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Everest Footage Terms and Conditions

This license agreement (“Agreement”) governs the terms by which a licensee (Licensee) obtains the right to use the graphics, video clips, audio clips, photographs and other media content (“Everest Footage”) that they obtain from Stock Footage, Inc. (“Everest Footage Producer”).


Everest Footage USAGE AGREEMENT

BY OBTAINING ANY Everest Footage FROM Everest Footage Producer, Licensee REPRESENT THAT (1) Licensee HAS READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) Licensee IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH Everest Footage Producer, AND (3) Licensee HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY Licensee HAS NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THESE TERMS. THE TERM “Licensee” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN Everest Footage IS LICENSED B. IF Licensee DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, Licensee MAY NOT DOWNLOAD OR USE ANY Everest Footage. PLEASE NOTE THAT this Agreement is subject to change by Everest Footage Producer in its sole discretion at any time. When changes are made, Everest Footage Producer will make a new copy of this Agreement online. Any changes to this Agreement will be effective immediately for any Everest Footage that Licensee has not downloaded and will be effective thirty (30) days after posting of notice of such changes online for Everest Footage already downloaded by Licensee. Everest Footage Producer may require Licensee to provide consent to the updated Agreement in a specified manner before further use of the Everest Footage is permitted. If Licensee does not agree to any change(s) after receiving a notice of such change(s), Licensee shall stop using the Everest Footage. Otherwise, Licensee continued use of the Everest Footage constitutes Licensee’s acceptance of such change(s). PLEASE REGULARLY CHECK THIS WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.

1. The License: This is a license, not a sale. Everest Footage Producer continues to own all Everest Footage. Subject to Licensee’s acceptance of the terms of this Agreement, Everest Footage Producer hereby grants to Licensee a limited non-exclusive, revocable, non-transferable, worldwide right to use the Everest Footage as follows: Licensee may use the Everest Footage for nearly any project, including feature films, broadcast, commercial, industrial, educational video, print projects, multimedia, games, and the internet, but solely to the extent the Everest Footage is incorporated into any work with substantial value added by Licensee such that transformed or derivative work is not recognizable as the Everest Footage nor is the Everest Footage capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Derivative Work” for the purposes of this Agreement). Thus, Licensee could incorporate Everest Footage in Derivative Works that include promotional materials, packaging, web page design, broadcast, products for sale, electronic and print publication, comps, and layouts. “Nontransferable” as used herein means that except as specifically provided in this Agreement, Licensee may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, the Everest Footage or the right to use the Everest Footage. Licensee may however, transfer Everest Footage to a third party for the sole purpose of causing such third party to produce and/or manufacture Derivative Works subject to the terms and conditions herein. Licensee cannot otherwise use the Everest Footage.

2. Limitations: The Everest Footage may not be sold as stand alone clips, Everest Footage, or included in any other media/stock product, library, or collection for distribution or resale. The Everest Footage may not be used, in part or in whole, as a trademark or service mark, nor may Licensee claim any proprietary rights of any sort in the Everest Footage, or any part thereof. Licensee may not make available some or all of the Everest Footage on a web page or other display as a separate or downloadable reusable file, or disassemble, decompile, reverse engineer, translate, or otherwise decode the Everest Footage for any reason whatsoever. If Licensee provides Everest Footage or Derivative Works to a client as part of Licensee’s work product, the client may not reuse the Everest Footage or Derivative Works for any purposes other than a review of Licensee’s work product without purchasing a separate license.

3. Fees and Payments: In exchange for Licensee’s usage of Everest Footage Producer’s Everest Footage as provided hereunder, Licensee must pay to Everest Footage Producer the licensing fee. This license applies to all files Licensee obtains from Everest Footage Producer Licensee agrees to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to Licensee, or of Licensee’s use of the Everest Footages, pursuant to this Agreement.

4. Copyright: Everest Footage Producer, its licensors and contributors retain all right, title, and interest in and to the Everest Footage not expressly granted by the License Grant above. Such rights are protected by the United States and International Copyright laws and international treaty provisions. Licensee may be held legally responsible for any copyright infringement that is caused or encouraged by Licensee’s failure to abide by the terms of this Agreement.

5. No Warranty: Everest Footage Producer makes no representation or warranty with respect to any Everest Footage or the use of names, trademarks, logos, registered or copyrighted designs or works of art depicted in any Everest Footage, and Licensee must use Licensee’s own discretion concerning the use of Everest Footage and the necessary rights, model releases, consents or permissions as may be required for Licensee’s intended usage are secured. All Everest Footage Producer’s Everest Footage are provided “as is.” Everest Footage Producer makes no representation or warranty either express or implied including but not limited to any implied warranties of merchantability, fitness for any particular use, quality of image, non-infringement, or compatibility with any computer hardware or other equipment, operating system or software program. Neither Everest Footage Producer nor any of its directors, officers, employees, subsidiaries, affiliates, or agents shall be liable for any damages, whether direct, incidental, or consequential, or other damages arising out of the use of, or the inability to use, the Everest Footage. Licensee acknowledges that Everest Footage Producer has no obligation to review, monitor or screen Everest Footage, although Everest Footage Producer reserves the right in its sole discretion to do so, and Everest Footage Producer does not approve, endorse or make any representations or warranties with respect to Everest Footage. Everest Footage Producer does not warrant the accuracy of any categorization, keyword, caption or title of the Everest Footage or the metadata that may be provided therewith. ANY Everest Footage DOWNLOADED FROM OR OTHERWISE OBTAINED IS ACCESSED AT Licensee’s OWN RISK, AND Licensee SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO Licensee’s PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, Licensee’s COMPUTER SYSTEM AND ANY DEVICE Licensee MAY USE TO ACCESS THE Everest Footage, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING OR DOWNLOADING SUCH CONTENT.

6. Indemnity and Release. Licensee will indemnify and hold Everest Footage Producer, and its subsidiaries, affiliates, officers, directors, agents, partners and employees (collectively, the “Everest Footage Producer Parties”), harmless from any claim or demand, including reasonable attorney’s fees, arising out of Licensee’s use of Everest Footage. Licensee hereby release the Everest Footage Producer Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from any Everest Footage or use thereof. If Licensee is a California resident, Licensee waives California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

7. Limitation of Liability: IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL ANY Everest Footage Producer PARTY BE LIABLE TO Licensee OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM THE Everest Footage, WHETHER OR NOT Everest Footage Producer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL Everest Footage Producer BE LIABLE TO Licensee IN THE AGGREGATE FOR MORE THAN THE AMOUNT RECEIVED BY Everest Footage Producer AS A RESULT OF Licensee’s USE OF THE Everest Footage DURING WHICH Licensee FIRST ASSERTS A CLAIM. IF Licensee HAS NOT PAID Everest Footage Producer ANY AMOUNTS DURING WHICH Licensee FIRST ASSERTS ANY SUCH CLAIM, Everest Footage Producer’s SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO TEN DOLLARS ($10.00). FOR THE AVOIDANCE OF DOUBT, Everest Footage Producer’s LIABILITY WILL BE LIMITED TO SUCH AMOUNTS IN THE AGGREGATE FOR BOTH THIS AGREEMENT AND THE TERMS OF USE. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO Licensee, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO Licensee, AND Licensee MIGHT HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Everest Footage Producer AND Licensee.

8. Termination: This Agreement will commence on the date when Licensee first obtains any Everest Footage and will remain in effect as long as Licensee maintains any Everest Footage or Derivative Work in Licensee’s possession. The license contained in this Agreement will terminate automatically without notice from Everest Footage Producer if Licensee fails to comply with any provision of the Agreement or the Terms of Use. If Licensee wants to terminate this Agreement, Licensee may do so at any time by notifying us and destroying all Everest Footage in Licensee’s possession. Licensee’s indemnity and payment obligations and Everest Footage Producer’s rights in conjunction with those obligations shall survive any termination or expiration of this Agreement, as well as Everest Footage Producer’s limitation on liability. The provisions of this paragraph are in addition to any other remedies and rights Everest Footage Producer may have as a result of any breach of this Agreement. Neither party will be entitled to damages as a result of termination of this Agreement as provided herein. Upon termination, Licensee must immediately (i) cease using the Everest Footages for any purpose; (ii) destroy or delete all copies and archives of the Everest Footage or accompanying materials; and (iii) if requested, confirm to Everest Footage Producer in writing that Licensee has complied with these requirements, provided, however, that such requirements in (i), (ii) and (iii) shall not affect or limit Licensee’s use of any existing Derivative Works containing Everest Footage. Upon notice from Everest Footage Producer, or upon Licensee’s knowledge that any Everest Footage is subject to a threatened, potential or actual claim of infringement of another’s right for which Everest Footage Producer may be liable, Licensee must immediately and at Licensee’s own expense (i) stop using the Everest Footage; (ii) delete or remove the Everest Footage from Licensee’s premises, computer systems and storage (electronic or physical); and (iii) ensure that Licensee’s clients, printers or ISPs do likewise. Everest Footage Producer will provide Licensee with replacement Everest Footage (which shall be determined by Everest Footage Producer in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

9. Export Control. Licensee may not use, export, import, or transfer the Everest Footage except as authorized by U.S. law, the laws of the jurisdiction in which Licensee obtained the Everest Footage, and any other applicable laws. In particular, but without limitation, the Everest Footage may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Everest Footage, Licensee represent and warrant that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Licensee is not listed on any U.S. Government list of prohibited or restricted parties. Licensee also will not use the Everest Footage for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Licensee acknowledges and agrees that products, services or technology provided by Everest Footage Producer are subject to the export control laws and regulations of the United States. Licensee shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Everest Footage Producer products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

10. General Provisions: This Agreement, with the Terms of Use, constitutes the entire agreement between Licensee and Everest Footage Producer regarding the use of the Everest Footage. Everest Footage Producer’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Licensee’s relationship to Everest Footage Producer is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and Licensee’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without Everest Footage Producer’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. If any provision of this Agreement is found illegal or unenforceable, the legality and enforceability of the other provisions of the Agreement will not be affected. Licensee’s use of the Everest Footage(s) must be in compliance with all applicable law, including but not limited to, laws and regulations relating to export, currency, and the law of moral rights. This license will expressly not be governed by the United Nations Convention on Contracts for the International Sale of Goods. No failure of either party to exercise or enforce any of its rights hereunder will serve as a waiver of such rights. This Agreement shall be governed in all respects by the laws of the State of Utah, excluding its’ body of law relating to conflicts of law, and excluding the issue of copyright, including its validity, interpretation, performance, breach, or other matter. Any and all disputes, controversies, demands, counts, claims, or causes of action arising under this Agreement, with the above exceptions, shall be settled by arbitration pursuant to the rules of the American Arbitration Association. Judgment upon any arbitration award may be entered in the highest court having jurisdiction as provided herein. Everest Footage Producer reserves the right to pursue any claim or controversy relating to intellectual property rights, not by arbitration, but by a court located in the State of Utah. In the event that either a court of competent jurisdiction directs us to go to court, or the matter involves copyright, Licensee agrees to fully reimburse Everest Footage Producer for its reasonable legal fees, costs, and disbursements if Everest Footage Producer is successful in the suit. Everest Footage Producer reserves the right to seek an injunction to prevent breach of Licensee’s obligation to Everest Footage Producer’s intellectual property rights. Everest Footage Producer reserves the right to withdraw Everest Footage from any of it’s websites at any time, for any reason.

11. Arbitration. Arbitration shall be subject to the Federal Arbitration Act and not state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving similar disputes. The matter may be arbitrated either by JAMS or the American Arbitration Association (“AAA”), as mutually agreed upon by the parties or selected by the party filing the claim. As modified by this Agreement, unless agreed upon by the parties in writing, the conduct of the arbitration shall be subject to the then current rules of JAMS or AAA (whichever is arbitrating the dispute), for commercial arbitration and, if the arbitrator deems it appropriate, consumer disputes. Licensee is thus GIVING UP Licensee’s RIGHT TO GO TO COURT to assert or defend Licensee’s rights EXCEPT for matters that may be taken to small claims court. Licensee’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. Licensee is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT. Licensee and Everest Footage Producer must abide by the following rules: (a) at Licensee’s election, any in-person arbitration hearing may take place in the federal judicial district of Licensee’s residence; (b) if Licensee’s claim is for $10,000 or less, instead of an in-person hearing, Licensee may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY Licensee OR Everest Footage Producer MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, PRIVATE ATTORNEY GENERAL OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) THE ARBITRATOR SHALL NOT AWARD CLASS-WIDE RELIEF; (g) Everest Footage Producer will pay the arbitration costs as required by the rules of JAMS or AAA (depending upon which is arbitrating the dispute), and in the event that Licensee is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Everest Footage Producer will pay as much of Licensee’s arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (h) the arbitrator may award any damages or other relief or remedies (including attorneys’ fees and costs) that are permitted by applicable law; and (i) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at-issue permit the prevailing party to be paid its fees’ and litigation costs, and in such instance any fees’ and costs awarded by the arbitrator shall be determined by applicable law, statute, regulation, or case law. Notwithstanding the foregoing, either Licensee or Everest Footage Producer may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in the State of Utah. With the exception of subparts (d) – (f) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subparts (d) – (f) are found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Licensee nor Everest Footage Producer shall be entitled to arbitration. In the event this agreement to arbitrate is held unenforceable, or in the event both AAA and JAMS refuse to arbitrate the Dispute, all controversies, disputes, demands, counts, claims, or causes of action between Everest Footage Producer and Licensee shall be exclusively brought in the state or federal courts located in the State of Utah. For more information on AAA, its rules and procedures, and how to file an arbitration claim, Licensee may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, its rules and procedures, and how to file an arbitration claim, Licensee may call JAMS at 800.352.5267 or visit the JAMS website at http://www.jamsadr.com.