License Agreement
License Agreement
Read our License Agreement in at The Different Design below.
THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU THE LICENSEE AND THE DIFFERENT DESIGN. THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
1. Definitions
In this Agreement, the following definitions apply:
1.1. “Editorial Licensed Material” means Licensed Material relating to events that are subject to a third parties’ intellectual property rights including rights of publicity, newsworthy or of public interest and identified as such on the THE DIFFERENT DESIGN website.
1.2. “Invoice” means the emailed invoice provided by THE DIFFERENT DESIGN upon order confirmation, download and checkout that incorporates the terms of a License purchase for single Licensed Material or purchased via Subscription. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.3. “Intellectual Property” copyright, trademark, patent, trade secret, right to publicity, or any other proprietary right.
1.4. “Licensed Material” means any digital assets hosted or any one or group of digital files, or any other product protected by copyright, trademark, patent or other intellectual property rights, compiled and packaged on the THE DIFFERENT DESIGN website. 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 as a whole. 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 as a whole. As used, herein website refers to the THE DIFFERENT DESIGN website, APIs, software applications, any software source code use, licensed or implemented by THE DIFFERENT DESIGN, and all other Intellectual Property.
1.5. “Licensee” means the person or entity purchasing a license hereunder.
1.6. “Licensee Work” means an end product or service that has been created by or on behalf of Licensee using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.
1.7. “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, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.8. “Rights and Restrictions” means THE DIFFERENT DESIGN granting Licensee a perpetual, non-exclusive (meaning others may use the same Licensed Material), nontransferable and non-sub licensable to use, modify, display, distribute, transmit and Reproduce the Licensed Material for the purposes of the following: (a) commercial uses, (b) marketing, promotions, advertising (c) personal, educational or any other noncommercial uses, the foregoing uses in both the digital and retail formats. However, Licensee shall not (a) sublicense, sell, assign or otherwise transfer or attempt to do so all or part of its rights under the Agreement, (b) sell, license, distribute or otherwise make available the Licensed Material as stand-alone and/or in a way that allows third parties to use, download, extract or access the Licensed Material as a stand-alone file (with the sole exception however, of the use of the Licensed Material in view of displaying such Licensed Material on a website or app provided that the number of Licensed Materials displayed on each given website or app does not exceed 1,000 (one thousand)) ; (c) distribute the Licensed Work if ( i ) it is so similar to the original Licensed Material incorporated therein that the Licensed Work cannot qualify as an original work of authorship or (ii) the primary value of the Licensed Work lies with the Licensed Material itself. The rights granted herein shall be applicable for so long as Licensee is in compliance with the terms and provisions of this Agreement.
2. Grant of Rights and Restrictions Subject to the terms of this Agreement
2.1. THE DIFFERENT DESIGN grants to Licensee a nonexclusive, non-sublicensable, and non-transferable perpetual, worldwide right, right to use, adapt, digitally perform, transmit, create derivative works and Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement, and subject to Licensee’s full and complete compliance with this Agreement and payment in full of the Invoice.
2.2. Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions. Licensee may utilize the Licensed Material in any production process as may be necessary for the intended use specified in the Rights and Restrictions, including as set forth in Section 2.1 above. Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed Material contained therein) as part of any distribution process as may be necessary or appropriate for the intended use specified in the Rights and Restrictions solely as part of the distribution process contemplated in the Rights and Restrictions in connection with the intended use specified therein.
2.3. Unless additional rights are stipulated in the Rights and Restrictions or granted pursuant to a separate license agreement, Editorial Licensed Material may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement use of Licensed Material in an “editorial” manner means use relating to events that are newsworthy or of public interest and expressly excludes any advertorial sections (i.e., sections or supplements in relation to which Licensee receives a fee from a third-party advertiser or sponsor).
2.4. Editorial Licensed Material may be cropped or otherwise edited for technical quality, if the editorial integrity of the Licensed Material is not compromised, but shall not otherwise be altered under any circumstances.
2.5. While efforts have been made to caption correctly the subject matter of, and to provide other information (including metadata) related to the Licensed Material, THE DIFFERENT DESIGN does not warrant the accuracy of such information. Licensee shall rely upon solely the views of the Licensed Material on the THE DIFFERENT DESIGN.
2.6. Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. Similarly, use of Licensed Material for the direct or indirect promotion of alcoholic beverages, tobacco, gambling, weapons and explosives is prohibited. Licensee shall also comply with any applicable regulations and/or industry codes.
2.7. If any Licensed Material featuring a property is used in connection with a subject that would be unflattering or controversial to a reasonable person (except for Editorial Material used in an editorial manner), Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.
2.8. Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of THE DIFFERENT DESIGN.
2.9. Licensee may not make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.
2.10. Unless otherwise specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the Licensee Work in any secondary Reproductions, such as compilations, screen shots, in-context promotions or on file-sharing or social networking websites.
2.11. Licensed Material shall not be used contrary to the Rights and Restrictions.
2.12. Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
2.13. Licensee shall post terms and conditions on its permitted websites that prohibit, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.
2.14. If the Rights and Restrictions include use on any social media platform or other third party website; (i) such rights shall automatically be revoked in the event that the third-party website seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement, and (ii) in such event, upon THE DIFFERENT DESIGN’s request, Licensee shall remove any Licensed Material from such platform or website.
3. Credit and Intellectual Property
3.1. 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, THE DIFFERENT DESIGN grants Licensee no other right or license, express or implied, to the Licensed Material.
3.2. Trademarks. In connection with the use of THE DIFFERENT DESIGN or any other of its trade names, trademarks, logos or service marks, including the names of all Licensed Material collections (“Marks”), Licensee acknowledges and agrees that (i) such Marks are and shall remain the sole property of THE DIFFERENT DESIGN or its partner contributors; (ii) except as expressly required in order to satisfy the credit obligations under this Agreement, nothing shall confer upon Licensee any right of use in or to the Marks; and (iii) Licensee shall not now or in the future contest the validity of the Marks.
3.3. Audio/Visual Production Credit. If Licensed Material is used in an audio/visual production in either an editorial context or a non-editorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s), substantially in the following form: “[Video/Imagery] supplied by [[Name/username of Contributor]/THE DIFFERENT DESIGN]”.
3.4. Notice of Violations. Licensee will immediately notify THE DIFFERENT DESIGN if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of THE DIFFERENT DESIGN’s intellectual property rights, including, but not limited to, Marks and copyrights.
4. Releases
4.1. THE DIFFERENT DESIGN will notify Licensee in the Rights and Restrictions if it has obtained a property release for Licensed Material. The warranty and indemnity set forth in Sections 5 and 6 below are only provided when such written notification is given. If no such notification is given, then no such property release has been obtained. No releases are generally obtained for Editorial Licensed Material. Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. Licensee shall be responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as Screen Actors Guild in the US) because of Licensee’s use of the Licensed Material.
4.2. Except where Licensee is specifically notified that a property release has been obtained, THE DIFFERENT DESIGN does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of Licensed Material, and Licensee shall be solely responsible for obtaining all necessary release(s).
5. Warranty and Limitation of Liability
AS PERMITTED BY LAW, THE DIFFERENT DESIGN DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DIFFERENT DESIGN SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF THE DIFFERENT DESIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. THE DIFFERENT DESIGN IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK. IN PARTICULAR, THE LICENSED MATERIAL MAY BE PROVIDED ALONG WITH EXTRA FILES MADE AVAILABLE BY VENDORS. THE DIFFERENT DESIGN DOES NOT MAKE ANY WARRANTIES REGARDING ANY OF THESE EXTRA FILES.
6. Indemnification
6.1. Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement and as Licensee’s sole and exclusive remedy for any breach of the warranties set forth in Section 5 above, THE DIFFERENT DESIGN shall, subject to the terms of Section 5 above and Section 6.3 below, 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 as a result of claims by third parties (“Claims”) relating to any actual or alleged breach by THE DIFFERENT DESIGN of its warranties set forth in Section 5 above up to but no more than USD10,000. THE DIFFERENT DESIGN shall have no obligation under this Section 6.1 for any Claims that arise out of or are a result of: (i) Licensee’s modification, overlay or refocusing of the Licensed Material, where the Claim would not have arisen but for the modification, overlay or refocusing made by Licensee; (ii) the context in which Licensed Material is used in a Licensee Work; where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee’s continued use of Licensed Material following notice from THE DIFFERENT DESIGN, or upon Licensee’s knowledge, that Licensed Material is subject to a claim of infringement of another’s right. The foregoing states THE DIFFERENT DESIGN’s entire indemnification obligation under this Agreement.
6.2. Licensee shall, subject to the terms of Section 6.3 below, defend, indemnify and hold harmless THE DIFFERENT DESIGN and its parent, subsidiaries, commonly owned or controlled affiliates, and content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys’ fees), arising out of or as a result of claims by third parties relating to: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement, in violation of applicable law and any claims arising out of or due to Licensee’s particular use; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee’s failure to obtain any required release.
6.3. 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 of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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.
7. 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 5 above, THE DIFFERENT DESIGN 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, its caption or in any way from its Reproduction.
8. No Cancellation by Licensee
All purchases are final upon receipt by Licensee of an email sent by THE DIFFERENT DESIGN confirming the order and enclosing the Invoice. No cancellation or termination rights apply to any license granted under the terms of the Agreement or any future subscription agreement. In the event of a reversal (“Reversal”) of any payment made in connection with the Licensed Material Licensee’s rights to use the Licensed Material shall be deemed an Unauthorized Use pursuant to Section 10 hereinbelow.
9. Royalty Free or Subscription Agreement
9.1. Licensee may ask to acquire the Licensed Material on a royalty-free or subscription basis as shall be set forth in the Invoice and in accordance with THE DIFFERENT DESIGN Price List. A royalty-free license means that the rights granted under this agreement is granted “royalty-free “meaning that you make a one-time payment and there are no future payments, royalties, fees, costs or expenses that are required or imposed upon you for the use of the intellectual property.
9.2. If you purchase a subscription plan as will be specified in the Invoice then you are authorizing THE DIFFERENT DESIGN to charge you the fee specified in the Invoice at the time specified therein. As such, you may accrue monthly, quarterly or annual charges in connection with the subscription. Your subscription will be automatically renewed unless you send us written notice of cancellation prior to the renewal date. Once renewed your license will be in effect for the terms specified in the Invoice and no proration or early termination will be permitted. Should the payment method provided to us by you become invalid you must provide a new form of payment within five days of notice. Failure to provide such form of payment may result in our suspension or termination of your account. Such suspension or termination will not affect your obligations to THE DIFFERENT DESIGN to the date of such suspension or termination.
9.3. A subscription plan will require stored payment information. This stored payment information will be used to pay for your subscription and if you acquire Licensed Material outside of your subscription.
9.4. A subscription plan is nontransferable and may not be used by any party except you the Licensee.
9.5. Should you use or download Licensed Materials in excess of the subscription plan set forth in your Invoice then we will charge you for such downloads at the current hosted “royalty-free” rate set forth on the Website. Those charges will vary and will be solely at the then current rate.
10. Unauthorized Use and Termination
10.1. Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling THE DIFFERENT DESIGN 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 THE DIFFERENT DESIGN’s other remedies under this Agreement, THE DIFFERENT DESIGN reserves the right to charge and Licensee agrees to pay a fee equal to up to 5 times THE DIFFERENT DESIGN’s standard license fee for the unauthorized use of the Licensed Material. THE DIFFERENT DESIGN reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from THE DIFFERENT DESIGN relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; and (ii) destroy or, upon the request of THE DIFFERENT DESIGN, return to THE DIFFERENT DESIGN the Licensed Material and, in the case of termination by THE DIFFERENT DESIGN for cause, the Licensee Work in the possession or control of Licensee.
10.2. Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to THE DIFFERENT DESIGN, including by providing THE DIFFERENT DESIGN with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Material is Reproduced. In addition, upon reasonable notice, THE DIFFERENT DESIGN either may, at its discretion, through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to THE DIFFERENT DESIGN of five (5) percent (%) or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying THE DIFFERENT DESIGN the amount of such underpayment, Licensee shall also reimburse THE DIFFERENT DESIGN for the costs of conducting such audit. Where THE DIFFERENT DESIGN reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, at THE DIFFERENT DESIGN’s request Licensee shall provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by THE DIFFERENT DESIGN.
10.3 Electronic Storage. For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of THE DIFFERENT DESIGN, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only.
10.4 Withdrawal. Upon notice from THE DIFFERENT DESIGN, or upon Licensee’s knowledge, that any Licensed Material may be subject to a claim of infringement of another’s right for which THE DIFFERENT DESIGN may be liable, THE DIFFERENT DESIGN may require Licensee to immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. THE DIFFERENT DESIGN shall provide Licensee with comparable Licensed Material (which comparability will be determined by THE DIFFERENT DESIGN in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
10.5. Governing Law/Arbitration. These Terms of Use and your use of the Services are governed by and construed in accordance with the laws of Australia, specifically the state of Victoria, without regard to its conflict of law principles. Any legal action of whatever nature brought by either you or us (collectively, the “Parties” and individually, a “Party”) shall be commenced or prosecuted in the state and federal courts located in Victoria, Australia, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenient with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use. In no event shall any claim, action, or proceeding brought by either Party related in any way to the Services be commenced more than 2 years after the cause of action arose.
10.6. 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.
10.7. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party 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 either party 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 rights or remedies on any other occasion.
10.8. Entire Agreement. This Agreement is intended for business customers of THE DIFFERENT DESIGN and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by THE DIFFERENT DESIGN and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
10.9. Taxes. All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).