CONTENT LICENSE AGREEMENT
1. Background of Agreement
(a) This Agreement is set up as a user-determined document where you will choose to enter into either our royalty-free content license (this Agreement) or an extended license where one or more of the restrictions of this Agreement are amended for your proposed use of the Content (Extended License). At the end of this Agreement you will have the opportunity to select a “Content License Agreement” or an “Extended License”. The options for the Extended License uses are dependent upon the Content and whether the supplier of the Content has opted-in to the extended license options. If you do not specify an Extended License or there is no Extended License option for the Content you have requested, your download of Content will be subject to this Agreement.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “Photokore” or “we” means Photokore Co., Ltd., operator of the Site; and (iii) “Content” means any photographs, illustrations, images, designs, and other pictorial or graphic media content that you are downloading from the Site, together with any accompanying material.
(c) This Agreement contains many important provisions that affect your rights and obligations. By marking the correct box at the end of this Agreement and typing “I Agree” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download the Content.
2. License Terms
Subject to the terms and conditions of this Agreement, we hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you are not allowed to do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Photokore or the supplier of the Content, as the case may be.
3. Permitted Uses for ‘Content License Agreement’
(a) You may use the Content solely for those advertising, marketing, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License which is available for the Content; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement). For example, you cannot superficially modify the Content, print it on a t-shirt, mug, poster, template or other item, and sell it to others for consumption, reproduction or re-sale. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should either obtain an Extended License or contact Photokore’s Client Relations for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.
(b) Seat Restrictions. Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Permitted Uses an unlimited number of times. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location or accessible by more than one person, you must download the Content from the Site for each such use or obtain an Extended License for a multi-seat license for the Content. You may make one
(1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:
- Advertising, marketing and promotional projects, including printed materials, catalogues, brochures, product packaging, presentations, film and video presentations, commercials, promotional greeting cards and promotional postcards (i.e. not for resale or license);
- entertainment applications, such as magazines, newspapers, editorials, newsletters, books and book covers, and video, broadcast and theatrical presentations;
- on–line or electronic publications, including web pages to a maximum of 800 x 600 pixels for image or illustration Content;
- prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and
- any other uses approved in writing by Photokore.
If there is any doubt that a proposed use is a Permitted Use please contact Photokore at firstname.lastname@example.org.
4. Prohibitions for ‘Content License Agreement’
(a) Prohibited Uses. Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, you may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you may not:
- use the Content in any electronic template or application, including those that are web based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to website design, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter intended for resale;
- use or display the Content on websites or other venues in connection with any goods or services intended for resale or distribution which primary value lies in the work itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
- use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
- use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
- incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
- use the Content in a fashion that is considered by Photokore (acting reasonably) as or under applicable law is considered libelous, slanderous, defamatory, or otherwise pornographic, obscene or indecent in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
- use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that said person uses or personally endorses any product, business, service, cause, association or other endeavor; or (b) except where accompanied by a statement clearly indicating that the Content is being used only for illustrative purposes and any person depicted in the Content is a model, that depicts said person in a potentially sensitive subject matter, including, but not limited to social issues, crime, substance abuse, sexual or implied sexual activity or preferences, mental and physical health issues, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;
- to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
- remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
- sub-license, re-sell, assign, lend, rent, convey or otherwise transfer or distribute the Content or the rights granted under this Agreement;
- store and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
- use or display the Content online in downloadable format, post the Work on an electronic bulletin board, or enable the Work to be distributed via mobile telephone devices or shared in any peer-to-peer or similar file sharing arrangement;
- use the Content for editorial purposes without including the following credit adjacent to the Content: “©Photokore.com/Artist’s Member Name]; or
- either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 500,000 times without obtaining an Extended License, in which event you shall be required to pay an additional royalty fee equal to US $0.01 for each reproduction which is in excess of 500,000 reproductions. This additional royalty does not apply to advertisements in websites or to broadcast by television, web-cast or theatrical production.
5. Excess Reproduction Run
In the event you contravene subparagraph 4(a)(14) above without purchasing an Extended License, you further agree to notify Photokore in the event that you (or a combination of you and others involved with you) reproduce the Content, or an element of the Content in excess of 500,000 times. Such disclosure notice must be sent to Photokore each and every month after which the Content, or an element of the Content, has been reproduced in aggregate over the term of this Agreement in excess of 500,000 times. Each such notice must contain the number of reproductions made in any particular month, provided however the first such notice will only be require disclosure of those reproductions which are in excess of 500,000. Photokore shall invoice you for the fees associated with such excess use and you agree to pay such invoice within 30 days of receipt.
6. Term and Termination
(a) This Agreement is effective in perpetuity unless terminated in accordance with this subsection 6 (‘Term and Termination’). You may terminate this Agreement by destroying the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Photokore if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Photokore in writing that you have complied with these requirements.
(b) Photokore reserves the right, in its sole discretion, to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
(c) Upon notice from Photokore, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which Photokore may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise. Photokore shall provide you with replacement Content (which shall be determined by Photokore in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
7. Representations and Warranties
(a) In addition to the representations and warranties acknowledged and agreed to by you above, each of Photokore and you hereby represent and warrant that it, or he or she, has the authority and legal capacity to enter into this Agreement
(b) You acknowledge that Photokore may not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Content. Where Photokore does not have releases available, the procuring of such releases is your responsibility.
(c) You acknowledge that Photokore may not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Content. Where Photokore does not have releases available, the procuring of such releases is your responsibility.
(d) PHOTOKORE PROVIDES THE CONTENT ON AN “AS IS” BASIS WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PHOTOKORE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT PHOTOKORE) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
8. Limitation of Liability
(a) IN NO EVENT SHALL PHOTOKORE OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY DAMAGES INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN ONE (1) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(b) NOTWITHSTANDING ANY OTHER TERM HEREIN, PHOTOKORE SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(c) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF PHOTOKORE UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF PHOTOKORE UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF FIVE THOUSAND ($5,000) US DOLLARS. FOR GREATER CLARITY, PHOTOKORE’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED FIVE THOUSAND ($5,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM PHOTOKORE.
You agree to indemnify, defend and hold harmless Photokore, its affiliates, its Content providers and their respective officers, directors, employees, shareholders, partners and agents (collectively, the “Photokore, Parties”) from and against any and all claims, expenses (including reasonable legal fees on a solicitor and client basis), liability, losses, damages, and costs incurred by any Photokore Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement. Photokore reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Photokore's defense of such claim.
(b) Delay or failure on the part of Photokore to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is binding upon your respective heirs, assigns and legal representatives, as the case may be, and is not assignable by you without Photokore's prior written consent. Photokore shall have the right, in its sole discretion, to assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place thereof an enforceable provision or provisions, or part thereof, that as nearly as possible reflects the terms of the unenforceable provision or part thereof.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the Republic of Korea (“Korea”) (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Seoul Central District Court shall have the exclusive jurisdiction over any and all disputes arising out of, under or in connection of this Agreement. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
(g) The parties agree that this Agreement and all related documents be drawn up in English. Where Photokore has provided you with a translation of the English language version of this agreement, then you agree that the translation is provided for your convenience only and that the English language version of the agreement will govern your obligations and relationship with Photokore. If there is any contradiction between the English language version and its translation in a different language, then the English language version shall take precedence.
If you have concerns relating to this Agreement, please contact Photokore at email@example.com.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF PHOTOKORE AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND PHOTOKORE, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND PHOTOKORE RELATING TO THE SUBJECT OF THIS AGREEMENT.