Content License Agreement
(rev. May 1, 2012)
This Content License Agreement,
including the Invoice (defined below) (collectively the “Agreement”)
sets forth the terms and conditions between you as licensee (“You” or “Licensee”)
and T3Media, Inc. formerly known as Thought Equity Motion, Inc. (“T3Media”)
as licensor. You will be required to click to indicate acceptance of this
Agreement below before You purchase a license to use any Content (defined
below) from the T3Media website and such acceptance shall form a binding
agreement between You and T3Media. You should also read our Privacy Policy
which describes how we use Your personal data/information and our Terms and
Conditions regarding Your use of our site. This Agreement, the Privacy
Policy and Terms and Conditions may be amended by T3Media and posted on the T3Media
website from time to time without advance notice to You. If You do not
agree with this Agreement or our Terms and Conditions please cease use of our
website and do not continue with any license of Content. We encourage
You to print a copy of the Agreement for Your records.
1. Definitions.
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.
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.
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.
3. Restrictions.
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 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.
3.6 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.
3.7
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.
3.8
You shall not use the title, metadata or keywords associated with the Content
as the title of an item that incorporates the Content.
4. License Fee. 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. All “clips” are
licensed at a per second charge with a ten second
minimum per “clip” unless otherwise noted 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. 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. Failure
to include such credit when credit is provided for third parties shall be
deemed a material breach of this Agreement and shall entitle T3Media, at its
discretion and without limitation to other remedies, to assess a fee against
Licensee equal to two (2) times the License Fee for all Content licensed for
such Project.
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, and to the best of its
knowledge, 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.
19. Indemnification.
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. 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.
24. 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.
