RIGHTS-MANAGED END USER LICENSE AGREEMENT
This is a legal agreement between you, or your company, firm or other organization ("Licensee" or "You"), and Images by Dennis Hilke, (or “imagesbydennishilke.com” or "Licensor"), and his legal agents and representatives for licensing reproduction rights for any image(s) on this web site or that are sent to you electronically from Images by Dennis Hilke. Please read this agreement carefully before purchasing, downloading or using any images from Images by Dennis Hilke, whether from this website or sent to you from our office. Your right to reproduce an image(s) is subject to the terms, conditions and restrictions set forth in this agreement as well as our general Terms of Use or use of this web site, and is conditioned upon your full payment of the license fee prior to your reproduction of the image(s). By clicking the "I accept" button or by downloading any image(s), you agree to be bound by the terms of this agreement. If you do not agree to be bound by all of the sections on this license agreement, do not purchase an image(s) from this site but instead click on the "cancel" button to decline this agreement and do not download any image(s).
If you are entering into this agreement on behalf of your employer, the license granted and restrictions and limitations recited herein apply to your employer and to you as a representative of your employer.
A. Definitions: The following definitions apply in this Agreement:
A.1. "Invoice" means the computer-generated or pre-printed invoice provided by Images by Dennis Hilke that may include, without limitation, the Licensed Material selected, any limitations on the license in addition to those specified herein and the corresponding price for the license of such Licensed Material. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
A.2. "Licensed Material" means any image, visual representation generated optically, electronically, digitally or by any other means, original digital files, including any negatives, transparencies, prints or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Images by Dennis Hilke 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 taken as a whole.
A.3. "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or part of any Licensed Material, via any medium by whatever means, and the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
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A.4. "User" means any employee or subcontractor of the Licensee who manipulates, edits, or modifies the original digital file containing the Licensed Material or incorporates the Licensed Material within any derivative work.
B. Grant of Rights: Subject to the terms of this Agreement:
B.1. Upon full payment of the Invoice amount, the Licensee has the non-transferable, non-sublicensable right to Reproduce the Licensed Material as specified in writing by Images by Dennis Hilke. Should you use an image(s) and not make full payment, you are in violation of U.S. copyright law and subject to penalties. In such a case, Images by Dennis Hilke reserves the right, in its sole discretion, to revoke the license if payment is not made in full, and may use all legal means to collect damages.
B.2. Licensee has the right to have the Licensed Material Reproduced by subcontractors of Licensee, provided that Licensee ensures that such subcontractors agree to abide by the provisions of this Agreement.
C. Restrictions:
C.1. The Image(s) is/are strictly limited to the specific use, medium, duration, print run, placement, size of image, territory and any other restrictions specified on our Invoice. The terms specified on the Invoice shall not be modified without the express written consent of Images by Dennis Hilke. Any attempted
deviation from the terms of our Invoice is a violation of this agreement and the copyright act and shall nullify Images by Dennis Hilke's indemnity obligations, and the representations and warranties made
by Images by Dennis Hilke hereunder.
C.2. Licensee may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of
Licensee, but under no circumstance may the Licensed Material ever be used by more than five Users.
C.3. Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement. Licensee may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products.
C.4. Licensee may not sell, license or distribute any derivative work containing the Licensed Material in a way that would allow a third party to download, extract or access the Licensed Material as a standalone file.
C.5. Licensed Material shall not be incorporated into a logo, trademark or service mark.
C.6. Licensee may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices.
C.7. If any Licensed Material featuring a model is used in (1) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (2) connection with a subject that would be unflattering or unduly controversial to a reasonable person. Licensee must accompany each such use with a statement that indicates that the person is a model and the Licensed
Material is being used for illustrative purposes only.
C.8. The Licensed Material may not be used in a pornographic, defamatory or otherwise illegal manner, whether directly or in context or juxtaposition with other materials.
C.9. Licensee must retain information that is invisibly embedded in the electronic file containing the original Licensed Material, including without limitation, the copyright symbol, the name of Dennis Hilke, the Licensed Material's identification number and any other information.
C.10. Licensee must abide by any restriction on use notified to it by Images by Dennis Hilke before or at the time of delivery of the Licensed Material, either in the information accompanying the Licensed Material or otherwise.
C.11. If the Licensed Material is used in an editorial manner, Licensee must include the following credit adjacent to the Licensed Material: "Dennis Hilke/imagesbydennishilke.com".
D. Payment Terms/Cancellation Policy:
Once an Image has been downloaded there are no refunds or cancellations. You authorize Images by Dennis Hilke to charge you for the selection of Image(s) and accept the terms stated within this Agreement upon ordering the Image(s).
E. Condition of Licensed Material:
Licensed Materials are provided “AS IS”. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Imagesbydennishilke.com 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
F. Copyright:
All Images on this web site are copyrighted and subject to the copyright law. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. You agree to provide applicable copyright notice and/or protection of Image(s) in your final product. No copyright material shall be removed from any digital file. Except as expressly stated in this Agreement, Images by Dennis Hilke grants Licensee no right or license, express or implied, to the Licensed Material. All Images on this web site are works of art and bear the artist’s signature along with the copyright symbol. This signature and copyright symbol may not be removed or altered in any way.
G. Warranty and Limitation of Liability:
G.1. imagesbydennishilke.com warrants that it has all necessary rights and authority to enter into and perform this Agreement.
G.2. Images by Dennis Hilke 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. Should Images by Dennis Hilke deliver to you digital files of our images, the delivery of those digital files is solely an accommodation to our clients. Imagesbydennishilke.com does not warrant that the digital delivery will be on a timely basis, uninterrupted, error free or compatible with a client's particular system. Images by Dennis Hilke 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 Images by Dennis Hilke has been advised of the possibility of such damages, costs or losses.
Images by Dennis Hilke’s 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 paid by the Licensee for the licensed material.
G.3. The representations and warranties made by Images by Dennis Hilke in this agreement apply only to the licensed material as delivered by imagesbydennishilke.com and will be invalid if the licensed material is used by Licensee in any manner not specifically authorized in this agreement or if Licensee is otherwise in breach of this agreement.
G.4. Caption information and release availability are identified to the best of our ability, but we give no warranties with respect to the accuracy of captions or the existence of a model release or property release. The Licensee is solely responsible for the accuracy of caption information and determining whether usage of Licensed Material requires the consent of any other party or the license of any additional rights. If required for publication, the Licensee should contact us to obtain copies of releases and clearances that are available.
H. Indemnification:
You agree to indemnify and hold Images by Dennis Hilke, its affiliates, parents, subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else associated with Images by Dennis Hilke, harmless from, and against, any and all claims, liabilities, costs, damages, or expenses, (including attorneys' fees) asserted against Images by Dennis Hilke arising out of your use of the Images or in connection with any breach of any of the terms of this agreement.
I. Termination, Expiration and Revocation:
I.1. The license contained in this Agreement will terminate automatically without notice from Images by Dennis Hilke if Licensee fails to comply with any provision of this Agreement. Upon expiration or termination, Licensee must immediately (1) stop using the Licensed Material; (2) destroy or, upon the request of Images by Dennis Hilke, return the Licensed Material to Images by Dennis Hilke; and (3) delete or remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical).
I.2. imagesbydennishilke.com reserves the right to revoke the license to use the Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material and shall where possible ensure that its clients and customers do likewise.
J. Miscellaneous Terms:
J.1. Unauthorized Use: Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Images by Dennis Hilke 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 Images by Dennis Hilke’s other remedies under this Agreement, Images by Dennis Hilke reserves the right to charge and Licensee agrees to pay a fee equal to five times Images by Dennis Hilke’s normal license fee for use of the Licensed Material.
J.2. Governing Law: This Agreement will be governed in all respects by the laws of the State of Wisconsin, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in Manitowoc, Wisconsin. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Images by Dennis Hilke 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 Images by Dennis Hilke, such action is necessary or desirable.
J.3. 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.
J.4. Waiver: No action of Images by Dennis Hilke, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Images by Dennis Hilke 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 Images by Dennis Hilke 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 by Images by Dennis Hilke on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
J.5. Entire Agreement: This Agreement contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.