THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE")
AND MARK RUTH REFERRED TO HEREAFTER AS OceanParadigms.com
THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE
WEB AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL)
DELIVERY OF LICENSED MATERIAL.
1. Definitions. In this
Agreement the following definitions apply: |
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1.1 |
"Invoice" means the
computer-generated or pre-printed invoice provided by
OceanParadigms.com The Invoice shall be incorporated into
this Agreement and all references to the Agreement shall include
the Invoice. Additionally references to SeaShots.us,
Britelights.com, Paradigm Investments, LLC and Mark Ruth may be
used interchangeably with OceanParadigms.com in this Material. |
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1.2 |
"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 Reproductions thereof, or any other product protected by
copyright, trademark, patent or other intellectual property
right, which is licensed to Licensee by OceanParadigms.com 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. |
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1.3 |
"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, 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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1.4 |
"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. |
2. Grant of Rights.
Subject to the terms of this Agreement: |
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2.1 |
Licensee has the
non-exclusive, non-transferable, non-sub licensable
right to Reproduce the Licensed Material identified in
the Invoice an unlimited number of times in any and all
media for the following purposes (together the
"Permitted Uses"): |
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2.1.1 |
Advertising
and promotional materials; |
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2.1.2 |
Broadcast and
theatrical exhibitions; |
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2.1.3 |
Print
publications and physical products; |
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2.1.4 |
Electronic
publications including website design, up to a maximum
resolution of 72dpi; and |
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2.1.5 |
Any other uses
approved in writing by OceanParadigms.com. |
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2.2 |
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. |
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2.3 |
Licensee may alter,
crop, manipulate and create derivative works of the Licensed
Material. |
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2.4 |
Licensee's rights to
the Licensed Material are worldwide and perpetual. |
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2.5 |
While every effort
has been made to correctly caption the subject matter of the
Licensed Material, OceanParadigms.com does not warrant that such
information is accurate. |
3. Restrictions. |
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3.1 |
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 10 Users unless a separate seat
license is purchased for each additional User, before such
additional use begins. |
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3.2 |
Licensee may not
sublicense, sell, assign, convey or transfer this Agreement or
any of its rights under this Agreement but Licensee may sell or
license derivative works incorporating the Licensed Material.
However, Licensee may not include the Licensed Material in an
electronic template intended to be Reproduced by third parties
on electronic or printed products. |
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3.3 |
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. |
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3.4 |
Licensed Material
shall not be incorporated into a logo, trademark or service
mark. |
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3.5 |
Licensee may not
post the Licensed Material online in a downloadable format or
enable it to be distributed via mobile telephone devices. |
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3.6 |
If any Licensed
Material 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) 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. |
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3.7 |
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. |
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3.8 |
Licensee must retain
the copyright symbol, the name of OceanParadigms.com, the
Licensed Material's identification number and any other
information as may be invisibly embedded in the electronic file
containing the original Licensed Material. |
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3.9 |
Licensee must abide
by any restriction on use notified to it by OceanParadigms.com
before or at the time of delivery of the Licensed Material,
either in the information accompanying the Licensed Material or
otherwise. |
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3.10 |
If the Licensed
Material is used in an editorial manner, Licensee must include
the following credit adjacent to the Licensed Material: "Mark
Ruth / OceanParadigms.com". |
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3.11 |
While efforts have
been made to correctly caption the subject matter of the
Licensed Material, OceanParadigms.com does not warrant the
accuracy of such information. |
4. 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, OceanParadigms.com grants
Licensee no right or license, express or implied, to the
Licensed Material. |
5. Releases.
OceanParadigms.com will notify Licensee if it has obtained a
model release and/or a property release for Licensed Material,
either in the release status information accompanying the
Licensed Material on OceanParadigms.com' website, in the Invoice
or by other means. If no such notification is given, then no
such model or property release has been obtained. Except where
Licensee is specifically notified, OceanParadigms.com 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 Licensed Material. Where Licensed Material is unreleased,
Licensee shall be solely responsible for determining whether a
release is required in connection with any proposed use of such
Licensed Material. Licensee acknowledges that some jurisdictions
provide legal protection against a person's image, likeness or
property being used for commercial purposes without their
consent. OceanParadigms.com makes no representations or
warranties as to whether or not any additional fees or payments
may be due to any model depicted in Licensed Material pursuant
to the requirements of any applicable trade union and Licensee
shall be solely responsible for any such additional fees or
payments to such trade union. |
6. Warranty and Limitation of
Liability. |
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6.1 |
OceanParadigms.com
warrants that: (i) it has all necessary rights and authority to
enter into and perform this Agreement; (ii) the Licensed
Material 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
Licensed Material); and (iii) subject to Section 4 above
(Releases), Licensee's use of the Licensed Material in its
original form, and when used in accordance with this Agreement
and the Invoice, will not infringe on any copyright, moral
right, trademark or other intellectual property right and will
not violate any right of privacy or right of publicity. |
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6.2 |
OceanParadigms.com 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. OceanParadigms.com 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 OceanParadigms.com HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. OceanParadigms.com
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 10 TIMES THE VALUE
PAID BY THE LICENSEE FOR THE LICENSED MATERIAL. |
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6.3 |
THE
REPRESENTATIONS AND WARRANTIES MADE BY OceanParadigms.com IN
THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED
BY OceanParadigms.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. |
7. Indemnification. |
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7.1 |
Provided that the
Licensed Material is only used in accordance with this Agreement
and Licensee is not otherwise in breach of this Agreement,
OceanParadigms.com shall defend, indemnify and hold Licensee
harmless from all damages (excluding punitive damages),
liabilities and expenses (including reasonable attorney's fees
and permitted and authorized costs), arising out of or connected
with any actual or threatened lawsuit, claim or legal proceeding
alleging that OceanParadigms.com is in breach of its warranties
given in section 6 above. The foregoing states
OceanParadigms.com entire indemnification obligation under this
agreement and Licensee's sole and exclusive remedy for any
alleged or actual breach of the representations and warranties
set forth in section 6 above. |
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7.2 |
Licensee shall
defend, indemnify and hold OceanParadigms.com and its parent,
subsidiaries and commonly owned or controlled affiliates and
their respective officers, directors and employees harmless from
all damages (except punitive damages), liabilities and expenses
(including reasonable attorneys' fees and permitted and
authorized costs), arising out of or as a result of claims by
third parties relating to Licensee's use of any Licensed
Material outside the scope of this Agreement or any other breach
by Licensee of this Agreement. |
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7.3 |
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 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 or other
costs incurred prior to the other party giving notice of the
claim for which indemnity is sought. |
8. Notice of Defense. The
party seeking indemnification pursuant to section 7 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. |
9. Parties' Obligation.
Upon notice from OceanParadigms.com, or upon Licensee's
knowledge that any Licensed Material is subject to a threatened
or actual claim of infringement, violation of another right, or
any other claim for which OceanParadigms.com may be liable
herein, or if OceanParadigms.com withdraws any Licensed Material
for any good reason, Licensee will physically remove the
Licensed Material from its premises, computer systems and
storage (electronic or physical) and, if possible, cease any
future use at its own expense. OceanParadigms.com shall provide
Licensee with comparable Licensed Material (which comparability
will be determined by OceanParadigms.com in its reasonable
commercial judgment) free of charge, but subject to the other
terms and conditions of this Agreement. |
10. License Cancellation Fee.
If Licensee requests in writing to cancel this Agreement within
thirty (30) days of the date of receipt by Licensee of the
Licensed Material, and such Licensed Material has not been used
by Licensee, OceanParadigms.com may cancel this Agreement and
issue a credit to Licensee's account or credit card equal to one
hundred percent (100%) of the license fee minus a
composite/layout fee that will be charged at OceanParadigms.com
then standard rate. |
11. Interest or Cancellation
on Overdue Invoices. If Licensee fails to pay
OceanParadigms.com invoice in full within the time specified in
the invoice, OceanParadigms.com may add a service charge of
one-and-one-half percent (11/2 %) per month, or such lesser
amount as is allowed by law, on any unpaid balance until payment
is received. OceanParadigms.com also reserves the right, in its
sole discretion, to revoke the license if payment is not made in
full on time. |
12. 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 6.1.(ii) above, OceanParadigms.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. |
13. Credit Lines for Editorial
Use. If any Licensed Material is Reproduced in an editorial
manner, the credit line, "[Photographer's
name]/OceanParadigms.com", must appear adjacent to the Licensed
Material, in the credit line accompanying the Licensed Material
on OceanParadigms.com website or as otherwise notified by
OceanParadigms.com. If any Licensed Material Reproduced by
Licensee for editorial purposes omits the requisite credit line,
an additional fee equal to twenty percent (20%) of the original
amount invoiced shall be payable by Licensee at
OceanParadigms.com discretion. The foregoing fee shall be in
addition to any other rights or remedies that OceanParadigms.com
may have at law or in equity. |
14. Miscellaneous Terms. |
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14.1 |
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
OceanParadigms.com 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 OceanParadigms.com other remedies under
this Agreement, OceanParadigms.com reserves the right to charge
and Licensee agrees to pay a fee equal to five times
OceanParadigms.com normal license fee for use of the Licensed
Material. |
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14.2 |
Governing Law.
Any disputes arising from this Agreement or its enforceability
shall be settled by binding arbitration. If OceanParadigms.com
and Licensee are unable to agree on the location of the
arbitration, OceanParadigms.com decision shall be final. The
United Nations Convention on Contracts for the International
Sale of Goods does not govern this Agreement. Notwithstanding
the foregoing, OceanParadigms.com 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 OceanParadigms.com, such action is necessary
or desirable. |
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14.3 |
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. |
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14.4 |
Waiver. No
action of OceanParadigms.com, other than express written waiver,
may be construed as a waiver of any provision of this Agreement.
A delay on the part of OceanParadigms.com 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
OceanParadigms.com 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 those rights or remedies on
any other occasion. |
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14.5 |
Entire Agreement.
This Agreement, including the Invoice, 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. |
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