These Terms and Conditions apply to the licensing of one or more digital photographs and/or images (each, an “Image” or collectively, the “Images”), music clips (each, a “Music Clip” or collectively, the “Music Clips”) and/or video clips (each, a “Video Clip” or collectively, the “Video Clips”) as set forth in the order form (the one or more Images, Music Clips and/or Video Clips that form part of an order are collectively referred to as “Licensed Content”) that incorporates these Terms and Conditions by reference, as confirmed by the order confirmation (the “Order Confirmation”) issued by GREATSTOCKSHOTS.COM INC. (“Licensor”) and the agreement between Licensor and the licensee identified in the Order Confirmation (“Licensee”) in terms of the foregoing.
1. License
(a) Grant of Rights. Licensor hereby grants to Licensee the non-exclusive, perpetual, worldwide, non-transferable, royalty-free, and non-sublicensable right and licence:
- (i) to use the number of copies of Images set forth in the Order Confirmation in digital format for inclusion, embedding or incorporation in Licensee’s websites, social media pages, digital publications, print publications and other digital and print materials created by or for Licensee.
- (ii) to use the number of copies of Music Clips and/or Video Clips set forth in the Order Confirmation in digital format for inclusion, embedding or incorporation in Licensee’s websites and social media pages, or for incorporation in other digital works created by or for Licensee.
(b) Other Licensee Rights. Licensee shall have the rights to use or exploit the Licensed Content in the manner expressly permitted in Section 1(a), through any of its employees, agents, and independent contractors.
(c) Reservation of Rights. Licensor expressly reserves any and all rights not expressly granted to Licensee hereunder.
(d) Restrictions. Without limitation to Section 1(c), Licensee acknowledges and agrees that the rights and licences granted to it only includes the rights expressly set forth in Section 1(a) and do not include any other right including, without limitation, any right:
- (i) to state or imply that Licensee is the owner and/or creator of any Licensed Content;
- (ii) to modify, edit, combine with other materials, translate, include in collective works, or to create adaptations or derivative works of any Licensed Content in whole or in part (collectively, “Adapt”, “Adapted”, and “Adaptation” have correlative meanings).
- (iii) to use any Licensed Content for any improper purpose including, without limitation, in a pornographic, defamatory, hateful, fraudulent, misleading or other unlawful or unethical manner.
- (iv) to grant any sublicense in terms of any of the rights conferred to Licensee, provided that Licensee may create digital materials for third parties that include Licensed Content but only if the third party is contractually restricted from making any reproduction or use of such Licensed Content other than as a part of the underlying digital materials as created and provided by Licensee and that such third party’s use of said digital materials will be for its internal purposes only.
- (v) to distribute or make any Licensed Content, in standalone format, available to others for download or distribution;
- (vi) to use any Licensed Content that features or otherwise includes any individual in a sensitive or controversial manner without use of adequate and prominent notices and disclaimers, and proper disassociation of the individual and the context and express and implied messaging reasonably derived from the aforementioned use;
- (vii) to use any Licensed Content for any machine learning and/or artificial intelligence purposes including, without limitation, any use which may directly or indirectly result in the identification of any individual featured or otherwise appearing in any Image and/or Video Clip or whose voice has been recorded in any Music Clip; and
- (viii) to use any Licensed Content in conjunction any non-fungible token or any other immutable digital asset of a similar nature, and Licensee shall not undertake any course of conduct or assist any third party in engaging in any course of conduct that contravenes or conflicts with any of the foregoing.
2. Ownership
(a) Licensor will own and retain all right, title, and interest in and to the Licensed Content, subject to the licence granted in Section 1(a).
(b) Without limitation to the limitations and restrictions set forth in Section 1(a) and Section 1(d)(ii), in the event Licensee violates these Terms and Conditions and creates any Adaptation, Licensor will exclusively own and retain all right, title and interest in and to said Adaptation of any Licensed Content made by, or by any third party for the benefit of, Licensee.
3. Payment
(a) Subject to Section 1(a) and in full consideration of Licensor’s timely and satisfactory delivery of the Licensed Content and grant of the rights and licence hereunder, Licensee will pay Licensor the fee set forth in the Order Confirmation, plus any applicable sales and goods taxes, in United States dollars (USD).
(b) Payment will be made by Licensee upon issuance of the Order Confirmation and prior to the Licensed Content being made available for download by Licensee. For clarity, the licenses and other rights granted to Licensee in regard to any Licensed Content are subject to prior payment in full of all fees and applicable taxes in regard to such Licensed Content.
4. Representation and Warranties
(a) Mutual Representations and Warranties. Each party represents and warrants that it has the full right, power, and authority to enter into, perform, and grant the rights and licences it grants and is required to grant under, this Agreement.
(b) Licensor Representations and Warranties. Licensor hereby represents and warrants that Licensor has all the required rights to grant to Licensee the licenses and other rights described in these Terms and Conditions.
(c) Licensee Representations and Warranties. Licensee hereby covenants and warrants that it will not use the Licensed Content in any manner that:
- (i) causes any Licensed Content that is not defamatory, obscene, or otherwise unlawful or injurious as provided by Licensor to become defamatory, obscene, or otherwise unlawful or injurious;
- (ii) suggests sponsorship of or by, or association with, any third party; or
- (iii) competes with or is detrimental to the Licensor.
5. Indemnification & Liability
(a) Each party shall indemnify, defend, and hold harmless the other party, and the other party’s respective officers, directors, employees, agents, affiliates, successors and permitted assigns, from and against any claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including legal fees and disbursements arising from or relating to any breach by such party of its representations, warranties, or other obligations hereunder. The foregoing indemnification obligation is conditional upon: (i) the indemnified person providing the indemnifying party with prompt notice of any indemnified claim; (ii) the indemnifying party having sole control over the defense and settlement of any indemnified claim; and (iii) the indemnified person providing such cooperation as the indemnifying party may reasonably request in regard to the defense or settlement of an indemnified claim.
(b) EXCEPT WHERE AND TO THE EXTENT SUCH EXCLUSIONS ARE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCE WILL LICENSOR OR ITS PARENT, SUBSIDIARIES, AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO OR ARISING FROM PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE, DEPRECIATION OF GOODWILL, LOSS OF REPUTATION, OR LOSS OR CORRUPTION OF DATA, WHETHER CAUSED BY TORT, BREACH OF CONTRACT, BREACH OF PRIVACY, OR OTHERWISE, EVEN IF LICENSOR WAS ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, OR RELIANCE ON, THE WEBSITE, ANY LINKED WEBSITES OR SUCH OTHER THIRD-PARTY WEBSITES, NOR ANY WEBSITE CONTENT, MATERIALS, POSTING, OR INFORMATION THEREON. LICENSOR’S MAXIMUM LIABILITY IN REGARD TO DIRECT DAMAGES SUFFERED BY YOU IN REGARD TO ANY LICENSED CONTENT WILL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY IT FROM YOU IN REGARD TO THE LICENSING OF SUCH LICENSED CONTENT.
6. Term and Termination.
(a) Term. This agreement is effective from the date of the Order Confirmation until terminated as provided in section (the “Term”).
(b) Termination.
- (i) Licensee may terminate this agreement at any time without cause, and without incurring any additional obligation, liability, or penalty, upon written notice to Licensor.
- (ii) Either party may terminate this agreement on written notice to the other party if the other party materially breaches this Agreement and, if such breach is capable of being cured, fails to cure such breach within twenty (20) days after receiving written notice thereof.
(c) Effect of Termination. Upon the expiration or termination of this agreement: (i) all rights licensed under this Agreement revert to Licensor, and Licensee shall forthwith cause to be inactivated and erased all digital copies of the Licensed Content solely to the extent they are in its possession or under its control, and return or, at Licensor’s written request, destroy, any print or other tangible copies of the Images or of any media on which the Licensed Content is permanently recorded or stored. No credit or refund of fees is provided by Licensor as a result of termination, regardless of the underlying circumstances. Sections 2, 5(b) and 6(c) will survive termination of this agreement.
7. Miscellaneous.
(a) Relationship of the Parties. The relationship between the Licensor and Licensee is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(b) Assignment. This Agreement is personal to Licensee. Licensee may not assign or otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of its obligations or performance, under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 7(b) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement.
(c) Enurement. This Agreement is binding upon and enures to the benefit of the parties and their respective permitted successors and assigns.
(d) Amendments and Modifications. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by the parties.
(e) Waiver. No waiver by either party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by either party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement (including, without limitation, Sections 1(d) and 2), is invalid, illegal or unenforceable, Licensee may, in its sole discretion, elect to have the remainder of this Agreement voided ab initio without any liability on its part.
(g) Governing Law. This Agreement and all related documents [including all exhibits attached hereto], and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
(h) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario located in the city of Toronto, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding any of the foregoing, Licensor may commence, maintain and pursue legal proceedings in any jurisdiction where the purpose of said proceedings is the enforcement of its intellectual property rights in and to the Licensed Content and/or any Adaptations thereof.
(i) Entire Agreement. These Terms and Conditions, together with the Website Terms and Conditions of Use for www.greatstockshots.com and the Order Confirmation, including and together with any related attachments, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, representations and warranties, whether written or oral, with respect to such subject matter.