NBCUNIVERSAL ARCHIVES
WEBSITE
(rev.
February 21, 2013)
Non-Exclusive Media Licensing Usage
Agreement
Please carefully read the following
terms and conditions of the Non-Exclusive Media Licensing Usage Agreement. The
following terms and conditions, the content-specific invoice (“Invoice”) and
the content-specific online page(s) located at www.nbcuniversalarchives.com
applicable to the licensed content (“Specific Content Web Page”), collectively
govern Your access and use of all material, images and footage (collectively
“Content”) available from the NBCUniversal Archives Website, and constitute a
binding agreement (“Agreement”) between You and the particular entity associated
with the Content You select, which entity is listed on the Invoice (“Company”).
Unless otherwise agreed to in a writing signed by an authorized representative
of Licensor, any use of the Content indicates Your
full acceptance of the Agreement. If You do not agree
to all of the terms and conditions of the Agreement, then do not make any use
of the Content. We encourage
You to print a copy of the Agreement, including the
terms and conditions below, the Invoice and the Specific Content Web Page for
Your records.
1. Parties. This agreement is between Company and
You (or “User”). “You” or “User” means either (a) the individual listed as the
registrant of the NBC Universal Archives Website account through which this
Agreement and the license(s) granted hereunder are entered (“Registrant”) or
(b) if Registrant is entering into this Agreement and the licenses granted
hereunder are for the benefit of, and/or as an agent on behalf of Registrant’s
employer (“Employer”) and/or a third party (“Principal”), then such Employer
and/or Principal. If Registrant is entering into this Agreement and the
licenses granted hereunder for the benefit of an/or as
an agent on behalf of Employer and/or Principal, then Registrant. Registrant
will comply with all the terms hereof and shall be jointly and severally liable
for any breach of the terms of this Agreement by Principal and/or Employer. If
Registrant requests any Company employee or contractor to facilitate Registrant
entering into any license hereunder on behalf of Registrant and through use of
Registrant’s account, Registrant agrees to be bound by this
Agreement.
2. License Grant. Subject to payment of the license fee
and the terms and conditions of this Agreement (including any applicable
Invoices and Specific Content Web Pages), Company grants to You on a
non-exclusive non-transferable non-sublicensable
basis, the right and license to create and exploit the Content in Your
production (“Use”) for only those purposes authorized under this Agreement,
including without limitation such Term, Territory and Media restrictions set
forth in the Invoice and on the Specific Content Web Pages. The Content may not
be used for any other purpose, including, without limitation the sale,
exploitation, advertising, publicity or promotion of the end use.
3. No Representation or
Warranty. Company makes no representation or
warranty of any kind with respect to Your use of the
Content or otherwise, including without limitation, any implied warranties of
merchantability or fitness for a particular purpose. User agrees that in the
event of Company’s breach of this Agreement, the damages recoverable by You shall in no event exceed the amount of the fees actually
paid to Company by You as set forth herein.
4. Clearances and
Releases. You shall be solely responsible for
any and all third party consents, clearance of rights generally known as “Moral
Rights”, and payments of any kind that may be required as a result of such
clearances, and You shall bear all costs and expenses,
for materials and otherwise, that may be associated with the Use. The Content
may contain listed restrictions, including, without limitation, restrictions as
to time, manner, industry and territory of use, and required pre-approval by a
depicted person or their representative. The absence of such a restriction is
not a guarantee that there are no limitations on use or required
consents.
Without limiting the foregoing, You
are solely responsible for obtaining any and all releases, clearances and
making such payments as maybe required, including without limitation (a)
consents from those who appear in the Content (including Company talent); (b)
consents from those who provided services, the results and proceeds of which
are used in the Content; (c) rights from or payments to any representative
guild, union, professional organization, or other authorized representative;
(d) rights from third parties for use of any third party material seen in the
Content including but not limited to products, logos, storefronts, mastheads,
footage and photos; and (e) if music is included in the Content, master use,
synchronization and performance licenses from the copyright proprietors of the
applicable master recording (s) and composition(s) and such other persons,
firms or associations, societies or corporation as may own or control the
performing rights thereto. If You are unsure whether
additional rights are need for Your use, You are responsible for consulting
with competent legal counsel. In the event of a claim by any of these
individuals or entities, User shall be responsible for making payments directly
to the claimant.
5. Limitation of Liability:
COMPANY’S LIABILITY WHETHER IN
CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT
EXCEED THE RETURN OF THE AMOUNT OF THE AMOUNT OF FEES ACTUALLY PAID TO COMPANY
BY YOU AND UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER
DAMAGE. THE PRICE STATED FOR THE CONTENT IS A CONSIDERATION IN LIMITING COMPANY’S
LIABILITY. YOU AGREE THAT NOTWITHSTANDING ANY APPLICABLE STATUTE OF
LIMITATIONS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS
UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE
DATE ON WHICH THE CAUSE OF ACTION ACCRUED. Company shall not be liable for any
loss or damage suffered by User or any third party, whether directly or
indirectly, arising from any alleged or actual defect in any Content or its
caption or in any way from its reproduction. Please note that some
jurisdictions may not allow the exclusion of implied warranties, so some of the
above exclusions may not apply to you. Check Your
local laws for any restrictions or limitations regarding the exclusion of
implied warranties.
6. Payment. All orders must be paid by credit
card, unless explicitly approved in writing by Company for credit terms.
Acceptable credit cards are: VISA, MasterCard and American Express
or as set forth on the payment page. Content will not be released for download
or considered licensed until credit charges or terms have been approved. All
Content sales are final and cannot be returned. There are no refunds on Content
sales. Prices, offers and products are subject to availability and may change.
It is agreed that a failure to pay the License Fees on the Invoice will be
considered a material breach of this Agreement and if payment is not made in
accordance with this Agreement, including the terms on the Invoice, Company
shall have the right to revoke the license and You and Your end users must
cease using any Content as soon as possible and/or charge interest at the rate
of one-and-one-half percent (1.5%) per month, or such lesser amount as is
allowed by law, each in Company’s sole discretion. You shall have no obligation
to use the Content; however, payment is still required for any Content, whether
or not such Content is used.
7. Delivery Charges. For deliveries on tape, DVD or other
physical media, rather than downloading, You agree to
pay, in addition to our costs, any delivery charges.
8. Taxes and Duties. You are responsible for the payment
of all sales and use taxes, customs and duties, when applicable.
9. Ownership. You acknowledge that as between You
and Company, Company is the sole owner of all intellectual property rights and
other proprietary rights in and to the Content.
10. Company Trademarks. Except as may be required for use in
a copyright notice and credit, You may not use the trademarks or service marks
of Company, or any of its subsidiaries, affiliates or partners without that
particular trademark holder’s prior written consent. If Company logo or “bug”
appears in the Content, the bug must not be altered in any manner and must be
visible in each clip used, unless otherwise approved in writing by
Company.
11. Credit Line and Copyright
Notice: You shall give the relevant Company
entity listed on the Invoice an on-screen credit at least as prominent in size
and placement as that accorded any other supplier of content used in the Use.
In the case of still images, for editorial uses, You
shall include a copyright notice and credit adjacent to each
image.
12. Reservation of
Rights. Any rights of any kind in or to the
Content which are not expressly granted in the Agreement are entirely and
exclusively reserved to and by Company. Any use of the Content, other than as
specified above, including any verbal or narrative reference to the Content,
may require a separate specific consent from Company upon Your written request,
which approval Company may grant or withhold in its
sole discretion.
13. Content Protection/File
Deletion. You agree to provide adequate
security to prevent theft, pirating, and unauthorized exhibition, duplication
or copying of the Content. You shall give prompt notice to Company of any such
unauthorized activity, and shall take all steps necessary to stop such
unauthorized activity. Without limiting the foregoing, if use of Content is
permitted on the Internet, or any other online or interactive media, You shall
take commercially reasonable, technically feasible steps to impede digital
theft and ensure that the Content remains in the linear production for which it
was licensed and cannot be searched by shot and downloaded in broadcast or
substantially comparable quality. Upon the expiration or earlier termination of
this Agreement, You shall promptly delete the Content from Your computers or
other electronic storage systems and shall ensure that Your
subcontractors do likewise.
14. Unauthorized Uses. In connection with the Use, You shall
not disparage, criticize, belittle, parody, alter or otherwise negatively
comment upon the Content, Company or its parent, subsidiary or affiliated
companies, or any programs or films produced by any such entities or any person
that appears in or is involved with any such programs or films. The Content may
not be used in a politically partisan manner without Company’s prior written
consent. In addition, the Content may not be used as a trademark or for any
pornographic use, unlawful purpose or use, or to defame any person, or to violate
any person’s right of privacy, publicity or moral rights, or to infringe upon
any copyright, trade name or trademark or other intellectual property or other
proprietary rights. You shall not modify the content (except cropping for time)
without the Consent of Company.
15. Your Indemnification of
Company. You shall defend, indemnify and
forever hold harmless Company and its respective affiliated entities,
directors, shareholders, officers, agents, employees, assigns and
successors-in-interest from and against any and all claims, liabilities,
penalties, losses, costs, damages (including punitive damages), demands,
actions, causes of action, suits, proceedings, judgments and expenses including
without limitation amounts paid in settlement, attorneys’ fees, court costs and
other legal expenses arising out of, connected with, and/or relating to the
Use, by reason of any breach or alleged breach of the terms and conditions and
warranties of this Agreement by you, Your end-users or customers, or Your
failure to obtain any releases or pay any amounts owed to any trade
association, guild or similar organization, if applicable, for Your use of the
Content. This indemnity shall survive the expiration or termination of this
Agreement.
16. No Assignment or
license. You may not assign, license,
subcontract or otherwise transfer any of Your rights
or obligations, or delegate any of Your duties under this Agreement, in whole
or in part, without the prior, written consent of Company. Notwithstanding the
foregoing, You may distribute the production in which
the Content is incorporated to other parties without Company’s consent. Any and
all such assignees and distributors must agree in writing to comply with all
terms and conditions of this Agreement and You shall be solely liable to
Company for any breach of this Agreement by User’s assignees or distributors,
and shall indemnify Company pursuant to Section 12 above.
17. Copies of Use: At Company’s reasonable request, You shall provide Company one free (1) copy of any use made
of the Content authorized under this Agreement.
18. Termination: Company may, without further
obligation or any liability to You or any other person
or entity, terminate this Agreement and Your license to use the Content by
written notice in the event You fail to comply with any provision of this
Agreement. Upon any termination, cancellation or expiration of this Agreement,
neither You nor any other person or entity covered by
the license granted to You under this Agreement shall have any further right to
make any use of the Content. If You do not comply with the terms and conditions
of this Agreement, then this Agreement and the Licenses granted hereunder will
automatically terminate and You and any of Your end-users must cease using any
Content immediately and delete, destroy and/or return all copies of the Content
to Company and to the extent possible and within User’s control, cease future
use of the Content in derivative works. Such termination will not suspend,
relieve, alleviate or otherwise affect Your payment
obligations under this Agreement.
19. Withdrawal. Upon notice from Company that any
Content may be subject to a claim of infringement or another’s right for which
Company may be liable, Company may require User to immediately and at its own
expense stop using the Content. Company shall use best efforts to provide You with comparable Content (which comparability will be
determined by Company in its reasonable commercial judgment) free of charge,
but subject to the terms and conditions of this Agreement.
20. Marketing and
Promotion. By using the Content, You grant
Company the right to display or reference Your derivative work using or
incorporating such Content, in any reasonable marketing, educational, an/or
promotional purpose as an example of customer usage. Upon receipt of Your written request, Company will identify You and the
author of such derivative work.
21. Choice of
Law/Jurisdiction/Attorneys’ Fees.
If NBC News, a division of NBCUniversal Media, LLC, NBC Sports a division of
NBCUniversal Media, LLC, Telemundo Network Group, LLC or The Weather Channel,
LLC is the Company under this Agreement, User agrees that any dispute regarding
this Agreement shall be governed by the laws of the State of New York and the
parties agree to accept the exclusive jurisdiction of the state and federal
courts located in New York, New York, regardless of conflicts of laws. If
Universal Studios Licensing LLC is the Licensor under this Agreement, Licensee
agrees that any dispute regarding this Agreement shall be governed by the laws
of the State of California and the parties agree to accept the exclusive
jurisdiction of the state and federal courts located in Los Angeles,
California, regardless of conflicts of laws. In any dispute between Licensor
and You for breach of this agreement where Licensor prevails, Licensor shall be
entitled to recover its reasonable attorneys’ fees, legal expert fees, court
costs and other legal expenses.
22. Miscellaneous. This Agreement represents the entire
understanding of the parties herein. The terms and conditions herein shall not
be changed, amended or modified unless in writing signed by an authorized
signatory of both parties hereto. If any part of this Agreement or the
application thereof to any person or circumstance is for any reason held
invalid or unenforceable, it shall be deemed severable, and the validity of the
remainder of this Agreement, or the applications of such provision to other
persons or circumstances, shall not be affected thereby. The parties to this
Agreement are independent contractors with respect to each other, and nothing
in this Agreement shall create any association, partnership, joint venture or
agency relationship between the parties. The terms and conditions of the
Agreement are the only terms and conditions applicable to the use of the
Content and any additional different terms specified, referenced and/or
incorporated by any document provided by You or on
Your behalf are hereby rejected by Company. Any waiver by Company of any
violation of this Agreement by You shall not constitute or contribute to a
waiver by Company of any other or future violation by You
of the same or any other provision of this Agreement. There are no third-party
beneficiaries of any promises, obligations or presentations made by Company
herein. Sections 3-5, 10, 15 and 17 shall survive termination or expiration of
the Agreement.