Picture History Content License Agreement

IMPORTANTÐPLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE DOWNLOADING OR USING THE ASSOCIATED PICTURE HISTORY IMAGES. By clicking the "accept" button or by installing or using the Picture History images, you signify your acceptance of the terms of this License and you agree to be bound by its terms and conditions. If you do not agree to these terms and conditions, do not click the "accept" button and do not install or use the Picture History images.

THE FOLLOWING TERMS AND CONDITIONS, THE CONTENT-SPECIFIC INVOICE ("INVOICE") AND THE CONTENT-SPECIFIC ONLINE PAGE(S) LOCATED AT WWW.PICTUREHISTORY.COM APPLICABLE TO THE LICENSED CONTENT (IF ANY), COLLECTIVELY GOVERN YOUR ACCESS AND USE OF ALL MATERIAL, IMAGES ("CONTENT") AVAILABLE FROM PICTURE HISTORY, AND CONSTITUTE A BINDING AGREEMENT ("AGREEMENT") BETWEEN YOU AND PICTURE HISTORY LLC. BY OBTAINING, USING OR PAYING FOR ANY CONTENT FROM PICTURE HISTORY, YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE APPLICABLE TERMS, DO NOT OBTAIN OR USE ANY CONTENT FROM PICTURE HISTORY.

  1. Definitions: In this agreement, all capitalized terms shall have the meaning set forth in Section herein entitled "Defined Terms" and elsewhere in these terms and conditions.
  2. Parties: This Agreement is binding between Picture History and You. "You" means either: (a) the individual listed as the registrant of the Picture History account through which this Agreement and the license(s) granted hereunder are entered ("Registrant"), or (b) if Registrant is entering into this Agreement and the licenses granted hereunder for the benefit of, and/or as an agent on behalf of, Registrant's employer ("Employer") and/or a third party ("Principal"), then such Employer and/or Principal. If Registrant is entering into this Agreement and the licenses granted hereunder for the benefit of, and/or as an agent on behalf of Employer and/or Principal, then Registrant (a) represents and warrants that such Principal and/or Employer has authorized Registrant to enter into this Agreement, that the licenses granted hereunder are on that Principal's and/or Employer's behalf, that such Principal and/or Employer has agreed to be bound hereby and that Registrant has actual and express authority to act on behalf of and bind such Principal and/or Employer to the terms of this Agreement; (b) the Content and End Use is solely for the benefit of Employer, or Principal, and that Registrant will not use the Content or End Use for the benefit of any other person or entity without entering into a separate license with Picture History, and (c) Registrant will comply with all of the terms hereof and shall be jointly and severally liable for any breach of the terms of this Agreement by Principal and/or Employer. If Registrant requests any Picture History employee or contractor to facilitate Registrant entering into any license hereunder on behalf of Registrant and through use of Registrant's account, Registrant agrees to be bound by this Agreement.
  3. License Grant and Restrictions:
      (a) Generally: Any and all licenses granted by Picture History are conditioned upon (i) Your compliance with all provisions of this Agreement, and (ii) Picture History's receipt of full payment by You as identified in the applicable Invoice. Any and all license(s) granted to You hereunder and Your right to use the Content shall immediately terminate upon Your failure to comply with any provision of this Agreement or to make full payment when due, in which case Picture History shall be entitled to pursue all other remedies available under copyright and other laws.

      (b) Content: Subject to the terms and conditions of this Agreement, and excluding the rights granted in Section 3(c) and 3(d) below, Picture History grants You a limited, non-exclusive right to use the Content licensed hereunder to create and exploit the End Use solely as specified in the Invoice, and expressly as limited in the Specific Content Web Pages and the terms and conditions herein. Picture History reserves all rights not specifically granted in this Agreement. Except where specifically permitted on the Invoice for the applicable Content, You may not distribute, publish, display or otherwise use in any way, the Content, including without limitation the End Use after the Term.

      (c) Comps: Subject to the terms and conditions of this Agreement (including any applicable Invoices and Specific Content Web Pages) Picture History grants You the right to use Comps solely for Your internal evaluation to determine whether You intend to obtain a non-Comp license for the Content. You may not use Comps in any manner except for internal evaluation of the applicable Content to determine whether You wish to license Content. Unless otherwise stated in the applicable Invoice, the Term of the Comps license is sixty (60) days from the date of download or receipt. You may not copy, distribute, publish, display or otherwise use in any way the Comps after the Term without obtaining a license for that Content. If You do not obtain such a license, upon expiration of the Term, You must destroy all copies of the Comps Content.

      (d) Content Usage: The licenses granted under this Section 3 are limited and are non-transferable and non-sublicensable, unless otherwise specified on the applicable Invoice. Only You may use the Content and the End Use must be solely for Your own use. Your employees and contractors (if any) may use the Content as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that You remain jointly and severally liable for any breach of the terms of this Agreement by such employee(s) and/or contractor(s). Except as may otherwise be specifically stated herein, and except insofar as it has been incorporated by You into the permitted End Use, You may not sell, rent, loan, give, sublicense or otherwise transfer to anyone the Content or any right to reproduce the Content.

  4. Ownership and Intellectual Property: Picture History and its Content sources retain all right, title, and interest in and to all of the copyrights, patent rights, trademarks, trade secrets, and all other proprietary rights in the Content. No rights in any Content are granted except the limited licenses specified in this Agreement. Any right, title or interest arising in any compilation or derivative work created using any Content shall not entitle You to use any Content except as permitted hereunder. You do not acquire any copyright ownership or equivalent rights in or to any Content or any other property of Picture History or its Content sources as a result of any license Picture History grants to You. You hereby allow Picture History to use without charge Your End Use in displays and presentations for Picture History's marketing purposes, solely to demonstrate how You have used the Content.

  5. Limited Warranty and Disclaimer:
      (a) Picture History warrants that (subject to the restrictions and limitations contained in this Agreement): (i) the Content, as provided hereunder, and when used as authorized in this Agreement, will not infringe any copyright, trademark, or any other intellectual property right of any third party, (ii) it has sufficient rights to enter into this Agreement and grant You the rights provided herein; and (iii) the digital copy of the Content provided by Picture History to You will be free from defects in material and workmanship (but not visual artifacts inherent in the original Content) for ninety (90) days following delivery. Picture History will, as Your exclusive remedy for Your inability to use any Content as the result of such material and workmanship defects, provide You with a replacement of the digital copy of such Content or, in Picture History's sole discretion, refund any fee actually paid by You to Picture History, provided You have not made any use the Content. Except as may be provided in this Section 5(a), while Picture History makes efforts to use accurate caption information, Picture History does not warrant that such information is accurate. Picture History provides You with its online system on an "as is" basis without warranty of any kind, including warranty of continued access or availability or against interruption of service.

      (b) Picture History makes no warranties, nor shall Picture History be liable, for any claims related to or arising from Your use of Content which: (a) has been modified by You, (b) has been combined by You with other Content, products, text, content or materials, or (c) Picture History has otherwise notified You not to use prior to the beginning of the Term of the license for the applicable Content. EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, PICTURE HISTORY, ON BEHALF OF ITSELF AND ITS CONTENT SOURCES MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  6. Limitation of Liability: EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER PICTURE HISTORY NOR ANY PICTURE HISTORY SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, JOINT VENTURE, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SOURCE, LICENSOR OR LICENSEE SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR YOUR USE OR INABILITY TO USE THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL PICTURE HISTORY1 OR ANY ITS SUBSIDIARIES', SUCCESSORS', PREDECESSORS', PARENTS', JOINT VENTURES', AFFILIATES', OFFICERS', DIRECTORS', EMPLOYEES', CONTRACTORS', CONTENT SOURCES', LICENSORS', OR LICENSEES' TOTAL AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR YOUR USE OF ANY CONTENT PROVIDED HEREUNDER, SHALL EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY PICTURE HISTORY FOR THE USE OF THE APPLICABLE CONTENT. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

  7. Alterations to Editorial and Fine Art Content: Special ethical considerations apply to editorial, news, and fine art Content. When using such Content, You are solely responsible for, and shall indemnify Picture History for any claims related to or arising from any modifications to or alterations of the Content (except for standard color correction or minor cropping for space limitations) or to the caption information. Notwithstanding the preceding sentence, under no circumstances may You alter or modify in any way (except for standard color correction or minor cropping for space limitations) any Content on PictureHistory.com.
  8. Your Indemnification of Picture History: You agree to indemnify and hold harmless Picture History and its Content sources, officers, directors, employees, contractors, subsidiaries, joint ventures, licensors and licensees against all claims (including, without limitation, claims by third parties), liability, damages (including punitive damages), judgments, settlements, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) Your breach of any terms, conditions or restrictions of this Agreement (including the terms, conditions and restrictions identified on the Invoice(s) and Specific Content Web Pages), (ii) Your use or modification of any Content, or combination of any Content, with any text or other content, (iii) Your failure to obtain from third parties all permissions necessary to use the Content, (iv) Content which Picture History has otherwise notified You not to license or otherwise use prior to the beginning of the Term of the license for such Content; and (v) any act or failure to act by You or any of Your employees, contractors, Employers, agents, clients, Principals, or Users.
  9. Picture History's Indemnification of You: Picture History agrees to indemnify and hold You harmless against all claims, liability, damages (except punitive damages), costs and expenses, including reasonable legal fees and expenses, awarded against You arising out of or related to Picture History's breach of the warranties to You as provided under Limited Warranty above. Notwithstanding the preceding, Picture History shall have no obligation unless You provide Picture History with written notice within ten (10) days of Your receipt of any claim subject to indemnity and the right to defend or control the defense of such claim and shall not, in any case, have any obligation with respect to any claims covered under "Your Indemnification" listed above.
  10. Releases and Clearances: Content may contain listed restrictions on the Invoice, including, without limitation, restrictions as to time, manner, industry and territory of use, and required pre-approval by a depicted person or their representative. Your ability to access Content does not entitle You to use that Content. Except as may be specifically stated in the Invoice or the Specific Content Web Page applicable to the licensed Content, the rights Picture History grants to You do not include a license to, and Picture History makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. All Content may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. You are solely responsible for determining whether Your use of any Content requires the consent of any other party or the license of any additional rights, and You should not rely solely on the information provided by Picture History. You are solely responsible for obtaining any and all releases and clearances as may be required, including without limitation rights from any representative guild, union, professional organization, or other authorized representative. If You are unsure whether additional rights are needed for Your use, You are responsible for consulting with competent legal counsel. No employee or representative of Picture History may make, and You shall not rely upon, any representations or warranties other than those stated herein.
  11. Unauthorized Uses: Without limitation, Content may not be used as a trademark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person's right of privacy, publicity or moral rights, or to infringe upon any copyright, trade name or trademark of any person or entity. You do not acquire, and shall not claim, any rights (trademark, copyright or otherwise) in the Content itself apart from the End Use. Unauthorized use of Content constitutes infringement of copyright and other applicable rights and shall entitle Picture History to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. Picture History in its sole discretion reserves the right to bill You (and You hereby agree to pay) ten (10) times the license fee for any unauthorized use, in addition to any other fees, damages and penalties Picture History may be entitled to under this Agreement and applicable law. The foregoing is not a limiting statement of Picture History's or its Content sources' rights or remedies in connection with any unauthorized use of the Content or breach of the Agreement.
  12. Payment/Reporting: You hereby agree to and are required to pay Picture History for all Content that You obtain under the terms of this Agreement, regardless of whether You use the Content (except as may be provided in Section 15 below entitled "Cancellation/Termination"). This may, as set forth in the applicable invoice, include an obligation to pay Picture History a use based royalty and to submit an accounting or other records verifying Your use of the Content. Payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days. The maximum amount permitted by state law shall be imposed on each returned check.
  13. Taxes: You are responsible for the payment of all sales and use taxes, when applicable. Picture History does not accept resale certificates without prior written approval and at Picture History's discretion.
  14. 14. Cancellation/Termination:
      (a) By You: If You cancel rights granted in the Invoice within seven (7) days from the date of the Invoice, You will be charged a fifty dollar (US$50) transaction fee per Image. If the cancellation notice is received more than seven (7) days, but less than thirty (30) days after the Invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the Invoice will be charged. After thirty (30) days, no cancellations will be accepted and You are responsible for and must pay the full amount of the Invoice. For any cancellations, You must also pay any and all service charges, production fees, processing and handling fees and shipping fees. All licenses applicable to the cancellation shall immediate terminate upon cancellation. All cancellations are final.

      (b) By Picture History: Picture History may, without further obligation or any liability to You or any other person or entity, terminate this Agreement and Your license to use the Content by written notice in the event You fail to comply with any provision of this Agreement. Upon any termination, cancellation or expiration of this Agreement, neither You nor any other person or entity covered by the license granted to You under this Agreement shall have any further right to make any use of the Content.

  15. Copies: At Picture History's reasonable request, You shall provide to Picture History free of charge one (1) copy of any use made of the Content as authorized hereunder.
  16. Storage of Content: In producing the End Use authorized hereunder, You shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized End Use. Upon termination and/or expiration of the Term of this Agreement, You agree to cease use of all Content and shall promptly delete or destroy any digital copies, except that You may retain one copy of the permitted work You create incorporating the Content solely as necessary for archival purposes.
  17. Protection of Content: If use of Content is permitted on the Internet, or any other online or interactive media, You shall use Your best efforts to protect the Content to ensure that it cannot be copied.
  18. Credit Line: In the case of Images, for editorial uses, You shall include a credit adjacent to each Image (in the format: "Credit: Picture History" or as specified on the Specific Content Web Page) with each publicly distributed Image. Receiving credit is a material aspect of the Agreement for Picture History, and in editorial uses of Images, You agree to pay triple the invoice amount if You do not provide such proper credit. For commercial uses, You agree to pay double the invoice if You fail to include the credit described above when such crediting is customary and appropriate.
  19. Picture History Trademarks: Except for credits as required above, You may not use the trademarks or service marks of Picture History without Picture History's prior written consent.
  20. Choice of Law / Jurisdiction / Attorneys' Fees: Any dispute regarding this Agreement shall be governed by the laws of the State of New York, and by Titles 15, 17 and 35 of the U.S.C., as amended, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York, New York, regardless of conflicts of laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language. In any dispute between Picture History and You for breach of this Agreement where Picture History prevails, Picture History shall be entitled to recover its reasonable attorneys' fees, legal expert fees, court costs, and other legal expenses.
  21. Confidentiality: During this Agreement, Picture History may provide You with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets and is proprietary to Picture History. You agree that You will maintain the confidentiality of any "confidential information" that Picture History may provide to You, and You shall not use or disclose the same without the prior written consent of Picture History. "Confidential information" includes any information that is either designated as confidential by Picture History or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by You.
  22. Defined Terms:
      (a) "Agreement" means, collectively, the terms and conditions (i) herein, (ii) in the Invoice(s) and (iii) in the Specific Content Web Page(s) applicable to the Content licensed hereunder, all of which are incorporated into this Agreement by this reference.

      (b) "Comps" means Content licensed without a fee solely for Your internal evaluation to determine whether the Content is appropriate for Your intended use.

      (c) "End Use" means the final work product created with the Content as authorized hereunder and excluding Comp uses.

      (d) "Images" means all images and related informational materials in any medium obtained from or furnished by Picture History hereunder, including without limitation related metadata, text, captions, or information.

      (e) "Term" means: (1) with respect to each license granted hereunder, the term specified herein or in the applicable Invoice and/or Specific Content Web Page, unless earlier terminated as provided herein and, (2) with respect to this Agreement, the term shall end on the earlier to occur of (i) termination or cancellation of this Agreement as provided herein or (ii) the expiration of all licenses issued under this Agreement.

  23. Miscellaneous: This Agreement and any listed restrictions constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Picture History, provided that no purchase order or similar document issued by You shall modify this Agreement even if signed by Picture History. If Picture History's performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within Picture History's reasonable control, then the date for performance shall be extended by the time of such delay. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that You may not assign or transfer this Agreement without Picture History's prior written consent.