COMMERCIAL LICENCE AGREEMENT
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE ENTERING INTO THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND ESTEE WHITE PHOTOGRAPHY, INCORPORATED AND REGISTERED IN ISRAEL WHOSE REGISTERED OFFICE IS AT 37 PIERRE KOENIG, NETANYA, 4272137 (“אסתי וואיט פוטוגרפי”).
IF YOU WISH TO ORDER THE IMAGE FROM WWW.ESTEEWHITEPHOTOS.COM YOU MUST INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS BY CLICKING “ADD TO CART” ON THE CHECKOUT PAGE. ESTEE WHITE PHOTOGRAPHY WILL BE DEEMED TO HAVE ENTERED INTO THIS AGREEMENT WITH YOU ONCE YOU HAVE CLICKED “Check Out”.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU WILL NOT HAVE ANY RIGHTS TO USE ANY IMAGE AVAILABLE TO BE LICENSED ON WWW.ESTEEWHITEPHOTOS.COM.
1. The Image is permitted for use in all editorial forms, including print (newspaper, magazine) and all online platforms (web, mobile, tablet), advertorial, business editorial, branded and promoted content, books, and video stills.
2. The Image may be used in conjunction with marketing and promotional content intended to promote a product or service. For example: for newsletters and email marketing, website backgrounds and collateral, social media (including social media advertising and promoted posts), brochures and leaflets, and all promotional materials.
3. You are permitted to use the Image for a single use or campaign only. In-context re-use is permitted. For example: If an Image is used to promote an online product, it can also be used to share this product on social media, print brochures and email marketing. It cannot be used to promote a different product. If an Image is used to accompany a print article, it can also be used if this article is trailed in the publication index or elsewhere in the publication. It can also be used in an online version of the article; and to accompany the article when it is shared on social media. It cannot be used to accompany a different article. Certain advertising restrictions are detailed in paragraph 9.
4. The Image can be used at any dpi, resolution, or size.
5. The Image may be used in publications and campaigns with unlimited distribution – including unlimited print runs, online audience, and unlimited territorial distribution – and in unlimited professional sectors
6. The Image may be used for unlimited pre-publication private purposes intended for the preparation of editorial and marketing material – in layouts, comps and similar preparatory methods.
7. The Image may be used for personal non-commercial purposes.
8. The Image may not be closely associated with or aligned directly next to images and/or content that is obscene or pornographic.
9. the Image may not be used:
9.1. in conjunction with manufactured merchandise or retail product packaging; or
9.2. in out-of-home advertising, display advertising, print advertising, broadcast advertising, and multi-channel advertising.
10. The Image may be assigned once to a single third party – for example, from an agency or agent to their client.
11. The Image may not be re-sold or sub-licensed by you.
“Image” means a photograph or other visual representation displayed on the Website and licensed to you in accordance with the terms of this agreement and shall include all metadata, keywords, descriptions and captions associated with the Image.
“Intellectual Property Rights” means all copyright, patents, database rights, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
“Licence Fee” the licence fee in United States Dollars payable for the use of the Image as set out on the Website (as referred to as the “total” on the payment page therein, or such other expression as Estee White Photography shall use from time to time).
“Licensed Rights” has the meaning given to it in clause 2.1.
“Usage Guidelines” the guidelines, displayed above, governing your use of the Image licensed to you via the licence provided in clause 2.1.
“Image Owner” means the image creator – Esther White ( Estee White Photography)
“Website” means www.esteewhitephotos.com.
2. GRANT OF LICENCE
2.1. In consideration of payment to Estee White Photography of the Licence Fee, Estee White Photography hereby grants to you a non-exclusive licence to use the Image for the full period of copyright in it including all periods of renewal, extension and revival of the copyright and thereafter in perpetuity and all necessary consents including under the Copyright, Designs and Patents Act 1988 as amended from time to time or any enactment that replaces it to enable you to, strictly in accordance with the Usage Guidelines, to use the Image whether alone or incorporated in or in conjunction with other works worldwide and in all media whether now known or hereafter devised (the “Licensed Rights”).
2.2. In the event of any use of the Image otherwise than in accordance with clause 2.1, Estee White Photography reserves the right to invoice you for a fee, in addition to the Licence Fee, of up to 10 times the Licence Fee for such unauthorized use, which shall be payable immediately.
2.3. You hereby undertake not to provide the Images or any of them to any third party in any way which could reasonably be said to be competitive with or damage Estee White Photography’s business.
2.4. You shall not, except to the extent permitted by law, modify, reverse assemble, decompile or reverse engineer the Image nor shall it permit whether directly or indirectly any third party to do any of the foregoing.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. You acknowledge that you obtain no Intellectual Property Rights whatsoever in the Image by virtue of this agreement and that all Intellectual Property Rights in the Image shall at all times be and remain the property of the Image Owner – Estee White Photography.
3.2. You shall accord Estee White Photography credit on any use or reproduction of the Image, as close as possible to the Image and shall provide contractually in agreements with all other parties who display the Image that they shall accord Estee White Photography same credit.
3.3. You shall immediately notify Estee White Photography in writing giving full particulars if any of the following matters come to its attention:
3.3.1. any actual, suspected or threatened infringement of the Intellectual Property Rights in the Image;
3.3.2. any claim made or threatened that the Image infringes the rights of any third party; or
3.3.3. any other form of attack, charge or claim to which the Intellectual Property Rights in the Image is subject.
3.4. In respect of any of the matters listed in clause 3.3, it is acknowledged that:
3.4.1. the image Owner, at his absolute discretion, decide what action to take, if any;
3.4.2. the Image Owner shall have exclusive control over, and conduct of, all claims and proceedings;
3.4.3. you shall not make any admissions other than to the Image Owner and shall provide the Image Owner with all assistance that he may reasonably require in the conduct of any claims or proceedings; and
3.4.4. the Image Owner shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for his own account.
4. ESTEE WHITE PHOTOGRAPHY’S UNDERTAKINGS
4.1. Estee White Photography hereby warrants and undertakes that:
4.1.1. it has full authority to enter into the terms of this agreement;
4.1.2. the Image does not, to its reasonable knowledge and belief, incorporate any material that infringes the Intellectual Property Rights or other rights of any third party, nor does it contain any obscene, blasphemous or defamatory matter, and its exploitation shall not, to Estee White Phorography’s reasonable knowledge or belief, place any person in contempt of court or in breach of any provision of any statute; and
4.1.3. it is not, at the date of this agreement, aware of any claim by any third party that the Image or any pre-existing material incorporating the Image or included within the Image, or the exploitation of the Image by either party, has infringed or will infringe any rights of any third party.
5. YOUR UNDERTAKINGS
5.1. You hereby warrant and undertake that:
5.1.1. you shall not exercise the Licensed Rights in any way that is or renders the Image obscene, defamatory or in breach of the privacy or any other rights of a third party or any law anywhere in the world;
5.1.2. you shall not amend, adapt, use or position the Image so as to suggest that you or any of the persons appearing in the Image endorse any commercial product or service, save as permitted in the Usage Guidelines;
5.1.3. you shall secure all such third-party permissions and clearances necessary to enable you to exercise the rights granted to you under this agreement;
5.1.4. your use of the Image shall be compliant with the laws, guidelines and directives of the Press Complaints Commission Code of Practice and compliance therewith shall be your sole responsibility; and
5.1.5. you have full authority to enter into this agreement.
6. PRICING AND PAYMENT
6.1. You acknowledge that the Licence Fee is that displayed on the Website when you entered into this agreement.
6.2. You shall pay the Licence Fee immediately to Estee White Photography in accordance with the methods of payment set out on the Website and, upon authorization of such payment, the relevant Image shall be available to you for download.
7. LIMITATION OF LIABILITY
7.1. The Image has not been created to meet your individual requirements and it is your sole responsibility to satisfy yourself prior to entering into this agreement that the Image will meet your requirements. Estee White Photography makes no warranty or representation in that respect and no failure of any part or the whole of the Image to be suitable for your requirements shall entitle you not to accept the same or give rise to any right or claim against Estee White Photography.
7.2. Whilst Estee White Photography makes all reasonable attempts to exclude viruses from the Image, it cannot ensure such exclusion and no liability is accepted for viruses. Thus, you are recommended on receipt to thoroughly scan the Image and insure yourself against any associated risk.
7.3. To the fullest extent permitted by law, Estee White Photography shall not be liable to you for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising from your exercise of the rights granted to you under this agreement.
7.4. Subject to clause 7.5 below, no matter how many claims are made and whatever the basis of such claims, Estee White Photography’s maximum aggregate liability to you under or in connection with this agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 7.1 to 7.3 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the aggregate sum of the Licence Fee paid by you to Estee White Photography.
7.5. None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Estee White Photography or fraud or fraudulent misrepresentation and, only if you are a consumer, Estee White Photography do not in any way exclude or limit out liability for:
7.5.1. any breach of the terms implied by section 12 of the Sale of Goods Act 1979;
7.5.2. any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979; and
7.5.3. defective products under the Consumer Protection Act 1987.
8.1. You shall indemnify Estee White Photography against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) (each a “Claim”) suffered or incurred by Estee White Photography arising out of or in connection with any breach by you of the terms of this agreement, in particular any use of the Image which either breaches the Usage Guidelines or any use that is not expressly permitted therein.
9.1. Either party may terminate this agreement immediately if the other breaches any term of this agreement and such breach is incapable of remedy or continues for a period of 30 days after written notice requiring the same to be remedied has been given.
9.2. In the event of termination of this agreement set out all rights granted pursuant to this agreement shall cease.
10.1. Estee White Photography shall be entitled to assign or license all the rights granted to it under this agreement to any third party without notice to you. You shall not be entitled to assign or sub-license its rights under this agreement.
10.2. You confirm that you are acting on your own behalf and not for the benefit of any other person.
10.3. All notices to be served in accordance with this agreement may be served by email. The email address of Estee White Photography shall be as displayed on the Website from time to time and your email address shall be as submitted by you to the Website upon the purchase of the licence to use the Image.
10.4. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
10.5. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.6. Image Owner shall have the right enforce any of the terms of this agreement against you.
10.7. This agreement shall be governed by and read in and construed in accordance with the Laws of England and the parties hereto submit to the exclusive jurisdiction of the Courts of England and Wales for the settlement of any disputes hereunder.