License Terms

Licensed Rights: Subject to all terms, conditions, and limitations hereof, Licensor hereby grants to Licensee a limited license to download, copy, display, distribute, perform, transmit, and otherwise synchronize the work or content (“Licensed Content”) identified in the license details document appended hereto (“License Details”) solely for the use (“Usage”) in a single visual or audiovisual project (“Project”) to be distributed in those approved media formats (the “Media”), in the territory (the “Territory”), and for the duration (the “Term”) as expressly set forth on said License Details (collectively, the “Licensed Rights”). The terms set forth in the License Details, are incorporated herein by reference, provided, however, that in the event of any inconsistency between the License Details and these License Terms, the terms of the License Details will control to the extent necessary to resolve such inconsistency.

Reservation of Right: For the avoidance of doubt, apart from the Licensed Rights, all rights in and to the Licensed Content are expressly reserved by Licensor on behalf of itself and the supplier of the Licensed Content (“Content Supplier”). Without limiting the generality of the foregoing, and solely for the avoidance of doubt, the Licensed Rights are expressly limited as follows: (i) Licensee may not materially alter, edit, combine, or lift the Licensed Content in any way, and the Licensed Rights do not extend to any exploitation of the Licensed Content which materially deviates from the Usage as described in the License Details; (ii) except as otherwise stated in the License Details, Licensee may not use the Licensed Content in connection with or as a part of: (A) any type of physical, digital, or virtual merchandise (or other product intended for resale), non-fungible token, or other digital asset; (B) any third-party logo, trademark, or other brand or company identifier (i.e., other than the Licensee’s); (C) image download or other standalone file; (D) product library or collection; or (E) any endorsement of any third-party product, service, cause, organization; (iii) except as otherwise stated in the License Details as being subject to “Market Freeze” exclusivity, the Licensed Rights are granted to Licensee on a nonexclusive basis (and to the extent there is any “Market Freeze” exclusivity indicated in the License Details, Licensor will refrain from licensing the Licensed Content to any person, firm, or entity other than Licensee solely for the media formats, product classes, and duration as expressly stated in the License Details); (iv) except as otherwise stated in the License Details, the Licensed Rights are granted to Licensee on a non-transferable basis, and any attempt to transfer, assign, or sub-license the Licensed Rights (or the obligations set forth herein) without Licensor’s prior written consent in each instance will be void ab initio; (v) to the extent that an agent (“Agent”) is identified on the License Details, the Licensed Rights are for the direct benefit of the named Licensee only; (vi) Licensee will not acquire any right, title, or interest in the Licensed Content apart from the right to exploit the same as provided herein; (vii) Licensee will not seek to register or claim ownership of the Licensed Content, or take any action inconsistent with Licensor’s rights or the rights of the Content Supplier, including by way of asserting any right to revenue from a copyright collecting agency, social media or content sharing platform, or any other third party in respect of copying, sharing, distribution, or other ancillary uses of the Licensed Content; (viii) to the extent that the incorporation of the Licensed Content into the Project is considered a derivative work or adaptation under applicable copyright laws, the exploitation of the same is subject to and expressly limited by the conditions and restrictions herein; (ix) except with Licensor’s prior written consent in each instance, the Usage may not contain, sexual activity or nudity, tobacco, alcohol, or drug use, intimate bodily functions, illegal activities, excessive or graphic violence, or political content; and (x) in no event may the Licensed Content be used in a Project that is infringing, pornographic, obscene, abusive, immoral, illegal or inciteful of an illegal act, invasive of privacy or publicity, defamatory, libelous, slanderous, fraudulent, false or misleading, or is in a way hateful or derogatory of any race, nationality, ethnic identity, gender, gender identity, or sexual orientation, or political or religious belief. Upon request, Licensee agrees to provide Licensor with copies of any portion of the Project which incorporates the Licensed Content for purposes of ensuring compliance with these License Terms. Failure to cooperate with Licensor in connection with the foregoing will be deemed a material breach hereof and entitle Licensor to terminate the Licensed Rights immediately. Licensee hereby grants Licensor all rights necessary to permit Licensor to use such portions of the Project solely for archival, promotional, and marketing purposes on the Site on a royalty-free basis.

License Fee: As consideration for the Licensed Rights to use the Licensed Content as described herein, Licensee will pay Licensor the fee (the “License Fee”) set forth in the License Details. The grant of rights to Licensee is expressly contingent upon payment of the License Fee. Accordingly, in the event that Licensee fails to pay the License Fee in full in accordance with the terms of any applicable invoice, Licensor may revoke the Licensed Rights ab initio and all prior use of the Licensed Content will be deemed unauthorized. For clarity, Licensee is responsible for paying any applicable sales, use, excise, goods and services, value added and other taxes, customs and duties imposed by any jurisdiction as a result of Licensee’s use of the Licensed Content (or otherwise in connection with these License Terms), as well as any additional fees, royalties, or other payments in connection with Licensee’s use of any Protected Material (as defined below) for which Licensor has not obtained or secured a Release (as defined below).

Credit: Licensee agrees to accord credit to Licensor and the Content Supplier in accordance with the instructions on the License Details. For crediting purposes, Licensee may not use Licensor or Content Supplier’s trademarks or logos without the prior written consent of Licensor or Content Supplier as applicable.

Representations & Warranties: Licensor represents and warrants that: (i) that it has the right and power to grant the Licensed Rights and to fully perform in accordance with all of the terms thereof; (ii) Licensee’s use of the Licensed Content as expressly permitted and with strict adherence to the terms herein will not violate, misappropriate, or infringe on the rights of any person, firm, or entity; (iii) that the Licensed Content will be free from defects in material and workmanship for a period of thirty (30) days from the date Licensee’s downloads the applicable Licensed Content from the Site; and (iv) that, apart from the License Fee, no further payments will be due to Licensor for use of the Licensed Content in the Project. Licensee represents and warrants: (i) that all information provided by Licensee during the quote and purchase process whether online or otherwise (collectively, “Licensee Information”), including the entity and project name, the type, and size, distribution method (including any “Extended Distribution” or “Additional Coverage” required), the name and size of the end client (including any “Enterprise Coverage” required), project name, and project description, is true and correct; (iii) that it has (or will have) secured, at Licensee’s own cost and expense, all additional licenses, approvals, consents, and permissions in connection with the Project as may be necessary which are not included in the Licensed Rights; (iv) that it will comply with all applicable laws, rules, and regulations in the exercise of the Licensed Rights granted hereunder; and (v) that it will not remove (nor permit the removal) of any digital rights management features or tools embedded in the Licensed Content, including watermarked content provided for preview and approval purposes. Further, in the event an Agent is identified in the License Details, as a material inducement for Licensor to permit Agent to acquire the Licensed Rights on Licensee’s behalf, Agent represents and warrants: (i) that it has the express authority from the Licensee to act as the Licensee’s agent as set forth herein; (ii) it has the express authority to bind Licensee to all of the terms and conditions contained herein; (iii) any rights, benefits, privileges, and properties vested in Agent are vested for the sole benefit of Licensee; and (iv) all License Information provided by Agent in the License Details is true and correct. Both Licensee and Agent, jointly and severally, agree to and do hereby indemnify, save, defend, and hold Licensor and its officers, managers, members, employees, attorneys, representatives, Content Suppliers, and agents harmless from any and all loss or damage (including court costs and reasonable outside attorneys’ fees) arising out of a claim regarding or as a result of any inconsistency with, failure of, or breach or threatened breach by the indemnifying party of any warranty, representation, agreement, undertaking, or covenant made by such party contained herein. Licensor will give the indemnifying party prompt written notice of any claim to which the foregoing indemnity applies, and the indemnifying party may meaningfully participate in the defense of the same with counsel of its choosing at its sole cost and expense, provided, however, that Licensor will at all times control the defense of any such claim as it relates to Licensor. Any permitted transferee will be jointly and severally liable together with Licensee for all obligations herein. Unless otherwise indicated in the License Details, Licensor does not and will not owe Licensee any indemnity obligations (“Licensor Indemnity”). To the extent any Licensor Indemnity is identified in the License Details, Licensor agrees to and does hereby indemnify, save, and hold Licensee harmless from any and all loss or damage (including court costs and reasonable outside attorneys’ fees), solely up to the Licensor Indemnity amount identified in the License Details, arising out of a third-party claim regarding or as a result of any inconsistency with, failure of, or breach by Licensor of any warranty, representation, agreement, undertaking, or covenant contained herein, provided that that such claim has been settled or compromised with Licensor’s written consent or reduced to a final, non-appealable adverse judgment in a court of competent jurisdiction. In such instance, Licensee will give the Licensor prompt written notice of any claim to which the foregoing indemnity applies, and Licensor reserves the right (but not the obligation) to assume the defense and control thereof with counsel of its own choosing.

Cancellation & Termination: Provided that Licensee has not made any use of the Licensed Content, Licensee may cancel any license ordered within fourteen (14) days from the date submitted to Licensor and receive a full refund of the License Fee paid. Any cancellation request thereafter will be within Licensor’s sole discretion to accept or reject. In no event will Licensor have any obligation to return or refund any portion of the License Fee which is identified in the License Details or an applicable invoice as nonrefundable at the time it is submitted to Licensor. In the event that Licensee, breaches these License Terms, Licensee must cure such breach within five (5) days of written notice thereof from Licensor or the grant of the Licensed Rights will automatically terminate and will be deemed null and void from inception. If such breach is incapable of being cured (e.g., exceeding the scope of the Licensed Rights, failing to abide by the limitations set forth above, or providing materially incorrect Licensee Details), Licensor will be entitled to terminate the Licensed Rights immediately. Any termination of the Licensed Rights will render the distribution, licensing, or use of the Licensed Content by Licensee unauthorized and subject to the rights and remedies provided in law or in equity throughout the various countries in the Territory. In the event of termination of the Licensed Rights due to any breach by Licensee, Licensor will be entitled to retain the License Fee in addition to further legal remedies, including injunctive relief. Termination hereof (for any reason) will not release either party from any terms that expressly survive, remain to be performed, or by their nature are intended to survive such termination (e.g., the representations, warranties, and indemnity provisions herein).

Limitation of Liability: Except as otherwise set forth in this agreement, the Licensed Content and accompanying materials (if any) are provided “as is” without warranties or conditions of merchantability or fitness for a particular purpose. Licensor does not represent or warrant that the Licensed Content will meet Licensee’s requirements or that its use will be uninterrupted or error-free. The entire risk as to the quality and performance of the Licensed Content is with Licensee. Should the Licensed Content prove technically defective, Licensee’s sole remedy will be a refund the License Fee. In no event will Licensor or its officers, managers, members, employees, attorneys, representatives, Content Suppliers, or agents be liable for any special, incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of these License Terms, including in connection with Licensee’s use of, reliance upon, access to, or exploitation of the Licensed Content, or any part thereof, or any rights granted to Licensee hereunder. Licensor’s maximum liability hereunder will be the License Fee paid by Licensee.

Release: In the event that the Licensed Content depicts a person, location, property, building, architecture, brand name, logo, trademark, trade dress, or copyright-protected work (collectively, “Protected Material”), the License Details will identify all releases, waivers, or similar usage agreements (each of the foregoing, a “Release”) which have been obtained in connection with the Protected Material depicted. If such Release has been obtained, unless otherwise stated in the License Details, Licensor will be solely responsible for determining the sufficiency of the Release concerned prior to exploiting the Licensed Content. If a specific Release is not expressly referenced for an item of Protected Material in the License Details, no such Release exists, and Licensee will be solely responsible for determining the need therefor in connection with the use of the Licensed Content in the Project. For clarity, if a Release has not been obtained (or if Licensee exceeds the scope of the Licensed Rights or the applicable Release), Licensee will be solely responsible for any claims related to the use of the Licensed Content brought by any owner of the Protected Materials concerned, including all claims for infringement, invasion of privacy, violation of the right of publicity or moral rights, or defamation. Notwithstanding the foregoing, to the extent any Licensor Indemnity is identified in the License Details, third-party claims derived from or otherwise involving Licensee’s use of Protected Materials are subject to Licensor’s indemnity obligations hereunder.

Confidentiality: Except as otherwise required by law, Licensee expressly undertakes to protect and to preserve the confidentiality of all information made available or learned in connection with use of the Site which is either designated as being or which, by the nature of the circumstances surrounding its disclosure, ought in good faith to be treated as proprietary or confidential (including any non-public financial terms hereof). Additionally, Licensee will at all times refrain from making or assisting others in making any public statement (or private statement that later becomes public) that is disparaging of or reflecting unfavorably upon Licensor or its officers, managers, members, employees, attorneys, representatives, Content Suppliers, agents, or services.

Dispute Resolution: Licensee acknowledges that use of the Licensed Content in a manner not expressly authorized by these License Terms is unauthorized and subject to the rights and remedies provided in law or in equity throughout the various countries in the Territory. Without prejudice to any other remedies, Licensor and Content Suppliers may seek injunctive relief and applicable legal remedies to cease the infringing conduct (including the “notice and takedown” procedures outlined in 17 U.S.C. § 512 or any successor statute) with respect to any infringing or unauthorized use of the Licensed Content. In addition, Licensee acknowledges and agrees that any unauthorized use of Licensed Content or failure to credit the Content Supplier as required herein will entitle Licensor to liquidated damages in the amount equal the greater of: (i) ten thousand dollars ($10,000) for each unauthorized use or failure; and (ii) where applicable, ten (10) times the standard license fee that would have been charged had Licensee secured all rights necessary to authorize the use concerned. Licensee acknowledges that Licensor’s actual damages in the event of such breach would be difficult to definitively ascertain based on uncertainties regarding the impact to Licensor’s reputation and goodwill in the industry and the damage to Licensor’s relationships with its current and future Content Suppliers. Accordingly, Licensee agrees that the above-referenced amount is not a penalty for breach and is a reasonable liquidated damages amount, and that such liquidated damages are cumulative of and without prejudice to Licensor’s other remedies. Except as expressly provided otherwise herein, any controversy or claim between the parties arising out of or relating to these License Terms, including the formation, validity, construction, scope, performance, breach, cancellation, or termination thereof will be resolved exclusively in the courts located in Tarrant County, Texas under the laws of the state of Texas without regard to conflicts of laws principles. Notwithstanding the foregoing, Licensor will have the right (but not the obligation) to initiate jurisdictionally appropriate claims against Licensee before the Copyright Claims Board as a means of alternative dispute resolution. Licensee hereby agrees to participate in such proceedings and waives any right to opt out of the same. Additionally, if Licensor is sued or joined in a third-party action relative to the Licensed Content or the Project, Licensor will have the right (but is not required) to pursue any related counterclaims, crossclaims, or third-party claims against Licensee or any Agent in connection with such action, and each party hereby consents to the jurisdiction of the court and forum where the action is pending. In all instances, Licensee agrees to waive personal service of a summons and agrees to accept service of process at the email address used for Licensee’s account on the Site.

General Provisions: Except where expressly inconsistent, the terms herein do not modify the Terms of Service and Privacy Policy located on the Site, both of which govern Licensee and any Agent’s use of the Site. For clarity, in the event of any inconsistency between these terms and such Terms of Service or Privacy Policy, the terms herein will control. In no event whatsoever will Licensee have any right to seek or obtain injunctive relief against Licensor (or any person, firm, or entity deriving rights therefrom) in connection with this agreement or otherwise in connection with the Licensed Content. The relationship between Licensor and Licensee is solely that of an ordinary contract, and neither party has any fiduciary or other special relationship with the other party. Further, nothing herein, expressed or implied, will constitute or contemplate a partnership, joint venture, employment, or other agency relationship between Licensor and Licensee. This agreement is for the sole benefit of the parties hereto and their respective successors and permitted assignees. Nothing herein, expressed or implied, is intended to or confers upon any other person, firm, or entity any legal or equitable right, benefit, or remedy under or in connection with this agreement. All notices to Licensor will be in writing and may be delivered electronically to legal@fm.co, provided that a physical copy of any such notice is sent simultaneously and delivered by overnight courier or by United States certified mail, postage prepaid, return receipt requested to Stills, LLC, 9555 Harmon Road, Fort Worth, TX 76177, Attn: Legal Department. All notices to Licensee will be in writing and may be delivered electronically to the email address used for Licensee’s account on the Site. Any approvals required by this agreement may be transmitted to Licensor by email unless otherwise required in the License Details.

Entire Agreement: This document sets forth the entire understanding of the parties hereto relating to the subject matter hereof, and all prior or contemporaneous negotiations, understandings, agreements, and the like are superseded by and merged into the agreement reflected herein. No modification, amendment, waiver, or discharge of these License Terms will be binding unless done by a written instrument signed by the parties. The invalidity or unenforceability of any provision hereof will not affect the validity or enforceability of any other provision hereof. As used herein, the word “including” is nonrestrictive, and the word “or” is disjunctive but nonexclusive unless otherwise stated. If any legal proceeding is brought by either party hereto to enforce or interpret these License Terms, both parties will be deemed to have jointly drafted these License Terms and neither side will enjoy the benefit of any evidentiary presumptions based upon the identity of the drafter thereof. Licensee acknowledges that it has been represented by independent counsel or has had the unrestricted opportunity to consult with independent counsel of its own choice in connection with reviewing and agreeing to be bound by these License Terms, and that any failure by Licensee to retain independent counsel will not affect the enforceability or interpretation hereof.