CGI Backgrounds End User License Agreement
1. Limited Use License
Conditioned on payment of the Invoice, CGI Backgrounds, INC (“CGI Backgrounds ”) grants to you (“you “ or “Licensee”) a non-exclusive, non- sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively “use”) the Visual Media Content (including but not limited digital still photography, HDRI domes, video clips, audiovisual content, VR content, and CGI content) downloaded by you and identified on the Invoice, solely as expressly granted on the Invoice and in accordance with these terms. If you are obtaining rights on behalf of a client, you may permit the client to exercise the rights granted to you, provided the client or any subcontractor or employee agrees to use the Visual Media Content as limited in the Invoice and agrees to be bound by the terms of this Agreement. The rights granted under this Agreement for the Visual Media Content are limited to a specific final image for distribution. Any other usage requires additional permission and fee prior to use. No ownership or copyright in any Visual Media Content shall transfer to you or any client by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to CGI Backgrounds and the copyright holder.
2. Payment Terms and Cancellation Policy
Payment of the Invoice is to be net thirty (30) days. Any claims for cancellation, adjustment or rejection of terms must be made to CGI Backgrounds within ten (10) days after receipt of the Invoice. You are solely responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed Visual Media Content.
3. General Disclaimers and Limitation of Liability
CGI Backgrounds will notify you if it has obtained a model release and/or a property release for any item of Visual Media Content, either in the release status information accompanying the Visual Media Content or on CGI Backgrounds’ website, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Unless specifically warranted above, CGI Backgrounds does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the Visual Media Content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the Visual Media Content, and you are solely responsible for obtaining such release(s). While CGI Backgrounds has made reasonable efforts to correctly categorize, keyword, caption and title the Visual Media Content, CGI Backgrounds does not warrant the accuracy of such information, or of any metadata provided with the Visual Media Content.
Except as provided in this Agreement, the Visual Media content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. CGI Backgrounds does not represent or warrant that the Visual Media Content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.
CGI Backgrounds SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY, 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 VISUAL MEDIA CONTENT OR OTHERWISE, EVEN IF CGI Backgrounds HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
CGI Backgrounds’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE VISUAL MEDIA CONTENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF THE LICENSE PAID BY THE LICENSEE FOR THE VISUAL MEDIA CONTENT. REPRESENTATIONS AND WARRANTIES MADE BY CGI Backgrounds IN THIS AGREEMENT APPLY ONLY TO THE VISUAL MEDIA CONTENT AS DELIVERED BY CGI Backgrounds AND WILL BE INVALID IF THE VISUAL MEDIA CONTENT IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT. YOU MAY HAVE ADDITIONAL RIGHTS UNDER SOME STATE LAW
4. Representations and Indemnity
Provided Licensee is not otherwise in breach of this Agreement, as Licensee’s sole and exclusive remedy for any breach of the representations and warranties above, Licensor shall defend, indemnify and hold harmless Licensee, and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or connected with any actual lawsuit or legal proceeding alleging that CGI Backgrounds is in breach of its warranties set forth above. No other indemnification is offered by Licensor under the Agreement.
If Licensee’s use of the Visual Media Content is not authorized by this Agreement, Licensee shall defend, indemnify and hold CGI Backgrounds and its officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Visual Media Content by Licensee, to the extent that such claim relates to the absence of a property release or the Licensee’s unauthorized use of the Visual Media Content
5. Unauthorized Use/Retroactive License Fee
Any use of Visual Media Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling CGI Backgrounds 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 CGI Backgrounds other remedies under this Agreement, CGI Backgrounds reserves the right to charge and Licensee agrees to pay a fee equal to five (5) times CGI Backgrounds normal license fee for use of the Visual Media Content. Licensee will immediately notify CGI Backgrounds if it becomes aware or suspects that any third party that has gained access to the Images through Licensee or is wrongfully using the Visual Media Content, in whole or in part, or is violating any of CGI Backgrounds’s intellectual property rights, including, but not limited to, trademarks and copyrights.
6. Termination and Revocation
CGI Backgrounds reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee or its client fails to comply with any provision of this Agreement. In addition, CGI Backgrounds may withdraw the Image based on a potential or actual legal claim. Upon termination or withdrawal, Licensee and its client must immediately discontinue all future use of the Visual Media Content, delete the Visual Media Content and all copies from all magnetic/electronic media and destroy all other copies in its possession or control. CGI Backgrounds may replace the item of Visual Media Content with an alternate item upon its discretion.
7. Electronic Storage
Licensee must retain the copyright symbol, the name of CGI Backgrounds and the image number, and all metadata or other identification number associated with the Visual Media Content. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Visual Media Content. Licensee may make one (1) high-resolution backup copy of the Visual Media Content for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Visual Media Content from its computer or other electronic storage systems and shall ensure that any client authorized to use the Images deletes the Visual Media Content as well.
a. Jurisdiction and Attorney’s Fees: This Agreement is a contract made under, and shall be governed by and construed in accordance with, the law of the State of New York without giving effect to choice of law principles of such State. If CGI Backgrounds is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by Licensee.
b. No Assignment: This Agreement is not assignable or transferable on the part of Licensee other than to a disclosed client. CGI Backgrounds may assign this Agreement without Licensee’s consent.
c. Entire Agreement: This Agreement and the Invoice contains all the terms of the agreement between CGI Backgrounds and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.