IMAGES LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN LICENSEE, PURCHASER (IF ANY) AND IN YOUR DEFENSE LLC (“IMAGE PROVIDER”). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEBSITE IN YOUR DEFENSE.COM, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
1. Definitions
In this Agreement, the following definitions apply:
1.1. “Editorial Licensed Material” means Licensed Material relating to events that are newsworthy or of public interest and identified as such on the Image Provider Web site.
1.2. “Invoice” means the computer-generated or pre-printed standard form invoice provided by IN YOUR DEFENSE LLC setting out the Image Provider licensing company and the terms agreed with the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.3. “Licensed Material” means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by Image Provider 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 as a whole.
1.4. “Licensee” means the entity or individual purchasing a license hereunder or, if there is a separate Purchaser, the entity or individual specifically designated as Licensee during the purchase process and set forth as such in the Invoice.
1.5. “Licensee Work” means an end-product or service that has been created by or on behalf of Licensee using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
1.6. “Purchaser” means an entity purchasing the license hereunder on behalf of a third-party Licensee.
1.7. “Reproduction” and “Reproduce” mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.8. “Rights and Restrictions” means the information available to Licensee at the time of Licensed Material selection, either: (i) accompanying the Licensed Material on the Image Provider’s Web site (including all areas of the purchase process); (ii) in a written quote issued by Image Provider; or (iii) in the editorial feed (if so delivered), and as might also be reflected in the Invoice. Such restrictions may include, without limitation, the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the license of such Licensed Material (“License Fee”). The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
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2. Grant of Rights and Restrictions
Subject to the terms of this Agreement:
2.1. Image Provider grants to Licensee a nonexclusive, nonsublicensable and nontransferable right to use and Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement.
2.2. Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions. Licensee may utilize the Licensed Material in any production process as may be necessary for the intended use specified in the Rights and Restrictions, including as set forth in Section 2.1 above. Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed Material contained therein) as part of any distribution process as may be necessary or appropriate for the intended use specified in the Rights and Restrictions solely as part of the distribution process contemplated in the Rights and Restrictions in connection with the intended use specified therein.
2.3. Unless additional rights are stipulated in the Rights and Restrictions or granted pursuant to a separate license agreement, Editorial Licensed Material may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement use of Licensed Material in an “editorial” manner means use relating to events that are newsworthy or of public interest and expressly excludes any advertorial sections (i.e., sections or supplements in relation to which Licensee receives a fee from a third-party advertiser or sponsor).
2.4. Editorial Licensed Material may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the Licensed Material is not compromised, but shall not, under any circumstances, otherwise be altered.
2.5. While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, Image Provider does not warrant the accuracy of such information.
2.6. Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
2.7. If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person (except for Editorial Material used in an editorial manner), Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.
2.8. Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of Image Provider.
2.9. Licensee may not make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.
2.10. Editorial Licensed Material may not be modified, reconfigured or repurposed for use in any mobile-directed Web sites or mobile applications that are specifically created for viewing of Licensed Material and/or the Licensee Work on mobile devices, without obtaining the prior written consent of Image Provider, which consent might require payment of an additional License Fee. For clarification, this restriction on mobile use is not breached if Licensed Material that is licensed for Web site use can be viewed via mobile devices in a “pull” (as opposed to “push”) fashion, provided it is not so specifically modified, reconfigured or repurposed for this purpose.
2.11. Unless otherwise specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the Licensee Work in any secondary Reproductions, such as compilations, screen shots, in-context promotions or on file-sharing or social networking Web sites such as YouTube, Facebook, MySpace, Bebo, etc.
2.12. Licensed Material shall not be used contrary to the Rights and Restrictions.
2.13. Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 2.13 shall excuse Purchaser’s obligation to make payment to Image Provider of the License Fee.
2.14. Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
2.15. If the Rights and Restrictions allow Reproduction of the Licensee Work on Web site, Licensee shall post terms and conditions on its permitted Web sites that prohibit, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.
2.16. If the Rights and Restrictions include use on any social media platform or other third party Web site; (i) such rights shall automatically be revoked in the event that the third-party Web site seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement, and (ii) in such event, upon Image Provider’s request, Licensee shall remove any Licensed Material from such platform or Web site.
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3. Credit and Intellectual Property
3.1. Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Image Provider grants Licensee no right or license, express or implied, to the Licensed Material.
3.2. Trademarks. In connection with the use of “IN YOUR DEFENSE LLC” or any other of Image Provider’s or its partners’ trade names, trademarks, logos or service marks, including the names of all Licensed Material collections (“Marks”), Licensee acknowledges and agrees that (i) such Marks are and shall remain the sole property of Image Provider or its partners; (ii) except as expressly required in order to satisfy the credit obligations under this Agreement, nothing shall confer upon Licensee any right of use in or to the Marks; and (iii) Licensee shall not now or in the future contest the validity of the Marks.
3.3. Photo Credit. Except as otherwise noted in Section 10, all Licensed Material used in an editorial context must include the following credit line adjacent to the Licensed Material: “Imagery supplied by IN YOUR DEFENSE LLC” or as otherwise shown on the Image Provider Web site. If Licensee omits the credit, an additional fee in an amount up to 100% of the License Fee may be payable by Licensee, at Image Provider’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Image Provider may have at law or in equity.
3.4. Audio/Visual Production Credit. If Licensed Material is used in an audio/visual production in either an editorial context or a noneditorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s), substantially in the following form: Imagery supplied by IN YOUR DEFENSE LLC.”
3.5. Notice of Violations. Licensee will immediately notify Image Provider if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of Image Provider’s intellectual property rights, including, but not limited to, Marks and copyrights.
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4. Releases
4.1. Image Provider will notify Licensee in the Rights and Restrictions if it has obtained a model release and/or a property release for Licensed Material. The warranty and indemnity set forth in Sections 5.1 and 6.1 below are only provided if and when such written notification is given. If no such notification is given, then no such model or property release has been obtained. No releases are generally obtained for Editorial Licensed Material. 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. Licensee shall be responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as Screen Actors Guild in the US) as a result of Licensee’s use of the Licensed Material.
4.2. Except where Licensee is specifically notified that a model and/or property release has been obtained, Image Provider does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of Licensed Material, and Licensee shall be solely responsible for obtaining all necessary release(s).
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5. Warranty and Limitation of Liability
5.1. Image Provider warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) Licensee’s use of the Licensed Material in accordance with this Agreement and in the form delivered by Image Provider (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not infringe on any copyrights or moral rights of any person or entity.
5.2. IMAGE PROVIDER DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMAGE PROVIDER IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF IMAGE PROVIDER IMAGES 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 FOR CERTAIN CATEGORIES OF DAMAGES. IMAGE PROVIDER IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
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6. Indemnification
6.1. Licensee shall, subject to the terms of Section 6.2 below, defend, indemnify and hold harmless Image Provider and its parent, subsidiaries, commonly owned or controlled affiliates, and content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys’ fees), arising out of or as a result of claims by third parties relating to: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee’s failure to obtain any required release.
6.2 The party seeking indemnification pursuant to this Section 6 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 of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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.
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7. 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 5.1(i) above, Image Provider 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.
8. License Cancellation
This transaction constitutes a final sale that cannot be altered or amended once completed.
9. Electronic Invoicing; Interest on Overdue Invoices
Payment is due at the time of transaction. There will be no future billing. Invoicing will happen at the time of purchase and payment.
10. Collection Specific Terms and Conditions
10.1. IN YOUR DEFENSE Archive. IN YOUR DEFENSE Archive Licensed Material of historical vintage often employs older photo techniques. Some of this Licensed Material contains “artefacts” or other flaws inherent in prints of the particular vintage and are not defects. If any use of IN OUR DEFENSE Archive Licensed Material gives rise to publication rights (as defined in The Copyright and Related Rights Regulation or to any similar rights in any other country), those rights shall belong exclusively to Image Provider. Licensee shall do all such things and shall procure rights from any third parties in whom such rights may otherwise vest (including executing assignments) as are required to vest ownership of all such rights exclusively in Image Provider.
10.2. The IN YOUR DEFENSE Library. The following credit line must appear adjacent to any IN YOUR DEFENSE Library Licensed Material utilized in an editorial manner and, whenever reasonably possible, in connection with noneditorial uses: “IN YOUR DEFENSE LLC”.
10.3. IN YOUR DEFENSE. The following credit line must appear adjacent to any IN YOUR DEFENSE Licensed Material utilized in an editorial manner: “[IN YOUR DEFENSE GRAPHIC IMAGE COLLECTION”. No other use of the IN YOUR DEFENSE’s name, logo or trademarks is permitted in association with any IN YOUR DEFENSE Licensed Material utilized in an editorial manner. No use of the IN YOUR DEFENSE LLC’s name, logos or trademarks (including use of a credit line) is permitted in association with any noneditorial use of the IN YOUR DEFENSE LLC Licensed Material, including, but not limited to, advertising, commercial, corporate or consumer products such as calendars, posters, prints etc. IN YOUR DEFENSE LLC Licensed Material may be cropped, but not rotated or otherwise altered. No model release or other releases exist for IN YOUR DEFENSE LLC Licensed Material unless so specified. Some IN YOUR DEFENSE Licensed Material may be in the public domain, and therefore it may be possible for another library to license IN YOUR DEFENSE LLC Licensed Material represented by IN YOUR DEFENSE LLC for a conflicting use. Image Provider and IN YOUR DEFENSE LLC shall have no liability for any such situation.
10.4. IN YOUR DEFENSE LLC Licensed Material may not be incorporated into any type of interactive map viewer. The Licensed Material shall not be included in any data collection or database for large language model training or other artificial intelligence model development use, directly or indirectly without Image Provider’s written consent.
10.5. IN YOUR DEFENSE LLC Licensed Material. IN YOUR DEFENSE LLC IMAGERY MAY NOT BE LICENSED WITHOUT PRIOR APPROVAL. PLEASE CONTACT YOUR LOCAL IMAGE PROVIDER IMAGES OFFICE TO OBTAIN APPROVAL.
10.6. IN YOUR DEFENSE LLC Gallery Video. (i) Please contact your local Image Provider representative prior to any use of a video clip contained in the IN YOUR DEFENSE Gallery collections if either: (a) you are a social media platform or an online video aggregation service; (b) where any Licensee Work includes >25% or >15mins of the original IN YOUR DEFENSE program (or >10% series); or (c) where the Licensee Work contains >20% IN YOUR DEFENSE clips (or >10% IN YOUR DEFENSE clips). (ii) Please note, where a clip requires prior approval, it is licensed exclusive of any and all third party (other than IN YOUR DEFENSE copyright and other clearance costs and, prior to exploitation of the Licensed Material, Licensee agrees to obtain any such clearances and to make all associated payments to such third parties, if needed. Such third parties may, for example, include: actors, writers, composers, musicians, producers, directors, artists, designers, photographers and any other persons who have performed services in connection with the Licensed Material; and any third-party copyright owner whose copyright material is contained in the Licensed Material.
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11. Unauthorized Use and Termination
Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Image Provider 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. In addition and without prejudice to Image Provider’s other remedies under this Agreement, Image Provider reserves the right to charge and Licensee agrees to pay a fee equal to up to one hundred times (100x) times Image Provider’s standard license fee for the unauthorized use of the Licensed Material. Image Provider reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from Image Provider relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; and (ii) destroy or, upon the request of Image Provider, return to Image Provider the Licensed Material and, in the case of termination by Image Provider for cause, the Licensee Work in the possession or control of Licensee.
12. Audit/Certificate of Compliance
Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to Image Provider, including by providing Image Provider with free of charge access to any pay-walled or otherwise restricted access Web site or platform where the Licensed Material is Reproduced. In addition, upon reasonable notice, Image Provider may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to Image Provider of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying Image Provider the amount of such underpayment, Licensee shall also reimburse Image Provider for the costs of conducting such audit. Where Image Provider reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Image Provider’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Image Provider.
13. Electronic Storage
For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of Image Provider, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only.
14. Withdrawal
Upon notice from Image Provider, or upon Licensee’s knowledge, that any Licensed Material may be subject to a claim of infringement of another’s right for which Image Provider may be liable, Image Provider may require Licensee to immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. Image Provider shall provide Licensee with comparable Licensed Material (which comparability will be determined by Image Provider in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
15. Governing Law/Arbitration
This Agreement will be governed in all respects by the laws of the State of South Carolina, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association (“AAA”) or of the International Center for Dispute Resolution (“ICDR”) in effect on the date of the commencement of the arbitration (the applicable rules to be at Licensee’s discretion) to be held in one of the following jurisdictions (whichever is closest to Licensee): Seattle, Washington; New York, New York; Los Angeles, California; London, England; Paris, France; Frankfurt, Germany; Tokyo, Japan; or Singapore. The arbitration proceeding shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Image Provider shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Image Provider, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitations, any arbitration proceeding shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
16. 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.
17. Waiver
No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party 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 either party 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 rights or remedies on any other occasion.
18. Integration
This Agreement is intended for business customers of Image Provider and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Image Provider and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
19. Taxes
All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).
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