PUMP AUDIO CONTENT LICENSE AGREEMENT
1. Background of Agreement
This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting 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 do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download any Audio Content.
The following terms have the stated meanings:
- “Audio Content” means the sound recordings (the “Masters”) and musical compositions, including lyrics, embodied on the Masters (the “Compositions”) offered for licensing by iStockphoto, together with any accompanying materials, and selected for use by Licensee (such Masters and Compositions so selected and any accompanying materials, collectively the “Audio Content”). Any reference to the Audio Content shall be to each part of the Audio Content and also to the Audio Content as a whole.
- “Audio Products” means any product in any format or media now known or hereafter devised, embodying the Audio Content alone, including, without limitation, compact discs (CDs), cassettes, phonograph records and digital downloads.
- “Breach” means any breach of, or failure to comply with, any representation, warranty, covenant or agreement made or undertaken in this Agreement.
- “Broadcast” means to cause or permit others to cause the performance, telecast, broadcast, transmission, streaming, exhibition or distribution of the Synchronized Audio Content, subject always to the Media.
- “Collection Societies” means any performing, mechanical, or other rights society (e.g., ASCAP, BMI, SESAC, SOCAN, SACEM, MCPS, PRS, PPL, GEMA, GVL, SGAE, AIE) that collects and administers royalty payments on behalf of music publishers, writers, performers and other rights holders.
- “Copy” means to duplicate or otherwise make copies of the Work solely for the purpose of Broadcasting the Work.
- “Edit” means use by Licensee of less than an entire Master, including the editing, looping, enhancing or modifying of the Master, provided that any such change (i) shall not alter the fundamental character of the portion of the Master being used, and (ii) shall not give rise to any ownership rights or claims, including copyright, on the part of Licensee in or to the resultant edited recording or composition.
- “iStockphoto” or “we” or “us” means iStockphoto LP, operator of the Site;
- “Licensee” or “You” means the person purchasing a license hereunder or, if you are accepting on behalf of your employer or member account entity, then “You” or “Licensee” means that employer or entity and affiliates.
- “Media” means the media identified in the Media Restriction provision appended to the end of this Agreement.
- “Single Use” means any single use identified in the Media Restriction provision appended to the end of this Agreement.
- “Synchronize” means to couple and/or synchronize, arrange, record, re-record, transcribe, modify or edit the Audio Content solely in timed relation with a Single Use.
- “Synchronized Audio Content” means Audio Content that has been coupled and/or synchronized, arranged, recorded, re-recorded, transcribed, modified or edited solely in timed relation with a Single Use.
- “Work” means the production or program embodying the Synchronized Audio Content.
3. License Grant and Restrictions.
- iStockphoto grants to Licensee, a perpetual, worldwide, non-exclusive, non-transferable right to use, Edit and Synchronize the Audio Content, and to Copy and Broadcast the Synchronized Audio Content. All rights granted herein may be subject to rights held by Collection Societies.
- Use of the Audio Content is strictly limited to a Single Use, Media and any other restrictions specified in this Agreement.
- Licensee may use the Synchronized Audio Content as part of the Work to advertise or promote the Work, provided that the Audio Content is not separated from the original Work. Any use of Audio Content apart from the Work requires a separate license.
- Nothing contained in this Agreement shall be deemed to grant Licensee the right to manufacture, distribute or sell Audio Products.
- Nothing contained in this Agreement shall be deemed to grant Licensee the right to use any Audio Content as the theme song for a program or other production; any such use may only be made upon negotiation and payment to iStockphoto of an additional fee.
- Licensee shall not make the Audio Content available in any medium in a manner intended to allow or invite persons to download or share the Audio Content alone (for example, in a peer-to-peer file sharing arrangement) or extract the Audio Content from the Work.
- Audio Content shall not be incorporated into a logo, trademark or service mark.
- Nothing contained in this Agreement shall be deemed to permit the re-selling, licensing, or other transfer or distribution of the Audio Content except as an integrated part of the Work.
- Nothing contained in this Agreement shall be deemed to permit use of the Audio Content, in whole or in part, as an element of a new musical work.
- Licensee shall not use the Audio Content in any unlawful manner.
Licensee acknowledges and agrees that in addition to the iStockphoto credits used to download the Audio Content, certain uses of Audio Content may require additional payment to Collection Societies and, if required, Licensee shall be solely responsible for such payments.
5. Music Credit.
Licensee agrees to provide credit, where technically feasible and in accordance with customary industry practice, in the following manner: “[Artist's Name]/[Special Collection Reference, if any]/iStockphoto” or as otherwise notified by iStockphoto.
6. Collection Society Payments.
Nothing contained herein shall be deemed to constitute a waiver of any fee which, as a result of the use of the Audio Content contemplated by this Agreement, shall become due and payable to the relevant Collection Society or pursuant to union or collective bargaining requirements. Licensee agrees to submit, and to instruct any third party acquiring rights to the Work to submit, to all relevant Collection Societies, in any part of the world in which the Work is to be Broadcast or reproduced, such filings, including so-called “cue sheets,” and further agrees to take such actions as are necessary, in keeping with common industry practice, to enable such Collection Societies to monitor and administer those performing and mechanical rights fees payable to the copyright owners of the Audio Content embodied in the Work.
7. Representations and Warranties.
- iStockphoto represents and warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Audio Content will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Audio Content); (iii) Licensee's use of the Audio Content in its original form, and when used in accordance with this Agreement, will not infringe upon the rights of any third party, including copyrights and rights of privacy or publicity.
- Licensee represents and warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) if licensing the Audio Content on behalf of a third party, Licensee is authorized to act as an agent on behalf of that third party and has full power and authority to bind the third party to this Agreement and Licensee shall be bound and liable for any failure of such third party to comply with the terms of this Agreement.
- Provided Audio Content is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, and as Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth above, iStockphoto shall defend, indemnify, and hold Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of iStockphoto), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that iStockphoto is in breach of its warranties set forth above. The foregoing states iStockphoto' entire indemnification obligation under this Agreement.
- Licensee shall defend, indemnify and hold iStockphoto and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except 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: (i) Licensee's use of any Audio Content outside the scope of this Agreement; or (ii) any other actual or alleged breach by Licensee of this Agreement.
- The party seeking indemnification pursuant to this section shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
9. Limitation of Liability.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ISTOCKPHOTO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AUDIO CONTENT OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ISTOCKPHOTO 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.
10. Breach and Termination.
In the event of a Breach by Licensee, iStockphoto may, at its sole discretion, terminate this Agreement and revoke any licenses granted herein. Such termination shall take effect immediately upon notice to Licensee, and Licensee shall immediately (i) cease using the Audio Content in any Media and in any manner; (ii) destroy or delete all copies of the Audio Content.
11. Reservation of Rights.
All rights which are not expressly granted by iStockphoto to Licensee pursuant to this Agreement, including all promotional materials or any other property owned or controlled by iStockphoto are specifically reserved by iStockphoto. Except as expressly set forth in this Agreement, nothing contained herein shall be deemed to convey or transfer to Licensee any ownership interest, including copyright, in or to the Audio Content.
12. Miscellaneous Terms.
- Assignment.This Agreement is personal to You and is not assignable by You without iStockphoto's prior written consent. iStockphoto may assign this Agreement without Your consent to any other party so long as such party agrees to be bound by its terms.
- Unauthorized Use. Any use of Audio Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling iStockphoto to exercise all rights and remedies available to it under copyright laws around the world. In addition, and without prejudice to iStockphoto's other remedies under this Agreement, iStockphoto reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times iStockphoto's standard license fee for the unauthorized use of the Audio Content. You agree that the amount stated above is a fair pre-estimate of the loss to iStockphoto in the event that You use the Audio Content in an unauthorized manner or in breach of a term of this Agreement and that it is not intended to be, nor is it to be interpreted as, a penalty.
- Audit/Certificate of Compliance. Upon reasonable notice, iStockphoto 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 Audio Content in order to verify compliance with the terms of this Agreement. Where iStockphoto reasonably believes that Audio Content is being used outside the scope of the license granted under this Agreement, Licensee shall, at iStockphoto' request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by iStockphoto.
- Taxes.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
- Withdrawal. Upon notice from iStockphoto, or upon Licensee's knowledge that any Audio Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which iStockphoto may be liable herein, or if iStockphoto withdraws any Audio Content for any good reason, Licensee will physically remove the Audio Content from its premises, computer systems and storage (electronic and physical) and, if possible, cease any future use at its own expense. iStockphoto shall provide Licensee with comparable Audio Content (which comparability will be determined by iStockphoto in its reasonable commercial judgment), free of charge, but subject to the other terms and conditions of this Agreement.
- Governing Law. This Agreement will be governed in all respects by the laws of the Province of Alberta, Canada, 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 in Calgary, Alberta. The arbitration shall be conducted in the English language under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with such rules. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, iStockphoto 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 iStockphoto, such action is necessary or desirable.
- Notice.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 Audio Content was downloaded, or such other address as you may advise us in writing to use, from time to time. If You have concerns relating to this Agreement, please contact iStockphoto at firstname.lastname@example.org.
- Severability. If one or more of the provisions contained in this 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.
- 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 one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
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 ISTOCKPHOTO AGREEING TO PROVIDE THE AUDIO 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 ISTOCKPHOTO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND ISTOCKPHOTO RELATING TO THE SUBJECT OF THIS AGREEMENT.
ALL MEDIA VERSION:
"Media" means any and all media now known or hereafter devised.
"Single Use" means either (i) one feature film, (ii) one episode of a television or web-based show or documentary, (iii) one corporate video or other similar digital production, (iv) one radio, web or television advertisement or promotion, (v) one podcast, or (vi) background music for one website, regardless of the number of times the Work is used or Broadcast.
"Media" means the internet alone and to the exclusion of all other media now known or hereafter devised.
"Single Use" means either (i) one film, (ii) one episode of a show or documentary, (iii) one advertisement or promotion, (iv) one podcast, or (v) background music for one website, regardless of the number of times the Work is used or Broadcast.