This license agreement is by and between PICHA STOCK LLC (“PICHA STOCK”), located in Washington, United States, and the (“Licensee”) listed as a registrant of a PICHA STOCK account (“License Agreement”).
1.1 This License Agreement shall govern access to and use of all images and other content supplied and licensed by PICHA STOCK to Licensee (the “Licensed Content”) in any form, including via the web or by online, digital, or physical delivery of the Licensed Content. By obtaining, using, and/or paying for any Licensed Content, Licensee agrees to be bound by the terms of this License Agreement, as well as any terms and conditions set forth on any invoice(s) provided by PICHA STOCK for Licensee’s purchase of a license to use any Licensed Content (the “Invoice(s)”), and any terms and conditions set forth on PICHA STOCK’s website, all of which are incorporated herein by reference.
1.2 This License Agreement shall be equally binding on any individual or entity other than Licensee who purchases and/or acquires a license to any Licensed Content on behalf of, and/or for the benefit of, Licensee, including but not limited to, employees, subcontractors, and/or agents of Licensee (“Licensee’s Agent(s)”). Any obligations and liabilities of Licensee arising under this License Agreement shall apply in equal part to Licensee’s Agent(s).
2. GRANT OF RIGHTS
2.1. PICHA STOCK grants to Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable, worldwide right to reproduce, distribute, publish, display, or otherwise exploit the Licensed Content identified in the Invoice(s) an unlimited number of times in any and all media for the purpose of incorporating the Licensed Material into Licensee’s end product, service, or other work (“Licensee’s Work”), other than those uses prohibited under section 3 of this License Agreement.
2.2. Licensee may store the Licensed Content in a digital library or similar arrangement to allow the Licensed Content to be viewed and accessed by Licensee’s employees or agents for purposes of downloading, modifying, or manipulating the Licensed Content for use in Licensee’s Work, so long as there are no more than ten (10) separate individuals with such access to the Licensed Content (“Authorized Users”). Licensee must purchase additional licenses if there are more than ten (10) Authorized Users accessing the Licensed Content before such additional use begins.
3. RESTRICTIONS ON USE
3.1. Licensee may not make the Licensed Content available (other than in Licensee’s Work) to persons other than Authorized Users, including in any way so as to permit a third party to access, download, extract, or redistribute the Licensed Content.
3.2. Licensee may not, without obtaining the prior written consent of PICHA STOCK and paying any additional applicable license fees: (i) include the Licensed Content in an electronic template intended to be reproduced, distributed, or otherwise used by third parties on electronic or printed products; or (ii) use or display the Licensed Content on websites or in any other medium involving or designed to induce the sale, license or other distribution of custom-made or made-to-order products, including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items.
3.3. Licensee may not represent, expressly or impliedly, that Licensee is the original creator of any Licensed Content or of any work that derives a substantial part of its components from the Licensed Content.
3.4. Licensee may not make the Licensed Content available in the form of fine art prints.
3.5. Licensee may not incorporate the Licensed Content into a logo, trademark or service mark, or other corporate brand or identification without obtaining PICHA STOCK’s prior written consent.
3.6. If any Licensed Content featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Content is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Content, if any, is a model.
3.7. Pornographic, defamatory, or otherwise unlawful use of Licensed Content is strictly prohibited, whether directly, in context, or in connection with other material or subject matter.
3.8. In reproducing, using, or otherwise exploiting the Licensed Content, Licensee shall comply with any applicable laws, regulations, and/or industry codes.
3.9. If Licensee’s Work is reproduced on a website or in any other digital or electronic form, Licensee shall post terms and conditions on such website or other digital or electronic form that prohibit downloading, republication, retransmission, reproduction or other use of the Licensed Content.
3.10. If the Licensee’s Work is reproduced on a social media platform or other third-party website, and such platform or website seeks to exploit purported rights to the Licensed Content contrary to the terms of this License Agreement, Licensee shall remove any of Licensee’s Work containing Licensed Content from such platform or website and, if necessary, shall undertake reasonable efforts to ensure that such platform or website ceases to use the Licensee’s Work.
3.11. Invoices for Licensed Content and/or PICHA STOCK’s website may contain additional restrictions applicable to specific Licensed Content, including but not limited to, restrictions as to time, manner, industry, and territory of use, and/or required pre-approval by depicted subjects or their representatives. Licensee agrees to comply with any such specific restrictions.
3.12. Licensee is responsible for consulting with its own legal counsel to determine whether any additional rights or licenses are required to use the Licensed Content in Licensee’s Work.
4. INVOICING AND PAYMENT
4.1 Licensee and/or Licensee’s Agent(s) agree to receive Invoices from PICHA STOCK electronically via the email address associated with Licensee’s and/or Licensee’s Agent’s PICHA STOCK account. The Invoice(s) shall specify the Licensed Content and the corresponding licensing fee of such Licensed Content. All licensing fees do not include any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee.
4.2 Subject to Section 8.3, Licensee and/or Licensee’s Agent(s) agree to pay PICHA STOCK for all Licensed Content that Licensee obtains, regardless of whether Licensee uses the Licensed Content. If Licensee fails to pay the Invoice in full within the time specified in the Invoice, PICHA STOCK may add a service charge of one-and-one-half percent (1.5%) per month, or the greatest amount allowed under applicable law, on any unpaid balance until payment is received.
5. INTELLECTUAL PROPERTY
5.1. Copyright. Licensee shall not obtain any ownership interest or copyright in any Licensed Content pursuant to this License Agreement. PICHA STOCK and/or any creators of the Licensed Content shall retain all right, title, and interest in and to all copyrights and any other proprietary rights in the Licensed Content. Except as expressly stated in this License Agreement, PICHA STOCK grants Licensee no right or license, express or implied, to the Licensed Content. Moreover, any right, title or interest arising in any compilation or derivative work created by Licensee using any Licensed Content shall not entitle Licensee to use any Licensed Content except as permitted hereunder.
5.2. Trademarks. Licensee shall not obtain any right to use “PICHA STOCK” or its trade names, trademarks, logos or service marks, including the names of all Licensed Content collections (“Marks”), except as required to satisfy Licensee’s credit obligations under this License Agreement. The Marks shall remain the sole property of PICHA STOCK.
5.3. Photo Credit. All Licensed Content used in an editorial context (i.e., uses relating to events that are newsworthy or of general interest as opposed to commercial, promotional, endorsement, advertising, or merchandising uses) must include the following credit line adjacent to the Licensed Content, or in a manner consistent with industry standards: “[Photographer’s Name]/PICHA STOCK” or as otherwise shown on the PICHA STOCK website or requested by PICHA STOCK, which is subject to change. If Licensee omits the credit, whether intentionally or inadvertently, an additional fee in an amount up to one hundred percent (100%) of the license fees may be payable by Licensee, at PICHA STOCK’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that PICHA STOCK may have at law or in equity.
5.4. Audio/Visual Production Credit. If Licensed Content is used in any audio/visual production where credits are accorded to other providers of images or content, credit shall be accorded, where technically feasible, in equal size and comparable placement to such other credit(s), substantially in the following form: “Image(s) supplied by [Photographer Name]/PICHA STOCK.”
5.5. Notice of Violations. Licensee will immediately notify PICHA STOCK if it becomes aware or suspects that any third party has wrongfully gained access to, or is wrongfully using, the Licensed Content, or is otherwise violating any of PICHA STOCK’s intellectual property rights, including, but not limited to, PICHA STOCK’s copyrights, trademarks, or other rights under this License Agreement.
6. WARRANTIES AND LIMITATION OF LIABILITY
6.1. Licensee warrants that it has all necessary rights and authority to enter into and perform this License Agreement.
6.2. Where the individual or entity purchasing the license to the Licensed Content is Licensee’s Agent, Licensee’s Agent hereby represents and warrants that:
(i) it is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this License Agreement; and
(ii) if Licensee subsequently disputes Licensee’s Agent’s power or authority, Licensee’s Agent shall be liable for any failure of Licensee to comply with the terms of this License Agreement. Nothing in this Section shall excuse Licensee’s Agent’s obligation to pay all applicable license fees to PICHA STOCK.
6.3. PICHA STOCK warrants as follows:
6.3.1. PICHA STOCK has all necessary rights and authority to enter into and perform this License Agreement.
6.3.2. Licensee’s use of the Licensed Content in accordance with this License Agreement will not infringe on any third party’s copyright, trademark, or other intellectual property right and will not violate any third party’s right of privacy or right of publicity. However, Licensee shall be responsible for payment of any amounts that may be due under, and in compliance with any other terms of, any applicable collective bargaining agreement(s) (such as the Screen Actors Guild in the United States) as a result of Licensee’s use of the Licensed Content.
6.3.3. The digital copy of the Licensed Content provided by PICHA STOCK will be free from defects in material and workmanship (but not visual artifacts inherent in the original Licensed Content). As Licensee’s exclusive remedy for Licensee’s inability to use any Licensed Content as the result of such material or workmanship defects, PICHA STOCK shall provide a replacement of the digital copy of such Licensed Content or, in PICHA STOCK’s sole discretion, terminate the License and refund any fee paid by Licensee to PICHA STOCK, provided Licensee has not made any use of the Licensed Content.
6.4 PICHA STOCK does not make any other warranties, express or implied, regarding the licensed content or its delivery systems, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
6.5 Neither PICHA STOCK nor its current or future subsidiaries, successors, predecessors, parents, joint ventures, affiliates, officers, directors, employees, contractors, licensed content sources, agents, or subagents shall be liable to licensee or any other third party claiming through licensee for indirect, incidental, special, punitive, statutory, or consequential damages arising out of, or relating to this agreement and/or licensee’s use or inability to use the licensed content, even if picha stock has been advised of the possibility of such damages, costs, or losses.
6.6 PICHA STOCK shall not be liable for any damages, costs, or losses arising out of or as a result of modifications made to the licensed content by licensee or the context in which licensed content is used in licensee’s work.
7.1 Provided that the Licensed Content is only used in accordance with this License Agreement, and Licensee is not otherwise in breach of this License Agreement, and subject to the terms of Sections 6.4, 6.5, 6.6, and 7.3 of this License Agreement, PICHA STOCK shall defend, indemnify, and hold harmless Licensee and its current or future parents, subsidiaries, and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses, arising out of or as a result of claims by third parties (“Claims”) relating to any actual or alleged breach by PICHA STOCK of its warranties set forth in Section 6.3. This shall be Licensee’s sole and exclusive remedy for any breach of the representations and warranties set forth in Section 6.3. PICHA STOCK shall have no obligation under this Section for any Claims that arise out of or are a result of:
(i) Licensee’s modification, overlay, or re-focusing of the Licensed Content, where the Claim would not have arisen but for the modification, overlay or re-focusing made by Licensee;
(ii) the context in which Licensed Content is used in a Licensee’s Work, where the Claim would not have arisen but for such context;
(iii) Licensee’s failure to comply with the terms of this License Agreement; or (iv) Licensee’s continued use of Licensed Content following notice from PICHA STOCK, or upon Licensee’s acquisition of knowledge, that Licensed Content is subject to a claim of infringement of another’s right. The foregoing states PICHA STOCK’s entire indemnification obligation under this License Agreement.
7.2 Subject to the terms of Section 6.3, Licensee shall defend, indemnify, and hold harmless PICHA STOCK and its current or future parents, subsidiaries, commonly owned or controlled affiliates, content providers and their respective officers, directors and employees from all damages, liabilities, and expenses (including reasonable outside attorneys’ fees), arising out of or as a result of Claims relating to
(i) Licensee’s use of any Licensed Content outside the scope of this License Agreement; or
(ii) any other actual or alleged breach by Licensee of this Agreement.
7.3 The party seeking indemnification pursuant to Sections 7.1 or 7.2 shall promptly notify the other party of such claim. At the indemnifying party’s option, the indemnifying party may, but is not required to, assume the handling, settlement, or defense of any claim or litigation, in which event the indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by the indemnifying party. The indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought. Neither party will agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the part of the other party without the latter’s prior written consent, nor shall either party disclose the terms of any settlement of a claim without the other’s prior written consent.
8. UNAUTHORIZED USE AND TERMINATION
8.1 Any use of Licensed Content in a manner not expressly authorized by this License Agreement (including, without limitation, use of Licensed Content by more than ten (10) Authorized Users without purchase of additional licenses) may constitute copyright infringement and/or a breach of other rights, entitling PICHA STOCK to exercise all rights and remedies available to it under copyright laws and any other applicable laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement or breach of any other right, including any claims by a third party. In addition, and without prejudice to PICHA STOCK’s other remedies under this License Agreement, PICHA STOCK reserves the right to charge, and Licensee agrees to pay, a fee equal to up to ten (10) times PICHA STOCK’s standard license fee for any unauthorized use of the Licensed Content.
8.2 PICHA STOCK reserves the right to terminate this License Agreement in the event:
(i) PICHA STOCK becomes aware the Licensed Content infringes any third party’s right or that PICHA STOCK is otherwise not authorized or able to license the Licensed Content;
(ii) Licensee fails to pay the license fee in full within the time specified in the Invoice; or
(iii) Licensee otherwise breaches the terms of this License Agreement and fails to cure such breach within thirty (30) days of Licensee’s receipt of notice from PICHA STOCK of such breach. Upon termination, Licensee must immediately
(i) stop using the Licensed Content; and
(ii) destroy or, upon the request of PICHA STOCK, return to PICHA STOCK all copies of the Licensed Content and, in the case of termination by PICHA STOCK for Licensee’s failure to pay any applicable license fee or to cure a breach of this License Agreement, destroy the Licensee Work in the possession or control of Licensee.
8.3 Licensee may not cancel a license to any Licensed Content, or obtain any refund of licensing fees paid to PICHA STOCK for any such Licensed Content, once Licensee has downloaded or otherwise saved or stored any such Licensed Content to any computing, mobile, digital, or other similar device, server, or platform capable of hosting or storing digital images or content.
9. MISCELLANEOUS TERMS
9.1 Audit/Certificate of Compliance.
9.1.1 Upon reasonable notice, Licensee shall provide to PICHA STOCK sample copies of Licensee’s Work(s) containing Licensed Content, including by providing PICHA STOCK access to any pay-walled or otherwise restricted-access website or platform, free of charge, where the Licensed Content is reproduced, published, or displayed. Licensee hereby allows PICHA STOCK to use, without any charge, Licensee’s Work(s) for PICHA STOCK’s marketing and advertising purposes to demonstrate how Licensee has used the Licensed Content.
9.1.2 Upon reasonable notice, PICHA STOCK may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this License Agreement and use of Licensed Content in order to verify compliance with the terms of this License Agreement. If any such audit reveals any noncompliance with this License Agreement, Licensee shall also reimburse PICHA STOCK for the costs of conducting such audit.
9.1.3 Where PICHA STOCK reasonably believes that Licensed Content is being used by more than the permitted number of Authorized Users under this License Agreement, or that Licensed Content is being used outside of the scope of the license granted under this License Agreement, Licensee shall, at PICHA STOCK’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by PICHA STOCK.
9.2 Electronic Storage. For all Licensed Content that is delivered to Licensee in electronic form, Licensee must retain the copyright notice, PICHA STOCK’s name, the Licensed Content’s identification number, and any other information as may be embedded in the electronic file containing the original Licensed Content. Licensee shall use commercially reasonable efforts to protect the Licensed Content to ensure that it cannot be accessed, copied, or distributed by unauthorized third parties.
9.3 Withdrawal. Upon notice from PICHA STOCK, or upon Licensee acquiring knowledge that any Licensed Content may be subject to a claim of infringement of a third party’s right for which PICHA STOCK may be liable, PICHA STOCK may require Licensee to immediately and at its own expense
(i) stop using the Licensed Content;
(ii) delete or remove the Licensed Content from its premises, computer systems and storage (electronic or physical); and
(iii) ensure that its clients do likewise. PICHA STOCK shall provide Licensee with comparable Licensed Content (which comparability will be determined by PICHA STOCK in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this License Agreement.
9.4 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Washington, United States of America, without regard to any conflict of law principles. In the event of a dispute arising under or relating to this License Agreement, the exclusive forum for any such dispute shall be the State or Federal courts in the State of Washington, and the parties hereby consent to the jurisdiction and any final, non-appealable judgment of such State or Federal courts. Licensee agrees to waive the limitations, provisions, or protections of any and all laws of Licensee’s place of residence, as well as any international treaties, existing now or in the future, including the United Nations Convention on Contracts for the International Sale of Goods, as they may concern this License Agreement.
9.5 Severability. Should any provision or clause of this License Agreement be determined to be non-enforceable by a State or Federal court in Washington, that provision or clause shall be severed from this License Agreement, and all remaining provisions and clauses in this License Agreement shall be enforceable.
9.6 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this License Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
9.7 Parties Bound. This License Agreement shall be binding on Licensee, Licensee’s Agent(s), PICHA STOCK, and on each party’s respective heirs, executors, administrators, successors, and assigns.
9.8 Interpretation of Agreement. In the event an ambiguity or question of intent or interpretation arises, this License Agreement shall be construed as jointly drafted by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this License Agreement.
9.9 Entire Agreement. This License Agreement constitutes the entire agreement between the parties, and it may not be amended or modified unless in writing and upon mutual consent of the parties. In the event of any inconsistency between the terms contained herein and the terms contained in any purchase order or other communication sent by Licensee, the terms of this License Agreement shall govern.
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