UPPERCUT IMAGES LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND UPPERCUT IMAGES, LLC ("UPPERCUT IMAGES" or “LICENSOR”).  BY ACCEPTING AND USING THE IMAGES AND BY CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. 

Section 1: Definitions

“Images” means all types of photographic images, digital images and any and all other visual images and shall include all metadata including keywords, descriptions and captions associated therewith.

“Invoice" means the agreement provided by UpperCut Images or an authorized distributor that includes among other terms, the permitted scope of use of the Images selected, any limitations on the use of the Images and the licensee fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.

Section 2: Grant of Rights

Limited Use License.  Unless stated otherwise in the Invoice, UpperCut Images grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively “use”) the Images identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. If Licensee is obtaining rights on behalf of a client, it may permit the client to exercise the rights granted, provided the client or any subcontractor or employee agrees to uses the Image(s) as limited in the Invoice and agrees to be bound by the terms of the Agreement. Notwithstanding the foregoing, Licensee remains responsible for all uses. No ownership or copyright in any Image(s) shall transfer to Licensee by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to UpperCut Images and the copyright holder.

Right To Audit.Upon reasonable notice, UpperCut Images may inspect any records, accounts and books relating to the Reproduction of any of the Image(s) to ensure that the Image(s) is being used in accordance with this Agreement

Section 3: Restrictions As To Use

The use of the licensed Image(s) is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may not use nor permit the use the licensed Image(s) beyond the terms of the limited license Agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.

Licensee may not use any Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter

Licensee may not incorporate the licensed Image in any logo, trademark or service mark.

Licensee may not archive, republish or transmit any images on any database or to a network or bulletin board or otherwise distribute or allow any of the Images to be distributed to or used by anyone other than the authorized users, without prior written consent from UpperCut Images.

Licensee may not use the Image(s) contrary to any restriction on use provided to Licensee prior to or at the time the Image is delivered to Licensee. Restrictions may be provided with the Image information located on UpperCut Images’ or any authorized distributor’s website or otherwise communicated.

Licensee may not use any of the Images in any manner prohibited by any export laws, restrictions or regulations.

Section 4.  Sensitive Use Disclaimer

Licensee may not use the Images in any manner that would be deemed offensive to the model. Offensive uses include but are not limited to the use of an Image that involves or implies illegal activities, medical conditions or procedures, other health and mental health issues, substance abuse, welfare or economic aid, dating agencies, sexual preference, teen pregnancy, abortion and adoption, political or religious affiliation, smoking or alcohol usage, feminine hygiene, incontinence or impotence.

If any Image featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) in connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person so pictured is a model and the Image is used for illustrative purposes only.

Section 5.  Editorial Credit

If any Image is used in an editorial manner, the credit line, "[Photographer's name]/UpperCut Images", must appear adjacent to the Image or as otherwise indicated by UpperCut Images. If Licensee omits the credit, an additional fee equal to two (2) times the original amount invoiced shall be payable by Licensee at UpperCut Images’ discretion. The foregoing fee shall be in addition to any other rights or remedies that UpperCut Images may have at law or in equity. It is understood that Images used for advertising purposes do not require credit.

Section 6.  Releases/Captions

UpperCut Images will notify Licensee if it has obtained a model release and/or a property release for Image(s), either in the release status information accompanying the Image(s) on UpperCut Images Web site, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained, UpperCut Images 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 Image(s). Licensee shall be solely responsible for determining whether a release is sufficient or is required in connection with any proposed use of such Image(s). Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent.

UpperCut Images used commercially reasonable efforts to identify the caption for Images bearing captions, but cannot be held responsible for erroneous or incomplete caption information. 

Section 7.  Termination and Revocation

UpperCut Images reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee or its client fails to comply with any provision of this Agreement. Upon termination, Licensee and its client must immediately stop using the Image(s), delete the Image(s) and all copies from all magnetic media and destroy all other copies. UpperCut Images reserves the right to discontinue the use of any Image(s) for any reason and elect to replace the Image(s) with an alternate Image(s). Upon notice of any discontinuance of the use of a particular Image, Licensee, its employer and its client, if applicable, agree not to use the Image(s) in the future.

Section 8.  Electronic Storage

For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of UpperCut Images and the image number or other identification number associated with the Image(s) as may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) high-resolution backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Images deletes the Image(s) as well.

Section 9.   Payment Terms and Cancellation Policy

Time is of the essence in the performance by Licensee of its obligations for payments.

Payment of the Invoice is to be net thirty (30) days. Any claims for adjustment or rejection of terms must be made to UpperCut Images within ten (10) days after receipt of invoice.

Cancellation Policy: Cancellation must be made within ten (10) days from the date of licensing for a full refund. Cancellations made within eleven to twenty (11-20) days from the date of licensing will be granted at a cancellation fee of the licensing fee of the Image(s) minus 50 percent. After twenty (20) days, the cancellation fee is 100 percent of the Image(s) licensing fee.

Section 10. Warranty and Disclaimers:

UpperCut warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)) and (iii) Licensee has use of the Image(s) in its original form, and will not infringe on any copyright.

General Disclaimers and Limitation of Liability

UPPERCUT IMAGES MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UPPERCUT IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE LICENSED MATERIAL OR OTHERWISE, EVEN IF UPPERCUT IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.

UPPERCUT IMAGES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF PAID BY THE LICENSEE FOR THE IMAGE(S).

THE REPRESENTATIONS AND WARRANTIES MADE BY UPPERCUT IMAGES IN THIS AGREEMENT APPLY ONLY TO THE IMAGE(S) AS DELIVERED BY UPPERCUT IMAGES AND WILL BE INVALID IF THE IMAGE(S) IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

YOU MAY HAVE ADDITIONAL RIGHTS UNDER SOME STATE LAWS.

Section 11.   Licensee Indemnity

Where Licensee uses an Image(s) where no model or property releases for Image(s) is indicated or if the model or property release is not sufficient for the Licensee’s use or if Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold UpperCut and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Image(s) by Licensee, to the extent that such claim relates to the absence of a release, the insufficiency of the release as it relates to Licensee’s use or the Licensee's unauthorized use of the Image(s).

The party seeking indemnification pursuant to section 11 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 thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The 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

Section 12.  Unauthorized Use/Retroactive License Fee:

Any use of Image(s) in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling UpperCut Images 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 UpperCut Images other remedies under this Agreement, UpperCut Images reserves the right to charge and Licensee agrees to pay a fee equal to ten times UpperCut Images normal license fee for use of the Image(s).

Section 13.  Miscellaneous

Jurisdiction and Attorneys’ Fees: 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 NewYork, New York , 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. Licensee 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, expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of the Southern District of New York. If UpperCut Images 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 Licensee.

No Assignment: This agreement is not assignable or transferable on the part of Licensee.

No waiver:  No action of UpperCut Images, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of UpperCut Images in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.

Entire Agreement: This Agreement and the Invoice contains all the terms of the agreement between UpperCut Images and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.