THIS IS A LEGAL AGREEMENT BETWEEN LICENSEE, PURCHASER (IF ANY) AND FABULOUS FACES, LLC (“FABULOUS FACES”). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB, AND IS APPLICABLE TO ONLINE, DIGITAL DELIVERY OF LICENSED MATERIAL (THE “AGREEMENT”).
1. Definitions. In this Agreement the following definitions apply:
1.1 “Invoice” means the computer-generated standard form of invoice provided by Fabulous Faces that may include, without limitation, the Licensed Material selected, any limitations on the license in addition to those specified herein and the corresponding price for the license of such Licensed Material. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.2 “Licensed Material” means any still image obtained from Fabulous Faces in the form of a digital file, or other medium of visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Fabulous Faces under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
1.3 “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.
1.4 “Purchaser” means a person or entity purchasing a license hereunder on behalf of a third party Licensee.
1.5 “Reproduction” and “Reproduce” mean any form of copying or publication of the whole or part of any Licensed Material, via any medium by whatever means, and the distortion, alteration, cropping or manipulation of the whole or any part o the Licensed Material and the creation of any derivative work from the Licensed Material.
1.6 “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.
2. Grant of Rights. Subject to the terms of this Agreement:
2.1 Fabulous Faces grants to Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable, worldwide right to Reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media for all purposes other than those uses prohibited under Section 3 of this Agreement.
2.2 Licensee may have the Licensed Material Reproduced by subcontractors of Licensee for preparation of a final product, provided that such subcontractors agree to abide by the provisions of this Agreement.
2.3 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 Licenses.
2.4 Fabulous Faces grants the Licensee non-exclusive rights to download comps for layouts. It is unlawful to remove watermark from comps.
3.1 Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement.
3.2 Licensee may not: (i) make the Licensed Material available (separate from the end product into which it is incorporated) in any medium accessible by persons other than authorized users; (ii) sell, license or distribute any end product containing the Licensed Material in a way that is intended to allow or invite a third party to download, extract or access the Licensed Material as a standalone file; (iii) include the Licensed Material in an electronic template intended to be reproduced by third parties on electronic or printed products; or (iv) 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, including, without limitation, postcards, mugs, t-shirts, calendars, posters and other items.
3.3 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a work that is a stand-alone pictorial work that derives a substantial part of its artistic components from the Licensed Material.
3.4 Licensed Material shall not be incorporated into a logo, trademark or service mark.
3.5 Licensee shall not use the image(s) in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise.
4. Copyright. The Image(s) are copyrighted and protected under the various laws of the United States, International treaties and other applicable laws. The image(s) shall remain the sole and exclusive property of Fabulous Faces, or its licensors. Use of the image(s) is licensed, not sold, pursuant to the terms of this License Agreement. Use of the image(s) without agreeing to this License Agreement or a breach of these License Agreement terms, is copyright infringement.
5. Warranty and Limitation of Liability.
5.1 Fabulous Faces 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 its original form and when used in accordance with this Agreement, will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iii) all necessary model and/or property releases for use of the Licensed Material authorized under this Agreement have been obtained.
5.2 FABULOUS FACES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FABULOUS FACES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF FABULOUS FACES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
6. Indemnification. Licensee shall defend, indemnify and hold Fabulous Faces and its officers, directors, members and employees harmless from all damages (excluding punitive damages not directly attributable to acts of licensee), liabilities and expenses (including reasonable attorneys’ fees and permitted and authorized costs), 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.
7. Conditions of Licensed Materials. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for reproduction. Without prejudice to Section 5.1 (ii), Fabulous Faces 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.
8. Termination and Revocation. The license contained in this Agreement will terminate automatically without notice from Fabulous Faces if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of Fabulous Faces, return the Licensed Material to Fabulous Faces; and (iii) delete and remove the Licensed Material from Licensee’s premises, computer systems and storage (electronic or physical).
9. Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Fabulous Faces, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material that is stored on Licensee’s computers. Licensee shall maintain a robust firewall to safeguard against unauthorized third party access to the Licensed Material.
10. Governing Law. This Agreement will be governed in all respects by the laws of the State of Michigan, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in the jurisdiction closest to Fabulous Faces’ headquarters.
11. 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.
12. 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 to 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.
13. Entire Agreement. This Agreement contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communications sent by the Licensee, the terms of this Agreement shall govern.
Fabulous Faces, LLC
Dated: ___________________, 20____