System Master License Agreement
NBCUNIVERSAL ARCHIVES WEBSITE
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.nbcuniarchives.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 NOTWITHSTANDI NG 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-onehalf 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 inNew York, New York, regardless of conflicts oflaws. 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.