This agreement is collectively governed by this document, which is a license agreement, the applicable Content specific Invoice (defined below) or Content specific order confirmation and Content specific Company Website (defined below) (collectively, the “License”) and is between you or the employer or other third party on whose behalf you are entering into this License (“you” or “Licensee”) and Shine Creative LLC (“Company”). This License outlines and describes the licensing terms and how you can use the video clips that you license from Company. By downloading any available content from Company, you are accepting all of the terms of this License. Do not download available content if you do not accept or agree with the terms of this License. Do not download available content if you are located outside the United States. Company provides this Website for use only by persons/entities located in the United States or any of its territories or possessions. Company makes no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. This License, downloading of Content, and access to and use of the Website shall take place in the United States.
Please visit this License webpage frequently, and when you purchase any licenses. Company reserves the right to modify this License at any time in its sole discretion and without notice to you. At its sole discretion, Company may use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your account, an announcement on this webpage, and/or by other means. Modifications to this License will only apply to prospective purchases. For the avoidance of doubt, a modification will not apply to Content that was first downloaded prior to the modification. By licensing Content following any such modifications, you agree to be bound to the License as modified.
1.1 “Content” means any work, including video footage, films, video recordings, images or other recordings, together with any accompanying material, which is available to license from the Company Website.
1.2 “Invoice” means the invoice generated by Company that identifies the Content you agree to license and the specific terms or restrictions associated with such Content, including, for example, the use, medium, period of time, size of Content, territory or any other restrictions. The Invoice shall be incorporated and made a part of this License and all references to the License shall include the Invoice. If a purchaser is acting on behalf of another entity or individual, the entity or individual may be specifically named under “Client” name on the Invoice.
1.3 “Project” means the final work product created with the Content as authorized hereunder and excluding Comp uses, and as specified on the Website or in an order confirmation or Invoice, including the related promotional material that complies with this License for the Project.
1.4 “Website” means the internet site at www.ShineStock.com. 2. Available Licenses
2.1 All files downloaded from Company include these License terms and conditions. Unless you purchase or negotiate a separate license, your use of content is subject to the standard license terms. All licenses granted by Company are conditioned upon Licensee’s compliance with the terms of this License and Company’s receipt of full payment of the amount identified on the Invoice.
Company offers the three licenses listed below. A Rights Managed License provides for use of Content in a single Project a single time. A comp License provides for complimentary use of Content based upon the listed restrictions. An Editorial Use License provides Editorial Use of Content based upon the listed restrictions.
2.2 RIGHTS MANAGED LICENSE FOR VIDEO CONTENT USE. This is a rights managed License, meaning that the Content is licensed on a per use, per Project basis, such that there is a fee for each single use. This License is governed by additional information and restrictions that accompany the Content on the Website (or any other method of content delivery) or in an order confirmation or Invoice. The License is limited to the specific use, medium, period of time, size of Content, territory and any other restrictions that accompany the Content on the Website (or any other method of content delivery) or in an order confirmation or Invoice.
Subject to the terms and conditions of this License, Company grants Licensee a limited, non-exclusive, non-transferrable, and non-sublicensable right to use, display, crop, and publish the Content identified on the Invoice in the Project solely as specified in the Invoice or in an order confirmation, and as limited by this License and the Company’s Website. For the avoidance of doubt, Licensee has the right to incorporate the Content licensed hereunder in a single Project a single time. If Licensee requires multiple uses of the Content for an individual Project, a separate License shall apply for each use, and if Licensee has only a single License, Licensee may not use the Content in multiple Projects or make multiple use of the Content in any individual Project. The Licensee may distribute, publish, display, otherwise make use of or otherwise exploit the Project subject to the terms and conditions of this License. Licensee shall not sub-license or otherwise transfer its rights under this License without Company’s prior written consent.
If and where commercially reasonable, and in the event any attribution credits are provided to any similar third parties in connection with any Project, you agree to include a credit line that reads “Footage used under license from ShineStock.com,” “ShineStock.com by Shine Creative” or substantially similar language. Such attribution credit shall be equal in all respects to any credit accorded to any other third party of comparable services. You may use the name of Company and ShineStock.com as necessary to give attribution, but you may not otherwise use its name, logos or trademarks without prior written approval.
The Content available for license can change at any time, at the sole discretion of the Company, and you shall have no right to demand to license any particular item of Content. Company may discontinue licensing any item of Content any time in its sole discretion.
2.3 COMP LICENSE. You are welcome to use watermarked content from the Company website on a complimentary basis for test or sample (comp) use only, according to the limitations herein.
Company hereby grants you a non-exclusive, non-transferable right to use, modify and reproduce Content worldwide, in perpetuity, as expressly permitted by this Comp License and subject to the limitations set forth herein:
a. Use video that is watermarked Content only to sample or evaluate such Content and cannot be used in any final materials or any publicly available materials and may only be used for the 30 days following your download and may NOT be used for any commercial purposes whatsoever (“Comp License”).
b. For the avoidance of doubt, a Comp License does not permit you to publicly display or publicly distribute Content. You may edit the Content, but you may not remove or alter the Company watermark. Regarding watermarked Content available under a Comp License, Company shall have no obligation to make such watermarked Content available under any other type of license that Company may offer. No other rights or warranties are granted by the Comp License.
2.4 EDITORIAL USE LICENSE. Company hereby grants you a non-exclusive, non-transferable right to make a single, editorial use of an item of Editorial Content, which single use may be distributed worldwide, in perpetuity, as expressly permitted by this Editorial Use License and subject to the limitations set forth herein:
a. A “single use” means the use of Editorial Content in a single context (i.e., news article, post, etc.) a single time, provided you shall have the right to distribute that use in-context across unlimited mediums and distribution channels. For example, Editorial Content use in a news story, maybe reused on a blog, on social media, etc., provided it is in-context to the original material. Any use not in-context to the original material would require an additional license.
b. An “editorial use” for the purposes of this License shall be a use made for descriptive purposes in a context that is newsworthy or of human interest and expressly excludes commercial uses such as advertising or merchandising. You may not use Content designated “Editorial Use Only,” or having a similar designation, or Editorial Content for commercial purposes, including in any advertising, merchandise or other non-editorial contexts. Editorial Content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
c. You may not modify or edit Editorial Content or Content designated “Editorial Use Only” in a manner that changes the context of what is depicted.
d. All Editorial Content shall be deemed “Editorial Use Only” for the purposes of
e. Restrictions upon the use of Editorial Content include no use of any Editorial Content: (i) in a multi-media production distributed via broadcast, cable network, OTT video service (i.e., Netflix, Amazon), or in theaters, or in related promotional materials; (ii) on a publication cover or other packaging related to the underlying use; (iii) when special restrictions are indicated by an item of Editorial Content, such as if geographical or other industry-specific usage restrictions are indicated.
f. Attribution is always required for Editorial Content. In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye. The use of Content shall be accompanied by an adjacent credit to Company.
g. Not all Editorial content is available for license from the Company’s website. The Editorial Content available for license can change at any time, at the sole discretion of the Company, and you shall have no right to demand to license any particular item of Editorial Content.
3. Scope of License
3.1 Who may use the Licensed Content. This License is personal to the Licensee. The rights and obligations set forth in this License may not be assigned or otherwise transferred by you without Company’s prior written consent. Company may assign this License without notice to Licensee or Licensee’s consent. In the event that you, the individual listed as the registrant of the Company account through which the License is granted, are entering into this License for the benefit of, or as an agent on behalf of, your employer or other third party (such as a client), then such employer or third party will be deemed the Licensee for purposes of this License and you represent and warrant that (i) you have full legal authority to bind your employer or the third party to the terms of this License and that such employer or third party has authorized you to enter this License and that Licenses granted hereunder are on such employer’s or third party’s behalf, that such employer or third party has agreed to be bound hereby, (ii) the Content and Project is solely for the benefit of the employer or third party and that you will not use the Content or Project for the benefit of any other person or entity without entering into a separate License, and (iii) in the event of an agent/third party relationship, you shall be jointly and severally liable for any breach of the terms of this License by the third party. For the avoidance of doubt, understand that the employer or third party may be listed as the “Client” on the Invoice and will be deemed the Licensee for purposes of this License if the individual listed as the registrant of the Company account is taking action on behalf of the employer or third party. Licensee may license and/or transfer ownership of the final Project in connection with the distribution of the final Project as may be necessary to effectuate the intended use set forth in the Project, however, such right does not extend to distribution or transfer of the rights to the Content outside of the Project. Any licensee or transferee of a Project shall be bound by the terms of this License and Licensee shall be jointly and severally liable to Company for any breach of the terms of this License due to Licensee’s license of or transfer of a Project and shall indemnify Company according to the Indemnification section herein.
Licensee’s employees and subcontractors may use the Content as necessary to create or distribute the Project, provided that the employees and subcontractors agree to be bound by the terms of this License and may not use the Content for any other purpose. Licensee agrees to remain liable for any breach of the terms of this License by the employees and subcontractors.
3.2 Company shall have the right to review your use from time to time to determine your compliance with the terms of this License. You acknowledge and agree to such use monitoring and enforcement by Company through appropriate means. You agree to furnish Company with a copy of your final Project as made available to the general public at no additional cost and solely upon Company’s request. If you use any Content as part of work product created for or delivered to a client or customer, you will disclose the identities of such clients or customers to Company, upon Company’s reasonable request.
4. Limitations on Use
4.1. You shall not use Content other than as expressly provided by the License.
4.2 In the production of the Project authorized by this License, you shall limit access to the Content to those having a bona fide need to facilitate production or creation of such Project. Upon termination or expiration of the term of this License, you agree to cease use of all Content and shall promptly delete or destroy all digital copies of the Content outside of the Project. If Content is licensed for use on the internet, 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.
4.3 You shall not use the Content in any way that might be considered defamatory, political, libelous, obscene, pornographic, or in connection with drugs and alcohol, violence, medical products, diseases, content deemed appropriate for mature audiences only, or any immoral or illegal activity. You also shall not use the Content in any manner that creates a false inference or brings Company into public disrespect, scandal, ridicule, or defames the public image of Company.
4.4 If you use Content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (i.e., sexually transmitted diseases), you must indicate (i) that the Content is being used for illustrative purposes only and (ii) any person depicted in the Content is a model.
4.5 You shall not use any Content (i) in whole or in part as a trademark, service mark, logo, or other indication of origin, (ii) in a manner that infringes upon any third party’s trademark or other intellectual property or would give rise to a claim of deceptive advertising or unfair competition, (iii) to falsely represent that the Content was created by you or a person other than the copyright holder of that Content, (iv) in a multi-media production distributed via broadcast, cable network, OTT video service (i.e., Netflix, Amazon), or in theaters, or in related promotional materials, (v) in “stills” derived from video Content except solely for in-context marketing and advertising for your derivative works that incorporate such video Content, and (vi) in connection with “on demand” products, meaning products selected by a third party for customization in a made to order basis, such as mugs, screensavers or the like.
4.6 You shall not resell, redistribute, rent, sublicense, provide access to, share or transfer any Content except as specifically authorized by this License.
4.7 You shall not use Content in any way that allows others to download, extract, or redistribute Content as a standalone file (meaning just the Content file itself, separate from the Project).
4.8 You shall not alter edit or enhance the Content in any manner, or use, reproduce, sublicense or sub-distribute the Content either as incorporated in the Project or as a standalone clip as (i) a template, (ii) downloadable file, or (iii) any other clip media/stock product, each as part of another library, collection or set of clips for distribution or resale. Notwithstanding the foregoing, Company authorizes Licensee to edit the Content as follows: streaming various sections together, interlacing with other scenes in the Project, digitizing, timing, color correction and/or cropping, provided, however that Licensee has the indemnification obligations stated in Section 9.3 (Indemnification of Company by You) related to any editing or modification of the Content by Licensee. Except as incorporated in the Project, you may not directly or indirectly reproduce the Content in any secondary reproductions such as screen shots, or on file-sharing or social networking websites such as YouTube, Twitter, etc., unless authorized by Company in writing or in the Invoice.
4.9 Unless expressly authorized by Company, you may not use Content (including any keywords or other metadata associated with Content) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons. Company does not represent or warrant that consent has been obtained for such uses with respect to model-released Content. You may not use the caption information, keywords, or other metadata associated with Content separate and apart from the Content or allow any third parties to access or use any such information associated with Content.
4.10 In producing the Product as authorized hereunder, Licensee shall limit access to the Content (and have appropriate Content storage in view of this restriction) to those having a bona fide need to facilitate production or creation of any authorized Project. You agree to retain the copyright symbol, the name of Company, and any other identification information or metadata that may be embedded in the electronic file containing the original content. You also agree to maintain appropriate storage and security to protect the content from unauthorized use by third parties. Upon termination of the License, Licensee agrees to cease use of all Content and shall promptly delete or destroy any digital copies. If Company determines that you are in breach of this or any other term of this License, it may suspend access to your account or terminate your account.
4.11 Upon notice from Company, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another’s right, violation of another right, or any other claim for which Company may be liable, or if Company removes or withdraws any Content due to perceived business risk as determined in Company’s reasonable discretion and gives you notice of such removal, you must immediately and at your own expense stop use of the Content, delete or remove the Content from your premises, computer systems and storage (electronic and physical), and ensure that that your clients, or internet service providers do likewise. Company shall either refund your license fees for the applicable Content or provide you with replacement Content (which shall be determined by Company in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this License. For the avoidance of doubt, if you learn of such a claim from any source other than Company you will promptly notify Company of such claim.
5. Company Account Through Which License is Granted
For each Company account, you agree to (i) securely maintain all passwords and usernames, (ii) notify Company immediately of any unauthorized use or breach of security, and (iii) accept responsibility for all activity under your Company account. Company reserves the right to monitor downloads and user activity to ensure compliance with the terms of this License. Your account may be terminated according to the terms of this License.
6. Intellectual Property Rights
All licensed Content is owned by or licensed to Company. All rights not expressly granted in this License are retained and reserved by Company. You have no ownership rights in the Content. You have a license to the limited use of the Content according to the terms of this License. Any trademarks, service 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 License.
Company may terminate this License and your account without further notice based upon your breach of any of the terms of this License or any other agreement with Company. Such right exists in addition to Company’s other rights at law. Company shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of a breach. Upon termination by reason of breach, you must immediately cease using the Content, delete or destroy any copies, and if requested, confirm to Company in writing that you have complied with these requirements. If you use the Content on a social media platform or other third-party website and the platform or website uses the Content for its own purpose or in a way that is contrary to this License, then then the License shall immediately terminate. Such termination or expiration of this License shall not invalidate nor nullify the terms and conditions governing the Content previously licensed hereunder.
8. Representations and Warranties
8.1 Company makes the following representations and warranties. Company warrants that the Content, when used as authorized under this License and in the form delivered by Company (that is, excluding any modifications done by you): (i) will not infringe the rights of the copyright holder of the Content, (ii) and if the Content Website, order confirmation or Invoice indicates that there is a model release, will not violate any individual’s right of publicity or privacy and (iii) if the Content Website, order confirmation or Invoice indicates that there is a property release, will not violate any individual’s tangible property rights.
Company makes no warranties, nor shall Company be liable, for any claims related to or arising from Licensee’s use of Content which:
(i) except for the explicit warranties stated in the paragraph above in (ii) and (iii), arise from any third party rights, including without limitation any copyright, trademark, trade dress, personality right or right of privacy, depicted in the subject matter of the Content;
(ii) but for Licensee’s modification of such Content or combination of such Content with other materials, such claims would not have arose; or
(iii) arose after Company has otherwise notified Licensee not to use the applicable Content.
Note that you are solely responsible for any edits made to the Content. You agree that you are solely responsible for liability for use of Content after Company notified Licensee not to use applicable Content. For the avoidance of doubt, Editorial Content in the original unaltered form and used in accordance with this License and applicable law will not infringe a third party’s copyright, it being understood that the foregoing warranty does not apply to elements depicted in the Editorial Content.
8.2. While Company has made commercially reasonable efforts to correctly categorize, keyword, describe, caption and title the Content, Company does not warrant the accuracy of such information, or of any metadata provided with the Content. For the avoidance of doubt, Company will not indemnify or have any liability in respect of any claims arising from inaccurate keyword, titles, or descriptions in the Content.
8.3. COMPANY, ANY COMPANY AFFILIATES, OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, AGENTS, AND ANY PERSON ASSOCIATED WITH THE COMPANY MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS “REPRESENTATIONS AND WARRANTIES” SECTION. Accordingly, all Content and the Website are provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied presentations, warranties or conditions of merchantability, fitness for a particular purpose, non-infringement or title. Company does not represent or warrant that the Content will meet your requirements or that its use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Content is solely with you.
8.4 Subject matter depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. Except as may be specifically stated on the Company Website, order confirmation, or Invoice applicable to the licensed Content, the rights Company grants to Licensee do not include a license to, and Company makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. When requested and if available, Company will notify you in writing or on the Company Website, order confirmation, or Invoice where it has obtained a model release and/or a property release for Content. Except by notice given by Company to you, and except for the underlying copyright in the Content, Company does not provide any copyright clearance or model or property releases with respect to the Content and 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 Content. Licensee is solely responsible for determining whether Licensee’s use of any Content requires the consent of any other party or the license of any additional rights. Licensee is solely responsible for obtaining any and all releases and clearances as may be required, including without limitation rights from any representative guild, union, professional organization, or other authorized representative. Licensee is responsible for consulting with its own legal counsel to determine whether additional rights are needed for the intended Project. In the event of a claim against Company relating to your use of the Content, upon request by Company, you agree to provide all copies of consents and clearances obtained pursuant to this provision. If you fail to obtain any consents and/or clearances necessary for your use of the Content in any Project pursuant to this section, then without prejudice to any other rights and remedies of Company, your use of the Content is at your own risk and you agree to indemnify, defend and hold Company, its officers, directors, employees, affiliates, successors, assigns, distributors, licensors and agents harmless from any claim that may arise relating to your use of the Content.
8.5 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 License on behalf of you and/or the individual/entity on behalf of which you are taking action, (b) Licensee’s use of the Content will comply with the terms and conditions herein and those specifically stated on the Company Website, order confirmation, or Invoice, (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, and (d) You and/or the individual/entity on behalf of which you are taking action reside in the United States or the entity’s place of business is in the United States.
9. Indemnification and Limitation of Liability
9.1. Indemnification of You by Company. Subject to the terms hereof, and provided that you have not breached the terms of this License or any other agreement with Company, and as your sole and exclusive remedy for any breach of the warranty set forth in in “Representations and Warranties” section of this License, Company will defend, indemnify, and hold you harmless up to the applicable “Limit of Liability” set forth below. Such indemnification is solely limited to your direct damages arising from a third-party claim directly attributable to Company’s breach of the express representations and warranties made in the “Representations and Warranties” section of this License, together with associated expenses (including reasonable attorneys’ fees). This indemnification does not apply to the extent any damages or expenses arise out of or are a result of modifications made by you to the Content or the context in which the Content is used by you. This indemnification also does not apply to your continued use of Content following notice from Company, or upon your knowledge, that the Content is subject to a claim of infringement of a third party’s right.
Indemnification is conditioned upon you notifying Company, in writing, of any such claim or threatened claim, no later than fifteen (15) days from your receipt of any written 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 the Section 9.3 (Indemnification of Company by You). Such notification must include all details of the claim then known to you, including at least (i) the use of Content at issue, (ii) the name and contact information of the person and/or entity making the claim, and (iii) copies of any correspondence received and/or sent in connection with the claim. The notification must be emailed to Company at [email protected], with a hard copy to Shine Creative LLC, 1333 Green Ct. NW, Washington, DC 20005, Attention: Data Protection Officer, according to the “Notice” provision at Section 10.9.
Company shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Company in the defense of any such claim and shall have the right to participate in any litigation at your own expense. You agree that Company is not liable for any legal fees and/or other costs incurred by you or on your behalf prior to Company having a reasonable opportunity to analyze such claim’s validity.
9.2. LIMITATION OF LIABILITY. COMPANY, ANY COMPANY SUBSIDIARY, SUCCESSOR, ASSIGN, PARENT, AFFILIATE, REPRESENTATIVE, AGENT, OFFICER, EMPLOYEE, MANAGER, MEMBER, DIRECTOR, CONTRACTOR, OR LICENSOR SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, LOST PROFITS, COSTS OR LOSSES ARISING OUT OF THIS LICENSE, YOUR USE OF THE CONTENT, COMPANY’S BREACH OF THIS LICENSE, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
AGGREGATE LIABILITY. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY OR ANY OF ITS SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, LICENSORS, OR AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, SHAREHOLDERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUCCESSORS, ASSIGNS, REPRESENTATIVES, AGENTS, OR LICENSORS OWED TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU ARISING FROM THIS LICENSE, 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 UNDER THIS LICENSE FOR THE USE OF THE APPLICABLE CONTENT. THIS LIMIT OF LIABILITY APPLIES REGARDLESS OF THE NUMBER OF TIMES YOU LICENSE AN ITEM OF CONTENT FROM THE COMPANY OR THE NUMBER OF TIMES YOU USE AN ITEM OF CONTENT. IF YOU NEED A HIGHER INDEMNIFICATION AMOUNT, THEN PLEASE CONTACT COMPANY.
THESE LIMITS APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACNKOWLEDGE AND AGREE THAT THE FEES FOR THE USE OF THE CONTENT REFLECT AND ARE SET IN RELIANCE UPON THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS LICENSE, AND THE LIMITATIONS OF LIABILITY HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. NOTHWITHSTANDING ANYTHING ELSE IN THIS OR ANY OTHER AGREEMENT, AND FOR THE AVOIDANCE OF DOUBT, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF PARTICULAR MODIFICATIONS MADE TO THE CONTENT BY YOU, ANY OF YOUR REPRESENTATIVES OR ANY THIRD PARTY AFTER THE CONTENT IS DOWNLOADED OR THE PARTICULAR CONTEXT IN WHICH THE CONTENT IS USED.
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE LICENSE OR UNDER THIS LICENSE MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
9.3. Indemnification of Company by You. You agree to and will defend, indemnify and hold harmless Company and its parent, subsidiaries, affiliates, licensors and its and their respective officers, employees, shareholders, directors, managers, successors, assigns, contractors, representatives, licensors, distributors, agents, and members from all claims (including without limitation, claims by third parties), lawsuits, demands, damages, judgments, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or related to any (i) breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this License (including the terms, conditions, and restrictions identified on the Company Website, order confirmation, or Invoice), which includes use of the Content other than the uses expressly permitted by this License, (ii) Your use or modification (including without limitation, editing) of any Content or combination of any Content, with any text or other content, (iii) Your failure to obtain any required or necessary releases or clearances or other permissions for your use of the Content, (iv) except as set forth in the “Representations and Warranties” section regarding Company’s warranties, any violation of any intellectual property right or violation of any privacy or publicity right, or (v) the negligent conduct of you or any of your employees, contractors, agents, clients, principals, or users. You further agree to indemnify Company for all costs and expenses that Company incurs in the event that you breach any of the terms of any other agreement with Company. Licensee will not agree to any stipulation, admission, or acknowledgement of any fault, or liability on the part of Company without Company’s prior written consent. Licensee will not settle any Company claim on Company’s behalf or publicize any settlement without Company’s prior written consent.
10. Additional Terms
10.1. Assignment. This License is personal to Licensee and Licensee may not assign, transfer or convey this License or the License rights hereunder, without Company’s prior written consent. Company may assign this License, without notice to you or your consent so long as such party agrees to be bound by its terms. Any attempt by Licensee to assign this License other than as permitted above will be null and void. For the avoidance of doubt, the foregoing shall not limit Licensee’s rights to assignment of the Project as a whole in connection with distribution, exhibition, broadcast or other exploitation, advertising and/or promotion of the Project.
10.2. Governing Law. This License shall be governed by the laws of the District of Columbia, without reference to its laws relating to conflicts of law, and the applicable federal laws of the United States. The parties agree that all actions or proceedings arising in connection with this License shall be tried and litigated exclusively in the courts located in the District of Columbia. The United Nations Convention on Contracts for the International Sale of Goods does not govern this License. You agree to reimburse Company for its legal fees, costs and disbursements if Company is successful in enforcing any of its rights under this License.
10.3. Severability. If one or more of the provisions in this License is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected so that this License shall otherwise remain in full force and effect. Such provisions should be revised only to the extent necessary to make them enforceable.
10.4. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this License.
10.6. Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed Content.
10.7. Payment and Refund. All license fees must be paid in advance of receipt of Content. Once Content has been made available for download or other manner of delivery, you may not cancel this License. Content prices are subject to change at any time, regardless of whether the same Content was previously licensed. You agree that a failure to pay the applicable license fee will be considered a material breach of this License. Except when required by law, Company shall be under no obligation to issue refunds under any circumstances. All fees are non-refundable. In the event that Company determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase.
10.8. Use of Trademark. If you are entering into this License on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Company for any breaches of the terms of this License. You hereby grant Company a worldwide, non-exclusive, limited license to use the trademarks of your employer or other entity in Company’s promotional materials, including a public customer list. Company’s use of such trademarks shall at all times conform to the then-current trademark use policies as made available to Company and shall at all times inure to the benefit of your employer or other entity. Company further agrees that it will use commercially reasonable efforts to terminate any particular use of your trademark no later than thirty (30) days from the date of receipt by Company of your email request to [email protected]
10.9. Notice. All notices required to be sent to Company under this License must be emailed to Company at [email protected], with a hard copy to Shine Creative LLC, 1333 Green Ct. NW, Washington, DC 20005, Attention: Data Protection Officer, via a delivery method listed below. Notice will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iii) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. All notices to you will be sent via email to the email set out in your account. You consent to receive communications from us electronically and you agree that all agreements, notices, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
10.10. Separate parties. Nothing in this License will create any partnership, joint venture, agency, franchise, or employment relationship between the parties. Neither party has authority to make or accept any offers or representations on behalf of the other party.
10.11. Data Protection. The Licensee agrees that personal data relating to Licensee’s business relationship with Company and made available in the course of this relationship can be stored and electronically processed by Company and its contractors for information purposes.
EFFECTIVE DATE: August 14, 2021