This License Agreement (the “Agreement”), sets forth the terms and conditions between you, your employer, or any other client or end-user on whose behalf you are purchasing a license as the licensee (collectively, “You(r)” or “Licensee”) and We Imagine Studio Ltd. (“WiStudio”), as licensor.
Please read this Agreement carefully before downloading any Content. By downloading any Content, Licensee agrees to be bound by the terms of this Agreement, WiStudio’s Privacy Statement and WiStudio’s Terms of Use.
1. Content. Content means photography, audio, video, vector or other forms of digital files that are licensed on the Website, and shall include any associated keywords, metadata, tags, descriptions, copyright management information, credits and captions.
2. Ownership of Content. All Content on WiStudio Website are protected by Trinidad and Tobago copyright law and international copyright treaties. WiStudio and/or its contributors own or control all rights, including the copyrights in and to the Content. WiStudio and/or its Contributors reserve all rights in and to the Content not expressly granted to Licensee in this Agreement.
3. License Terms.
3.1. Standard License. Subject to the terms of this License Agreement, WiStudio grants Licensee a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive right to reproduce, transmit and display, in whole or in part, the Content and right to create derivative works (collectively “use”) with respect to the Content identified on WiStudio’s Invoice, under a Standard License, for any and all media, including print, digital and/or any other medium or format, subject to the restricted uses in Section 4 described below. As part of the Standard License. Licensee may make or permit any alterations, including but not limited to, additions, subtractions, or adaptations in respect of the Licensed Content alone or with any other material, and may create derivative works of the Licensed Content, subject to the provisions as stated in section 6 below. The Licensed Content may be Reproduced by employees and/or subcontractors and/or third parties of Licensee, provided that such employees, subcontractors or third parties are acting only on the Licensee's behalf, and provided that Licensee ensures that such employees and subcontractors agree to abide by the provisions in this Agreement. Employees and subcontractors shall have no further or additional rights to use the Licensed Content.
3.2. Sync License. If Licensed Content is Audio, Video or a combination of both, WiStudio grants to Licensee a direct, perpetual, worldwide, non-exclusive, non-sublicensable and non-transferable right, inclusive of mechanical and performing rights (subject only to Section 8 below), to use, Edit and Synchronize the Licensed Content identified in the invoice, and to Copy and Broadcast the Synchronized Licensed Content in the Media, an unlimited number of times, for all purposes other than those explicitly prohibited in Section 4 below.
3.3. Ownership of Derivative Works. In the event that Licensee creates a derivative work based on or incorporating Licensed Content, all rights in and to such Content shall continue to be owned by WiStudio or its Contributor, subject to Licensee’s rights to use such Content pursuant to the terms of this Agreement.
3.5. Limited Exclusivity. You may request that future licensing of Content be removed from the Marketplace for a limited period of time for an additional license fee by contacting WiStudio at info@WiStudio.com. Not all Content may be available to be removed from all marketplaces and past licensees will retain the right to continue to use the Content.
4. Restrictions on Content Use. Licensee may NOT, without obtaining specific prior written consent from WiStudio, do the following:
i. Sublicense, sell, assign, convey or transfer any of its rights under this Agreement (except for derivative works
incorporating any Content).
ii. Sell, license or distribute its final product in such a way that permits Licensee’s end-users to extract or access any Content as a stand-alone unmodified file.
iii. Incorporate any Content into a logo, trademark or service mark.
iv. Use any Content in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other subject matter and materials.
v. Use any Content in any manner prohibited by any international export laws, restrictions or regulations.
vi. Falsely represent (either expressly or by implication) that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from any Content.
vii. Without obtaining the prior written consent of WiStudio and the payment of an additional license fee, upload Content as an unmodified standalone file to file-sharing websites or social networking websites or other third party website that claims to acquire ownership rights in the Content contrary to the terms of this Agreement. Upon WiStudio’s request, Licensee shall immediately remove any Content from such platform or website.
viii. Use content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For the avoidance of doubt, “Editorial Use Only” means use relating to events that are
newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which Licensee receives a fee from a third-party advertiser or sponsor).
ix. Use the Content for editorial purposes without including the following credit adjacent to the Content or included in audio/visual production credits “© Photographer Name / WiStudio”
5. Sensitive Use Disclaimer. If Content featuring a model or property is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person (except for Content identified as “Editorial Use Only” used in an editorial manner), Licensee must accompany each such use with a conspicuous statement that indicates that:
(i) the Content is being used for illustrative purposes only; and
(ii) if a recognizable person is depicted in the Content, that person is a model.
6. Releases. Model releases can be provided to Licensee for Photos/Footage containing identifiable persons upon request, if WiStudio indicates that a model release is available. Personal information may be removed from the model release to protect the privacy of the model. Other than model releases for recognizable persons in Photos/Footage identified as released, WiStudio grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Content, and Licensee must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
7. Indemnification.
7.1. WiStudio Indemnification. Provided Licensee is not otherwise in breach of this Agreement and subject to Section 8 of this Agreement, Licensee's sole and exclusive remedy for any breach of the representations and warranties, WiStudio shall defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or connected with any actual lawsuit or legal proceeding alleging that WiStudio is in breach of its warranties set forth in Section 8 of this Agreement. No other indemnification is offered by WiStudio under this Agreement.
7.2. Licensee Indemnification. Licensee agrees to defend, indemnify and hold WiStudio 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 in connection with
(i) Licensee’s use of any content outside the scope of this agreement;
(ii) any breach or alleged breach by Licensee (or anyone acting on your behalf) of any of the terms of this or any other agreement with WiStudio; and
(iii) Licensee’s failure to obtain any required release for your use of content.
7.3. Indemnification Conditions. The parties’ indemnity obligations contained in this Agreement are conditioned upon the indemnified party:
(i) promptly providing the other party with written notice of any claim;
(ii) giving the other party control of such defense and settlement, provided that the indemnifying party shall not make any settlement which imposes any material obligations on the indemnified party without the prior written consent of the indemnified party; and
(iii) providing the indemnifying party with all reasonable information necessary to defend such claim.
8. Warranties and Limitation of Liability.
(i) WiStudio warrants (a) it has all necessary rights and authority to enter into and perform its obligations under this Agreement and grant the rights provided herein; and (b) the authorized use of the Content will not violate any third party copyrights, trademarks, or right of privacy or publicity to the underlying Content if model releases are available.
(ii) With respect to Synchronize License, this Agreement shall be deemed to include the direct grant to Licensee of the right to Copy and publicly perform the Synchronized Licensed Content in the territory, and no fee which would otherwise become due and payable as a result of the Copying or public performance of the Synchronized Licensed Content as contemplated by this Agreement shall be due to WiStudio or its contributors, nor shall this Agreement require Licensee to report usage of the Licensed Content to any appropriate authority. In furtherance of the foregoing, WiStudio represents and warrants that it holds all rights in Licensed Content necessary to issue direct licenses, inclusive of all performing, mechanical or any other similar rights, without need for payment of further royalties to any authority. The foregoing warranty does not extend to: (a) charges assessed on Licensee (or a Broadcaster of a Licensee Work) pursuant to the terms of a blanket license; (b) fees to the extent arising from Licensee’s use of other musical content together with Licensed Content; or (c) fees, levies or other remuneration, the collection of which is exclusively delegated to any appropriate governing authority by local legislation, irrespective of the membership of, or any contractual mandate from, any of the writers, composers, performers or other rights holders in the Licensed Content.
WISTUDIO MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WISTUDIO SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE CONTENT, OR OTHERWISE, EVEN IF WISTUDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
9. Payment Terms. Although you may be allowed to use the Content before payment is received by WiStudio, your use of any Content will be considered to be unlicensed until full payment of WiStudio’s invoice is received pursuant to WiStudio’s payment terms. Unless credit terms have specifically been agreed upon in writing by WiStudio, payment of WiStudio's invoices must be received within thirty (30) days of its date. Any disputes concerning the invoice must be submitted in writing, within thirty (30) days of the invoice date, or the Licensee shall be deemed to have accepted the invoice as issued.
10. Cancellation Policy. All licenses are final; no refunds or credits will be allowed.
11. Copyright Infringement and Liquidated Damages. In the event that the Licensee utilizes any Content
without a license, WiStudio reserves the right to seek damages through a legal claim unless the Licensee agrees to reimburse WiStudio, as liquidated damages, a sum equal to at least five (5) times the market value price charged for such use of Content. If the Licensee fails to make the payment as outlined above, within thirty (30) days of WiStudio’s invoicing such fee, this liquidated damage provision shall be void and WiStudio reserves the right to sue Licensee (including without limitation Licensee’s client(s) and end-user(s)) for copyright infringement, including attorneys' fees and all associated costs.
12. Termination. The license contained in this Agreement will terminate automatically without notice from WiStudio if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Content; (ii) destroy or, upon the request of WiStudio, return the Content to WiStudio; and (iii) delete or remove the Content from Licensee's premises, computer systems and storage (electronic or physical).
13. Revocation. WiStudio reserves the right to revoke the license to use any Content for good cause and elect to replace such Content with an alternative Content. Upon notice of any revocation of a license for any Content, Licensee shall immediately cease using such Content, shall take all reasonable steps to discontinue use of the replaced Content in products that already exist and shall inform all end-users and clients of same. If the Content is used on a social media or other third party website; the Content may only be used as part of another work and not as a stand-alone file; and any rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Content contrary to the terms of this Agreement.
14. 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 reformed only to the extent to make it enforceable.
15. Choice of Law/Attorneys’ Fees. This Agreement shall be interpreted in accordance with the applicable laws of Trinidad and Tobago, without reference to any laws relating to conflicts of laws. Licensee agrees to submit to the Judiciary of Trinidad and Tobago. If WiStudio is obligated to go to court to enforce any of its rights, the Licensee agrees to reimburse WiStudio for its legal fees and disbursements (including attorneys’ fees and costs) if WiStudio is successful.
16. Waiver. No action of WiStudio, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
17. Entire Contract. This Agreement (including any invoice issued to Licensee) 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 writing sent by Licensee, the terms of this Agreement shall govern.
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