICENSOR'S INVOICE IN FULL WITHIN 30 DAYS OF THE INVOICE DATE, LICENSOR SHALL ADD A SERVICE CHARGE OF THE GREATER OF ONE AND ONE HALF PERCENT (1 1/2%) PER MONTH, OR THE MAXIMUM AMOUNT AS ALLOWED BY LAW, ON ANY UNPAID BALANCE. LICENSOR ALSO RESERVES THE RIGHT, IN ITS SOLE DESCRETION, TO REVOKE THE LICENSE IF PAYMENT IS NOT MADE IN FULL.

12. Condition of Licensed Material
Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Licensor 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.

13. Unauthorized Use of Licensed Material
Licensee agrees to indemnify and hold Licensor (including its parent, affiliate and subsidiary companies and their respective directors, officers, employees and agents) harmless against any claim for damages, losses or any costs, including attorneys' fees, arising in any manner whatsoever from the unauthorized use of any Licensed Material or from Licensee's breach of any of the terms of this Agreement.

14. Use of Licensed Material in Final Elements
For purposes of this paragraph, final elements shall mean any end product produced by Licensee pursuant to this Agreement, including but not limited to use in magazines, books, feature films, television productions, commercials and print advertisements ("Final Elements") Licensee grants to Licensor the irrevocable. Perpetual, royalty-free, non-exclusive right and license to use Final Elements solely for the promotion of Steve Marsel Stock.com LLC or any of its subsidiaries, licensees or affiliates.

15. Right to Information
Licensor may at any time inspect any records, accounts and books relating to the Reproduction of any of Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.

16. Miscellaneous Terms
No variation of any of the terms in this Agreement shall be effective unless agreed to in writing by Licensor. No part of the content of Licensor's catalogs or other advertising materials shall form a part of this Agreement. No action of Licensor, other than an express written waiver, may be construed as a waiver of any terms 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 a 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 those rights or remedies or any other occasion. Should any clause of this Agreement be found unenforceable, that will not affect any other clause and each will remain in full force and effect. In the event of any inconsistency between the terms contained herein, or in any Invoice, and the terms contained on any purchase order sent by Licensee, the terms of this Agreement and the applicable Invoice shall govern. This Agreement, its validity and effect, shall be interpreted under and governed by the laws of the Commonwealth of Massachusetts, U.S.A., without reference to its laws relating to conflicts of law. Except as otherwise set forth herein, venue for all disputes arising under this Agreement shall be exclusively in the federal and state courts located in Suffolk or Middlesex Counties, and each party consents to the jurisdiction of such courts and agrees not to contest the personal jurisdiction of these courts. The prevailing party in any action brought to enforce the terms of this Agreement or of any related Invoice shall be entitled to an award of its reasonable attorneysÕ fees and costs incurred in pursuing such action.