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| | Bruce Coleman License Agreement USE OF DIGITAL IMAGES – SUBJECT TO TERMS BELOW
TERMS RELATIVE TO SUBMISSION
1. Photographs, transparencies, scans or digital images (hereafter “photographs”) may be held for fourteen (14) days’ approval. Unless a longer period is requested and granted by Bruce Coleman USA, (hereafter “BCI”), in writing, a holding fee of Five ($5.00) Dollars per week per color transparency after such 14 day period and up to the time of return.
2. Downloaded Photographs may only be used in layouts. No other use is granted until submission of and payment of an invoice indicating Recipient’s right to use same, or indicating purchase of the Photographs outright, which shall be only on terms of use hereinafter specified. Permission to scan or digitize photographs is granted for pre-press purposes only, provided the digitized versions are stored only as long as work on the project is in progress. When the project is complete all digital versions of the photographs must either be destroyed or returned to BCI, even if those scans were produced and paid for by the recipient.
3. Recipient is responsible for loss of or damage to the Photographs delivered to it, from time of receipt until their return to BCI. Recipient shall be responsible for safe delivery and return of Photographs to BCI and shall indemnify BCI against any loss or damage to Photographs in transit or while in the possession of Recipient. This agreement is not considered a bailment and is specifically conditioned upon the item so delivered being returned to BCI in the same condition as delivered. Projection of transparencies is not permitted. Recipient assumes an insurer’s liability herein for the safe and undamaged return of the Photographs to BCI. Such Photographs are to be returned by bonded messenger or by registered mail (return receipt requested), prepaid and fully insured.
4. The monetary damage for loss or damage of an original color transparency or photograph shall be determined by the value of each individual photograph. Recipient agrees, however, that the reasonable value of such lost or damaged photograph or transparency shall be Fifteen Hundred ($1,500.00) Dollars, that a lost or damaged duplicate transparency or a digital file is One Hundred ($100.00) Dollars. BCI agrees to the delivery of the goods herein only upon the express covenant and understanding by Recipient that the terms contained in this Paragraph 4 are material to this agreement. Recipient assumes full liability for its employees, agents, assigns, messengers and free-lance researchers for the loss, damage or misuse of the photographs.
TERMS AS TO USE
5. (a) Unless otherwise specifically stated, Photographs remain the property of BCI or the particular photographers. Upon submission of and receipt of payment of an invoice by BCI, a license only is granted to use the Photographs for the use specified on the invoice and for no other purpose. Such use is granted for the United States only, unless otherwise specified. Recipient does not acquire any right, title or interest in or to any Image, including, without limitation, any electronic reproduction or promotional rights, and will not make, authorize or permit any use of the particular photograph(s), plate(s) or digital files made there from other than as specified herein. Full credit and copyright information must remain with file. Any authorized duplicate must be retuned to BCI after use.
(b) Photographs are to be returned within four (4) months after date of invoice, except in the case of outright purchase or unless otherwise indicated on invoice. Recipient agrees to pay, as reasonable charges, the sum of $5.00 per week per Image after such four (4) month period to date of return.
6. Recipient is solely responsible for loss of or damage to Photographs and will indemnify BCI against any loss or damage, commencing with receipt by Recipient of such Photographs until their return to, and receipt by BCI. In this connection, Recipient assumes an insurer’s liability herein for the safe and undamaged return of the Photographs to BCI. Such Photographs are to be returned either by bonded messenger, or by registered mail (return receipt requested, prepaid and fully insured.)
7. The monetary damage for loss or damage of an original colour transparency or photograph shall be determined by the value of each individual photograph. Recipient agrees, however, that the reasonable value of such lost or damaged photograph or transparency shall be $1,500.00 and $100.00 for a duplicate transparency or digital file. BCI agrees to the delivery of the goods herein only upon the express covenant and understanding by Recipient that the terms contained in this Paragraph 7 are material to this agreement. Recipient assumes full liability for its employees, agents, assigns, messengers and free-lance researchers for the loss, damage or misuse of the Photographs.
8. No model releases or other releases exist on any Photographs unless the existence of such release is specified in writing by BCI. Recipient shall indemnify BCI against all claims arising out of the use of any Photographs where the existence of such release has not been specified in writing by BCI. In any event, the limit of liability of BCI shall be the sum paid to it per the invoice for the use of the particular Image involved. User will hold BCI harmless from all claims for the use of the Photographs, including defamatory use. BCI gives no right or warranties with respect to the use of names, trademarks, logo types, registered or copyrighted designs or works of art depicted in any Image, and the client must satisfy himself that all necessary rights, consents or permission as may be required for reproduction are secured.
9. This agreement is not assignable or transferable on the part of Recipient.
10. This contract contains all the terms of the agreement between us (agency and recipient) concerning delivery and review of Photographs, and no term or conditions may be added or deleted unless made in writing and signed by both of us. These terms and the terms of any subsequent invoice/copyright license supersede any and all terms of the client or recipient’s purchase order. Any subsequent invoice/copyright license we may issue, may contain additional terms relating to the rights granted and the type of use allowed.
11. Time is of the essence in the performance by Recipient of its obligations for payments and return of Photographs hereunder. No rights are granted until payment is made to BCI, even though Recipient has received an invoice.
12. Payment herein is to be net thirty (30) days. A service charge of two (2%) percent per month on any unpaid balance will be charged thereafter. Any claims for adjustment or rejection of terms must be made to BCI within ten (10) days after receipt invoice. In the event that any Photographs are used by Recipient in publications, then Recipient shall send to BCI, on a semiannual basis (June 30th and December 31st), a certified statement setting forth the total number of sales, sublicenses, adaptations, translations, and any other uses. Recipient shall provide BCI with two (2) free copies of such publication immediately upon printing.
13. Rights are being reserved to recipient when an invoice is created. If recipient does not use the invoiced image, it is subject to a cancellation fee of 25% of the total amount of the invoice.
14. Photographs used editorially should bear a credit line as indicated by BCI. Recipient shall provide copyright protection to the Image. Such copyright shall be immediately assigned to BCI or the photographer upon request, without charge.
15. All rights not specifically granted to Recipient are reserved for BCI’s use and disposition without any limitations whatsoever.
16. Recipient agrees that the above terms are made pursuant to Article 2 of the UNIFORM COMMERCIAL CODE and agrees to be bound by it. Objections to any term must be made and agreed to by both parties in writing within ten (10) days.
DISPUTES OR CLAIMS ARISING OUT OF SUBMISSION AND/OR USE
17. Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in New York City, NY, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the Forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of New York. If recipient of this contract is an agent for or an employee of a non-U.S. company but operates in a place of business in the United States or its territories, said recipient expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here.
18. If BCI is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by recipient or user herein.
19. None of the Photographs licensed may be used in such a manner so as to defame the subject in the Image, or in a manner which cause the subject to be held up to scorn or ridicule.
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