Content License Agreement
(rev. August 1, 2013)
1.1 “Content” means all images, footage, films, videos or other audio/visual representations recorded in any format that are owned or controlled by T3Media and are available for license as either Rights Managed Content or Royalty Free Content described on the Invoice or on our website. Rights Managed Content may have restrictions regarding a minimum seconds per clip that must be licensed or minimum seconds per individual Project that must be licensed and such restrictions shall be noted on the Invoice for such license.
1.2 “Invoice” means the form invoice generated by T3Media via the T3Media website that sets out the clip(s) of Content You agree to license and the various rights associated with such clip(s), including the Project Type, Distribution/Use, Territory, Term, Client Name and Project Name, as well as the method of delivery and format. The Invoice shall be incorporated and made a part of this Agreement and all references to the Agreement shall include the Invoice.
1.3 “Licensee” or “You” means the entity or individual purchasing the license under this Agreement or, if the purchaser is acting on behalf of another entity or individual, the entity or individual specifically named under Client Name on the Invoice.
1.4 “Project” means the final work product that is created by or on behalf of the Licensee using the Content as authorized by this Agreement and as expressly defined and identified in the final Quote and/or Invoice provided to You by T3Media.
1.5 “Rights Managed Content” means Content licensed for a fee on a per use, per Project basis to a single Licensee and expressly designated as “Rights Managed” or “RM” by T3Media.
1.6 “Royalty Free Content” means Content licensed for an unlimited number of uses and Projects, licensed to a single Licensee, for a one-time flat fee and expressly designated as “Royalty Free” or “RF” by T3Media and licensed by Licensee solely pursuant to a Royalty Free Subscription Package.
1.7 “Royalty Free Subscription Package” means a fixed amount of Royalty Free Content available for licensing at various prices by Licensee as determined by the certain subscription package that Licensee purchases from T3Media prior to the selection of Royalty Free Content. For the purposes of this Agreement and the Royalty Free Subscription Package, a day is defined as the twenty four (24) hour period beginning 12:00 a.m. (MST) on the calendar day when Licensee accepts the purchase of and pays for the Royalty Free Subscription Package. A month is defined as thirty (30) consecutive days beginning on and including the date that Licensee purchases its subscription.
2. Grant of License.
2.1 General: All licenses granted by T3Media are conditioned upon (i) Licensee’s compliance with the terms of this Agreement and (ii) T3Media’s receipt of full payment of the amount identified in the Invoice.
2.2 Rights Managed Content: Subject to the terms of this Agreement, and excluding the rights granted in Sections 2.3 and 2.4, T3Media grants You a non-exclusive, non-transferrable and non-sublicensable right and license to use, display, crop, and publish the Rights Managed Content identified on the Invoice in the Project solely pursuant to the Term, Territory, Distribution/Use and other rights and restrictions specified in the Invoice and this Agreement.
2.3 Royalty Free Content: Subject to the terms of this Agreement, and excluding the rights granted in Sections 2.2 and 2.4, T3Media grants You a limited, non-exclusive, non-transferrable and non-sublicensable, worldwide (except as otherwise set forth on the Invoice) right and license to use the Royalty Free Content identified on the Invoice for an unlimited number of uses by You in any and all media for all purposes subject to the terms and restrictions set forth in this Agreement.
2.4 Who may use the Content: The license granted for the Content pursuant to this Agreement is non-sublicensable and non-assignable unless otherwise specified in the Invoice. Licensee may license and/or transfer ownership of the final Project in connection with the distribution of the final Project as may be necessary to effectuate the intended use set forth in the Project, however, such right does not extend to distribution or transfer of the rights to the Content outside of the Project. Any licensee or transferee of the Project shall be bound by the terms of this Agreement and Licensee shall be jointly and severally liable to T3Media for any breach of the terms of this Agreement due to Licensee’s license of or transfer of the Project and shall indemnify T3Media pursuant to Section 19.1.
2.5 Royalty Free Subscription Package Single User License: Each Royalty Free Subscription includes a single user license which may not be shared. If additional users from Licensee’s organization require access to the Royalty Free Subscription Package or if Licensee wishes to share images Licensee downloads through Licensee’s subscription with others in Licensee’s organization, then Licensee must purchase additional user licenses, or “seats” for each individual with whom Licensee shares Royalty Free Content. Each person that desires to access the Royalty Free Subscription Package must have its own username and password and must purchase an individual Royalty Free Subscription Package. If any two users are using the same username and password, T3Media reserves the right to terminate Licensee’s account without refund or prior notice. T3Media reserves the right to monitor accounts and institute mechanical or other means to stop users from sharing their login information. To purchase additional user seats please contact firstname.lastname@example.org.
3.1 Licensee shall not sub-license, sub-distribute, re-record, transfer, assign, sell, resell, redistribute or provide to others any portion of the Content or its accompanying materials except as required with respect to the entire Project and expressly identified on the Invoice. You shall not store or share the Content via a database, library, image, video or audio storage network, configuration or similar arrangement, except as required to incorporate the Content in Your Project as authorized herein and solely up to the time the Project is completed, or as otherwise set forth in the Invoice. Unless authorized in writing by T3Media, You shall not alter, edit or enhance the Content in any manner, or use, reproduce, sub-license, or sub-distribute the Content either as incorporated in Your Project or as a standalone clip as (a) a template, (b) stand-alone background, (c) stock elements or effects imagery element, (d) downloadable file or (e) any other clip media/stock product, each as part of another library, collection, or set of clips for distribution or resale. Licensee shall not permit the Content to be available in any medium in a manner that enables third parties to download, extract or access the Content as a standalone file. You may not directly or indirectly reproduce the Content in any secondary reproductions such as screen shots, in-context promotions or on file-sharing or social networking websites such as YouTube, Facebook, Twitter, etc., unless authorized by T3Media in writing or in the Invoice.
3.2. Unless otherwise set forth in the Invoice or unless the Content is Royalty Free Content, Licensee shall not use the Content in multiple Projects or make multiple use of the Content in any individual Project. If Licensee requires multiple lifts and versions or multiple uses of the Content for a Project, a separate License Fee (as described on the Invoice and below) shall apply and be reflected in the Invoice.
3.3. You shall not use the Content in any way that might be considered defamatory, libelous, obscene, pornographic, immoral or illegal. You also shall not use the Content in any manner that creates a false inference or places the Content in a context that is likely to result in bringing T3Media or any content supplier of T3Media into public disrespect, scandal, ridicule, or detract from the public image of T3Media or any of its identified content suppliers. You shall not use any sports or news Content in any manner that is derogatory to, disparages, demeans or reflects adversely upon the professional, business or personal reputation of T3Media or its employees, its content suppliers, their respective sports, their member institutions, their respective employees, the athletes or any other person or entity that appears in or is connected to the Content. You shall not use any sports Content in connection with or in any way related to a lottery, sweepstakes, game of chance or any other type of gambling or wagering activity or in or as part of any audiovisual production marketed, advertised, distributed or sold as part of or in association with any of the foregoing. Any determination regarding the appropriate use of the content per Section 3.3 of the Agreement shall be at the sole discretion of T3Media.
3.4 Licensees that license Content from the NCAA® content library must adhere to the NCAA rules and advertising and promotional standards, as published on the NCAA’s website (as amended from time to time). All licenses of Content involving collegiate or professional sports require approval from T3Media prior to any use of Content for the specific Project, and any use by Licensee of Content in a Project without such approval via the rights granted in an Invoice or by separate writing from T3Media shall be unauthorized.
3.5 Licensees of PGA Tour Content may not use the Content to imply an association between PGA Tour and any product or service, or between PGA Tour and any third party, except to the extent that Licensee has acquired the express right to imply such an association under a separate, binding, written agreement signed by PGA Tour. Licensees of PGA Tour Content may not sell sponsorships of the Content nor sell advertising that accompanies or is adjacent to the Content which implies any relationship between the advertiser and the PGA Tour or the PGA Tour’s Content.
3.6 Content shall not be incorporated into a logo, trademark or service mark. If there are any incidental trademarks or logos contained in the Content, You shall not alter or use such marks in any way which implies an association with or an endorsement by the owner(s) of such logos or trademarks, and the inclusion of these incidental trademarks in the Content does not in any way imply such association with or endorsement of the Content. T3Media does not grant any license or right under this Agreement to any trademark, service mark, trade dress or logo or to any third party footage, photographs or copyrighted images that appear in the Content. Unless otherwise specified within this Agreement, no license or rights are granted to any broadcaster’s logos, watermarks, music and graphical inclusions, school trademarks and any other trademarks appearing in the Content or to any announcer’s calls contained in the Content (if applicable). Except as set forth in Section 8, Licensee is solely responsible for securing the necessary clearances associated with the Content.
3.7 Any audio or music to certain performances or any associated compositions or arrangements that are included as part of or embedded in any Content is ambient sound only and may require additional clearances and/or licenses from the broadcaster owner or performer or owner of rights in such audio or music. No license is granted herein for such audio or sound, unless authorized in writing by T3Media prior to such use.
3.8 With respect to sports and news Content, unless otherwise notified in writing by T3Media, T3Media does not grant any right or license to use the name or likeness of any individual (including any athlete, announcer or coach) appearing in the Content in connection with or as an express or implied endorsement of any product or service. Further you shall not make use of any Content containing a person well known to the general public or of any person engaged in a competitive sport in any manner which can reasonably be construed as said person’s endorsement or disparagement of a product or service. Unless Licensee obtains the proper authorizations or clearances, Licensee shall not use the Content licensed pursuant to this Agreement in any manner that constitutes a direct or implied endorsement or disparagement of any product or service by any student-athlete, coach or other individual appearing in the Content.
4. License Fee. Unless the Content is Royalty Free Content licensed under a Royalty Free Subscription Package, the License Fee charged for Content depends upon Your particular use and will be set forth on the Invoice. All Content is licensed by the “clip” unless specifically noted on the Invoice. A “clip” is defined as a continuous scene from camera start to camera stop or as otherwise set forth on the invoice. Any multiple uses of any “clip”, splitting of any “clip”, or speeding, slowing or freezing of any “clip” is subject to additional charges. If the Content is licensed by the second instead of by the “clip”, Licensee shall pay the actual running time of the Content. Any duplicate use of Content, freeze frames, or slow motion shall be calculated at the actual on-screen running time of the Content. All Content licensed by the second may be subject to minimums based upon the agreed per second rate.
5. Payment. Unless Licensee is approved for credit terms, all licenses must be paid by credit card. Acceptable credit cards are: VISA, MasterCard, Discover and American Express. For Royalty Free Subscription Packages, Licensee is required to purchase the Royalty Free Subscription Package prior to being given access to license or download Royalty Free Content. All Content sales are final and cannot be returned. Except for material defects (see the Limited Warranty below), there are no refunds on Content licenses. Content prices are subject to change and prices established on the Invoice may change for future licenses of the same or similar type Content. It is agreed that a failure to pay the License Fees on the Invoice will be considered a material breach of this Agreement and if payment is not made in accordance with this Agreement, T3Media shall have the right to revoke the license. In the event T3Media revokes the license, You must cease using any Content immediately. T3Media at its discretion may charge interest at the rate of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law for outstanding balances. You shall have no obligation to use the Content; however, payment is still required for any Content, whether or not such Content is used in Your Project.
6. Delivery and Fulfillment Fees. For deliveries of Content on Tape, drives or DVD or other physical media, rather than downloading, You agree to pay, in addition to our costs, any express delivery charges and media fees described on the Invoice. Express delivery is by UPS, FedEx or other express delivery service as mutually agreed to by the parties.
7. Taxes and Duties. You are responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the license granted to You, or Your use of the Content, pursuant to this Agreement in addition to the License Fee for the Content.
8. Releases and Clearances. When requested and if available, T3Media will notify You in writing or in the Invoice where it has obtained a model release and/or a property release for Content. Except by notice given specifically by T3Media to You, T3Media does not provide any copyright clearance or model or property releases with respect to the Content and grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Content. You shall be solely responsible for determining whether a clearance or release is required in connection with Your proposed use of such Content, including but not limited to rights from any trade union, organization or guild, or if any master use, synchronization, performance or other rights are required with respect to any music in the Content. Your ability to access Content does not entitle You to use such Content and T3Media does not make any representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or any other kind) or subject matter depicted in any Content. Items depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights or other rights of another party. No employee or representative of T3Media may make, and You shall not rely upon, any representations or warranties other than those stated in this Agreement. You agree to provide, upon request by T3Media, all copies of consents and clearances obtained pursuant to this provision.
9. Unauthorized Use. Licensee acknowledges and agrees that any unauthorized or unlicensed use of any Content by Licensee constitutes infringement of copyright and other applicable laws and shall entitle T3Media to exercise all rights and remedies available at law or in equity, including monetary damages against all users and beneficiaries of the use of such Content. In addition to any other fees, damages and penalties available at law or under this Agreement, T3Media reserves the right to assess and you agree to pay a fee equal to five (5) times T3Media’s License Fee for such misuse or unlicensed use of the Content. The foregoing is not a limiting statement of T3Media’s or its suppliers’ rights or remedies in connection with any unauthorized use of the Content or any breach of this Agreement. Without limiting any of the foregoing, if, for any reason, the Content comes into the possession of any unauthorized third person, firm or corporation while it is in your control and due to your negligence or willful misconduct, you shall undertake reasonable efforts to recover the Content and to recover on T3Media’s or its suppliers’ behalf any damages sustained by T3Media or its suppliers by reason of the unauthorized use thereof.
10. Termination of License. T3Media reserves the right to terminate, revoke, and/or withdraw any and all licenses granted hereunder upon Your failure to comply with any provisions of this Agreement or make full payment when due for the Content. T3Media shall be entitled to pursue all remedies available under copyright and other laws in the event You breach any term or obligation of this Agreement. In the event of any termination, neither You nor any other person or entity covered by the license granted to You under this Agreement shall have any further right to make any use of the Content, including the Content that has been included in a produced or finished Project.
11. Electronic Storage. In producing the Project authorized by this Agreement, You shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized Project. Upon termination or expiration of the Term of this Agreement, You agree to cease use of all Content and shall promptly delete or destroy all digital copies, except that You may retain one copy of the permitted work You create incorporating the Content as necessary for archival purposes.
12. Protection of Content. If Content is licensed by You for use on the Internet, or other online or interactive media outlet, You shall use Your best efforts to protect and secure the Content to ensure that it cannot be copied, that it retains its linear production for which it was licensed, and cannot be searched and downloaded in broadcast or substantially comparable quality.
13. Copyright and Copyright Notice; Trademarks. All Content is copyrighted by T3Media or its content suppliers and is protected by United States Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Content, except for the license granted herein, are transferred to You by this Agreement. T3Media and its content suppliers retain all rights not expressly granted by this Agreement. Any trademarks, service marks, design marks, logos and/or trade dress included in the Content is subject to the exclusive owners of such marks and/or trade dress and no license to such marks is granted by this Agreement.
14. Credit. In the event any attribution credits are provided to any third parties in connection with any Project, You shall include a credit line that reads “Footage provided by T3Media”, “T3Media” or such other credit as separately identified in each Invoice for the Project. Such attribution credit shall be equal in all respects to any credit accorded to any other third party of comparable services.
15. Withdrawal. T3Media shall have the right to withdraw Content because of actual or threatened litigation with respect to the Content; any binding declaration or order issued by a competent court or government authority that prevents the Content from being distributed; or any reason beyond T3Media’s control. T3Media shall give You as much advance notice as practicable of any such withdrawal. You acknowledge that T3Media’s right to withdraw Content pursuant to this paragraph is of a special and unique character which gives it a peculiar value and that Your license or other exploitation of Content after the effective date of a notice of withdrawal could cause T3Media irreparable injury and damage. You, therefore, agree that in addition to any right or remedy granted T3Media hereunder, T3Media shall be entitled to injunctive and other equitable relief against You to prevent any exploitation after the effective date of a notice of withdrawal. In the event of any notice of withdrawal by T3Media, You agree to physically remove the Content from Your premises, your computer systems and your storage (electronic or physical) and, to the extent possible, destroy, cease any use of or require any applicable party to cease any continued use of any Content incorporated into any finished Project at Your own expense.
16. LIMITED WARRANTY AND DISCLAIMERS.
16.1 T3Media warrants (a) it has all necessary rights and authority to enter into and perform under this Agreement; (b) subject to Section 8, Your authorized use of the Content will not violate any third party copyrights to the underlying Content, and (c) the Content shall be free from defects in material and workmanship for 30 days from the date of the Invoice.
16.2 EXCEPT AS PROVIDED IN THE LIMITED WARRANTY SET FORTH ABOVE, T3MEDIA, ITS CONTENT SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, PERFORMANCE, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FROM A COURSE OF DEALING OR USE IN TRADE.
16.3 THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF SECTION 16.1(c) OF THE LIMITED WARRANTY IS THE REPLACEMENT OF THE CONTENT OR REFUND OF THE LICENSE FEE, AT T3MEDIA’S OPTION.
17. LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER T3MEDIA NOR ANY T3MEDIA SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SUPPLIER, OR LICENSOR SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, PUNITIVE, STATUTORY, OR LOST PROFITS OR ANY OTHER DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR YOUR USE OR INABILITY TO USE THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF T3MEDIA OR ANY OF ITS SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, AFFILIATES, OR CONTENT SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR LICENSORS OWED TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR YOUR USE OF ANY CONTENT PROVIDED BY T3MEDIA, EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY T3MEDIA FOR THE USE OF THE APPLICABLE CONTENT.
18. Licensee Warranties. You represent and warrant that (a) You are at least eighteen years of age and have the full right and authority to enter into this Agreement on behalf of You and/or the entity listed under Client Name on the Invoice, (b) Licensee’s use of the Content will comply with the terms and conditions herein and those set forth in the Invoice, and (c) You are responsible for determining whether Your use of any Content in the Project requires the consent of any other party or the license of any additional rights and obtaining such consents/licenses if required. Licensee further represents and warrants that the information that Licensee provides to T3Media is accurate and true, including, without limitation, all credit card or other payment information and Licensee shall update such information as necessary.
19.1 Licensee indemnification obligations. You agree to defend, indemnify and hold harmless T3Media, its content suppliers, licensors, and each of their respective officers, directors, employees, affiliates, successors, assigns, distributors and agents against all claims (including, without limitation, claims by third parties), lawsuits, demands, damages, judgments, costs and expenses (including reasonable attorneys’ fees and permitted and authorized costs) arising out of or related to (i) Your breach of the terms, restrictions, conditions, and/or warranties of this Agreement (including the terms, conditions, and restrictions identified on the Invoice), (ii) Your modification of any Content or combination of any Content, with any text or other content, (iii) Your failure to obtain any required or necessary releases or clearances or other permissions for Your use of the Content, (iv) except as set forth in Section 16 regarding T3Media’s warranties, any violation of any intellectual property right or violation of any privacy or publicity right, or (v) the negligent conduct of You or any of Your employees, contractors, agents, clients, principals, or users.
19.2 T3Media’s indemnification obligations. Provided that the Content is used in accordance with this Agreement, including the terms in the Invoice, T3Media shall defend, indemnify and hold You harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable outside attorney's fees and permitted and authorized costs), arising out of or related to T3Media’s breach of the warranties to You in Section 16 above. Notwithstanding the foregoing T3Media shall have no obligation under this section unless You provide T3Media with written notice within fifteen (15) days of Your receipt of any claim subject to this indemnity and the right to defend or control the defense of such claim and shall not, in any case, have any obligation with respect to any claims covered under Section 19.1 above.
20. Marketing and Promotion. By using any Content, You grant T3Media the right to display or reference Your derivative work using or incorporating such Content, in any reasonable marketing, educational, and/or promotional purpose as an example of customer usage.
21. Copy of Usage. To ensure compliance with the terms and conditions of this Agreement, You agree to furnish T3Media with a copy of Your Project after such Project is made available to the general public at no additional cost and solely upon T3Media’s request.
22. Confidentiality. During this Agreement, T3Media may provide You with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets which are proprietary to T3Media or its content suppliers. You agree that You will maintain the confidentiality of any confidential information that T3Media may provide You, and You shall not use or disclose such confidential information without the prior written consent of T3Media or its content suppliers, as the case may be.
23. Subscription Cancellation. Licensee may cancel any T3Media Royalty Free Subscription Package by notifying T3Media in writing at any time. Cancellation of any Royalty Free Subscription Package includes immediate removal of access to the T3Media Royalty Free Subscription Package to license Royalty Free Content, deletion of Licensee’s password and all related information and Licensee’s right to use the Royalty Free Subscription Package will terminate immediately. Any Royalty Free Content downloaded prior to cancellation that was acquired pursuant to a Royalty Free Subscription Package shall continue pursuant to this Agreement. In the event of any cancellation of a Royalty Free Subscription Package, Licensee shall remain liable to pay any overage charges for Royalty Free Content downloaded in excess of the allocated Royalty Free Content per the purchased Royalty Free Subscription Package. If Licensee does not make payment for such overages, the Royalty Free Content downloaded and identified in association with such overage charges shall be considered unlicensed and shall any use of such Royalty Free Content by License shall constitute copyright infringement and subject to the provisions of Section 9.
24. Governing Law. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the State of Colorado. This Agreement will be governed in all respects by the laws of the State of Colorado, U.S.A., without reference to its laws relating to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. You agree to reimburse T3Media for its legal fees, costs and disbursements if T3Media is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
25. Third Party Beneficiary. For all purposes of this Agreement, each of T3Media’s content suppliers shall be expressly deemed an intended third party beneficiary of this Agreement and shall have the right to enforce the terms and conditions of this Agreement.
26. Miscellaneous. This Agreement, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements, both oral and written, between or among the parties. If any provision of this Agreement is determined by a court to be invalid or unenforceable, such determination shall not affect any other provision of this Agreement, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein.