THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU, YOUR COMPANY, LICENSEE, YOUR CLIENT, PURCHASER (IF ANY), AS THE CASE MAY BE (COLLECTIVELY “LICENSEE”)
AND SEPIA ADVERTISING Pvt. Ltd., A PRIVATE LIMITED COMPANY INCROPRATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT 4852/24 Ansari Road, Darya Ganj, Delhi – 110002, INDIA, HEREINAFTER REFERRED TO AS “Fotocrats” (WHICH EXPRESSION SHALL MEAN AND INCLUDE ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, NOMINEES, ADMINISTRATORS AND PERMITETD ASSIGNS).
THIS AGREEMENT APPLIES TO ALL THE LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE DELIVERY OF THE LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE, DESIGNATED END USER AND PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO ENTER INTO A CONTRACT UNDER ITS LOCAL LAWS.
1.1 GALLERY DATABASE
means any digital library catalogue of images maintained or accessed via Sepia Advertising through its website www.fotocrats.com which may be divided in any manner.
1.2 DISCLOSED AGENT OR PURCHASER
means the entity acquiring the license on behalf of the Designated End User. The Disclosed Agent may be a design firm, freelancer, employee, or any other party contracted by the Designated End User. If the Disclosed Agent is NOT the same as the Designated End User, the Disclosed Agent acts as an agent for the Designated End User, and both the parties are bound by these terms and conditions.
1.3 DESIGNATED END USER OR LICENSEE
means the entity acquiring a license hereunder or, if there is a separate purchaser, the entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice. During the purchase process of the Licensed Material, you will be asked to identify that specific "Designated End User" of the Licensed Material. If you are an agent or contractor or representative or designer working on a project for a specific client, it is that client and/or the specific product or service they are promoting who is the "Designated End User" of the image.
1.4 LICENSED MATERIAL
means any still image digital files, film or video footage, audio or sound, visual representation generated optically, electronically, digitally or by any other means, including, without limitation any original digital files, or in any other format protected by all the rights, including, without limitation copyright, trademark, patent or other intellectual property rights and proprietary rights which is licensed to Licensee by SEPIA ADVERTISING under the terms and conditions 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 as a whole.
1.5 EDITORIAL USE
Non-private, non-commercial use and broad distribution for the purpose of conveying information, facts, or opinion to the general public relating to events that are newsworthy or of public interest.
1.6. EDITORIAL LICENSED MATERIAL
Licensed Material to be used for "Editorial Use".
1.7 LICENSEE WORK
means an end product or service that has been created by or on behalf of the Licensee using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
1.8 REPRODUCTION AND REPRODUCE
means any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.9 INVOICE
means the computer-generated or pre-printed standard form invoice provided by SEPIA ADVERTISING setting out the terms agreed between SEPIA ADVERTISING and the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.10 PURCHASER
Means the entity purchasing the licence hereunder on behalf of a third party licensee.
1.11 LICENSE FEE
means the amount payable for the Licensed Material on Sepia Advertising’s Website.
1.12 RIGHTS AND RESTRICTIONS
means the information available to the Licensee at the time of the Licensed Material selection, either: (i) accompanying the Licensed Material on Sepia Advertisings’ website (including all areas of the purchase process); (ii) in a written quote issued by SEPIA ADVERTISING; or (iii) in the editorial feed (if so delivered), and as might also be reflected in the Invoice. Such restrictions may include, without limitation, the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material ("License Fee"). The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
2.1 SEPIA ADVERTISING
grants to the Licensee a limited, non-exclusive, non-sub-licensable, non-transferable, temporary, restricted and non-assignable right to reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement. The rights granted under the Agreement may be exercised by sub-contractors of the Licensee (including Purchaser), provided that such sub-contractors agree to abide by all the terms and conditions of this Agreement and Terms of Use of the Website.
2.2 Use of the Licensed
Material is strictly limited to the use, medium, period of time, placement, size of the Licensed Material, territory and any other restrictions specified in the Rights and Restrictions and the Invoice.
2.2.1 SEPIA ADVERTISING
grants a license to reproduce or use the Licensed Material (except for images listed under the "Celeb Collection") for a period of 12 years only in the territory/country in which the license to use the Licensed Material has been acquired by making the payment. The license will automatically terminate, unless terminated earlier, at the end of the license period. If the Licensee wants to use the Licensed Material after a period of 12 years, or want to use the Licensed Material in any other territory/country, the Licensee has to procure a fresh license from SEPIA ADVERTISING and pay the license fee as per the current pricing of the Licensed Material at that time.
2.2.2 Use of the Licensed
Material listed under the "Celeb Collection" is under the following terms and conditions: (i) The pricing of the “Celeb Collection” is based on the duration and territory of usage of the Licensed Material. Further the usage of the Licensed Material is strictly restricted to the industry selected for the Licensed Material. Any Licensed Material used outside the selected territory, industry or after the time period of usage shall constitute breach of the Agreement and will amount to copyright infringement. For web usage, the Licensed Material can be used worldwide. (ii) The Licensee is not authorized to use the Licensed Material under the "Celeb Collection" to give a testimonial, endorsement or use the name of the model(s) in any manner without the prior written permission from SEPIA ADVERTISING.
2.3 Pornographic, defamatory, libellous, immoral, obscene,
fraudulent or otherwise unlawful use of the Licensed Material is strictly prohibited, whether directly or in context or in juxtaposition with specific subject matter. You further agree not to use the Licensed Material for any sensitive subject matter, as determined by SEPIA ADVERTISING, including, but not limited to, Sex related products and services, sexually transmitted diseases, substance abuse, alcohol, tobacco, AIDS, cancer, mental ailments, homosexual or alternative lifestyle issues, and physical or mental abuse, without advance written consent from SEPIA ADVERTISING. Sensitive subject usage pertains to both commercial and editorial usage. Contact SEPIA ADVERTISING for verification of model releases. Availability of model releases does not grant the right to use the Licensed Material in any sensitive issues mentioned above.
2.4 Unless additional
rights are stipulated in the Rights and Restrictions or granted specifically pursuant to a separate License Agreement, Editorial Licensed Material may not be used for, including, but not limited to, any commercial, promotional, endorsement, advertising or merchandising use, as part of billboard, trade show or exhibit display. For clarification, in this Agreement use of Licensed Material in an “editorial” manner means restrictive use relating to events that are newsworthy or of public interest.
2.5 Editorial Licensed
Material may be cropped, provided that the editorial integrity of the Licensed Material is maintained and not compromised, but shall not, under any circumstances, otherwise be rotated, altered, changed, manipulated and tampered with, either manually or electronically, without SEPIA ADVERTISING’s prior written permission.
2.6 Licensed
Material shall not be incorporated into a logo, trademark or service mark.
2.7 Licensee
may not make the Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Material.
2.8 Licensed Material may not be modified,
reconfigured or repurposed for any use in any mobile-directed websites or mobile applications that are specifically created for viewing of the Licensed Material on mobile applications, without obtaining the prior written consent of SEPIA ADVERTISING.
2.9 Licensee
do not have the right to keep in possession or store any high-resolution files of the Licensed Material on their server, any digital media, disk or drive whether online or in any other medium from where any third party can have access to the Licensed Material.
2.10 If any Licensed
Material featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person to believe that the model personally uses or endorses a product or service or if the Licensed Material is used along with some descriptive information, including, but not limited to name, educational qualification, age, career related information, Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.
2.11 Unless otherwise authorized by
applicable law or specified in the Rights and Restrictions, Licensee may not, directly or indirectly, reproduce the final product of the Licensed Material in any secondary reproductions, such as compilations, in-context promotions or on file-sharing, social networking websites such as YouTube, Facebook, Myspace, etc. or screen shots. Such reproductions require an additional license and prior written permission from SEPIA ADVERTISING and may be subject to payment of additional license fees.
2.12 Licensed Material shall not be
used contrary to any restriction on use that is provided to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the Rights and Restrictions or in any other written communication from SEPIA ADVERTISING. Any such restriction provided to the Licensee shall be incorporated into and become part of this Agreement.
2.13 Licensed Material
may be cropped but shall not, under any circumstances, otherwise be altered, changed or tampered with, either manually or electronically, without Sepia Advertising express written permission.
2.14 Upon reasonable notice,
SEPIA ADVERTISING may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.
2.15 Licensee grants
to SEPIA ADVERTISING the irrevocable, perpetual, royalty-free, non-exclusive right and license to use Final Elements solely for the promotion of Sepia Advertising or any of its subsidiaries. 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 and other print.
2.16 Where Purchaser is
licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of the Licensee and has full power and authority to bind the Licensee to this Agreement; and (ii) if Licensee disputes Purchaser's power and authority to act on behalf of Licensee with respect to this Agreement, Purchaser shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section shall serve to excuse Purchaser's obligation to make payment and be liable to SEPIA ADVERTISING for the Licensed Material.
2.17 Licensee
may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
2.18 If the Rights and Restrictions include website use,
Licensee shall post terms and conditions on its permitted websites that include restrictions on downloading the Licensed Material for other than personal use, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.
2.19 Any of the body parts or
basic features of the model(s) in the Licensed material must not be cropped, altered, manipulated or distorted without taking a prior written approval from Sepia Advertising.
3.1 SEPIA ADVERTISING
is the sole and exclusive owner of all the material and content on Sepia Advertising’s Websites, including, without limitation www.imagesbazaar.com and websites of their affiliates and subsidiaries. All material and content on these Websites, including, but not limited to design, layout, images, 3D illustrations, documents, files, photographs, content, text, graphics, sound, videos, footage, trade-dress, trademarks, patents, written material (“SEPIA ADVERTISING Content”) are the sole and exclusive property of SEPIA ADVERTISING and is protected by all the applicable laws, including, without limitation copyright, trademark, trade-names, patents, designs, internet domain names, data protection, IT Act, privacy and publicity rights and other rights and statutes. Use of any SEPIA ADVERTISING Content without the prior express written permission and license to use is strictly prohibited. All rights, title, ownership, intellectual property rights and proprietary rights in the SEPIA ADVERTISING’s Website and its content shall always remain with SEPIA ADVERTISING, its affiliates and subsidiaries and shall not pass on to the Licensee, their representatives or any third party at any time.
3.2 COPYRIGHT
Sepia Advertising owns all copyrights in all the Content and Licensed Material on the Website. No ownership in any Content and Licensed Material shall to the Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, SEPIA ADVERTISING grants Licensee no right or license, express or implied, to the Licensed Material. Licensee shall not remove any copyright or other proprietary rights notice contained in the Licensed Material and in any related promotional materials provided on this Website.
3.3 TRADEMARKS
3.3.1 SEPIA ADVERTISING
is the exclusive owner and right holder of Sepia Advertising Trademarks, www.sepiaadvertising.com, SEPIA ADVERTISING Audio Visuals or any other SEPIA ADVERTISING’s trade names, trademarks, logos or service marks and any other slogan or design contained in the Website and otherwise used in trade, including the names of all Licensed Material collections (''SEPIA ADVERTISING Marks''). SEPIA ADVERTISING Marks shall remain the sole property of SEPIA ADVERTISING, its affiliates and subsidiaries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of SEPIA ADVERTISING or the applicable trademark holder.
3.3.2 Licensee
is not allowed to use, register, or assist others in using or registering any trademarks, trade names, logos, internet domain names, or any mark or name confusingly similar to SEPIA ADVERTISING Marks or belonging to SEPIA ADVERTISING without prior written consent from SEPIA ADVERTISING.
3.3.3 Licensee
will not now or in the future contest the validity of Sepia Advertising Marks nor will oppose or assist others in opposing any registration of any of the SEPIA ADVERTISING Marks.
3.3.4 Licensee
is not allowed to use any Sepia Advertising Marks in connection with any of their Works. All goodwill accruing to the Sepia Advertising Marks shall belong exclusively to SEPIA ADVERTISING.
3.3.5 Licensee
agrees not to use Sepia Advertising Marks in any manner that might tarnish, disparage, or reflect adversely on such trademarks or Sepia Advertising.
3.3.6 Licensee
agrees not to use any Sepia Advertising Marks or any variant thereof including misspellings as a domain name or as part of a domain name regardless of the top-level domain, or as a meta-tag, hidden text, keyword, or any other type of programming code or data
3.3.7 Licensee
cannot at any time, adopt or use, without Sepia Advertising's prior written consent any word or marks which is similar to or likely to be confused with SEPIA ADVERTISING Marks. In addition, the look and feel of the Website, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of SEPIA ADVERTISING and may not be copied, imitated or used, in whole or in part, without SEPIA ADVERTISING’s prior written permission.
3.3.8 Nothing
in this Agreement shall confer upon Licensee any right of ownership in Sepia Advertising Marks.
3.3.9 Licensee
cannot use SEPIA ADVERTISING Marks, Licensed Material or other Content of Sepia Advertising to link to their Website without the prior written consent of SEPIA ADVERTISING.
3.3.10 Licensee
cannot frame or hotlink to the Website or any Content other than its own without the prior written consent of Sepia Advertising.
3.3.11 All other trademarks,
registered trademarks, product names and company names or logos mentioned in the Website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by SEPIA ADVERTISING.
3.3.12 PHOTO CREDIT
Editorial Licensed Material must include the following credit line adjacent to the Licensed Material: "SEPIA ADVERTISING” or as otherwise notified by Sepia Advertising. If Licensee omits the credit line in the use of Licensed Material, an additional fee in an amount up to one hundred percent (100%) of the original License fee may be payable by Licensee, at SEPIA ADVERTISING’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that SEPIA ADVERTISING may have at law or in equity.
3.4 NOTICE OF VIOLATIONS
Licensee will immediately notify Sepia Advertising if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee, is wrongfully using the Licensed Material, in whole or in part, or is violating any of SEPIA ADVERTISING’s intellectual property rights and other rights, including, but not limited to, SEPIA ADVERTISING Marks and Copyrights.
4.1 SEPIA ADVERTISING
will notify Licensee if it has obtained a model release and/or a property release for the Licensed Material, either in the Licensed Material on the Website, in the Rights and Restrictions or by written notice to the Licensee. The warranty and indemnity set forth in Clauses 5.1(iv) and 6.1 below are only provided if and when such written notification is given. If no such notification is given, then no such model or property release has been obtained and thereby, the warranty and indemnity as set forth in Clauses 5.1(iv) and 6.1 would become void and not enforceable. In the event that no notification as to model or property release is provided by SEPIA ADVERTISING, SEPIA ADVERTISING shall not be liable for any claims made by any third parties relating to use of the Licensed Material not having the model or property release. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Neither SEPIA ADVERTISING nor any party on whose behalf SEPIA ADVERTISING licenses Licensed Material (each, a "Licensor") makes any representations or warranties as to whether any additional fees or payments may be due to any person depicted in the Licensed Material pursuant to the requirements of any applicable law, and Licensee shall be solely responsible for any such additional fees or payments.
4.2 Except where Licensee
is specifically notified that a model and/or property release has been obtained by Sepia Advertising, neither Sepia Advertising nor any Licensor grants any rights or makes any warranties with regard to the use of names, people, likeness, property, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of the Licensed Material, and Licensee shall be solely responsible for obtaining any required release. As to any release delivered with any Editorial Licensed Material, neither SEPIA ADVERTISING, nor any Licensor, makes any representation, warranty or guarantee as to its sufficiency with regard to any use of the Licensed Material made by the Licensee. Licensee shall obtain all necessary individual, model, property, team logo, trademark, audio and other releases, approvals and clearances from third parties as may be required for the Licensee's use of the Licensed Material prior to using the Licensed Material.
5.1 SEPIA ADVERTISING
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 thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (iii) Licensee's use of the Licensed Material in its original form, and when used strictly in accordance with this Agreement, will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by SEPIA ADVERTISING pursuant to Section 4.1, Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement will not infringe on any trademark or other intellectual property right and will not violate any right of privacy or right of publicity.
5.2 SEPIA ADVERTISING
uses reasonable efforts to ensure the accuracy, correctness and reliability of the information and Content, but Sepia Advertising makes no representations or warranties as to the Content posted by the third party User(s) as to its accuracy, correctness, reliability and any other irregularity.
5.3 NEITHER SEPIA ADVERTISING
NOR ANY LICENSOR MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SEPIA ADVERTISING, ITS AFFILIATES, SUBSIDIARIES AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, MEMBERS OR ANY LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE, THE SERVICES, SEPIA ADVERTISING IMAGE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM SEPIA ADVERTISING, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SEPIA ADVERTISING’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SEPIA ADVERTISING OR ITS LICENSORS, AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SEPIA ADVERTISING SHALLL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF LICENSEE OR PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
5.4 In no event shall
the aggregate liability of Sepia Advertising, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the site exceed any compensation the Licensee or the Purchaser pay, if any, to SEPIA ADVERTISING for access to or use of the Website and the Licensed Material.
6.1 Provided Licensed
Material is only used in accordance with this Agreement and Terms of Use of the Website and Licensee is not otherwise in breach of this Agreement and as Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Clause 5, SEPIA ADVERTISING shall subject to clause 5.3, 6.3 and 9.7, defend, indemnify and hold Licensee harmless from all damages (except punitive damages not directly attributable to acts of SEPIA ADVERTISING), 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 SEPIA ADVERTISING is in breach of its warranties as set forth in Clause 5 above. The foregoing states SEPIA ADVERTISING’s entire indemnification obligation under this Agreement.
6.2 Licensee shall defend,
indemnify and hold Sepia Advertising and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors, agents and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee's failure to obtain any required release. Such indemnification is in addition to SEPIA ADVERTISING’s right to terminate for a breach of the representations and warranties and is not a waiver or limitation of SEPIA ADVERTISING’s other rights or remedies.
6.3 The party seeking
indemnification pursuant to this Clause 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 of any such claim or litigation. Indemnified party shall have the right to participate in such litigation, at its own expense, through counsel selected by indemnified party. The 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.
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, SEPIA ADVERTISING 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.
Any dispute, violation, controversy, contest or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (hereinafter the “Disputes”) shall be resolved amicably in the first instance. The Parties agree to meet to resolve such dispute in good faith. Should such a solution not be reached, within [30] days from the date of commencement of the dispute, difference or disagreement or such longer period of time as may be mutually agreed by the Parties in writing, such dispute, difference or disagreement shall be referred to Arbitration and shall be finally resolved through arbitration conducted by a tribunal of three arbitrators, with the right of each party to appoint an arbitrator, who in turn will appoint a Presiding Arbitrator. The Presiding Arbitrator shall pass a speaking award. Any order/directions/awards of the majority of the tribunal shall be final and binding on both the parties. The arbitration proceedings shall be in accordance with the Indian Arbitration and Conciliation Act 1996 and Rules there under as at present in force. The seat of arbitration shall be Delhi, India. The arbitration shall be administered in accordance with its practice, rules and regulations. If the award passed in the Arbitration proceeding is not acceptable to any of the Party, then the Party is free to approach the appropriate court of law as agreed herein below. This Agreement shall be construed in accordance with and governed by the laws of India without giving effect to their conflict of laws principles or rules. The courts at Delhi, India shall have exclusive Jurisdiction.
9.1 UNAUTHORIZED USE
Any use of the Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement and other violation, entitling SEPIA ADVERTISING to exercise all rights and remedies available to it under copyright laws and other statutes around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement and other violation, including any claims by a third party. In addition and without prejudice to SEPIA ADVERTISINGs’ other remedies under this Agreement, SEPIA ADVERTISING reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times SEPIA ADVERTISING standard license fee for the unauthorized use of the Licensed Material.
9.2 TERMINATION
Notwithstanding any of these terms and conditions, Sepia Advertising reserves the right, without notice in its sole discretion, to terminate Licensee’s account and/or block Licensee’s use of the Website. SEPIA ADVERTISING reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received the notice from SEPIA ADVERTISING for unauthorized use of the Licensed Material; (ii) provides inaccurate information for proposed usage of the Licensed Material; or (iii) otherwise breaches any of the terms and conditions of the Agreement and Terms of Use of the Website; (iv) Upon termination, Licensee must destroy and cease to use, delete all digital files from Licensee’s database, return to SEPIA ADVERTISING the Licensed Material copies and related documentation thereof with immediate effect, and also return the License Work partial-control of Licensee.
9.3 REMEDY FOR BREACH
Licensee agree that any breach of this Agreement by Licensee or their representatives would cause Sepia Advertising irreparable harm, injury, loss and damage, the extent of which would be impossible to ascertain and for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies SEPIA ADVERTISING may have at law or in equity, SEPIA ADVERTISING shall be entitled to injunctive and other equitable relief in the event of any such breach of this Agreement by Licensee or their representatives.
9.4 SEPIA ADVERTISING
reserves the right to change any of the terms and conditions contained in this Agreement or any policy or guideline of the Website, at any time and in its sole discretion. Licensee’s continued use of the Website following the posting of such changes will constitute Licensee’s acceptance of such changes and Agreement.
9.5 ELECTRONIC STORAGE
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Sepia Advertising and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file containing the Licensed Material that is stored on Licensee's computers. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete and remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise.
9.6 AUDIT/CERTIFICATE OF COMPLIANCE
Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Sepia Advertising. In addition, upon reasonable notice, SEPIA ADVERTISING may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where SEPIA ADVERTISING reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at SEPIA ADVERTISING request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by SEPIA ADVERTISING.
9.7 WITHDRAWAL
Upon notice from Sepia Advertising, 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 SEPIA ADVERTISING may be liable herein, or if SEPIA ADVERTISING 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) and, cease any future use at its own expense.
9.8 SEVERABILITY
If one or more of the provisions contained in this Agreement is found to be invalid, illegal or enforceable 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.
9.9 ENTIRE AGREEMENT
This Agreement, Invoice and Terms of Use of the Website (incorporated by reference) contain all the terms of this Agreement.
9.10 WAIVER
No action of Sepia Advertising, other than express written waiver, may be construed as a waiver of any of provisions of this Agreement. A delay on the part of SEPIA ADVERTISING of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by SEPIA ADVERTISING 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 occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion. Any rights not expressly granted herein are reserved.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT PRIOR TO AGREEING TO IT. IN CONSIDERATION OF SEPIA ADVERTISING AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT THIS IS THE ENTIRE AGREEMENT AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN SEPIA ADVERTISING AND YOU RELATING TO THE SUBJECT OF THIS AGREEMENT.
THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOU, YOUR COMPANY, LICENSEE, YOUR CLIENT, PURCHASER (IF ANY), AS THE CASE MAY BE (COLLECTIVELY "LICENSEE") AND SEPIA ADVERTISING Pvt. Ltd., A PRIVATE LIMITED COMPANY INCROPRATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT 4852/24 Ansari Road, Darya Ganj, Delhi – 110002, INDIA, HEREINAFTER REFERRED TO AS “SEPIA ADVERTISING” (WHICH EXPRESSION SHALL MEAN AND INCLUDE ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, NOMINEES, ADMINISTRATORS AND PERMITETD ASSIGNS).
THIS AGREEMENT APPLIES TO ALL THE LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE AND DIGITAL DELIVERY OF THE LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE, DESIGNATED END USER AND PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO ENTER INTO A CONTRACT UNDER ITS LOCAL LAWS.
1.1 EXCLUSIVE RIGHTS IMAGE
The "Designated End User" shall have the exclusive right to use the image as purchased to the exclusion of all others for the "Specific Time Period" of the license mentioned while purchasing of the Exclusive Rights image(s).
1.2 GALLERY DATABASE
means any digital library or catalogue of Images, film or video footage maintained or accessed via Sepia Advertising through its website www.fotocrats.com which may be divided in any manner.
1.3 DISCLOSED AGENT OR PURCHASER
means the entity acquiring the license on behalf of the Designated End User. The Disclosed Agent may be a design firm, freelancer, employee, or any other party contracted by the Designated End User. In some cases, the Disclosed Agent may be the same as the Designated End User. If the Disclosed Agent is NOT the same as the Designated End User, the Disclosed Agent acts as an agent for the Designated End User, and both parties are bound by these terms.
1.4 DESIGNATED END USER OR LICENSEE
means the entity acquiring a license hereunder or, if there is a separate purchaser, the entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice. During the purchase process of the Licensed Material, you will be asked to identify that specific "Designated End User" of the Licensed Material. If you are an agent or contractor or representative or designer working on a project for a specific client, it is that client and/or the specific product or service they are promoting who is the "Designated End User" of the Licensed Material.
1.5 LICENSED MATERIAL
means any still image, film or video footage, audio or sound, visual representation generated optically, electronically, digitally or by any other means, including, without limitation any original digital files, or in any other format protected by all the rights, including, without limitation copyright, trademark, patent or other intellectual property rights and proprietary rights which is licensed to Licensee by SEPIA ADVERTISING under the terms and conditions 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 as a whole.
1.6 EDITORIAL USE
Non-private, non-commercial use and broad distribution for the purpose of conveying information, facts, or opinion to the general public relating to events that are newsworthy or of public interest.
1.7 PURCHASER
means an entity purchasing the licence hereunder on behalf of a third party licensee.
1.8 EDITORIAL LICENSED MATERIAL
Licensed Material to be used for "Editorial Use".
1.9 LICENSEE WORK
means an end product or service that has been created by or on behalf of the Licensee using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
1.10 EXCLUSIVE RIGHTS IMAGE
The "Designated End User" shall have the exclusive right to use the Licensed Material as acquired to the exclusion of all others for the "Specific Time Period" of the license mentioned while purchasing of the Exclusive Rights Licensed Material(s).
1.11 SPECIFIC TIME PERIOD
means the time period for which the Licensed Material would be removed from the gallery database (www.fotocrats.com) and nobody else can buy that Licensed Material for that time period. Price for Exclusive Rights depends only on the Time Period for which the Designated End User needs exclusivity for that Licensed Material. There are four options available for choosing the Time Period, i.e. 6 months, 1 year, 3 years and Lifetime.
1.11 REPRODUCTION AND REPRODUCE
means any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.12 INVOICE
means the computer-generated or pre-printed standard form invoice provided by Sepia Advertising setting out the terms agreed between Sepia Advertising and the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.13 LICENSE FEE
means the current prices for the Licensed Material listed on Sepia Advertising’s Website.
1.14 RIGHTS AND RESTRICTIONS
means the information available to the Licensee at the time of the Licensed Material selection, either: (i) accompanying the Licensed Material on Sepia Advertisings’ website (including all areas of the purchase process); (ii) in a written quote issued by SEPIA ADVERTISING; or (iii) in the editorial feed (if so delivered), and as might also be reflected in the Invoice. Such restrictions may include, without limitation, the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material ("License Fee"). The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
2.1 SEPIA ADVERTISING
grants to the Licensee an exclusive, non-sub-licensable, non-transferable, temporary, restricted and non-assignable right to use and reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement for the “Specific Time Period” as mentioned in the Invoice. The rights granted under the Agreement may be exercised by sub-contractors of the Licensee (including Purchaser), provided that such sub-contractors agree to abide by all the terms and conditions of this Agreement and Terms of Use of the Website.
2.2 Use of the Licensed Material
is strictly limited to the use, medium, period of time, placement, size of the Licensed Material, territory and other restrictions specified in the Rights and Restrictions.
2.2.1 SEPIA ADVERTISING
grants a license to reproduce or use the Licensed Material only for the "Specified Time Period" as mentioned in the Invoice. The license will automatically terminate, unless terminated earlier, at the end of the license period, i.e. "Specific Time Period". If the Licensee wants to use the Licensed Material after the "Specified Time Period", or want to use the Licensed Material in any other territory/country, the Licensee has to procure a fresh license from SEPIA ADVERTISING and pay the license fee as per the current pricing of the Licensed Material at that time.
2.2.2 Use of the Licensed Material
listed under the "CELEB COLLECTION" is under the following terms and conditions: (i)The pricing of the "Celeb Collection" is based on the duration and territory of usage of the Licensed Material. Further the usage of the Licensed Material is strictly restricted to the industry selected for the Licensed Material. Any Licensed Material used outside the selected territory, industry or after the time period of usage shall constitute breach of the Agreement and will amount to copyright infringement. For web usage, the Licensed Material can be used worldwide. (ii)The Licensee is not authorized to use the Licensed Material under the "Celeb Collection" to give a testimonial, endorsement or use the name of the model(s) in any manner without the prior written permission from SEPIA ADVERTISING.
2.3 SEPIA ADVERTISING
grants to the Licensee an Exclusive Right to use only the Licensed Material (i.e. Image ID purchased) and NOT for any other similar image(s) and video footage with same model(s), same location, same lighting, same set-up, same pose, same expressions, etc. SEPIA ADVERTISING makes no warranty for presence of similar images on other parts of its website (www.fotocrats.com) which are similar in people, pose, expressions, location, composition, etc. as to the image ID purchased. Someone else might have already purchased the Exclusive Right or Non-Exclusive Right to use that image, which might look similar to the image you have purchased. Exclusive Rights are granted for that specific image ID only. So if Exclusivity of the entire concept of the image you are purchasing is critical for the project, the you must also buy the Exclusive Rights of other similar image(s) with different image ID’s or contact us to know the history of the similar images or/and to buy the Exclusive Rights of all the similar image(s).
2.4 Pornographic, defamatory, libellous, immoral, obscene,
fraudulent or otherwise unlawful use of the Licensed Material is strictly prohibited, whether directly or in context or in juxtaposition with specific subject matter. You further agree not to use the Licensed Material for any sensitive subject matter, as determined by SEPIA ADVERTISING, including, but not limited to, all sexual issues, sex related products and services, sexually transmitted diseases, substance abuse, alcohol, tobacco, AIDS, cancer, mental ailments, homosexual or alternative lifestyle issues, and physical or mental abuse, without advance written consent from SEPIA ADVERTISING. Sensitive subject usage pertains to both commercial and editorial uses. Contact SEPIA ADVERTISING for verification of model releases. Availability of model releases does not grant the right to use the Licensed Material in any sensitive issues mentioned above.
2.5 Unless additional
rights are stipulated in the Rights and Restrictions or granted specifically pursuant to a separate License Agreement, Editorial Licensed Material may not be used for, including, but not limited to, any commercial, promotional, endorsement, advertising or merchandising use, as part of billboard, trade show or exhibit display. For clarification, in this Agreement use of Licensed Material in an “editorial” manner means restrictive use relating to events that are newsworthy or of public interest.
2.6 Editorial Licensed Material
may be cropped, provided that the editorial integrity of the Licensed Material is maintained and not compromised, but shall not, under any circumstances, otherwise be rotated, altered, changed, manipulated and tampered with, either manually or electronically, without SEPIA ADVERTISING’s prior written permission.
2.7 Licensed Material
shall not be incorporated into a logo, trademark or service mark.
2.8 Licensee may not make
the Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Material.
2.9 Licensed Material
may not be modified, reconfigured or repurposed for any use in any mobile-directed websites or mobile applications that are specifically created for viewing of the Licensed Material on mobile applications, without obtaining the prior written consent of SEPIA ADVERTISING.
2.10 Licensee do not have
the right to keep in possession or store any high-resolution files of the Licensed Material on their server, any digital media, disk or drive whether online or in any other medium from where any third party can have access to the Licensed Material.
2.11 If any Licensed Material
featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person to believe that the model personally uses or endorses a product or service or if the Licensed Material is used along with some descriptive information, including, but not limited to name, educational qualification, age, career related information, Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.
2.12 Unless otherwise authorized
by applicable law or specified in the Rights and Restrictions, Licensee may not, directly or indirectly, reproduce the final product of the Licensed Material in any secondary reproductions, such as compilations, in-context promotions or on file-sharing, social networking websites such as YouTube, Facebook, Myspace, etc. or screen shots. Such reproductions require an additional license and prior written permission from SEPIA ADVERTISING and may be subject to payment of additional license fees.
2.13 Licensed Material
may be cropped but shall not, under any circumstances, otherwise be altered, changed or tampered with, either manually or electronically, without Sepia Advertising express written permission.
2.14 Upon reasonable notice,
Sepia Advertising may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.
2.15 Licensee grants to SEPIA ADVERTISING
the irrevocable, perpetual, royalty-free, non-exclusive right and license to use Final Elements solely for the promotion of Sepia Advertising or any of its subsidiaries. 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 and other print.
2.16 Licensed Material
shall not be used contrary to any restriction on use that is provided to the Licensee prior to or at the time the Licensed Material is delivered to the Licensee. Such restrictions may be included in the Rights and Restrictions or in any other written communication from SEPIA ADVERTISING. Any such restriction provided to the Licensee shall be incorporated into and become part of this Agreement.
2.17 Where Purchaser is licensing
Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of the Licensee and has full power and authority to bind the Licensee to this Agreement; and (ii) if Licensee disputes Purchaser's power and authority to act on behalf of Licensee with respect to this Agreement, Purchaser shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section shall serve to excuse Purchaser's obligation to make payment and be liable to SEPIA ADVERTISING for the Licensed Material.
2.18 Licensee may not falsely represent,
expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
2.19 If the Rights and Restrictions
include website use, Licensee shall post terms and conditions on its permitted websites that include restrictions on downloading the Licensed Material for other than personal use, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.
2.20 Any of the body
parts or basic features of the model(s) in the Licensed material must not be cropped, altered, manipulated or distorted without taking a prior written approval from SEPIA ADVERTISING.
3.1 SEPIA ADVERTISING
is the sole and exclusive owner of all the material and content on Sepia Advertising’s Websites, including, without limitation www.fotocrats.com and websites of their affiliates and subsidiaries. All material and content on these Websites, including, but not limited to design, layout, images, 3D illustrations, documents, files, photographs, content, text, graphics, sound, videos, footage, trade-dress, trademarks, patents, written material (“SEPIA ADVERTISING Content”) are the sole and exclusive property of SEPIA ADVERTISING and is protected by all the applicable laws, including, without limitation copyright, trademark, trade-names, patents, designs, internet domain names, data protection, IT Act, privacy and publicity rights and other rights and statutes. Use of any SEPIA ADVERTISING Content without the prior express written permission and license to use is strictly prohibited. All rights, title, ownership, intellectual property rights and proprietary rights in the SEPIA ADVERTISING’s Website and its content shall always remain with SEPIA ADVERTISING, its affiliates and subsidiaries and shall not pass on to the Licensee, their representatives or any third party at any time.
3.2.COPYRIGHT
SEPIA ADVERTISING owns all copyrights in all the Content and the Licensed Material on the Website. No ownership in any Content and the Licensed Material shall to the Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, SEPIA ADVERTISING grants Licensee no right or license, express or implied, to the Licensed Material. Licensee shall not remove any copyright or other proprietary rights notice contained in the Licensed Material and in any related promotional materials provided on this Website.
3.3.TRADEMARKS
3.3.1 SEPIA ADVERTISING
is the exclusive owner and right holder of Sepia Advertising Trademarks, www.fotocrats.com, Sepia Advertising Audio Visuals or any other Sepia Advertising’s trade names, trademarks, logos or service marks and any other slogan or design contained in the Website and otherwise used in trade, including the names of all the Licensed Material collections (''SEPIA ADVERTISING Marks''). SEPIA ADVERTISING Marks shall remain the sole property of SEPIA ADVERTISING, its affiliates and subsidiaries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of SEPIA ADVERTISING or the applicable trademark holder.
3.3.2 Licensee
is not allowed to use, register, or assist others in using or registering any trademarks, trade names, logos, internet domain names, or any mark or name confusingly similar to SEPIA ADVERTISING Marks or belonging to SEPIA ADVERTISING without prior written consent from Sepia Advertising.
3.3.3 Licensee will not
now or in the future contest the validity of Sepia Advertising Marks nor will oppose or assist others in opposing any registration of any of the Sepia Advertising Marks.
3.3.4 Licensee is not allowed
to use any Sepia Advertising Marks in connection with any of their Works. All goodwill accruing to the Sepia Advertising Marks shall belong exclusively to Sepia Advertising.
3.3.5 Licensee agrees
not to use Sepia Advertising Marks in any manner that might tarnish, disparage, or reflect adversely on such trademarks or SEPIA ADVERTISING.
3.3.6 Licensee agrees
not to use any Sepia Advertising Marks or any variant thereof including misspellings as a domain name or as part of a domain name regardless of the top-level domain, or as a meta-tag, hidden text, keyword, or any other type of programming code or data.
3.3.7 Licensee cannot
at any time, adopt or use, without Sepia Advertising's prior written consent any word or marks which is similar to or likely to be confused with Sepia Advertising Marks. In addition, the look and feel of the Website, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Sepia Advertising and may not be copied, imitated or used, in whole or in part, without SEPIA ADVERTISING’s prior written permission.
3.3.8 Nothing in this Agreement
shall confer upon Licensee any right of ownership in Sepia Advertising Marks.
3.3.9 Licensee cannot use
SEPIA ADVERTISING Marks, Licensed Material or other Content of Sepia Advertising to link to their Website without the prior written consent of Sepia Advertising.
3.3.10 Licensee cannot
frame or hotlink to the Website or any Content other than its own without the prior written consent of Sepia Advertising.
3.3.11 All other trademarks,
registered trademarks, product names and company names or logos mentioned in the Website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Sepia Advertising.
3.3.12 PHOTO CREDIT
Editorial Licensed Material must include the following credit line adjacent to the Licensed Material: "fotocrats” or as otherwise notified by Sepia Advertising. If the Licensee omits the credit line in the use of Licensed Material, an additional fee in an amount up to one hundred percent (100%) of the original License fee may be payable by Licensee, at Sepia Advertising’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that SEPIA ADVERTISING may have at law or in equity.
3.4 NOTICE OF VIOLATIONS
Licensee will immediately notify Sepia Advertising if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee, is wrongfully using the Licensed Material, in whole or in part, or is violating any of SEPIA ADVERTISING’s intellectual property rights and other rights, including, but not limited to, Sepia Advertising Marks and Copyrights.
4.1 SEPIA ADVERTISING
will notify Licensee if it has obtained a model release and/or a property release for the Licensed Material, either in the Licensed Material on the Website, in the Rights and Restrictions or by written notice to the Licensee. The warranty and indemnity set forth in Clauses 5.1(iv) and 6.1 below are only provided if and when such written notification is given. If no such notification is given, then no such model or property release has been obtained and thereby, the warranty and indemnity as set forth in Clauses 5.1(iv) and 6.1 would become void and not enforceable. In the event that no notification as to model or property release is provided by SEPIA ADVERTISING, SEPIA ADVERTISING shall not be liable for any claims made by any third parties relating to use of the Licensed Material not having the model or property release. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Neither SEPIA ADVERTISING nor any other party on whose behalf SEPIA ADVERTISING licenses Licensed Material (each, a "Licensor") makes any representations or warranties as to whether any additional fees or payments may be due to any person depicted in the Licensed Material pursuant to the requirements of any applicable law, and Licensee shall be solely responsible for any such additional fees or payments.
4.2 Except where the Licensee
is specifically notified that a model and/or property release has been obtained by Sepia Advertising, neither Sepia Advertising nor any Licensor grants any rights or makes any warranties with regard to the use of names, people, likeness, property, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of the Licensed Material, and Licensee shall be solely responsible for obtaining any required release. As to any release delivered with any Editorial Licensed Material, neither SEPIA ADVERTISING, nor any Licensor, makes any representation, warranty or guarantee as to its sufficiency with regard to any use of the Licensed Material made by the Licensee. Licensee shall obtain all necessary individual, model, property, team logo, trademark, audio and other releases, approvals and clearances from third parties as may be required for the Licensee's use of the Licensed Material prior to using the Licensed Material.
5.1 SEPIA ADVERTISING 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 thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (iii) Licensee's use of the Licensed Material in its original form, and when used strictly in accordance with this Agreement, will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by SEPIA ADVERTISING pursuant to Section 4.1, Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement will not infringe on any trademark or other intellectual property right and will not violate any right of privacy or right of publicity.
5.2 SEPIA ADVERTISING
uses reasonable efforts to ensure the accuracy, correctness and reliability of the information and Content, but Sepia Advertising makes no representations or warranties as to the Content posted by the third party User(s) as to its accuracy, correctness, reliability and any other irregularity.
5.3 NEITHER SEPIA ADVERTISING
NOR ANY LICENSOR MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SEPIA ADVERTISING, ITS AFFILIATES, SUBSIDIARIES AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, MEMBERS OR ANY LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE, THE SERVICES, SEPIA ADVERTISING CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM SEPIA ADVERTISING, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SEPIA ADVERTISING’S RECORDS, PROGRAMS OR SERVICES, EVEN IF SEPIA ADVERTISING OR ITS LICENSORS, AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SEPIA ADVERTISING SHALLL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF LICENSEE OR PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
5.4 In no event shall
the aggregate liability of Sepia Advertising, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the site exceed any compensation the Licensee or the Purchaser pay, if any, to SEPIA ADVERTISING for access to or use of the Website and the Licensed Material.
6.1 Provided Licensed Material
is only used in accordance with this Agreement and Terms of Use of the Website and Licensee is not otherwise in breach of this Agreement and as Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Clause 5, SEPIA ADVERTISING shall subject to clause 5.3, 6.3 and 10.7, defend, indemnify and hold Licensee harmless from all damages (except punitive damages not directly attributable to acts of SEPIA ADVERTISING), 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 SEPIA ADVERTISING is in breach of its warranties as set forth in Clause 5 above. The foregoing states SEPIA ADVERTISING’s entire indemnification obligation under this Agreement.
6.2 Licensee shall defend,
indemnify and hold Sepia Advertising and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors, agents and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by the Licensee of this Agreement; or (iii) Licensee's failure to obtain any required release. Such indemnification is in addition to SEPIA ADVERTISING’s right to terminate for a breach of the representations and warranties and is not a waiver or limitation of SEPIA ADVERTISING’s other rights or remedies.
6.3 The party seeking indemnification pursuant
to this Clause 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 of any such claim or litigation. Indemnified party shall have the right to participate in such litigation, at its own expense, through counsel selected by indemnified party. The 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.
7.1 COLLECTION SPECIFIC TERMS & CONDITIONS
Interest or Cancellation on Overdue Invoices. If Licensee fails to pay SEPIA ADVERTISING invoice in full within the time specified in the Invoice, Sepia Advertising may add a service charge of two percent (2 %) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. SEPIA ADVERTISING also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.
7.2 UPGRADING OF EXCLUSIVE RIGHTS LICENSE AGREEMENT
If the “Licensee” wants to upgrade the period of Exclusive Rights Usage, then the “Licensee” must pay the total amount afresh (not balance) to Sepia Advertising at least 15 days prior to the last day of the “Specific Time Period”. Paying the balance amount cannot renew this. “Licensee” must pay the current price for the “Specific Time Period”, which may be greater than the price for which the Exclusive Rights were taken. For instance, if the Exclusive Rights for an image was taken for “four months” and the “Licensee” wants to continue this till one year then the “Licensee” is bound to pay the current price for one year and not eight months. If the payment is not received and realized in full, SEPIA ADVERTISING can give the Non-Exclusive Rights of that image to any other “Licensee” the day that Exclusive Rights contract expires.
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, SEPIA ADVERTISING 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.
Any dispute, violation, controversy, contest or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (hereinafter the “Disputes”) shall be resolved amicably in the first instance. The Parties agree to meet to resolve such dispute in good faith. Should such a solution not be reached, within [30] days from the date of commencement of the dispute, difference or disagreement or such longer period of time as may be mutually agreed by the Parties in writing, such dispute, difference or disagreement shall be referred to Arbitration and shall be finally resolved through arbitration conducted by a tribunal of three arbitrators, with the right of each party to appoint an arbitrator, who in turn will appoint a Presiding Arbitrator. The Presiding Arbitrator shall pass a speaking award. Any order/directions/awards of the majority of the tribunal shall be final and binding on both the parties. The arbitration proceedings shall be in accordance with the Indian Arbitration and Conciliation Act 1996 and Rules there under as at present in force. The seat of arbitration shall be Delhi, India. The arbitration shall be administered in accordance with its practice, rules and regulations. If the award passed in the Arbitration proceeding is not acceptable to any of the Party, then the Party is free to approach the appropriate court of law as agreed herein below. This Agreement shall be construed in accordance with and governed by the laws of India without giving effect to their conflict of laws principles or rules. The courts at Delhi, India shall have exclusive Jurisdiction.
10.1 UNAUTHORIZED USE
Any use of the Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement and other violation, entitling SEPIA ADVERTISING to exercise all rights and remedies available to it under copyright laws and other statutes around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement and other violation, including any claims by a third party. In addition and without prejudice to SEPIA ADVERTISINGs’ other remedies under this Agreement, Sepia Advertising reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times SEPIA ADVERTISING standard license fee for the unauthorized use of the Licensed Material.
10.2 TERMINATION
Notwithstanding any of these terms and conditions, SEPIA ADVERTISING reserves the right, without notice in its sole discretion, to terminate Licensee’s account and/or block Licensee’s use of the Website. SEPIA ADVERTISING reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received the notice from SEPIA ADVERTISING for unauthorized use of the Licensed Material; (ii) provides inaccurate information for proposed usage of the Licensed Material; or (iii) otherwise breaches any of the terms and conditions of the Agreement and Terms of Use of the Website; (iv) Upon termination, Licensee must destroy and cease to use, delete all digital files from Licensee’s database, return to Sepia Advertising the Licensed Material copies and related documentation thereof with immediate effect, and also return the License Work in possession or control of the Licensee.
10.3 REMEDY FOR BREACH
Licensee agree that any breach of this Agreement by Licensee or their representatives would cause Sepia Advertising irreparable harm, injury, loss and damage, the extent of which would be impossible to ascertain and for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies SEPIA ADVERTISING may have at law or in equity, SEPIA ADVERTISING shall be entitled to injunctive and other equitable relief in the event of any such breach of this Agreement by Licensee or their representatives.
10.4 SEPIA ADVERTISING
reserves the right to change any of the terms and conditions contained in this Agreement or any policy or guideline of the Website, at any time and in its sole discretion. Licensee’s continued use of the Website following the posting of such changes will constitute Licensee’s acceptance of such changes and Agreement.
10.5 ELECTRONIC STORAGE
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Sepia Advertising and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file containing the Licensed Material that is stored on Licensee's computers. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete and remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise.
10.6 AUDIT/CERTIFICATE OF COMPLIANCE
Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Sepia Advertising. In addition, upon reasonable notice, Sepia Advertising may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where Sepia Advertising reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at Sepia Advertising request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by SEPIA ADVERTISING.
10.7 WITHDRAWAL
Upon notice from Sepia Advertising, 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 Sepia Advertising may be liable herein, or if Sepia Advertising 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) and, cease any future use at its own expense.
10.8 SEVERABILITY
If one or more of the provisions contained in this Agreement is found to be invalid, illegal or un-enforceable 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.
10.9 ENTIRE AGREEMENT
This Agreement, Invoice and Terms of Use of the Website (incorporated by reference) contain all the terms of this Agreement.
10.10 WAIVER
No action of Sepia Advertising, other than express written waiver, may be construed as a waiver of any of provisions of this Agreement. A delay on the part of SEPIA ADVERTISING of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by SEPIA ADVERTISING 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 occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion. Any rights not expressly granted herein are reserved.
