This is a License Agreement (the “Agreement”) between you and MotionLit Services, Inc. (the “Company”) which provides the terms by which you are able to use those pre-produced photos, illustrations, graphics, and video clips (individually and collectively, the "Stock Content") and the customized photos, illustrations, graphics, and video clips (individually and collectively, the “Custom Content”) offered on this website (the “Site”) by the Company. The Stock Content and Custom Content may be referred to herein collectively as the “Content.” By downloading any of the Content from the Site, you accept the terms of this Agreement.
1. Terms of License.
a. Single Use; Non-Exclusive License. Company offers and you have accepted a single use license for the selected Content upon payment of the license fee (the “Licensed Content”). This means that the license fee for the Content is paid once via the checkout process on the Site and there is no need to pay additional royalties or fees for the single use; license fees vary depending on the Content licensed. “Single use” means the Licensed Content can be used for one (1) case use per license fee paid; the permitted use is further discussed herein below. The license for the Content is also non-exclusive, meaning that other users can license and use the same Content for their specific use and nothing herein provides you with exclusive use of the Content.
b. Non-Transferable and Non-Sublicensable Rights. The rights granted to you hereunder are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions to this limitation in the license as follows:
(i) Employer or client. If you are obtaining the Licensed Content on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this Agreement. If you do not have that authority, then your employer or client may not use the Licensed Content. The rights purchased may only belong to you or your employer or client, depending on who is named as the "Licensee" at the time you process the payment for the Licensed Content.
(ii) Subcontractors. You may allow subcontractors (for example, your printer or videographer) to use content in order to complete your final project or end use. These subcontractors must agree to be bound by the terms of this Agreement and may not use the content for any other purpose.
2. Permitted Use. Upon completing the purchase of the license on the Site, you shall be entitled to use the Licensed Content for a single use in association with one (1) case, and such use is subject to the terms and conditions, including the restrictions, set forth herein below. For purposes of this agreement, "use" means to copy, reproduce, display, or otherwise make use of the Licensed Content.
3. Restricted Uses. In purchasing the license for use of the Licensed Content, you hereby agree to the restrictions set forth below applicable to the use of such Licensed Content:
a. No Unlawful Use. You may not use the Licensed Content in a pornographic, defamatory, or other unlawful manner, or in violation of any applicable regulations, or industry codes.
b. No Commercial Use. Unless additional rights are granted pursuant to a separate license agreement, you may not use the Licensed Content for any commercial, promotional, advertorial, endorsement, advertising, or merchandising purpose.
c. No Alteration. The Licensed Content may not be altered or edited in any way.
d. No Standalone File Use. You may not use the Licensed Content in any way that allows others to download, extract, or redistribute the Licensed Content in any way.
e. No False Representation of Authorship. You may not falsely represent that you are the original creator of the Licensed Content.
4. User Accounts. You will be responsible for safekeeping and tracking all activity for your user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Company immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Company reserves the right to monitor downloads and user activity to ensure compliance with the terms of this Agreement. If Company determines that you are in breach of this or any other term of this Agreement, it may suspend access to your account and seek further legal remedies.
5. Intellectual Property Rights. All Content is owned by Company. All rights that are not expressly granted herein are reserved by Company. You may use the name and/or trademark of Company as necessary to give attribution, but you may not otherwise use Company’s names, logos, or trademarks without prior written approval.
6. Attribution. You must include a credit adjacent to the content or in production credits. The credit should be in the following form: "© MotionLit Services, Inc." If the Licensed Content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit for Company in comparable size and placement. The credit should be in the following form: "© MotionLit Services, Inc."
7. Termination of Agreement; ALL SALES FINAL.
a. Termination. Company may terminate this Agreement at any time if you breach any of the terms of this or any other Agreement therewith, in which case you must immediately (i) cease using the content; (ii) delete or destroy any copies; and, if requested, (iii) confirm to Company in writing that you have complied with these requirements.
b. ALL SALES FINAL. Please note, upon delivery of the video product, all sales hereunder are final and no refunds or exchanges shall be made. The sole exception, which is at Company’s discretion, is for any product purchase which is cancelled prior to delivery.
8. Withdrawal of Content. Company may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Company, or upon your knowledge, that any content may be subject to a dispute due to any reason including without limitation, infringement claim by a third party, claim of an factually or medically inaccurate depiction, or outdated procedure, Company may require you to immediately, and at your own expense, cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Should you elect to not do so and you, and/or Company, are subject to any claim for damages or liability, you shall indemnify and hold Company, its owners, officers, directors, affiliates, contractors, agents, and representatives harmless, including any award or settlement, attorney’s fees, or costs of adjudication (whether litigation or alternative dispute resolution). This shall be in addition to any indemnification you provide hereunder.
9. Representations and Warranties. Company makes the following representations and warranties:
a. Warranty of Non-Infringement. For all Content, Company warrants that your use of such Licensed Content in accordance with this Agreement and in the form delivered by Company will not infringe on any copyrights or moral rights of any third party.
b. No Other Warranties. Except as provided in this section above, the Content is provided "as is" without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Company does not represent or warrant that the content or its websites will meet your requirements or that use of the Content or Site will be uninterrupted or error free.
10. Indemnification/Limitation of Liability.
a. Indemnification of Company by you. You agree to defend, indemnify and hold Company as well as its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with (i) your use of any Licensed Content outside the scope of this Agreement; and/or (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other Agreement.
b. Indemnification of you by Company. Provided that you are not in breach of this or any other Agreement with Company, and as your sole and exclusive remedy for any breach of the warranties set forth herein, Company agrees, to defend, indemnify and hold harmless you from all damages, liabilities and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with any breach or alleged breach by Company of its warranties set forth herein above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the Licensed Content or the context in which the Licensed Content is used by you. This indemnification also does not apply to your continued use of Licensed Content following notice from Company Licensed Content, or upon your knowledge, that the Licensed Content is subject to a claim of infringement of a third party's right.
c. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement, or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal costs including attorney fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
11. Limitation of Liability. Company will not be liable to you or any other person or entity for any lost profits, punitive, special, indirect, consequential, incidental, or other similar damages, costs, or losses arising out of this Agreement, even if Company has been advised of the possibility of such damages, costs, or losses. Further, Company shall not be liable to you for any amount exceeding the License Fee you paid for the Licensed Content hereunder, which gives rise to any dispute between you and Company.
12. General Provisions.
a. Assignment. This Agreement is personal to you and is not assignable by you without Company’s prior written consent. Company may assign this Agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
b. Audit. Upon reasonable notice, you agree to provide to Company the case number, any sample copies of the document or presentation, or end use that contains the Licensed Content. In addition, upon reasonable notice, Company may, at its discretion, either through its own employees or through a third party, audit your records directly related to this Agreement and your use of Licensed Content in order to verify compliance with the terms of this Agreement.
c. Electronic storage. You agree to retain the copyright symbol, the name of Company, the content's identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
d. Governing Law/Arbitration. This Agreement will be governed by the laws of the State of California, without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement, and exceeding $10,000.00 in damages, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the rules and procedures of the filing party’s selected arbitration company. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The party prevailing on the merits of the dispute shall be entitled to recover its reasonable legal costs including attorney fees relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Company shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Company, such action is necessary or desirable to protect Company’s intellectual property rights.
e. Severability. If one or more of the provisions in this agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
f. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
g. Notice. All notices required to be sent to Company under this agreement should be sent via email to [email protected], All notices to you will be sent via email to the email set out in your account.
h. Entire Agreement. Notwithstanding the terms hereof, no amendment or modification to this Agreement shall be effective unless made in writing and accepted in writing by both parties, or issued electronically by Company and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this Agreement will apply.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
ON BEHALF OF
MOTIONLIT SERIVCES, INC.
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Document Name: LICENSE AGREEMENT
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