(1) The person named as the Licensor in the Order form (Licensor)
(2) The person named as the Licensee in the Order form (Licensee)
(A) The Licensor has created the Content (as defined below).
(B) The Licensee wishes to receive and the Licensor is willing to grant to the Licensee a licence to use the Content for the Licenced Usage (as defined below) on the terms and conditions of this Agreement.
Asset Price: the amount specified in the Order Form for the Licenced Usage of the Content.
Content: all text, images, footage, films, videos, photographs, typefaces, music, sound effects, voice-over or other audio visual representations recorded in any format that are depicted on the Website as available for licence under the Asset Title and Asset ID described on the Order Form
Commercial Use: means use of the Content in publications, products, goods or services which are sold; in advertising, marketing or promotional material for a business; in broadcasts or television shows; and in any media or event that levies a charge, is supported by advertising, or promotes a business.
Copyright: all copyright and rights in the nature of copyright subsisting in the Content in any part of the world to which the Licensor is, or may become, entitled.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Duration: the period of time specified in the Order Form under Content Usage as ‘Duration’.
Effective Date: the date stated on the Order Form in the field ‘Order Placed’.
Exclusive Licence: means a right to use the Content to the exclusion of all others, including the Licensor, within the Territory for the Duration.
Licensed Usage: the use of the Content described in clause 3.
Licensed Product: any product on which the Content has been incorporated pursuant to clause 3.1.
New Works: any copyright works produced by the Licensee based on the Content, including altered or adapted versions of the Content produced in order to enable it to be used for the Licenced Usage.
Non-Exclusive Licence: means a right to use the Content where the Licensor will also retain the right to use the Content and to licence any number of other users to use the Content.
Order Form: the cover page of this Agreement with the title Order For.
Territory: the territory(ies) described in the Order Form excluding the excepted territories named in that field.
Usage: the single usage or multiple usages described at in the Order Form at Usage.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
If the Exclusive option has been selected on the Order form, an Exclusive Licence; or
if the Exclusive option has not been selected on the Order Form, a Non-Exclusive Licence to use the Content for the Licenced Usage in the Territory for the Duration, subject to, and in accordance with, the terms of this agreement.
reproduce, transmit, broadcast, synchronise and display the Content for the Usage;
reproduce, transmit, broadcast, synchronise and display the Content for purposes reasonably incidental to the Usage;
incorporate the Content into print or electronic products or merchandise for resale or distribution in accordance with the Usage;
create New Works from the Content for the Usage;
without limitation to Clause 3.1.4., amend, modify, perform, edit and re-edit the Content for the Usage; and
make any other Commercial Use of the Content for the Usage not excluded by this agreement.
If the Licensee has not selected the Commercial/Adverts option on the Order Form, the Licensee may, subject to clause 3.3:
reproduce, transmit, broadcast, synchronise, and display the Content for the Usage;
reproduce, transmit, broadcast, synchronise, and display the Content for purposes reasonably incidental to the Usage;
create New Works from the Content for the Usage; and
without limitation to Clause 3.1.4., amend, modify, perform, edit and re-edit the Content for the Usage.
Unless the Licensee has selected the Commercial/Advert option on the Order Form, the Licensee may not:
incorporate the Content into print or electronic products or merchandise for resale or distribution;
create print reproductions of the Content in excess of 500,000 copies or digital impressions of the Content in excess of 1,000,000 copies;
synchronise the Content for TV, film or advertising; or
use the Content in or for any other Commercial Use.
The Licensor undertakes not to grant any licence permitting any third party to exercise the rights granted to the Licensee under clause 2.1.
use any Content in a pornographic, defamatory, libellous or otherwise illegal manner, whether directly or in context or juxtaposition with other subject matter and materials.
use any Content in any manner prohibited by an international export laws, restrictions or regulations
falsely represent (either expressly or by implication) that the Licensee is the original creator of the Content.
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.
upload any Content as an unmodified standalone file to file-sharing websites or social networking websites or other third party website that claims to acquire ownership rights in the Content contrary to the terms of this Agreement.
use the Content in any way which involves an invasion on an individual’s privacy, or implies an endorsement by an individual of any matter.
use the Content in relation to a recognisable individual in a manner that a reasonable person would consider unflattering, embarrassing or controversial without a clear statement that the person depicted is a model.
without the Licensor’s explicit consent, incorporate any Content into a logo, trademark or service mark.
This agreement does not grant the Licensee any performance or cinematic rights in relation to the Content, which would require separate licence with the Licensor or a third party.
[© Copyright [NAME OF LICENSOR DESCRIBED ON THE ORDER FORM] [YEAR]
acknowledges and agrees that all copyright and rights in the nature of copyright subsisting in any part of the world in any New Works shall vest in the Licensor; and
hereby assigns to the Licensor absolutely the entire copyright and all other rights in the nature of copyright subsisting in any New Works, and all other rights of whatever nature, whether now known or created in the future, to which the Licensee may be entitled by virtue of the laws in force in any part of the world in such New Works, in each case for the whole term including any renewals, reversions, revivals and extensions, subject only to the Licensee being able to use the New Works in accordance with its rights under this Agreement.
The Licensee shall, in exercising its rights under this agreement, comply with all applicable laws, regulations and codes of practice.
The Licensee shall promptly provide the Licensor with copies of all communications, relating to the Copyright or the Licensed Product, with any regulatory, industry or other authority.
The Licensee shall provide the Licensor with details of any complaints it has received relating to the Licensed Usage of the Content or any Licensed Product together with reports on the manner in which such complaints are being, or have been, dealt with and shall comply with any reasonable directions given by the Licensor in respect thereof.
The Licensee shall not do or omit to do anything to diminish the rights of the Licensor in the Copyright or the Content, nor assist any other person to do so, either directly or indirectly.
The Licensee shall notify the Licensor in writing giving full particulars if any of the following matters come to its attention:
any actual, suspected or threatened infringement of the Copyright;
any claim made or threatened that the Content and any Licenced Usage of the Content or Licenced Product infringes the rights of any third party; or
any other form of attack, charge or claim to which the Copyright may be subject.
In respect of any of the matters listed in clause 8.2:
the Licensor shall, at his discretion, decide what action to take, if any;
the Licensor shall have exclusive control over, and conduct of, all claims and proceedings;
the Licensee shall not make any admissions other than to the Licensor and shall provide the Licensor with all assistance that he may reasonably require in the conduct of any claims or proceedings; and
the Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for his own account.
The provisions of sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
The Licensor warrants that:
he is the sole legal and beneficial owner of, and owns all the rights and interests in, the Copyright;
the Content is his original work and has not been copied wholly or substantially from any other source.
The Licensor makes no other warranties, express or implied regarding the Content’s merchantability or fitness for a particular purpose.
The Licensor shall indemnify the Licensee against against all liabilities, costs, expenses, damages and losses suffered or incurred by the Licensor arising out of a breach of its warranty in clause 8.5.
Subject to clause 10.1, to the fullest extent permitted by law, the Licensor shall not be liable to the Licensee for any costs, expenses, loss or damage arising from the Licensee's exercise of the rights granted to it under this agreement.
The Licensee shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses suffered or incurred by the Licensor arising out of or in connection with:
the Licensee's exercise of its rights granted under this agreement;
the Licensee's breach or negligent performance or non-performance of this agreement, including any product liability claim relating to Licensed Products manufactured, supplied or put into use by the Licensee;
the enforcement of this agreement;
any claim made against the Licensor by a third party for death, personal injury or damage to property arising out of or in connection with defective Licensed Products, to the extent that the defect in the Licensed Products is attributable to the acts or omissions of the Licensee, its employees, agents, sub-licensees or subcontractors.
This indemnity shall not cover the Licensor to the extent that a claim under it results from the Licensor's negligence or wilful misconduct.
If any third party makes a claim, or notifies an intention to make a claim, against the Licensor which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Licensor shall:
as soon as reasonably practicable, give written notice of the Claim to the Licensee, specifying the nature of the Claim in reasonable detail;
not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Licensee (such consent not to be unreasonably conditioned, withheld or delayed), provided that the Licensor may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Licensee, but without obtaining the Licensee's consent) if the Licensor reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
give the Licensee and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Licensor, so as to enable the Licensee and its professional advisers to examine them and to take copies (at the Licensee's expense) for the purpose of assessing the Claim; and
subject to the Licensee providing security to the Licensor to the Licensor's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses that may be incurred, take such action as the Licensee may reasonably request to avoid, dispute, compromise or defend the Claim.
If a payment due from the Licensee under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from the Licensee such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
Nothing in this clause shall restrict or limit the Licensor’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
Nothing in this agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence.
Each party undertakes that it shall not at any time during this agreement, and for a period of two years after the expiry or termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of the terms of this agreement, except as permitted by clause 11.2
Each party may disclose the other party's confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with the obligations set out in this clause 11 as if they were a party to this agreement; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party's confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with this agreement.
The Licensee shall:
ensure that the Licensed Product is safe for the use for which it was intended;
obtain at its own expense all licences, permits and consents necessary for the Licensed Usage and the provision of the Licenced Product in the Territory;
perform its obligations in connection with the manufacture and sale of the Licensed Product with all due skill, care and diligence including good industry practice;
only make use of the Copyright for the purposes authorised in this agreement; and
comply with all regulations and practices in force or use in the Territory to safeguard the Licensor's rights in the Copyright.
The Licensee acknowledges and agrees that the exercise of the licence granted to the Licensee under this agreement is subject to all applicable laws, enactments, regulations and other similar instruments in the Territory, and the Licensee understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance.
The Licensee shall not grant sub-licences under this agreement.
The Licensee shall have the right to subcontract the manufacture of the Licensed Product provided that:
any subcontractor shall first enter into a confidentiality agreement with the Licensee and containing terms similar to, and no less onerous than, the provisions in clause 11 of this agreement and the Licensee agrees to monitor the subcontractor's compliance with such agreement and, if necessary, promptly enforce such agreement either on its own motion or at the request of the Licensor; and
the Licensee shall be liable for all acts and omissions of any subcontractor and shall indemnify the Licensor against all costs, expenses, claims, loss or damage incurred or suffered by the Licensor, or for which the Licensor may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of any subcontractor, including any product liability claim relating to any Licensed Product manufactured by the subcontractor. Any claim under the indemnity given in this clause must be made under the procedure described in clause 10.
Subject to clauses 14 and 15.5, the Licensee shall not assign, transfer, mortgage, charge, sub-license, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Licensor.
The Licensor may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party, provided that it gives written notice of such subcontract or delegation to the Licensee.
Notwithstanding clause 10, the Licensor when assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the Licensee which it is reasonably necessary to disclose for the purposes of the proposed assignment.
The Licensee shall, at the Licensor's request, execute any agreements or other instruments (including any supplement or amendment to this agreement) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 15.2.
Either party may, after having given prior written notice to the other party, assign and transfer all of its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this agreement.
This agreement shall commence on the Effective Date and shall continue until terminated in accordance with this clause 16.
Without affecting any other right or remedy available to it, the Licensor may terminate this agreement with immediate effect by giving written notice to the Licensee if:
the Licensee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
the Licensee commits a material breach of any term of this agreement which breach is irremediable or if such breach is remediable fails to remedy that breach within a period of 5 days after being notified in writing to do so;
the Licensee repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
Without limitation, the Licensee will be considered to have committed a material breach of this agreement if there is a breach of clauses 3.3, 3.4, 4 or 8.1 of the Agreement.
On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
all outstanding sums payable by the Licensee to the Licensor shall immediately become due and payable;
all rights and licences granted pursuant to this agreement shall cease;
the Licensee shall cease to make any use of the Content save as set out in this clause;
the Licensee shall return promptly to the Licensor at the Licensee's expense all records and copies of any information of a confidential nature communicated to it by the Licensor, either preparatory to, or as a result of, this agreement, to the extent such material remains confidential; and
within 30 days after the date of termination the Licensee shall destroy or, if the Licensor shall so elect, deliver, at the Licensee's expense, to the Licensor or any other person designated by the Licensor, all units of the Licensed Product that it has not sold.
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
Any notice given to a party under or in connection with this agreement shall be in writing and shall be: delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case)
Any notice shall be deemed to have been received: if sent by pre-paid first-class post or other next working day delivery service, on the Business Day after posting or at the time recorded by the delivery service;
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated on the Order Form in the field ‘Order Placed’.