IVOCLAR ROYALTY-FREE IMAGE AND VIDEO LICENSE AGREEMENT
BY CLICKING THE “ACCEPT” BUTTON BELOW AND BY PROVIDING MY IDENTIFICATION AND CONTACT INFORMATION, OR BY DOWNLOADING OR OTHERWISE USING THE LICENSED MATERIAL, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE LICENSED MATERIAL.
Definitions. In this Agreement the following definitions apply:
"Invoice" means a computer-generated or pre-printed standard record generated by Ivoclar when Licensed Material is selected by Licensee. The Invoice shall be incorporated into this Agreement and this Agreement shall be limited to the Licensed Material selected by the Licensee at the time of the transaction.
"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 copies thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Ivoclar 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 as a whole.
"Licensee" means the entity that is granted a license hereunder. To be an eligible Licensee you must be an individual or entity that is a business customer of Ivoclar who is actively buying, distributing, or reselling Ivoclar products and services.
“Publication” and Publish” mean any form of publication of the whole of any Licensed Material, via digital or electronic means in an unedited or manipulated form, i.e., the Licensed Material can only be published in the form that it is transferred to License by Ivoclar.
“Reproduction” and “Reproduce” means any form of copying of the whole or a part of any Licensed Material, via any medium and by whatever means.
“Derivative” means any distortion, alteration, enlargement, reduction, 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.
"User" means any employee or subcontractor of Licensee who: (i) downloads, uses, or saves the Licensed Material; or (ii) is otherwise directly involved in utilizing the Licensed Material on behalf of Licensee.
“Purpose” to promote the sale and marketing of Ivoclar products and services indicated, presented or described in the Licensed Material.
Grant of Rights. Subject to the terms of this Agreement:
Ivoclar grants to Licensee a revocable, non-exclusive, non-transferable, non-sublicensable, right to Publish the Licensed Material identified in the Invoice. The license granted to Licensee is limited for only the purpose the in digital form for the Purpose, subject to restrictions under Section 3 of this Agreement.
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, so long as there are no more than ten (10) Users.
Restrictions.
Licensee may not: (i) make the Licensed Material available in any medium accessible by persons other than authorized Users; or (ii) 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.
Licensee may not, without obtaining the prior written consent of Ivoclar and the payment of fees: (i) include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products; or (ii) use or display the Licensed Material on websites or in any other medium designed to induce or involving the sale, license or other distribution of "on demand" products (e.g., products in which Licensed Material is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items.
Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of the Licensed Material, or a visual work that derives a substantial part of its artistic components from the Licensed Material, nor may it make the Licensed Material available in the form of fine art prints.
A License to the Licensed Material does not allow the License to promote or imply that it is an authorized dealer, representative, reseller, etc. of Ivoclar or of Ivoclar products and services. For example a Licensee may not prominently display the Licensed Material, or using words that imply or explicitly state such a relationship.
Licensee may not create a Derivative or Reproduction of the Licensed Material.
Licensee may only use the Licensed Material in the original form provided by Ivoclar, and for the sole purpose of selling, supporting, marketing and promoting Ivoclar goods and services.
Licensee may only be a business customer of Ivoclar, meaning an individual or entity that is actively buying, distributing or reselling Ivoclar products and services, and the Requester of Licensed Material hereby acknowledges that they are a business customer of Ivoclar.
Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark of another other than Ivoclar, without obtaining the prior written consent of Ivoclar.
Licensed Material may not be used in connection with a subject that would be unflattering, controversial, or in any way would tarnish the reputation or intellectual property value of Ivoclar.
Intellectual Property.
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, Ivoclar grants Licensee no right or license, express or implied, to the Licensed Material.
Trademarks. In connection with the use of any of Ivoclar’s 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 Ivoclar; (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 Ivoclar Marks.
Licensee acknowledges that any trademarks provided as the Licensed Material are important to Ivoclar’s efforts to maintain the uniformity and quality of its products. Licensee agrees that the nature and quality of all goods/services sold by Licensee in connection with the Marks shall conform to standards set by Ivoclar. Licensee shall comply with the Ivoclar’s quality standards, including, but not limited to, the following in manufacturing the goods/services: (a) Use only those components which meet Ivoclar specifications and quality standards, which Ivoclar may designate from time to time; (b) Use only packaging for the goods bearing the approved Marks and which meet Ivoclar specifications, which Ivoclar may designate from time to time; and (c) employ only those methods of preparation of the goods associated with the Marks from the Licensed Material which conform with the methods set forth by Ivoclar.
Licensee agrees to cooperate with Ivoclar in facilitating Ivoclar’s oversight of the nature and quality of all goods and services sold by Licensee in connection with the Marks of the Licensed Material, to permit inspection of Licensee’s operation at any time during normal business hours on fifteen (15) days’ notice, and to supply Ivoclar, free of charge, with representative specimens, including, labels, advertising materials and the like relating to or using the Marks as reasonably requested for approval. Such approval is prerequisite to Licensee’s use of the Marks, and after such approval has been obtained such use may not be changed without again obtaining prior approval from Ivoclar. Licensee shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the sale, distribution and advertising of goods and services covered by this Agreement.
Licensee agrees to use the Marks only in the form and manner and with appropriate legends as prescribed from time to time by Ivoclar, and not to use any other trademark or servicemark in connection with any of the Marks without prior written approval by Ivoclar.
The Licensee shall not use the Marks except as permitted by this Agreement, nor shall it, at any time during or after termination of this Agreement, use the Marks, or any other Mark, or any variation, or “knock off” thereof, for any purpose intended to trade upon the goodwill represented by the Marks, other than the manufacture and sale of the licensed products in conformity with this Agreement.
Notices. All Licensed Material must include the appropriate notice to denote ownership by Ivoclar. An appropriate trademark or copyright notice must be used adjacent to the Licensed Material, e.g. © [YEAR] Ivoclar Vivadent, Inc. for copyright protected material, or®/TM/SM for trademarks. In most instances the Licensed Material will already include the appropriate copyright or trademark notice; however, it is the Licensee’s responsibility to ensure this notice is added for the Licensed Materials that do not include such a notice. Licensee must confirm with Ivoclar if the appropriate notice has been included in the Licensed Material. If Licensee omits the notice, Licensee may be required to pay a fee that will be determined at Ivoclar’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Ivoclar may have at law or in equity, including termination of any license previously granted to Licensee by Ivoclar.
Notice of Violations. Licensee will immediately notify Ivoclar if it becomes aware or suspects that any third party is wrongfully using the Licensed Material, in whole or in part, or is violating any of Ivoclar’s intellectual property rights, including, but not limited to, Marks and copyrights.
Warranty and Limitation of Liability.
Ivoclar warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Ivoclar 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.
Licensee warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) Licensee will use the Licensed Material in accordance with this Agreement and in the form delivered by Ivoclar, and will not use the Licensed Materials in a way that would infringe on any copyright, moral right, trademark or other intellectual property right, or that would not violate any right of privacy or right of publicity.
IVOCLAR 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. IVOCLAR 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 IVOCLAR 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. IVOCLAR 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.
Indemnification. Licensee shall defend, indemnify and hold harmless Ivoclar and its parent, subsidiaries, commonly owned or controlled affiliates, 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 Licensee's use of any Licensed Material outside the scope of this Agreement or any other actual or alleged breach by Licensee of this Agreement.Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Publication. Without prejudice to Section 5.1(i) above, Ivoclar 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 Publication.Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright, trademark, or intellectual property infringement, entitling Ivoclar to exercise all rights and remedies available to it under intellectual property laws around the world. Licensee shall be responsible for any damages resulting from any such copyright, trademark, or intellectual property infringement, including any claims by a third party. In addition and without prejudice to Ivoclar’s other remedies under this Agreement, Ivoclar reserves the right to charge and Licensee agrees to pay a fee established by Ivoclar for the unauthorized use of the Licensed Material. Ivoclar reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from Ivoclar relating to the Licensed Material; (ii) provides inaccurate information to Ivoclar when requesting the Licensed Material; or (iii) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately: (1) stop using the Licensed Material; and (2) destroy or, upon the request of Ivoclar, return to Ivoclar the Licensed Material. Miscellaneous Terms.
Upon reasonable notice, Ivoclar may, at its discretion, either 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. Where Ivoclar reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, or that Licensee is in breach of the Agreement, Licensee shall, at Ivoclar’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Ivoclar.
Licensee agrees to provide accurate identification and contact information when requesting License Material
Electronic Storage. For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the appropriate copyright or trademark notice, the Licensed Material's identification number or any other information as may be embedded in the electronic file containing the original Licensed Material. Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material.
Withdrawal. Upon notice from Ivoclar, or upon Licensee's knowledge that any Licensed Material may be subject to a claim of infringement of another's right for which Ivoclar may be liable, Ivoclar may require Licensee to immediately and at its own expense: (i) stop using the Licensed Material; and (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical). Licensee agrees to comply with these requests should Ivoclar make such requests.
Governing Law/Arbitration. This Agreement will be governed in all respects by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Ivoclar 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 Ivoclar, such action is necessary or desirable. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset.
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.
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.
Entire Agreement. This Agreement and license is intended for business customers of Ivoclar and contains all the terms of the Agreement and license. Ivoclar is the steward of this Agreement and the license and no one other than the Ivoclar has the right to modify or publish new versions of this Agreement. The terms and conditions of this Agreement may be modified solely by Ivoclar, and new versions of the Agreement may be created solely by Ivoclar without approval from, or consultation with, Licensee. Licensee may only use the Licensed Materials under the terms of the version of the Agreement that Licensee originally received the Licensed Material.
©2013 Ivoclar Vivadent. All rights reserved. Last updated: MAY 2013
