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.”
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.
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.