Cowbelly® LICENSING AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE (AS DEFINED BELOW) AND THE LICENSOR (AS DEFINED BELOW). THIS AGREEMENT APPLIES TO CERTAIN LICENSES ISSUED VIA THE COWBELLY.COM WEBSITE (THE “SITE”), AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE “AGREEMENT”).
- In this Agreement the following definitions apply:
- ‘Invoice’ means the computer-generated or pre-printed invoice provided by or through the Site that may include, without limitation, names of the Licensor and Licensee, the permitted scope of use of the Licensed Material selected and the corresponding price for the license of such Licensed Material.
- ‘Licensed Material’ means any still image, video, digital art, vector, illustration, or other visual representation generated optically, electronically, digitally or by any other means, including any 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 Licensor 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 taken as a whole.
- ‘License’ refers to Licensee’s rights in the Licensed Material.
- ‘License Subtype’ refers to the specific set of rights granted for that License, in this case, Standard License, Premium License and Exclusive Use License Subtypes.
- ‘Licensee’ means the person or entity set forth in the applicable Invoice as the “licensee” and receiving the rights to the Licensed Materials as specified hereunder.
- ‘Licensor’ refers to Cowbelly®, based in San Diego California, USA.
- ‘Contributor’ refers to photographers, illustrators and artists who provide content to Licensor that Licensor makes available to be licensed from http://cowbelly.com.
- ‘Reproduction’ and ‘Reproduce’ mean any form of duplication, copying or publication of any or all of the Licensed Material, via any medium and by whatever means, and/or the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
- Licensee’s Rights in the Licensed Material
Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may utilize the Licensed Material in any production process that may be necessary for the intended use specified in the Invoice.
- Licensed Material is protected by United States and international copyright laws and treaties. Licensor and its Contributors own all rights, including the copyrights, in and to the Licensed Material. Licensor and its Contributors reserve all rights in and to the Licensed Material not expressly granted to Licensee in this Agreement. Licensee’s rights to use any Licensed Material are subject to the terms and conditions set forth in the Agreement. This Agreement is a notice of copyright protection for all of Licensor and Contributor’s images. Transfer of copyright will only occur if a full buyout transfer of copyright has been purchased.
- Licensor grants Licensee a worldwide, non-exclusive (unless Licensee purchases an Exclusive Use License as detailed in 2.c.iii), and non-transferable right in perpetuity to use, make derivative works incorporating, display, reproduce and distribute Licensed Material, subject to the exceptions and limitations set forth in this Paragraph 2 and Paragraph 3. The rights granted under this Paragraph are limited to five (5) people employed by the same legal entity (“Users”) entering into this Agreement. If Licensee intends to grant access to more than five (5) Users, please contact email@example.com to customize Licensee’s Agreement. “Non-transferable” in this Agreement means that Licensee may not sell, rent, load, give, sublicense, or otherwise transfer any standalone Licensed Material or the right to use such Licensed Material to a third party. The work Licensee produces with the Licensed Material must be used for Licensee, Licensee’s direct employer, client, or customer, who must be the end user of Licensee’s work.
- Rights granted for each License Subtype:
- Web & Social Media Licensed Material (‘Web License[s]’) (includes Social Media products). For the Web License Subtype, Licensor grants Licensee the right to display the low-resolution 72dpi files in any digital medium, including but not limited to: corporate and/or editorial websites, search engine advertisements, social media (including social media advertisements), email newsletters, personal and/or commercial blogs, corporate apps, e-books, corporate presentation or slideshow, or other digital use. Licensee may not print Web Licenses in any size for any reason, or change the dpi of Web Licenses except where necessary to properly display on certain digital devices such as retina and 4k displays. Licensee may decrease the Licensed Material’s file resolution as needed for proper display.
- Print Licensed Material (‘Print License[s]’). For the Print License Subtype, Licensor grants Licensee all rights stated in the 2.c.(i). Web License above, as well as the right to print the high-resolution 300dpi files in any print medium, up to the size of the Print License file provided by Licensor, at a maximum of 250,000 printed copies. Licensee is not permitted to up-sample or increase the printed size of the Print Licenses above what is provided by Licensor. Licensee is permitted to increase the Print License file dpi, for example from 300dpi to 600dpi, provided the print size does not increase beyond the size supplied by Licensor. Licensee is permitted to use the Print Licenses for any digital or web application stated in 2.c.(ii) above, provided they are cropped or downsized appropriately to a low-resolution size at 72dpi (or higher if needed for devices such as retina and/or 4k displays). Licensee is not permitted to display high-resolution 300dpi Print License files in any electronic or digital manner where they may be downloaded or saved by users, viewers and/or recipients, including but not limited to using on the Internet and in electronic correspondence such as email newsletters.
- Premium Licensed Material (‘Premium License[s]’). For the Premium License Subtype, Licensor grants Licensee all rights listed in the 2.c.(i) Web License and 2.c.(ii) Print License above, as well as the right to up-sample or increase the Print License file’s print size and dpi, for example from 12”x19” @ 300dpi to 16”x20” @ 350dpi (or any larger size), provided that doing so does not noticeably degrade the visual quality of the printed Licensed Material.
- Exclusive Use Licensed Material (‘Exclusive Use License[s]’). For the Exclusive Use License Subtype, Licensor grants Licensee all rights listed in the 2.c.(i) Web License, 2.c.(ii) Print License, and 2.c.(iii) Premium Licenses above, on an exclusive use basis for the duration of the license purchased by Licensee. During the license period (between six months to five years) selected and purchased by Licensee (‘Active Licensing Period’), no other party besides the Licensee will have the right to use the Licensed Material for any purpose, unless the Licensed Material was licensed before the Exclusive Use License was purchased by Licensee. Unless otherwise agreed, Licensor and Contributors retain the right to use the Exclusive Use Licensed Material strictly for promotional use during the Active Licensing Period, including on Licensor and Contributor’s websites, blogs, contests, art displays, marketing materials and social media. Licensor and Contributors agree not to provide the Licensed Material to any other parties for any other purpose prior to the end of any Active Licensing Period. Licensee is not required to provide credit (detailed in 4.a), when Exclusive Use Licenses are used in any manner outlined in 4.a below or otherwise. All other restrictions on use in section 3 still apply.
- Licensed Material may not be used for more than one client unless Licensee purchases a separate license for each separate client. Stock Packs may not be split up and divided between multiple Licensees or their multiple clients/subcontractors. Each pack is treated as a single License for a single end user.
- A legal entity entering into this License may share Licensed Material internally by creating an image library, network configuration or similar arrangement; however, use of the Licensed Material is restricted to Users as set forth in paragraph 2.
- If Licensee creates a derivative work based on or incorporating any Licensed Material, all rights in and to such Licensed Material will continue to be owned by Licensor or its Contributor(s), subject to Licensee’s rights to use such Licensed Material under this Agreement.
- Restrictions on Licensee’s Use of the Licensed Material
There are restrictions on Licensee’s use of Licensed Material. If Licensee’s intended use of Licensed Material requires rights restricted by this section, we encourage Licensee to contact firstname.lastname@example.org.
Licensee may not:
- Incorporate Licensed Material into merchandise or products for distribution and/or sale. Merchandise includes, by way of example but not limitation, t-shirts, mugs, posters, postcards, greeting cards, calendars, cellphone covers, computer skins, and other items, including so-called “print on demand” services. However, Licensee may incorporate Licensed Material into printed publications, including but not limited to books, book covers, magazines and newspapers;
- Make Licensed Material available or use the Licensed Material in a digital format so that the Licensed Material can be reused by multiple third parties via templates or similar products;
- Use any Licensed Material together with pornographic, defamatory, or otherwise unlawful or immoral Licensed Material or in such a manner that it infringes upon any third party’s trademark or intellectual property rights.
- Use any Licensed Material of animals in any manner that depicts animal abuse, animal testing, or any other activities that depict harm to the safety, mental and/or physical health, and/or welfare of animals;
- Use any Licensed Material in such a way as to imply that any model depicted in the Licensed Material personally uses or endorses a product or service, or endorses any political candidate or controversial opinion without a clear and conspicuous disclaimer that the person depicted in the Licensed Material is a model;
- Use any Licensed Material depicting any model in a way that implies that the depicted person suffers from any physical or mental infirmity, ailment or condition, unless accompanied by a clear and conspicuous statement indicating that the person is a model and the Licensed Material is being used for illustrative purposes only;
- Falsely represent, expressly or by way of reasonable implication, that any Licensed Material was created by Licensee or a person other than the copyright holder(s) of such Licensed Material;
- Use any Licensed Material (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof;
- Use Licensed Material contrary to any restriction on use that is notified to Licensee prior to or at the time the Licensed Material is delivered to Licensee, whether through information provided with the Licensed Material on the Site, in the Invoice, or in any other communication by the Licensor. Any such restriction provided to the Licensee shall be incorporated in this Agreement by reference; or
- Credit Attributions and Copyright Notices
- If any Licensed Material is Reproduced in an editorial manner in digital or printed form, or used in connection with a book, e-book, or magazine, Licensor’s name or credit information, set forth on the Invoice, must appear adjacent to the Licensed Material in the credit line accompanying the Licensed Material. Credit should be printed as follows: © Artist name / Cowbelly®.
- If Licensee uses Licensed Material in connection with a film, television broadcast, documentary or other video or multimedia presentation, Licensee agrees to use reasonable commercial efforts to accord the copyright holder and Licensor a credit as provided above if any other provider of images or footage is accorded credit in such work.
- All credits must appear on the copyright page or in the copyright section of the work into which the Licensed Material is incorporated. If there is no copyright page or section, the credit may be located any place on the work. In all cases the credit must be of a size, color and prominence that is clearly and easily readable by the unaided eye.
- Licensor may waive credit attributions and copyright notices on a case by case basis. If Licensee has any questions regarding credit attributions and copyright notices, or would like to request that Licensor grant Licensee a waiver of such requirements, please contact email@example.com. No waiver of such requirements will be effective unless confirmed in an email or other writing from Licensor to Licensee.
- Payments, Invoices, Interest and Refunds
- Licensee’s rights to use the Licensed Material are conditioned upon making timely payment to Licensor for all amounts due to Licensor. If Licensor agrees to allow Licensee to make payment(s) via net-15 or net-30 Invoice, and Licensee fails to make a payment to Licensor by the due date, if a check is dishonored, or if a credit card charge is refused or charged back, Licensee’s account will be considered delinquent. Licensor reserves the right, at its discretion, to place a hold on any delinquent account and prevent future purchases from that account until payment has been made in full.
- If Licensee’s account becomes delinquent, Licensee’s right to use any Licensed Material downloaded but not paid for will terminate unless all payments together with any interest accrued, and all costs incurred by Licensor to obtain payment from Licensee, are received by Licensor no later than fifteen (15) days from the date that Licensor sends Licensee notice that Licensee’s account has become delinquent.
- If Licensee fails to pay Licensor’s Invoice in full by the due date specified on the Invoice, Licensor may add a service charge of two percent (2%) per month, plus a $25 monthly service fee, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. The License to use the Licensed Materials comes into effect when the full balance of any and all Invoices has been paid. No use may be made of the Licensed Materials before full payment of the Invoice without Licensor’s express written permission.
- Because of the immediate download nature of Licensed Materials, after Licensee has downloaded Licensed Materials, Licensor is under no obligation to refund payment for any reason. Licensee understands that all sales are final.
- For monthly subscription products, Licensee is charged a renewal fee on the 1st of every month until such time that they cancel the subscription from their account. In the event that payment is not successful, the subscription product for that month will be withheld until successful payment has been made. Licensee has the right to cancel the subscription at any time without penalty. Licensee is not due any refunds, either in full or prorated, for any subscriptions cancelled after the 1st of the month.
Licensor has obtained a property release for the majority of animal images on the Site, and a model release for all (identifiable) people on the site. Licensor will notify Licensee if it has obtained a model and/or property release for Licensed Material, upon request only. Except where Licensee is specifically notified, Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material. Where Licensed Material is unreleased, Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes without their consent. Licensor makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union and Licensee shall be solely responsible for any such additional fees or payments to such trade union.
- Warranty and Limitation of Liability.
- Licensor warrants that:
- it has all necessary rights and authority to enter into and perform this Agreement;
- the Licensed Material will be free from defects in material and workmanship for 15 days from delivery (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); and
- subject to Section 6 above (Releases), Licensee’s use of the Licensed Material in its original form, and when used in accordance with this Agreement and the Invoice, 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.
- for content identified as ‘Editorial Use Only’, the Licensed Material will not infringe on any copyright or moral right of the artist, but Licensor does not grant any right or make any warranty with regard to the use of animals, people, logos, names, trademarks, trade dress, registered, unregistered or copyrighted designs, personal property, works of art or architecture depicted or contained in the Licensed Material. Licensee acknowledges that in most cases, releases are not obtained for Licensed Material identified as ‘Editorial Use Only’, and in such cases, Licensee is solely responsible for determining whether release(s) is/are required in connection with Licensee’s proposed use of the Licensed Material, and Licensee is solely responsible for obtaining such release(s). Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release.
- LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE’S USE OF THE LICENSED MATERIAL OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. LICENSOR’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.
- THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
- Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Licensor shall defend, indemnify and hold Licensee harmless from all damages, 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 Licensor is in breach of its warranties given in section 7 above.
- THE FOREGOING STATES LICENSOR’S ENTIRE INDEMNIFICATION OBLIGATION TO LICENSEE UNDER THIS AGREEMENT AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 ABOVE.
- Where model or property releases for Licensed Material have not been obtained by Licensor, or if Licensee’s use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by Licensee, to the extent that such claim relates to the absence of a release or the Licensee’s unauthorized use of the Licensed Material.
- Notice of Defense
The party seeking indemnification pursuant to section 8 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 thereof. 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.
- Parties’ Obligation
Upon notice from Licensor, or upon Licensee’s knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, or if Licensor withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Licensor shall provide Licensee with comparable Licensed Material (which comparability will be determined by Licensor in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
- Changes to the terms of this Licensing Agreement
In order to best provide its services, Licensor reserves the right to modify these terms at any time and to notify Licensee of material changes at the email address which Licensee provided to Licensor. If Licensee does not agree with the changes, Licensee agrees to not download any Licensed Material after the effective date of such changes. By downloading Licensed Material after such changes are effected, Licensee consents to the changes.
- Electronic Storage
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright information, the name of Contributor and the SKU and/or image number or other identification number associated with the Licensed Material as may be included as part of the metadata in the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Licensee agrees to provide website protections against unauthorized downloading and saving of Licensed Material where it appears on Licensee’s website(s). Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise.
- Condition of Licensed Material
Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to section 7.a.(ii) above, Licensor 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.
- Miscellaneous Terms.
- Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
- Governing Law. This Agreement will be governed in all respects by the laws of the State of California, 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 San Diego, California, except that Licensor shall have the right to commence an action in any other court of competent jurisdiction in Licensee’s home state or country, and Licensee hereby consents to jurisdiction in such courts. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
- 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.
- Survival. Such provisions of this Agreement that, by their nature, would be expected to survive termination of this Agreement shall survive any such termination.
- Breach. In the event of any breach of this Agreement by Licensee, Licensee agrees to be responsible for the reasonable legal fees and court costs of Licensor in the event that Licensor is required to enforce its rights by commencing an action under these provisions. If Licensee breaches any of the terms of this Agreement or any other Agreement with Licensor, Licensor has the right to terminate Licensee’s account without further notice. Licensor is under no obligation to refund any fees paid by Licensee in the event that Licensee’s account is terminated by reason of any such breach.
- Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor 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 Licensor 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 any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.
- Licensor does not warrant that the Licensed Material, the Licensor websites, or other materials, will meet Licensee’s requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the foregoing is solely with Licensee.
- Upon reasonable notice, Licensor may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.
- Licensee understands that they should seek competent counsel before using Licensed Material in connection with any commercial endeavors.
- The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this Agreement.
- Except as expressly contained herein, neither Licensor nor its officers, employees managers, members, shareholders, directors or suppliers will be liable for any damages, including actual, indirect, special, or consequential damages arising from the download or use of Licensed Material or the termination of Licensee’s account at http://cowbelly.com.
- Entire Agreement. This Agreement, including the Invoice, contains all the terms of the Licensing 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 the Invoice, any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern. No oral or other agreements supersede this Agreement.