Content License Agreement
(rev. February 2011)
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 Thought Equity Motion, Inc. (“TEM”) 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 TEM website and such acceptance shall form a binding agreement between You and TEM. 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 TEM and posted on the TEM 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 available for license as either Rights Managed Content or Royalty Free Content described on the Invoice. 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 TEM via the TEM 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 TEM.
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 TEM.
2. Grant of License.
2.1 General: All licenses granted by TEM are conditioned upon (i) Licensee’s compliance with the terms of this Agreement and (ii) TEM’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, TEM 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, TEM 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.
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 may 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 TEM, You may not 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 TEM in writing or in the Invoice.
3.2. Unless otherwise set forth in the Invoice or unless the Content is Royalty Free Content, Licensee may 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 may not use the Content in any way that might be considered defamatory, libelous, obscene, pornographic, immoral or illegal. You also may 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 TEM or any content supplier of TEM into public disrespect, scandal, ridicule, or detract from the public image of TEM or any of its identified content suppliers. You may not use any sports or news Content in any manner that disparages, demeans or reflects adversely upon the professional, business or personal reputation of TEM or its employees, its content suppliers, their member institutions, their respective employees or their student-athletes. You may 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.
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 TEM 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 TEM 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 may 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. TEM does not grant any license or right under this Agreement to any trademark, service mark, trade dress or logo. Unless otherwise specified within this Agreement, no license or rights are granted to any broadcaster’s logos, watermarks, 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 from the performer of such audio or music. No license is granted herein for such audio or sound, unless authorized in writing by TEM prior to such use.
3.7 With respect to sports and news Content, unless otherwise notified in writing by TEM, TEM 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 may 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 will depend 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, TEM shall have the right to revoke the license and You must cease using any Content as soon as possible and/or TEM 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, TEM 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 TEM to You, TEM 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 TEM 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. All Content may be subject to copyrights, trademarks, rights of publicity, moral rights or other rights of another party. No employee or representative of TEM 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 TEM, all copies of contents and clearances obtained pursuant to this provision.
9. Unauthorized Use. Any unauthorized use of any Content by Licensee constitutes infringement of copyright and other applicable laws and shall entitle TEM 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, TEM reserves the right to assess and you agree to pay a fee equal to five (5) times TEM’s License Fee for such misuse of the Content. The foregoing is not a limiting statement of TEM’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 TEM’s or its suppliers’ behalf any damages sustained by TEM or its suppliers by reason of the unauthorized use thereof.
10. Termination of License. TEM 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. TEM 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 for use on the Internet, or other online or interactive media outlet, You shall use Your best efforts to protect 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 copyright TEM 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. TEM 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.
14. Credit. In the event any attribution credits are provided to any third parties in connection with any Project, You agree to include a credit line that reads “Footage provided by Thought Equity Motion”, “Thought Equity Motion”, “Thought Equity Motion/[identified content supplier name as provided by TEM]” 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 TEM, 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. TEM 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 TEM’s control. TEM shall give You as much advance notice as practicable of any such withdrawal. You acknowledge that TEM’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 TEM irreparable injury and damage. You, therefore, agree that in addition to any right or remedy granted TEM hereunder, TEM 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 TEM, 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 TEM 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, 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, TEM, 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 TEM’S OPTION.
17. LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER TEM NOR ANY TEM 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 TEM 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 TEM, EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY TEM 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 TEM, 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 use or 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 TEM’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 TEM’s indemnification obligations. Provided that the Content is used in accordance with this Agreement, including the terms in the Invoice, TEM 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 TEM’s breach of the warranties to You in Section 16 above. Notwithstanding the foregoing TEM shall have no obligation under this section unless You provide TEM 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 TEM 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 TEM with a copy of Your Project after such Project is made available to the general public at no additional cost and solely upon TEM’s request.
22. Confidentiality. During this Agreement, TEM 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 TEM or its content suppliers. You agree that You will maintain the confidentiality of any confidential information that TEM may provide You, and You shall not use or disclose such confidential information without the prior written consent of TEM 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 TEM for its legal fees, costs and disbursements if TEM 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.