High Level Photography Ltd Content License Agreement

June 2017

This Content License Agreement, including the Quote and Invoice (defined below) (collectively the “Agreement”) sets forth the terms and conditions between you as licensee (“You” or “Licensee”) and High Level Photography Ltd. (“High Level Photography”) as licensor.   You purchase a license to use this Content (defined below) and such acceptance shall form a binding agreement between You and High Level Photography. This Agreement may be amended by High Level Photography from time to time without advance notice to You. We encourage You to print a copy of the Agreement for Your records.

  1. Definitions.

1.1 “Content” means all images, footage, films, videos, photographs, music or other audio/visual representations recorded in any format that are owned or controlled by High Level Photography and are available for license as Rights Managed Content or Royalty-free Content described on the Quote or Invoice or on any website owned or managed by High Level Photography.

1.2 “Invoice” means the form paperwork generated by High Level Photography and sets out the Content You agree to license and the various rights associated with such Content including the Project Type, Distribution/Use, Territory, Term, Client Name and Project Name, as well as the method of delivery and format. The Invoice shall be incorporated and made a part of this Agreement and all references to the Agreement shall include the Invoice.

1.3 “Licensee” or “You” means the entity or individual purchasing the license under this Agreement or, if the purchaser is acting on behalf of another entity or individual, the entity or individual specifically named under Client Name on the Invoice.

1.4 “Project” means the final work product that is created by or on behalf of the Licensee using the Content as authorised by this Agreement.

1.5 “Royalty-free Content” means Content licensed for an unlimited number of uses and Projects, licensed to a single Licensee, for a one-time flat fee and expressly designated as “royalty-free” or “RF” by High Level Photography.

1.6 “Rights Managed Content” means Content licensed for a fee on a per use, per Project basis to a single Licensee and expressly designated as “Rights Managed” or “RM” by High Level Photography.

1.7 “Quote” means the form of paperwork generated by High Level Photography or any website owned or managed by High Level Photography that sets out the Content You wish to license and the various rights associated with such Content including the Project Type, Distribution/Use, Territory, Term, Client Name and Project Name, as well as the method of delivery and format. The Quote shall be incorporated and made a part of this Agreement and all references to the Agreement shall include the Quote

  1. Grant of License.

2.1 General: All licenses granted by High Level Photography are conditioned upon (i) Licensee’s compliance with the terms of this Agreement and (ii) High Level Photography’s receipt of full payment of the amount identified in the Invoice.

2.2 Royalty-free Content: Subject to the terms of this Agreement, and excluding the rights granted in Section 2.3 and 2.4, High Level Photography grants You a limited, non-exclusive, non-transferrable and non-sublicensable, worldwide right and license to use the royalty-free Content identified on the Invoice for an unlimited number of uses by You in any and all media for all purposes subject to the terms and restrictions set forth in this Agreement.

2.3 Rights Managed Content: Subject to the terms of this Agreement, and excluding the rights granted in Sections 2.2 and 2.4, High Level Photography grants You a non-exclusive, non-transferrable and non-sublicensable right and license to use, display, crop, and publish the Rights Managed Content identified on the Invoice in the Project solely pursuant to the Term, Territory, Distribution/Use and other rights and restrictions specified in the Invoice and this Agreement.

2.4 Who may use the Content: The license granted for the Content pursuant to this Agreement is non-sublicensable and non-assignable unless otherwise specified in the Invoice. Licensee may license and/or transfer ownership of the final Project in connection with the distribution of the final Project as may be necessary to effectuate the intended use set forth in the Project, however, such right does not extend to distribution or transfer of the rights to the Content outside of the Project. Any licensee or transferee of the Project shall be bound by the terms of this Agreement and Licensee shall be jointly and severally liable to High Level Photography for any breach of the terms of this Agreement due to Licensee’s license of or transfer of the Project and shall indemnify High Level Photography pursuant to Section 18.1.

  1. General Restrictions.

3.1 Licensee shall not sub-license, sub-distribute, re-record, transfer, assign, sell, redistribute or provide to others any portion of the Content or its accompanying materials except as required with respect to the entire Project and expressly identified on the Invoice. You shall not store or share the Content via a database, library, image, video or audio storage network, configuration or similar arrangement, except as required to incorporate the Content in Your Project as authorised herein and solely up to the time the Project is completed, or as otherwise set forth in the Invoice. Licensee shall not permit the Content to be available in any medium in a manner that enables third parties to download, extract or access the Content as a standalone file. You may not upload a standalone file of the Content to file-sharing websites or social networking websites such as YouTube, Facebook, Twitter, Instagram etc., unless authorised by High Level Photography in writing or in the Invoice.

3.2 Rights Managed Content is licensed on a per-project basis. If Licensee requires multiple uses of the Content for a Project, or if a single item of Rights Managed Content is used for multiple Projects, then a separate License Fee (as described on the Invoice and below) shall apply and be reflected in the Invoice.

3.3 You shall not use the Content in any way that might be considered defamatory, libellous, obscene, pornographic, immoral or illegal. You also shall not use the Content in any manner that creates a false inference or places the Content in a context that is likely to result in bringing High Level Photography or any content supplier of High Level Photography into public disrespect, scandal, ridicule, or detract from the public image of High Level Photography or any of its identified content suppliers. Any determination regarding the appropriate use of the content per Section 3.2 of the Agreement shall be at the sole discretion of High Level Photography.

3.4 Content shall not be incorporated into a logo, trademark or service mark. If there are any incidental trademarks or logos contained in the Content, You shall not alter or use such marks in any way which implies an association with or an endorsement by the owner(s) of such logos or trademarks, and the inclusion of these incidental trademarks in the Content does not in any way imply such association with or endorsement of the Content. High Level Photography does not grant any license or right under this Agreement to any trademark, service mark, trade dress or logo or to any third party footage, photographs or copyrighted images that appear in the Content. Except as set forth in Section 7, Licensee is solely responsible for securing the necessary clearances associated with the Content.

3.5 Any audio or music to certain performances or any associated compositions or arrangements that are included as part of or embedded in any Content is ambient sound only and may require additional clearances and/or licenses from the broadcaster owner or performer or owner of rights in such audio or music. No license is granted herein for such audio or sound, unless authorised in writing by High Level Photography prior to such use.

3.6 You may transfer files containing the Content to Your clients, printers, or ISP provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file You provide. You may physically transfer the Content and its archives from one location to another, in which case You may use the Content at the new location instead.

3.7 You are not permitted to use the Content (including still images) for product that is intended for resale, such as, but not limited to, digital product (electronic templates for websites or applications, PowerPoint or Keynote templates, screensavers, software and mobile applications, video games, stand-alone backgrounds, wallpapers, stock elements or effects imagery elements) or physical product (DVDs, apparel, t-shirts, mugs, posters and any other printed product). You may not use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products. If You require the Content to be used for resale, You must obtain an Extended License by contacting High Level Photography customer service.

3.8 With respect to celebrity and news Content, unless otherwise notified in writing by High Level Photography, High Level Photography does not grant any right or license to use the name or likeness of any individual appearing in the Content in connection with or as an express or implied endorsement of any product or service. Further you shall not make use of any Content containing a person well known to the general public or of any person engaged in a competitive sport in any manner which can reasonably be construed as said person’s endorsement or disparagement of a product or service. Unless Licensee obtains the proper authorisations or clearances, Licensee shall not use the Content licensed pursuant to this Agreement in any manner that constitutes a direct or implied endorsement or disparagement of any product or service by any individual appearing in the Content.

3.9 Comp files. Watermarked Content (“Comps”) may be used only for rough-cut, evaluation, or educational purposes only. You may not include Comps in any finished client work (whether public or for internal/corporate use), and may not include Comps in any publicly visible project (i.e. published on the web such as YouTube or Vimeo, used in broadcast media, or used in printed marketing materials) unless explicitly granted permission by High Level Photography or an authorised partner. Comps used for educational purposes must be downloaded by students directly from the High Level Photography site or an authorised partner. They may not be redistributed or embedded in educational software or online learning programs. (For additional information on extended licensing, please contact High Level Photography.)

  1. Rights Managed License Fee charged for Content depends upon Your particular use and will be set forth on the Invoice. All Content is licensed by the image or “clip” unless specifically noted on the Invoice. A “clip” is defined as a continuous scene from camera start to camera stop or as otherwise set forth on the invoice.
  2. Payment.Unless Licensee is approved for credit terms, all licenses must be paid by up front Content prices are subject to change and prices established on the Invoice may change for future licenses of the same or similar type Content. It is agreed that a failure to pay the License Fees on the Invoice will be considered a material breach of this Agreement and if payment is not made in accordance with this Agreement, High Level Photography shall have the right to revoke the license. In the event High Level Photography revokes the license, You must cease using any Content immediately. You shall have no obligation to use the Content; however, payment is still required for any Content, whether or not such Content is used in Your Project.

5.1 Returns. All Content sales are final.  At High Level Photography’s option, High Level Photography may grant you a refund or credit if the Content is not what you ordered, or is not of satisfactory quality and you notify us of the details of any non-compliance with 48 hours of delivery.

  1. Taxes and Duties.You are responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the license granted to You, or Your use of the Content, pursuant to this Agreement in addition to the License Fee for the Content.
  2. Releases and Clearances. No Model or Property release or other release or permission regarding names, people, uniforms, trade marks, logos, copyright or designs depicted in any of the Content has been obtained by High Level Photography unless you are specifically given written notification of the existence of any release or permission
  3. Unauthorised Use.Licensee acknowledges and agrees that any unauthorised or unlicensed use of any Content by Licensee constitutes infringement of copyright and other applicable laws and shall entitle High Level Photography to exercise all rights and remedies available at law or in equity, including monetary damages against all users and beneficiaries of the use of such Content. In addition to any other fees, damages and penalties available at law or under this Agreement, High Level Photography reserves the right to assess and You agree to pay a fee equal to Ten (10) times High Level Photography’s License Fee for such misuse or unlicensed use of the Content. The foregoing is not a limiting statement of High Level Photography’s or its suppliers’ rights or remedies in connection with any unauthorised use of the Content or any breach of this Agreement. Without limiting any of the foregoing, if, for any reason, the Content comes into the possession of any unauthorised third person, firm or corporation while it is in Your control and due to Your negligence or willful misconduct, You shall undertake reasonable efforts to recover the Content and to recover on High Level Photography’s or its suppliers’ behalf any damages sustained by High Level Photography or its suppliers by reason of the unauthorised use thereof.
  4. Termination of License.High Level Photography reserves the right to terminate, revoke, and/or withdraw any and all licenses granted hereunder upon Your failure to comply with any provisions of this Agreement or make full payment when due for the Content. High Level Photography shall be entitled to pursue all remedies available under copyright and other laws in the event You breach any term or obligation of this Agreement. In the event of any termination, neither You nor any other person or entity covered by the license granted to You under this Agreement shall have any further right to make any use of the Content, including the Content that has been included in a produced or finished Project.
  5. Electronic Storage.In producing the Project authorised by this Agreement, You shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorised Project. Upon termination or expiration of the Term of this Agreement, You agree to cease use of all Content and shall promptly delete or destroy all digital copies, except that You may retain one copy of the permitted work You create incorporating the Content as necessary for archival purposes.
  6. Protection of Content.If Content is licensed by You for use on the Internet, or other online or interactive media outlet, You shall use Your best efforts to protect and secure the Content to ensure that it cannot be copied, that it retains its linear production for which it was licensed, and cannot be searched and downloaded in broadcast or substantially comparable quality.
  7. Copyright and Copyright Notice; Trademarks.With the exception of Content that is in the public domain, all Content is copyrighted by High Level Photography or its content suppliers and is protected by the laws of England and Wales, international treaty provisions and other applicable laws. No title or intellectual property rights in the Content, except for the license granted herein, are transferred to You by this Agreement. High Level Photography and its content suppliers retain all rights not expressly granted by this Agreement. Any trademarks, service marks, design marks, logos and/or trade dress included in the Content is subject to the exclusive owners of such marks and/or trade dress and no license to such marks is granted by this Agreement.

12.1 Public Domain Copyright.  High Level Photography does not warrant the copyright status of Content in the public domain.

  1. Credit.In the event any attribution credits are provided to any third parties in connection with any Project, You shall include a credit line that reads “Footage provided by High Level Photography Ltd”, “High Level Photography” or such other credit as separately identified in each Invoice for the Project. Such attribution credit shall be equal in all respects to any credit accorded to any other third party of comparable services.
  2. Withdrawal.High Level Photography shall have the right to withdraw Content because of actual or threatened litigation with respect to the Content; any binding declaration or order issued by a competent court or government authority that prevents the Content from being distributed; or any reason beyond High Level Photography’s control. High Level Photography shall give You as much advance notice as practicable of any such withdrawal. You acknowledge that High Level Photography’s right to withdraw Content pursuant to this paragraph is of a special and unique character which gives it a peculiar value and that Your license or other exploitation of Content after the effective date of a notice of withdrawal could cause High Level Photography irreparable injury and damage. You, therefore, agree that in addition to any right or remedy granted High Level Photography hereunder, High Level Photography shall be entitled to injunctive and other equitable relief against You to prevent any exploitation after the effective date of a notice of withdrawal. In the event of any notice of withdrawal by High Level Photography, You agree to physically remove the Content from Your premises, Your computer systems and Your storage (electronic or physical) and, to the extent possible, destroy, cease any use of or require any applicable party to cease any continued use of any Content incorporated into any finished Project at Your own expense.
  3. LIMITED WARRANTY AND DISCLAIMERS.

15.1 High Level Photography warrants (a) it has all necessary rights and authority to enter into and perform under this Agreement; (b) subject to Section 7, Your authorised use of the Content will not violate any third party copyrights to the underlying Content, and (c) the Content shall be free from defects in material and workmanship for 30 days from the date of the Invoice.

15.2 EXCEPT AS PROVIDED IN THE LIMITED WARRANTY SET FORTH ABOVE, HIGH LEVEL PHOTOGRAPHY, ITS CONTENT SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, PERFORMANCE, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FROM A COURSE OF DEALING OR USE IN TRADE.

15.3 THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF SECTION 15.1(c) OF THE LIMITED WARRANTY IS THE REPLACEMENT OF THE CONTENT OR REFUND OF THE LICENSE FEE, AT HIGH LEVEL PHOTOGRAPHY’S OPTION.

  1. Limitation Of Liability.Except for any liability which cannot by law be excluded or limited, neither High Level Photography nor any subsidiary, successor, predecessor, parent, affiliate, officer, director, employee, contractor, content supplier, or licensor shall be liable to you or any other third party claiming through you for special, indirect, consequential or incidental damages, punitive, statutory, or lost profits or any other damages arising out of, or relating to this agreement and/or your use or inability to use the content, whether framed as a breach of warranty of merchantability, title, non-infringement, or fitness for a particular purpose, in tort, contract, failure of essential purpose or otherwise. in no event shall the total aggregate liability of High Level Photography or any of its subsidiaries, successors, predecessors, parents, affiliates, or content suppliers, or their respective officers, directors, employees, contractors, or licensors owed to you or any third party claiming through you arising from this agreement, its termination or expiration, and/or your use of any content provided by high level photography, exceed two (2) times the monetary amount actually received by High Level Photography for the use of the applicable content.
  2. Licensee Warranties.You represent and warrant that (a) You are at least eighteen years of age and have the full right and authority to enter into this Agreement on behalf of You and/or the entity listed under Client Name on the Invoice, (b) Licensee’s use of the Content will comply with the terms and conditions herein and those set forth in the Invoice, and (c) You are responsible for determining whether Your use of any Content in the Project requires the consent of any other party or the license of any additional rights and obtaining such consents/licenses if required. Licensee further represents and warrants that the information that Licensee provides to High Level Photography is accurate and true, including, without limitation, all credit card or other payment information and Licensee shall update such information as necessary.
  3. Indemnification.

18.1 Licensee indemnification obligations. You agree to defend, indemnify and hold harmless High Level Photography, its content suppliers, licensors, and each of their respective officers, directors, employees, affiliates, successors, assigns, distributors and agents against all claims (including, without limitation, claims by third parties), lawsuits, demands, damages, judgments, costs and expenses (including reasonable attorneys’ fees and permitted and authorised costs) arising out of or related to (i) Your breach of the terms, restrictions, conditions, and/or warranties of this Agreement (including the terms, conditions, and restrictions identified on the Invoice), (ii) Your modification of any Content or combination of any Content, with any text or other content, (iii) Your failure to obtain any required or necessary releases or clearances or other permissions for Your use of the Content, (iv) except as set forth in Section 15 regarding High Level Photography’s warranties, any violation of any intellectual property right or violation of any privacy or publicity right, or (v) the negligent conduct of You or any of Your employees, contractors, agents, clients, principals, or users.

18.2 High Level Photography’s indemnification obligations. Provided that the Content is used in accordance with this Agreement, including the terms in the Invoice, High Level Photography shall defend, indemnify and hold You harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable outside legal fees and permitted and authorised costs), arising out of or related to High Level Photography’s breach of the warranties to You in Section 15 above. Notwithstanding the foregoing High Level Photography shall have no obligation under this section unless You provide High Level Photography with written notice within fifteen (15) days of Your receipt of any claim subject to this indemnity High Level Photography shall have the right to assume the handling, settlement or defence of any claim or litigation to which this indemnification applies,  You agree to co-operate with High Level Photography in the defence of any such claim and shall have the right to participate in any litigation at your own expense.  You agree that High Level Photography is not liable for any legal fees and/or other costs incurred by you or on your behalf prior to High Level Photography having a reasonable opportunity to analyse the validity of any claim, and shall not, in any case, have any obligation with respect to any claims covered under Section 18.1 above.

  1. Marketing and Promotion.By using any Content, You grant High Level Photography the right to display or reference Your derivative work using or incorporating such Content, in any reasonable marketing, educational, and/or promotional purpose as an example of customer usage.
  2. Copy of Usage.To ensure compliance with the terms and conditions of this Agreement, You agree to furnish High Level Photography with a copy of Your Project after such Project is made available to the general public at no additional cost and solely upon High Level Photography’s request.
  3. Confidentiality.During this Agreement, High Level Photography may provide You with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets which are proprietary to High Level Photography or its content suppliers. You agree that You will maintain the confidentiality of any confidential information that High Level Photography may provide You, and You shall not use or disclose such confidential information without the prior written consent of High Level Photography or its content suppliers, as the case may be.
  4. Governing Law.The Agreement and these Conditions shall be governed by and construed in accordance with the law of England and Wales, the parties agree to submit to the exclusive jurisdiction of the Court of England and Wales in respect of any dispute which arises out of or under this Agreement
  5. Miscellaneous.This Agreement, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements, both oral and written, between or among the parties. If any provision of this Agreement is determined by a court to be invalid or unenforceable, such determination shall not affect any other provision of this Agreement, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein.