Licensing Agreement

 

Licensing Agreement

 

Last Updated on September 18, 2017

This Licensing Agreement, including the Invoice (defined below) the terms of which are incorporated herein (collectively the "Agreement"), sets forth the terms and conditions between You ("You", “Your” or "Licensee") and Airzus Inc., a Delaware corporation with its principal place of business at 1101 El Camino Real, Suite 250, San Bruno, CA 94066 (the "Company").

By indicating acceptance of this Agreement and/or licensing Content (defined below) via this website, you have entered into a binding agreement with Company to license use of Content from this website. Company may amend this Agreement from time to time without advance notice to You. If You do not agree with the terms and conditions of this Agreement, please cease use of this website and do not continue with any license of Content. We encourage You to print a copy of the Agreement for Your records.

  1. Definitions

1.1 "Content" means all images, footage, films, videos, photographs, typefaces, data, media or other audio/visual representations recorded in any format that are owned, controlled or licensed by Company and are available for license as described on the Invoice or on this website.

1.2 "Invoice" means the form generated by this website that sets out the Content You agree to license and the various rights associated with such Content, including the Resolution/Size, License Type, Users, Pilot Name and Media Name, as well as the method of delivery and format.

1.3 "Licensee" or "You" means the entity or individual purchasing the license under this Agreement or, if the purchaser is acting on behalf of another entity or individual, the entity or individual specifically named under Client Name on the Invoice.

1.4 "Project" means the final work product that is created by or on behalf of the Licensee using the Content as authorized by this Agreement.

1.5 "Royalty-free Content" means Content licensed for an unlimited number of uses and Projects, licensed either to a single Licensee or to multiple Licensees, for a one-time flat fee and expressly designated as "Royalty-free" or "RF" by Company. Note that royalty free does not imply or mean that use of Content is unrestricted. See Sections 2 and 3 for details.

1.6 “Resale Merchandise” means end-products or finished productions intended for resale as a separate, individual product or production.

1.7 “Single User License” means any Content licensed from Company for a single individual or single user within a single organization or company.

1.8 “Multi-Seat License” means any Content licensed from Company for an unlimited amount of users within a single organization or company.

1.9. “Product for Resale License” means any content used in commercial products in which the content is a major design element or feature.

1.10. “Unlimited Print” means over 250,000 print copies.

1.11. “Unlimited Use” means Content maybe be used as part of software templates, content packages or in resale contexts up to 250,000 copies, within one organizations or under one brand name. Unlimited Use incorporates all the provisions and benefits of a Product for Resale License and Unlimited Print.

1.12. “Template” means any pre-designed format or structure which may be customized by the individual user by replacing generic elements of the format or structure. Templates include but are not limited to turn-key websites, pre-formatted emails or newsletters, mobile app templates, or blog or CMS themes/

  1. Grant of License

2.1 General. All licenses granted by Company are conditioned upon (i) Licensee’s compliance with the terms of this Agreement and (ii) Company’s receipt of full payment of the amount identified in the Invoice.

2.2 Royalty-free Content. Subject to the terms of this Agreement, and excluding the rights granted in Section 2.3, Company grants You a limited, non-exclusive, non-transferrable and non-sublicensable, worldwide right and license to use the Royalty-free Content identified on the Invoice for an unlimited number of uses by You in any and all media for all purposes subject to the terms and restrictions set forth in this Agreement.

2.3 Releases and Clearances. When available, model, property and/or FAA waiver and/or airspace authorization release status is displayed on Airzus.com. Content that contains the likenesses or images of people or property for which no release is available is marked as "Editorial Use Only". While Company makes commercially reasonable efforts to ensure the accuracy of Content release status, Company makes no warranties and/or representations regarding such status. You are responsible for determining if Your intended use requires released Content. Contact Company customer service if you require more information about the release status of Content.

  1. General Restrictions

3.1 Licensee shall not sub-license, sub-distribute, re-record, transfer, assign, sell, redistribute or provide to others any portion of the Content or its accompanying materials except as expressly identified on the Invoice. You shall not store or share the Content via a database, content management syste, library, server, image, video or audio storage network, configuration or similar arrangement, except as required to incorporate the Content in Your Project as authorized herein and solely up to the time the Project is completed, or as otherwise set forth in the Invoice. You shall be entitled to either a Single User Royalty-free License or Unlimited Users Royalty-free license as defined on the Invoice provided all such users are either employees or contractors who have agreed to be bound by the Agreement, and that You remain liable for all use by such users. You may transfer files containing the Content to Your clients, printers, designers, production contractors or ISP provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file You provide. If You require more than the number of users included in your license, you can obtain an Unlimited Users License. Use by non-branded affiliates and non-direct subsidiaries is not included in an Unlimited Users License.

3.2 Licensee shall not permit the Content to be available in any medium in a manner that enables third parties to download, extract or access the Content as a standalone file. You may not upload a standalone file of the Content to file-sharing websites or social networking websites such as YouTube, Facebook, Twitter, etc., unless authorized by Company in writing or in the Invoice. If Content is licensed by You for use on the Internet, or other online or interactive media outlet, You shall use Your best efforts to protect and secure the Content to ensure that it cannot be copied, that it retains its linear production for which it was licensed, and cannot be searched and downloaded in broadcast or substantially comparable quality.

3.3 You shall not use the Content in any way that might be considered defamatory, libelous, obscene, pornographic, immoral or illegal. You also shall not use the Content in any manner that creates a false inference or places the Content in a context that is likely to result in bringing Company or any content supplier of Company into public disrespect, scandal, ridicule, or detract from the public image of Company or any of its identified content suppliers.

3.4 Content shall not be incorporated into a logo, trademark or service mark. Any trademarks, service marks, design marks, logos and/or trade dress included in the Content is subject to the exclusive owners of such marks and/or trade dress and no license to such marks is granted by this Agreement. If there are any incidental trademarks or logos contained in the Content, You shall not alter or use such marks in any way which implies an association with or an endorsement by the owner(s) of such logos or trademarks, and the inclusion of these incidental trademarks in the Content does not in any way imply such association with or endorsement of the Content. Items depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights or other rights of another party. Company does not grant any license or right under this Agreement to any trademark, service mark, trade dress or logo or to any third party footage, photographs, video clips or copyrighted images that appear in the Content.

3.5 Any audio or music to certain performances or any associated compositions or arrangements that are included as part of or embedded in any Content is ambient sound only and may require additional clearances and/or licenses from the broadcaster owner or performer or owner of rights in such audio or music. No license is granted herein for such audio or sound, unless authorized in writing by Company prior to such use.

3.6.a You are not permitted to use the Content for product that is intended for resale, such as, but not limited to, digital product (including electronic templates for websites or applications, PowerPoint or Keynote templates, screensavers, software and mobile applications, video games, stand-alone backgrounds, wallpapers, stock elements or effects imagery elements) or physical product (including Blu-rays, DVDs, apparel, mugs, posters and any other printed product) without obtaining the proper license. You may not use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products (such as electronic templates). If You require the Content to be used for resale, You must obtain a Unlimited Use License.

3.6.b By Your obtaining of a Standard License, subject to all terms of this Agreement, Company grants You a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license in the Content; and You may use the Content in the creation of Projects and modify, reproduce, transmit or display the  Content. Without the purchase of a Multi-Seat License or securing explicit written permission from the Company, You may not allow the Content to be accessed by more than one single user. Without the purchase of an Unlimited Use License, You may not allow the Content to be used in a template or on-demand product, as part of any form of Resale Merchandise, or for use in advertising, editorial and/or promotional projects (such as promotional materials, internal marketing collateral, product packaging, book covers, presentations, catalogues, magazine, newspapers or other printed collateral) over two hundred fifty thousand (250,000) hard copies. Standard Licenses do allow unlimited impressions of online, electronic, and mobile publications and applications; including but not limited to websites, e-book covers, online album or playlist covers, broadcast media and mobile application or video game backgrounds or elements where the content is not contributing to the core value of the Project.

3.6.c By Your obtaining of an Unlimited Use License, You expand upon the usage rights granted in the Standard License, subject to all provisions of this Agreement. You shall be entitled to produce a maximum number of one and half million (1,500,000) copies of Resale Merchandise for resale, license, or other distribution. If You wish to produce more than one and a half million (1,500,000) copies of Resale Merchandise, then you must contact Company to purchase an additional license. By obtaining the Unlimited Use License, the right to produce the Resale Merchandise in no way grants any right to You or any recipient of the Resale Merchandise in any intellectual property or other rights to the Content; You agree to indemnify Company from any cost, liability, damages or expense incurred by any of them relating to or in connection with any of the Resale Merchandise; all other terms and conditions of the Agreement remain in full force and effect, including all Restrictions. Additionally, an Unlimited Use License grants You the right to make an unlimited number of hard copies of items for use in advertising, editorial and/or promotional projects (such as promotional materials, internal marketing collateral, product packaging, book covers, presentations, catalogues, magazine, newspapers or other printed collateral).

3.7 With respect to celebrity and news Content, including Content containing a person well known to the general public or professional athlete, unless otherwise notified in writing by Company, Company does not grant any right or license to use the name or likeness of any individual appearing in the Content in connection with or as an express or implied endorsement or disparagement of any product or service.

3.8 Comp files. Watermarked Content ("Comps"), if available, may be used only for test, rough-cut or evaluation purposes. You may not include Comps in any finished client work (whether public or for internal/corporate use), and may not include Comps in any publicly visible Project (i.e. published on the web such as YouTube or Vimeo, used in broadcast media, or used in printed marketing materials) unless explicitly granted permission by Company.

  1. Payment

Unless Licensee is approved for credit terms, all licenses must be paid in advance of receipt of Content. If Licensee requests in writing to cancel this Agreement within 7 days of the date of receipt by Licensee, and such Content has not been used by Licensee, Company may cancel this Agreement and issue a credit to Licensee's account or credit card. Content prices are subject to change and prices established on the Invoice may change for future licenses of the same or similar type Content. It is agreed that a failure to pay the License Fees on the Invoice will be considered a material breach of this Agreement. You agree to reimburse Company for its legal fees, costs and disbursements if Company is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.

  1. Taxes and Duties

You are responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the license granted to You, or Your use of the Content, pursuant to this Agreement in addition to the License Fee for the Content.

  1. Unauthorized Use

Licensee acknowledges and agrees that any unauthorized or unlicensed use of any Content by Licensee constitutes infringement of copyright and other applicable laws and shall entitle Company to exercise all rights and remedies available at law or in equity, including monetary damages against all users and beneficiaries of the use of such Content. Because monetary damages may be difficult to assess, in addition to any other fees, penalties or remedies available at law or under this Agreement, You agree that Company reserves the right to assess as liquidated damages, and not as a penalty, an amount equal to five (5) times Company’s License Fee for such misuse or unlicensed use of the Content. Without limiting any of the foregoing, if, for any reason, the Content comes into the possession of any unauthorized third person or entity while it is in Your control and due to Your negligence or willful misconduct, You shall undertake reasonable efforts to recover the Content and to recover on Company’s or its suppliers’ behalf any damages sustained by Company or its suppliers by reason of the unauthorized use thereof.

  1. Termination of License

Company reserves the right to terminate, revoke, and/or withdraw any and all licenses granted hereunder upon Your failure to comply with any provisions of this Agreement or make full payment when due for the Content. Company shall be entitled to pursue all remedies available under copyright and other laws in the event You breach any term or obligation of this Agreement. In the event of any termination, 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, including the Content that has been included in a produced or finished Project.

  1. Copyright and Copyright Notice

With the exception of Content that is in the public domain, all Content is copyrighted by Company or its content suppliers and is protected by United States Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Content, except for the license granted herein, are transferred to You by this Agreement. Company and its content suppliers retain all rights not expressly granted by this Agreement. You are solely responsible for determining if Content is in the public domain.

  1. Withdrawal

Company shall have the right to withdraw Content because of actual or threatened litigation; any binding declaration or order issued by a competent court or governmental authority; or any reason beyond Company’s control. Company shall give You as much advance notice as practicable of any such withdrawal. Upon notice of withdrawal by Company, You agree to cease any use of or require any applicable party to cease any continued use of any withdrawn Content incorporated into any finished Project at Your own expense. You acknowledge that because of the special and unique character of Content, Your license or other exploitation of Content after the effective date of a notice of withdrawal could cause Company irreparable injury and damage. You, therefore, agree that in addition to any right or remedy available to Company, Company shall be entitled to injunctive and other equitable relief against You to prevent any exploitation after the effective date of a notice of withdrawal.

  1. LIMITED WARRANTY AND DISCLAIMERS

10.1 Company warrants (a) it has all necessary rights and authority to enter into and perform under this Agreement and (b) the Content shall be free from defects in material and workmanship for 30 days from the date of the Invoice. Company further represents and warrants Licensee’s use of the Content in accordance with this Agreement will not infringe upon or violate any copyrights, moral rights, trademarks, patent rights, rights of privacy, or rights of publicity. No employee or representative of Company may make, and You shall not rely upon, any representations or warranties other than those stated in this Agreement.

10.2 EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10.1, CONTENT IS PROVIDED “AS IS, AS AVAILABLE” AND COMPANY, ITS CONTENT SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, PERFORMANCE, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FROM A COURSE OF DEALING OR USE IN TRADE. THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTIES IN SECTION 10 IS THE REPLACEMENT OF THE CONTENT OR REFUND OF THE LICENSE FEE, AT COMPANY’S OPTION.

  1. LIMITATION OF LIABILITY

EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, IN NO EVENT SHALL COMPANY OR ANY COMPANY SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SUPPLIER, OR LICENSOR SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR (I) SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, PUNITIVE, STATUTORY, OR LOST PROFITS OR ANY OTHER 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 OR (II) FOR AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR YOUR USE OF ANY CONTENT PROVIDED BY COMPANY EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY COMPANY FOR THE USE OF THE APPLICABLE CONTENT. AN ADDITIONAL $250,000 LEGAL GUARANTEE CAN BE ADDED TO THE LICENSE FOR AN ADDITIONAL FEE.

  1. Licensee Warranties

You represent and warrant that (a) You are at least eighteen years of age and have the full right and authority to enter into this Agreement on behalf of You and/or the entity listed under Client Name on the Invoice, (b) Licensee’s use of the Content will comply with all terms and conditions of the Agreement herein and those set forth in the Invoice, and (c) You are responsible for determining whether Your use of any Content in the Project requires the consent of any other party or the license of any additional rights and obtaining such consents/licenses, if required. Licensee further represents and warrants that the information that Licensee provides to Company is accurate and true, including, without limitation, all credit card or other payment information and Licensee shall update such information, as necessary.

  1. Indemnification

13.1 Licensee indemnification obligations. You agree to defend, indemnify and hold harmless Company, its content suppliers, licensors, and each of their respective officers, directors, employees, affiliates, successors, assigns, distributors and agents against all claims (including, without limitation, claims by third parties), lawsuits, demands, damages, judgments, costs and expenses (including reasonable attorneys’ fees and permitted and authorized costs) arising out of or related to (i) Your breach of the terms, restrictions, conditions, and/or warranties of this Agreement, (ii) Your failure to obtain any required or necessary releases, waivers, authorizations or clearances or other permissions for Your use of the Content, (iii) any violation of any intellectual property right or violation of any privacy or publicity right, or (iv) the negligent conduct of You or any of Your employees, contractors, agents, clients, principals, or users.

13.2 Company’s indemnification obligations. Provided that the Content is used in accordance with this Agreement, Company shall defend, indemnify and hold You harmless from all third party damages (excluding punitive damages), liabilities and expenses (including reasonable outside attorney's fees and permitted and authorized costs), arising out of or related to Company’s breach of the warranties to You in Section 10.1 above. Notwithstanding the foregoing Company shall have no obligation under this section unless You provide Company with written notice within fifteen (15) days of Your receipt of any claim subject to this 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 Section 13.1 above.

  1. Confidentiality

During this Agreement, Company may provide You with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets which are proprietary to Company or its content suppliers. You agree that You will maintain the confidentiality of any confidential information that Company may provide You, and You shall not use or disclose such confidential information without the prior written consent of Company or its content suppliers, as the case may be.

  1. Governing Law

The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the State of California. This Agreement will be governed in all respects by the laws of the State of California, U.S.A., without reference to its laws relating to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

  1. Miscellaneous

This Agreement, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements, both oral and written, between or among the parties. If any provision of this Agreement is determined by a court to be invalid or unenforceable, such determination shall not affect any other provision of this Agreement, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein.