Ojatro Visuals License Agreement
1.1 "Invoice" means the computer-generated invoice provided by Ojatro Visuals that may include, without limitation, the permitted scope of use of the Licensed Material selected, any limitations on the license in addition to those specified in this Agreement, and the price for the license of such Licensed Material. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.2 "Licensed Material" means any still image, film or video footage, program, 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, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Ojatro Visuals under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole.
1.3 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, and the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
1.4 “Ojatro Visuals Websites” means www.Ojatrovisuals.com or any other website affiliated with Ojatro Visuals, Inc..
1.5 If any Licensed Material is identified on the Invoice as “Royalty Free”, “Royalty Free” means that aside from the purchase price, Licensee does not pay any additional fees or other compensation regardless of how many times the footage is used or how many projects they are used for, provided that they are used by only a single user, and are consistent with the use and term specified in the Invoice. The work produced by Licensee using the Licensed Material must be for the Licensee’s own use, or if purchased on behalf of Licensee’s employer or client, such employer or client must be the end-user of the work. Licensee may not sell, rent, loan, give, sublicense, or otherwise transfer to anyone the Licensed Material, or the right to use the Licensed Material, and nothing Licensee produces shall grant or purport to grant to any third party a right to use or duplicate the Licensed Material.
1.6 If the allowed use on the Invoice of any Licensed Material is “All Media”, “All Media” means all media whether now known or hereafter devised.
1.7 If “Advertising” is identified on the Invoice as a restriction, “Advertising” means media placement of a commercial solicitation designed to sell a product or service for which consideration has been given whether by payment, barter or any other method.
2. Grant of Rights & Restrictions.
2.1 Ojatro Visuals grants to Licensee a non-exclusive right and license to Reproduce the Licensed Material identified in the Invoice only as stated in this Agreement. Licensee shall have the right to include the Licensed Material in its productions, and such productions may be transferred, assigned, licensed or sublicensed to third parties for distribution purposes in accordance with this Agreement. Licensee acknowledges and agrees that the license granted to it by Ojatro Visuals is non- transferable and shall be exercised only by Licensee or its subcontractors (provided such subcontractors agree to abide by the terms of this Agreement).
2.2 Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice.
2.3 While efforts have been made to correctly caption the subject matter of the Licensed Material, Ojatro Visuals does not warrant that such information is accurate.
2.4 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited whether directly or in context or juxtaposition with specific subject matter.
2.5 Licensed Material shall not be incorporated into a logo, trademark or service mark.
2.6 Licensed Material shall not be used contrary to any restriction on use that is notified to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Any such restriction provided to the Licensee shall be incorporated in this Agreement.
2.7 Upon reasonable notice, Licensee shall provide Ojatro Visuals with sample copies of the completed products in which the Licensed Material is incorporated for non-commercial internal screening purposes for verification only. If the approved product use includes broadcast or theatrical distribution then sample copies, if requested, would be available after the first airdate or theatrical release.
2.8 If a physical master of the Licensed Material is delivered to Licensee (e.g. film or video footage, stills, etc.) pursuant to this Agreement, Licensee shall return same to Ojatro Visuals within thirty (30) days of completion of production.
Nothing in this Agreement shall be construed to pass to Licensee any ownership or copyright in any Licensed
Material. Except as expressly stated in this Agreement, Ojatro Visuals grants Licensee no right or license, express or implied, to the Licensed Material.
Ojatro Visuals will notify Licensee if it has obtained a release from an individual or model and/or a property (real or personal) release for Licensed Material, either on Ojatro Visuals's Websites, in the Invoice or by other means. Except where Licensee is specifically notified, Ojatro Visuals grants no rights and makes no warranties with regard to the use of names, people, property, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material. Where Licensed Material is unreleased, Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness, or property being used for commercial purposes without their consent. Ojatro Visuals makes no representations or warranties as to whether or not any fees or payments may be due to any individual, model, or property (real or personal) contained in the Licensed Material, and Licensee shall be solely responsible for any such fees or payments to any third party including but not limited to any applicable trade union.
5. Warranty and Limitation of Liability.
5.1 Ojatro Visuals 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 30 days from delivery (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); and (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 copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity.
5.2 OJATRO VISUALS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OJATRO VISUALS 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 LICENSED MATERIAL OR OTHERWISE, EVEN IF OJATRO VISUALS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. OJATRO VISUALS’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE AMOUNT OF THE INVOICE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.
5.3 THE REPRESENTATIONS AND WARRANTIES MADE BY OJATRO VISUALS IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY OJATRO VISUALS AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
6.1 Provided that the Licensed Material is used only in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Ojatro Visuals shall defend, indemnify and hold Licensee 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 Ojatro Visuals is in breach of its warranties given in section 5 above.
THE FOREGOING IS OJATRO VISUALS’S ENTIRE INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 ABOVE.
6.2 If Licensee’s use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Ojatro Visuals, its subsidiaries and 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 connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by Licensee, to the extent that such claim relates to the absence of a release or the Licensee’s unauthorized use of the Licensed Material.
Notice of Defense.
The party seeking indemnification pursuant to section 6 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense thereof. 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.
Upon notice from Ojatro Visuals, 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 Ojatro Visuals may be liable herein, or if Ojatro Visuals withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical). Ojatro Visuals shall provide Licensee with comparable Licensed Material (which comparability will be determined by Ojatro Visuals in its reasonable commercial judgment and in consultation with Licensee) free of charge, but subject to the other terms and conditions of this Agreement. In the event that Ojatro Visuals is unable to provide Licensee with comparable Licensed Material, Ojatro Visuals shall refund the purchase price paid by Licensee for the Licensed Material.
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Ojatro Visuals and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee will 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 (unless it obtains written approval from Ojatro Visuals for more than one (1) copy) for security reasons only. Upon completion of production or earlier termination of this Agreement, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise.
Ojatro Visuals reserves the right, in its sole discretion, to revoke the license if payment of the Invoice is not made in full on time.
Condition of Licensed Material.
Licensee should 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, Ojatro Visuals 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.
Credit Lines for Editorial Use.
If Licensed Material is Reproduced by Licensee, the credit line, "[Cinematographer: Heiko Kiera/Ojatro Visuals", must appear adjacent to the Licensed Material or in the end credits of the Production, except where otherwise indicated in the Invoice notified by Ojatro Visuals. Notwithstanding the foregoing, no credit line is required when Licensed Material is authorized by Ojatro Visuals for advertising or promotion.
13. Miscellaneous Terms.
13.1 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 Ojatro Visuals to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
13.2 Governing Law. This Agreement will be governed in all respects by the laws of the State of Florida, 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 Florida. If Ojatro Visuals and Licensee are unable to agree on the Florida location of the arbitration, the decision of Ojatro Visuals shall be final.
13.3 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.
13.4 Waiver. No action of Ojatro Visuals, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay by Ojatro Visuals in the exercise of any of its rights or remedies at any time will not operate as a bar or waiver of its rights or remedies at any other time.
13.5 Entire Agreement. This Agreement, including the Invoice, 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 communication sent by Licensee, the terms of this Agreement shall govern.
Ojatro Visuals, Inc. • (ph): 786.487.6152 • Ojatro@Gmail.com © 2017 by Ojatro Visuals. All rights reserved.
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