Novel Expression Royalty-Free Image and Video End User License Agreement

 

     In exchange for the License Fee set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Novel Expression, located at P.O. Box 38658, Colorado Springs, Colorado 80937, and users agreeing to the terms herein, ("Licensee” or “you”), (collectively, the Parties”), hereby agree as follows:

DEFINITIONS - Capitalized words used herein shall be defined as follows:

“License Fee”: The price charged by Novel Expression for the Licensed Use, size and quantity of Licensed Material selected by Licensee.

"Licensed Material": Any still image, film or video footage, audio file or recording or visual representation generated by any means, including any negative, transparency, print, digital file, or any copy thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Novel Expression hereunder, more fully described in section 1.1 below.

"Licensee": means the person or entity purchasing a license hereunder or, if there is a separate Purchaser, the person or entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.

“Licensed Use”: The specific publication, use, product, media amount, territory(ies), duration, and any other limitations or restrictions herein.

“Licensee Work": means an end product or service that has been created by or on behalf of Licensee using creativity, independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.

"Non transferable": means you may not sell, give, rent, sublicense, or otherwise transfer to anyone an Image or the right to use an Image. A one time transfer of Images to a third party is allowed for the sole purpose of causing such third party to print and/or manufacture your goods incorporating Images subject to the terms and conditions herein. Additionally, the Image must be used in work you produce for yourself, your direct employer, your client, or your customer, who must be the end user of your work. In licensing the Images, you agree to use your best efforts to prevent third parties from duplicating any Image. In the case of unauthorized duplication of any Novel Expression, LLC Image(s) you become aware of, you agree to notify us at support@novelexpression.com.

"Purchaser": means the entity purchasing the license hereunder on behalf of a third-party Licensee.

"Reproduction" and "Reproduce": mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the modification of Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.

"User": means any employee or subcontractor of Licensee who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Licensed Material; (ii) is otherwise directly involved in the creative process utilizing the Licensed Material; or (iii) incorporates the Licensed Material within any derivative work.

 

1.0 Licensed Material, Licensed Use, License Fee

1.1 Novel Expression hereby grants you a non-exclusive, non-transferable, worldwide, perpetual, right to use, modify, and reproduce photographic or videographic images provided in digital form only ("Licensed Material") in the following ways, subject to the limitations set forth herein.

a. On websites;

b. In digital media, print media, product packaging and software including books (including print-on-demand books), e-books, newspapers, magazines, business cards, letterhead, advertising collateral, product labels, CD, DVD and Blu-Ray cover art, applications (including mobile apps), and opt-in email marketing, provided that the Images cannot be readily unincorporated from such digital media or software.

c. Incorporated into video, film, multimedia presentations, book trailers, advertising for public performance, broadcast, or streaming.

d. Incorporated into print or digital material intended for public display, including trade show booths or point of sale materials, excluding Out-of-Home advertising.

e. For decorative purposes solely for your own non-commercial, personal use, not for resale, download, distribution, or any other commercial use.

1.2 License Fee. License Fees are paid by Licensee by purchasing "credits" or in predefined dollar amounts to Licensee's Novel Expression account. The amount of the License Fee depends on the size, price point, and quantity of Licensed Material. Before the purchase in final and the license is issued, Licensees must agree to Novel Expression's End User License Agreement and web site Terms of Service by checking a linked check box.

1.3 Except where required by law, Novel Expression shall be under no obligation to  refund, in whole or part, any payments or purchased credits.  In an exceptional situation if, in its sole discretion Novel Expression determines that a full or partial refund is warranted, the refund will be credited back to the credit card used for the purchase.

1.4 Licensee may have the Licensed Material Reproduced by subcontractors of Licensee (including Purchaser) for preparation of the Licensee Work, provided that such subcontractors agree to abide by the provisions of this Agreement.

1.5 Licensee may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of Licensee, so long as there are no more than ten (10) Users. Licensee must purchase additional seat licenses if there are more than ten (10) Users before such additional use begins.

             

2.0 Restricted and Reserved Uses

2.1 Licensee may not: (i) make the Licensed Material available (separate from the Licensee Work) in any medium accessible by persons other than authorized Users; or (ii) make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.

2.2 Licensee may not, without obtaining the prior written consent of Novel Expression and the payment of additional License Fees: (i) include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products; or (ii) use or display the Licensed Material on websites or in any other medium designed to induce or involving the sale, license or other distribution of "on demand" products (e.g., products in which Licensed Material is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items, except where the Licensed Material is incorporated into a book cover, book jacket, or other book packaging.

2.3 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material, nor may it make the Licensed Material available as stand-alone two or three dimensional Reproductions of any kind.

2.4 Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of Novel Expression.

2.5 If any Licensed Material 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 Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.

2.6 Obscene, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Licensee shall also comply with any applicable regulations or industry codes.

2.7 Novel Expression disclaims any warranty as to the accuracy of any captions, meta-data or other information provided with any Licensed Material. Licensed Material is licensed “AS-IS” without any express or implied warranties other than those set forth herein.

2.8 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 3.8 shall excuse Purchaser's obligation to make payment to Novel Expression of the License Fee.

2.9 If the Licensee Work is Reproduced on a website, Licensee shall post terms and conditions on the website that prohibit downloading, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.

2.10 If the Licensed Material is Reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked if the platform website uses any Licensed Material contrary to the terms hereof, and (ii) in such event, upon Novel Expression’ request, Licensee shall immediately remove any Licensed Material from such platform or website.

 

3.0 Copyright Ownership, Credit, Trademarks, Recordkeeping.

 3.1 Copyrights. The license granted to Licensee hereunder is non-exclusive and thus does not constitute a “transfer” of an interest in copyright under U.S. copyright law. Licensee acquires no ownership interest in or to the copyright  or other right in any Licensed Material by this license. Except as expressly stated in this Agreement, Novel Expression expressly reserves to itself, any and all rights not expressly licensed herein. Except as set forth herein, Licensee no right or license, express or implied, to the Licensed Material.

3.2 Trademarks. The trademark "Novel Expression" and any Novel Expression's logos or other trademarks, including the names of all Licensed Material photo collections, are and shall remain Novel Expression’s sole and exclusive property. Except as expressly permitted below, Licensee shall not have any right, title or license in or to any of Novel Expression’s registered or common law (unregistered) trademarks, and Licensee shall not now or in the future contest the validity of any such marks.

3.3 Photo Credit. All Licensed Material must include the following credit line adjacent to the Licensed Material: "[(c) Photographer's Name]//Novel Expression" when at all possible.

3.4 Audio/Visual Production Credit. If Licensed Material is used in an audio/visual production in either an editorial context or a non-editorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such other credit(s), substantially in the following form: "[Video] [Imagery] supplied by Novel Expression".

3.5 Notice of Violations. Licensee will immediately notify Novel Expression if it becomes aware or suspects that any third party that has gained access to the Licensed Material  independently or through Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of Novel Expression' intellectual property rights, including, but not limited to, trademarks or copyrights.

3.6 Recordkeeping If you use, or plan on using, any Licensed Materials as part of a work or project for a client or customer, you must keep accurate records of any and all such Licensed Material, including without limitation a description of each image, the project in which it is used. the Novel Expression, Image number, the name and mailing address of the client or customer, and the dates or date when the Licensed Material was used. If requested, you shall deliver such records to Novel Expression, upon request.

 

4.0 Warranties and Disclaimers

4.1 Novel Expression warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Novel Expression (i.e., excluding any modifications by Licensee) will not infringe any copyright, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iii) model and/or property releases for Licensed Use of the Licensed Material authorized under this Agreement have been obtained. Licensee shall be responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as Screen Actors Guild) as a result of Licensee's Licensed Use or other use of the Licensed Material.

4.2 Licensee warrants that: (i) Licensee has all necessary rights and authority to enter into and perform this Agreement; (ii) nothing added to or omitted from the Licensed Material by Licensee, and no act or omission of Licensee or its agents, will infringe any copyright, trademark or other intellectual property right and will not violate any right of privacy or right of publicity or other right of Novel Expressions or any third party; and (iii) Licensee shall promptly pay any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as the Screen Actors Guild) as a result of Licensee's Licensed Use or other use of the Licensed Material. Novel Expression shall not be liable for any damages, costs or losses arising out of or as a result of modifications made to the Licensed Material by Licensee or the manner in which Licensed Material is used.

4.3 EXCEPT AS SET FORTH HEREIN, ALL LICENSED MATERIAL IS PROVIDED “AS-IS”. NOVEL EXPRESSION EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTIES REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY  FILES, DRIVES, DISCS, WEB SITES, SERVERS OR OTHER DELIVERY METHODS OR DEVICES. NOVEL EXPRESSION SHALL NOT BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT. IF, DESPITE THE ABOVE DISCLAIMERS AND LIMITATIONS, LIABILITY IS IMPOSED ON NOVEL EXPRESSION FOR ANY REASON, NOVEL EXPRESSION’S LIABILITY SHALL NOT EXCEED $1,000 IN THE AGGREGATE. THE PARTIES AGREE THIS LIMITATION IS A REASONABLE BALANCING OF THE PARTIES’ RESPECTIVE RISKS AND RESPONSIBILITIES HEREUNDER.

 

5.0 Indemnification.

5.1 Each party (an “Indemnitor”) agrees to defend, indemnify and hold harmless the other party and its affiliates, officers, directors, employees and agents (each an “Indemnitee”) from and against any and all third-party claims and accompanying costs arising out of or in connection with, any breach of this Agreement by the Indemnitor or any duty, representation, or warranty contained herein by, or any act or material omission of the Indemnitor or its employees or agents. Indemnitor may at its option defend such claim at Indemnitor’s expense, and Indemnitee shall cooperate fully in defending or settling such claim. Licensee agrees that Novel Expression, may retain any amounts due to Licensee under the Agreement or any other agreement between the parties to pay or reimburse Novel Expressions for any sum due or owning hereunder. Novel Expression shall have no duty to indemnify Licensee for any Claims  arising out of or result ing from: (i) Licensee’s modification of the Licensed Material, (ii) the context in which Licensed Material is used in a Licensee Work; (iii) anything added to or omitted from the Licensed Material by Licensee; (iv) any act or omission of Licensee or its agents, (v) Licensee’s failure to comply with the terms of this Agreement; or (vi) Licensee's continued use of Licensed Material following notice from Novel Expression, or upon Licensee's actual or constructive knowledge, that any Licensed Material is subject to a claim of infringement of another's right. The foregoing states Novel Expression' entire indemnification obligation under this Agreement.

5.2 Licensee shall, subject to the terms of Section 5.1 above, defend, indemnify and hold harmless Novel Expression and its parent, subsidiaries, commonly owned or controlled affiliates, content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including actual attorneys' and experts’ fees and other costs of suit), arising out of or as a result of claims by third parties relating to Licensee's use of any Licensed Material outside the scope of this Agreement or any other actual or alleged breach by Licensee of this Agreement.

 

6.0 Condition of Licensed Material.

6.1 Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Novel Expression shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

 

7.0 Electronic Invoicing; Interest on Overdue Invoices.

7.1 Licensee and Purchaser agree to receive invoices from Novel Expression electronically via the email address associated with Licensee’s and/or Purchaser’s Novel Expression account. If Licensee fails to pay the invoice in full within the time specified in the invoice, Novel Expression may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.

 

8.0 Unauthorized Use and Termination.

8.1 Any use of Licensed Material in a manner not expressly authorized by this Agreement (including, without limitation, use of Licensed Material by more than ten (10) Users without purchase of additional seat licenses) constitutes copyright infringement, entitling Novel Expression to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Novel Expression' other remedies under this Agreement, Novel Expression reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times Novel Expression' standard license fee for the unauthorized use of the Licensed Material. Licensee agrees that such fee will reasonably, fairly and adequately compensate Novel Expression for the actual monetary and other loss caused by the omission of photo credit and deter further unauthorized uses, and is not a penalty. Novel Expression reserves the right to terminate this Agreement if Licensee: (i) enters the Agreement after having received notice of unauthorized use from Novel Expression relating to the Licensed Material; (ii) fails to timely pay the License Fee in full; or (iii) otherwise breaches any term of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; and (ii) destroy or, upon the request of Novel Expression, return to Novel Expression the Licensed Material and, in the case of termination by Novel Expression for cause, any and all Licensee Work in the possession or control of Licensee.

 

9.0 Miscellaneous Terms.

9.1 Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Novel Expression, including by providing Novel Expression with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Material is Reproduced. In addition, upon reasonable notice, Novel Expression may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to Novel Expression of five percent (5%) or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Novel Expression the amount of such underpayment, Licensee shall also reimburse Novel Expression for the costs of conducting such audit. Where Novel Expression reasonably believes that Licensed Material is being used by more than the authorized number of Users, or that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Novel Expression' request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Novel Expression.

9.2 Electronic Storage. For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of Novel Expression, the Licensed Material's identification number and any other information as may be embedded in the electronic file containing the original Licensed Material. Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material.

 9.3 Withdrawal. Upon notice from Novel Expression, or upon Licensee's knowledge that any Licensed Material may be subject to a claim of infringement of another's right for which Novel Expression may be liable, Novel Expression may require Licensee to immediately and at its own expense (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. Novel Expression shall provide Licensee with comparable Licensed Material (which comparability will be determined by Novel Expression in sole discretion, free of charge, but subject to the other terms and conditions of this Agreement.

9.4 Notice, Cure, Dispute Resolution. The Agreement will be construed and enforced in accordance with the laws of the State of Colorado. Prior to any formal dispute resolution proceedings arising out of any dispute related to this Agreement, the party alleged to have breached the agreement shall be given written notice of the specific nature of the breach. If such party shall thereafter fail to cure the alleged breach within 30 days, the dispute shall be submitted to mediation before a mutually agreed mediator to take place within thirty (30) days of either party’s written request therefore. If the parties cannot agree on a mediator within 10 days of notice, the dispute will be submitted to mediation before the American Arbitration Association (“AAA”) in Colorado Springs, Colorado. If the parties are unable to fully resolve the dispute in mediation, the dispute shall thereafter be submitted to binding arbitration before AAA in Colorado Springs, Colorado and decided by a single arbitrator pursuant to the then current AAA rules for Commercial Mediation/Arbitrations. Both parties shall equally share all costs of mediation and arbitration, subject to the arbitrator awarding the substantially prevailing Party its legal costs in addition to any other relief or recovery. Notwithstanding the foregoing, Novel Expression 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 Licensee in the event that, in the opinion of Novel Expression, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.

9.5 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them 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 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 Entire Agreement. This Agreement is intended for business customers of Novel Expression and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Novel Expression and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.

9.8 Taxes. All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).


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