Content License Agreement
Valid as of August 11, 2017
This License Agreement governs all Content of TV Alliance GmbH (“TVA”) that you download. By downloading, copying or using any Content of TVA, you agree to be legally bound by this Agreement.
As used in this Agreement:
- “Content” means any work, including video footage, photographs, illustrations, music or other audio files and any digital media work, that is downloaded pursuant to this Agreement.
- “Download” and variations thereof means downloading, obtaining or copying Content from this Website.
- “Item Page” means the specific Content item and item detail pages at the Website where item previewsand information about the particular Content is made available for TVA Users.
- “TVA User” means an individual who is a registered TVA user or account holder or somebody who is usingthis site or who is downloading any content from this site.
- “Website” means our internet site at http://www.stock-footage-free-myanmar.com/ and all other stockfootage internet sites of TVA.
2. Grant of License
a. The License: TVA hereby grants you a non-exclusive, worldwide right and license (the “License”) for a term of 5 years, starting from the date of purchase, on the terms and conditions and limitations set out in this Agreement, to:
- use, copy, edit, modify, manipulate, couple and synchronize the Content in any work in any media now known or hereinafter devised (including in-context works for advertising and promotion), which incorporates Content together with other substantial independently created works, and is created by or for you or on your behalf as permitted by the terms of this Agreement (a “Production”);
- directly or indirectly copy, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Content within such Production(s) world-wide and by any means now known or hereafter devised and allow others to do so; and
- use the tags, meta data, designations, disclaimers, restrictions, annotations, information and documentation that are available on the Website or otherwise provided by us to you with, in or otherwise relating to Content (the “Content Information”) internally to facilitate the foregoing with regard to the Content.
Retention of Rights to the Content: You will not acquire, and we and/or the Content contributor will retain, all right, title, and interest in and to all of the copyrights, trademarks, trade secrets and other proprietary rights in the Content or Content Information that are not expressly granted to you by the terms of this Agreement. The License does not include the right to record a new performance of Content or the composition reflected thereby.
License Conditioned on Compliance: The License is conditioned upon compliance by you and your personnel and contractors (each a “Representative”) with and fulfillment of your responsibilities under this Agreement and our receipt of full payment of the applicable price for the License and Content.
- Restrictions on Transfer of License: The License is non-transferable. This means that you may not resell, sublicense, rent, loan, assign or transfer the Content to any third Person, except pursuant to an assignment permitted above or as otherwise expressly authorized in this Agreement. For avoidance of doubt, the restriction on transferability does not apply to your Productions or Merchandise that incorporate Content pursuant to the License.
- No Distribution of Raw Content: Except as expressly permitted by Section 2, you may not (i) distribute, transmit or publicly display Content as a template, a standalone file or to others for consumption, reproduction or re-sale, or (ii) superficially modify any raw Content and sell or license it to others for consumption, reproduction or resale.
- No Use in Trademarks or Logos: You may not incorporate any Content into a logo, trademark or service mark.
- Sensitive Use: You may not use any Content that features any person or property in a manner that would be unflattering or unduly controversial to a reasonable person, including use in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint, or as suffering from, or medicating for, a physical or mental ailment (each of the foregoing, “Sensitive Use”). For avoidance of doubt, use of Content in an obviously satirical Production that is not an Advertisement or use of Editorial Content in an accurate editorial way (e.g., not in an Advertisement or other commercial Production) would not be prohibited by the prohibition on Sensitive Use or offensive use.
- No Unlawful Use: You may not use any Content in a pornographic, unlawful or defamatory context or manner, including use (i) in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like; (ii) in connection with the advertisement or promotion of tobacco or alcohol products; or (iii) depicting a person in the Content as engaging in acts of moral turpitude or criminal activity.
- Contact Us If You Need Rights for Use Not Permitted By this Agreement: If you need to use any Content in a manner that is not permitted by this Agreement, contact TVA.
4. Content Depicting Personal Information or Third Party IP.
- Personal Information or Third Party IP: Notwithstanding anything else in this Agreement, the License does not include and we make no warranties with regard to any personally identifiable information of any person or any trademark, trade dress, logo, copyrighted design, art, architecture or other works that may be depicted in the Content (collectively, “Third Party IP”).
- Audio in Video Clips: For Content that is film, video footage or any other audiovisual work, any music, dialogue or other ambient audio contained therein is incidental only; accordingly, you are solely responsible for obtaining any additional clearances relating to any of the audio that may be required.
5. Public Domain Content.
- We assume that all photographs / video clips on this Website are “Public Domain” Content under copyright laws of the European Union. However, such work may not be considered to be in the public domain in other countries and notwithstanding the foregoing or anything else in this Agreement, you are solely responsible for reviewing the Content Information and if necessary confirming that the Public Domain Content is in fact in the public domain in the European Union and every other country where it or Productions including it will be used, copied, distributed, transmitted, broadcast, telecast, displayed or performed or derivative works created based thereon and obtaining any rights that are legally required with regard thereto.
- Generally, no releases have been obtained for any Third Party IP, image, likeness, identity or voice of any person or musical, dramatic, choreographic or literary work depicted, performed or contained in Public Domain Content, so to the extent that any Public Domain Content depicts or contains any of the same, it should be considered to be Editorial Content, suitable for editorial usage only.
6. Credit Attribution.
- If the Content is used in an editorial context in a Production that is posted online, you will accompany the Production with a credit line hyperlink to www.stock-footage-free-myanmar.com that reads “Stock media provided by TV Alliance GmbH, Austria” or substantively similar language.
- For all other Productions incorporating the Content where crediting is customary or where other such credits are provided, you will use your reasonable commercial efforts to accompany the Production with a credit line that reads “Stock media provided by TV Alliance GmbH, Austria ” or substantively similar language.
7. Representations, Warranties and Disclaimers.
- Our Warranties: We warrant with regard to Content that:
- We have the right and authority to enter into and grant the rights in the Content granted to you inthis Agreement, subject to all applicable limitations and exclusions in this Agreement.
- Unaltered Content when Downloaded and used in full compliance with this Agreement andapplicable law and with respect to which you have fulfilled your responsibilities and obligations under this Agreement, including your payment of all applicable fees set forth in the Website,
- will not infringe any copyright, trademark or other intellectual property right, and
- will not violate any third parties’ rights of privacy or publicity rights.
- The above representations and warranties do not apply to (i) with regard to any Third Party IP oraudio in visual Content.
- Limited Warranty: We warrant that there are no material defects in the Content which would prevent itfrom being downloaded from the Website and used as permitted herein. If there are material defects in the Content, your exclusive remedy will be as follows: (i) upon request to us within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Website or used as permitted herein successfully, we will refund the fee actually paid by you for such Content.
- Warranty Disclaimer: OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 7(a), THE WEBSITE, OUR SERVICES, THE CONTENT AND THE CONTENT INFORMATION ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE TVA PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OR THE CONTENT INFORMATION WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. We only have model or property releases where and as expressly indicated on the Item Page. Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
- Content Information Disclaimer: While we have made reasonable efforts to correctly categorize, keyword, caption, description and title the Content, we do not warrant the accuracy of such information. Additionally, except as expressly set forth in this Agreement, we do not warrant the accuracy of any Content Information.
- Representation about You: If you are an individual, you represent and warrant that you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement.
- Representation About Your Information: You represent that all information provided to us by you or under your TVA User ID is accurate and true, including all information relating to the TVA User and the Licensee and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
- Representation of Individual TVA User: If you are the individual who is Downloading the Content, you represent that you are the TVA User under whose user ID you are doing so. If the individual who is entering into this Agreement is doing so on behalf of his/her employer, the Licensee and/or any other Person, such individual represents and warrants that (i) he/she has the full right and authority to execute, deliver and perform this Agreement on behalf such Person, and (ii) this Agreement is a binding Agreement of such Person, enforceable against such Person in accordance with its terms. In the event that such individual does not have such right, power and authority, such individual agrees that in addition to all rights and remedies available against such Person or anyone else relating to violation or infringement of intellectual rights, he/she will be personally liable to us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Content by such individual, such Person and its Representatives.
a. Our Indemnity: Subject to the limitations in Section 9, we will defend, indemnify and hold you harmless from any actual or threatened third party lawsuit, claim, or legal proceeding (each, a “Claim”) alleging a breach of any of our express representations and warranties in this Agreement, provided in each case that you have paid all amounts due to us and have not otherwise breached the terms of the Agreement.
- Indemnity Conditions: Our obligations under paragraph (a) above (the “TVA Indemnification”) are conditioned upon you complying with the requirements of this paragraph: (i) You must notify us in writing of the TVA Indemnified Claim, no later than five (5) business days from the date you know or reasonably should have known of the same. Such notification must include all details of the claim then known to you (e.g., TVA Content Number, a copy of the Content and your Production, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the TVA Indemnified Claim). The notification must be sent to us at our address on our Website via Certified Mail, Return Receipt Requested, or reputable express delivery service, in each case, recipient’s signature required, with a contemporaneous email copy to email@example.com. (ii) You must allow us to assume and control the handling, settlement or defense of the TVA Indemnified Claim. (iii) You must cooperate reasonably with us in the defense of the TVA Indemnified Claim. We shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the TVA Indemnified Claim as provided herein. The TVA Indemnification will be your sole remedy for a breach of any of our representations and/or warranties. Notwithstanding anything to the contrary contained herein, we shall not be liable for, and TVA Indemnified Claims shall not include, any Claim: (A) arising out of modifications made to Content after Download; (B) arising out of the particular context in which the Content is used; or (C) related to any Excluded Content (each such Claim, a “Use Related Claim”). In addition, our obligations under the TVA Indemnification are conditioned upon payment in full of all amounts due to us and your full compliance with this Agreement.
- Your Indemnity: You agree to indemnify and hold TVA, our Affiliates, our resellers and our and their respective Representatives, shareholders and partners (collectively, “TVA Parties”) and the Content contributors harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to (i) any Claim relating to or arising directly or indirectly out of a failure to comply with this Agreement or fulfill any responsibility or obligation assumed by you under, or other breach of, this Agreement by you or any of your Representative, or (ii) any Use Related Claim; provided that this indemnity shall not apply to the TVA Parties to the extent that the claim arises from a breach by us of a warranty set forth in Section 7(a) above or to a contributor to the extent that the claim arises from a breach by the contributor of a certification, representation or warranty.
9. Limitations of Liability.
- EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8a, The TVA PARTIES AND THE CONTENT CONTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS OR, IN THE CASE OF US OR THE OTHER TVA PARTIES, ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING THE COST OF COVER, ARISING UNDER THIS AGREEMENT OR OUT OF OR RELATED TO THE LICENSE, YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OR EXPLOITATION OF CONTENT, THE WEBSITE OR THE CONTENT INFORMATION, ANY SERVICES PROVIDED BY US OR THE RESULTS FROM THE USE THEREOF OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
- THE MAXIMUM AGGREGATE AMOUNT OF OUR LIABILITY (meaning the total amount we may be responsible for, whether under this agreement or any other agreement for the same Content, regardless of the number of times you license the same Content) SHALL BE LIMITED TO € 100 PER ITEM OF CONTENT.
- THESE LIMIT APPLY EVEN IF WE OR ANOTHER TVA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT (i) THE FEES FOR THE USE OF THE CONTENT REFLECT AND ARE SET IN RELIANCE UPON THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, AND (ii) THE LIMITATIONS OF LIABILITY HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US. NOTWITHSTANDING ANYTHING ELSE IN THIS OR ANY OTHER AGREEMENT, NONE OF THE TVA PARTIES OR THE CONTENT CONTRIBUTOR SHALL BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU, ANY OF YOUR REPRESENTATIVES OR ANY THIRD PARTY AFTER THE CONTENT IS DOWNLOADED OR THE PARTICULAR CONTEXT IN WHICH THE CONTENT IS USED. Subject to our express warranties in Section 7a, you assume full responsibility for how you use the Content or any services provided by us and the particular context of how the Content is used. We will not be held responsible for
any delay or failure to comply with our obligations under this Agreement if the delay or failure arises
from any cause which is beyond our reasonable control.
d. No action, regardless of form, arising out of the License, any supplemental or other agreement or under
this Agreement may be brought by you more than one year after the cause of the action has accrued.
10. Term and Termination.
- Material Breach by You: The License will terminate automatically without notice from us if you fail to cure a material breach or other material failure to comply with any provision of this Agreement within 14 days of written notice from us of the same. Upon termination, to the extent reasonably practical, you must yourself and must cause your Representatives to immediately: (i) stop using the Content; (ii) destroy or, upon our request, return the Content to us; (iii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iv) where applicable, ensure your Representatives and licensees do the same.
- Survival: The terms and provisions of Sections 1, 3 through 13 shall survive termination or expiration of this Agreement.
11. Payments & Taxes.
- Royalty-Free License: You pay the price listed for the respective Content only once and then you can use it as many times as you like according to Section 2 of this Agreement and respecting the limitations mentioned above. There are no License Fees except the initial fee and no other royalties to be paid except those included in the initial cost. This License is granted for 5 years beginning on the date of purchase and it is worldwide valid.
- Payment: Unless Licensee is approved for credit terms, all licenses must be paid in advance of receipt of Content. 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. You agree to reimburse TVA for its legal fees, costs and disbursements if TVA is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
- Sale of License Final: All sales of Licenses are final, and we are under no obligation to refund any fees paid by you for Content under any circumstances, except upon a material breach of one of our express representations and warranties set forth herein. However, if you request for a refund, and we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.
- Taxes: You are responsible for promptly paying any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License, any supplemental or other license or any use of the Content.
- No Set-Off, Withholdings or Deductions: You must pay the applicable price for the Content License in a payment currency approved on the Website without any set off, deduction or withholding of any kind, including tax withholdings or amounts charged for currency conversion; to the extent that you determine that you are required under law (e.g., under a tax law) to withhold any amount from payments due to us or a financial institution or other intermediary deducts any amount for currency conversion or other services from your payment to us, the price for the applicable License is hereby increased by the amount that would cause the net amount actually received by us to equal the price that would otherwise apply for the sale of the License.
- You: As used in this Agreement, the term, the “Licensee”, “you” and “your” refer to the person designated as “Licensee” when the Content is downloaded from the Website or otherwise first Downloaded. A Person may not Download Content unless he or she is the Licensee or has authority to and does in fact bind the designated Licensee to this Agreement.
- Us: If Licensee is located in the European Union, then the party with which you are contracting is, and as used herein the terms “TVA”, “we”, “us” and “our” refer to TV Alliance GmbH, Salzburg, Austria.
13. Miscellaneous Provisions.
- Consent to Electronic Communications: You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Notwithstanding anything else in this or any other agreement, (i) we reserve the right to make changes to this Agreement, the Website Terms and Conditions, and the terms, disclaimers, restrictions, guidelines, and policies contained on the applicable Item Page and otherwise at the Website where you download Content (collectively, the “Website Terms”), at any time and without notice to you, and (ii) you will be subject to the terms of the same in force at the time that the Content was first Downloaded for or by you. For avoidance of doubt, a change to any of the same will not apply to Content that was first Downloaded for or by you prior to the change. No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
- If you learn that any Content is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim. If we learn of such a claim from you, the third party or otherwise and we, in our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Content from your computer systems and storage devices (electronic or physical), and (ii) cease any future use of the Content at your own expense if possible. If you do remove and cease use of the Content, we will either refund your license fees for the applicable Content or without charge provide you with other content that we determine with your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.
- The parties to this Agreement are independent contractors, and nothing in this Agreement or the License or any supplemental or other license shall create a joint venture, partnership or franchise or fiduciary relationship between the parties.
- If any provision, or portion thereof, of this Agreement, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
- This Agreement shall be construed in accordance with the laws of the European Union and the Federal Republic of Austria. The License, any supplemental or other license, any Download of Content and access to and use of the Website and the entering into this Agreement will be deemed to take place in the European Union.
- Any dispute regarding this Agreement, the License, any supplemental or other license or any Content or the use thereof will be resolved exclusively by a District or Regional Court in Salzburg, Austria. We and you hereby waive any objection to venue, or to the inconvenience of the forum, of any such court or right to trial by jury to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
- You will promptly reimburse us for any reasonable attorneys’ fees and court costs that are incurred by us in enforcing this Agreement.
- All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns.
- The TVA Parties and the Persons indemnified under Section 8 are intended third Person beneficiaries of this Agreement. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other third Person any rights, benefits or remedies of any nature whatsoever.
- Except as otherwise set forth herein, any notice required or permitted to be given under this Agreement shall be in writing, delivered by hand, nationally recognized overnight courier service, email or registered or certified mail, addressed (i) to TVA at: our address set forth on the Website, www.tvalliance.at, with a copy by email to firstname.lastname@example.org; or (ii) to you at the email address or contact information provided for the TVA User account or registration under which the relevant Content was downloaded.
- If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement. Your obligations, the limitations and our rights and remedies set out in this Agreement are cumulative and are in addition to your obligations and our rights and remedies at law or in equity.
- Except as expressly provided in this Agreement, related to transfers of the License or your Productions, this Agreement is personal to you is not assignable by you without TVA’s prior written consent. TVA may assign this Agreement without your consent to any other Person so long as such Person agrees to be bound by its terms.