Definitions. In this Agreement the following definitions apply:
1.1_ "Licensed Material" means any still image or 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 Hästens 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.
1.3 "Licensee" means the entity acquiring an automatic license hereunder.
1.4 "Licensee Work" means an end product, service, campaign or publication 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.
1.5 "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.
1.7 "User" means any employee or subcontractor of Licensee who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Licensed Material; (ii) is otherwise directly involved in the creative process utilizing the Licensed Material; or (iii) incorporates the Licensed Material within any derivative work.
Grant of Rights. Subject to the terms of this Agreement:
2.1 Hästens grants to Licensee a non-exclusive, non-transferable, non-sub licensable, worldwide right to access the Hästens subscription and Reproduce the Licensed Material made available to Licensee through the subscription an unlimited number of times in any and all media for all purposes other than those uses prohibited under Section 2 of this Agreement.
2.2 Licensee may use any Licensed Material incorporated into a Licensee Work in accordance with the terms of this Agreement. If the individual entering into this Agreement is an agent entering into this Agreement, accessing and using the Licensed Material on behalf of a single client, this continued use may be exercised by the client and such individual solely to the extent the individual who entered into this Agreement is doing work authorized by and on behalf of that client.
2.3 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.
3.1 Hästens may (a) monitor, as frequently as Hästens determines, anything Licensee downloads from the Hästens Web site, (b) track any abuse of Licensee’s username(s) and password(s), (c) suspend or terminate Licensee’s Hästens subscription, without notice, if Hästens believes there is a violation of this Agreement and/or any abuse or sharing of Licensee’s username and password.
3.2 Licensee may not: (i) make the Licensed Material available (separate from the Licensee Work) in any medium accessible by persons other than authorized Users; or (ii) make the Licensed Material in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.
3.3 Licensee may not, without obtaining the prior written consent of Hästens: (i) use the Licensed Material in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit: (ii) include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products; (iii) 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, including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items; (iv) sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Material or the rights granted under this Agreement; (v) use or display the Licensed Material in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement.
3.4 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, nor may it make the Licensed Material available in the form of fine art prints.
3.5 Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of Hästens.
3.6 If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, 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.
3.7 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
3.8 While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, Hästens does not warrant the accuracy of such information.
3.9 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 3.11 shall serve to excuse Purchaser's obligation to make payment to Hästens of the License Fee.
3.10 If the Licensed Material is Reproduced on a website, Licensee shall post terms and conditions on the website that include restrictions on downloading the Licensed Material for other than personal use, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.
3.11 If the Licensed Material is Reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked in the event that the platform or website seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement, and (ii) in such event, upon Getty Images’ request, Licensee shall remove any Licensed Material from such platform or website.
3.12 Licensed Material identified as “Editorial use only”, may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial use only” of Content means use relating to events that are newsworthy or of general interest.
Credit and Intellectual Property.
4.1 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, Hästens grants Licensee no right or license, express or implied, to the Licensed Material.
4.2 Trademarks. In connection with the use of "Hästens" or any other of Hästens’ or its partners’ 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 Hästens or its partners; (ii) except as expressly required in order to satisfy 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 Hästens’ Marks.
4.3 Photo Credit. All Licensed Material used in an editorial context, must include the following credit line adjacent to the Licensed Material: "[Photographer's Name]/[Collection Name]/Hästens" or as otherwise shown on the Hästens website. If Licensee omits the credit, a fee in an amount up to one thousand EURO may be payable by Licensee, at Hästens’ sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Hästens may have at law or in equity.
4.4 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 other credit(s), substantially in the form "[Imagery] supplied by [Collection Name]/Hästens".
4.5 Notice of Violations. Licensee will immediately notify Hästens 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 Hästens’ intellectual property rights, including, but not limited to, Marks and copyrights.
4.6 No Removal of Notices. Licensee shall not remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Licensed Material.
Warranty and Limitation of Liability.
5.1 Hästens warrants that: (i) the Licensed Material will be free from defects in material and workmanship (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Hästens, will not infringe on: (A) any copyright or moral right; or (B) except in respect of Licensed Material identified as “Editorial use only,” trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iv) except in respect of Licensed Material identified as “Editorial use only,” all necessary model and/or property releases for use of the Licensed Material authorized under this Agreement have been obtained. Licensee shall be responsible for payment of any amounts that may be due, and compliance with any other terms of, any applicable collective bargaining agreement(s) as a result of its use of the License Material. Licensee acknowledges that no releases are obtained for Licensed Material that is identified as “Editorial use only” and 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. For Licensed Material identified as “Editorial use only”, Hästens does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted therein. In such cases, you shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of the Licensed Material identified as “Editorial use only”, and shall be responsible for obtaining such release(s) or for failure to obtain any necessary release(s).
5.2 HÄSTENS DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HÄSTENS 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 HÄSTENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF LICENSEE OR PURCHASER MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. WITHOUT LIMITING ANY OTHER TERM HEREIN, HÄSTENS SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING 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.
5.3 All websites of Hästens and its divisions and subsidiary companies as well as editorial feed(s) and similar electronically-delivered Hästens products will be provided by Hästens on an "as is" and "as available" basis. Licensee acknowledges that websites and products may be subject to temporary shutdowns from time to time for maintenance or due to causes beyond reasonable control and that Hästens shall not have any liability to Licensee by reason of such shutdowns. Under no circumstances shall Hästens or any party involved in creating, producing, or distributing such websites or products be liable for any damages whatsoever resulting from Licensee’s use or inability to use the same, including, but not limited to, the results from mistakes, omissions, interruptions, deletion of files or electronic mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access thereto.
6.1 Licensee shall defend, indemnify and hold harmless Hästens 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 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.
6.2 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement or any payment obligations to Hästens and as Licensee's sole and exclusive remedy for any breach of the representations and warranties set forth in this Agreement, defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from damages, liabilities and expenses (including reasonable outside attorney's fees), arising out of or connected with any actual lawsuit or legal proceeding alleging that Hästens is in breach of its warranties set forth herein. The total maximum aggregate liability of Hästens under this Agreement and any other agreement with Hästens pursuant to which you have licensed the same content, regardless of the file size, or the use or exploitation of any or all of the content in any manner whatsoever and the obligation of Hästens under this Section shall be limited to an aggregate of ten thousand (10,000) EURO per item of Licensed Material.
Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Hästens 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 Reproduction.
Unauthorized Use and Termination. Any use of Licensed Material in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Hästens 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.
9.1 Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Hästens and any other information as may be embedded in the electronic file containing the original Licensed Material.
9.2 Withdrawal. Hästens makes no representations or warranties that all Licensed Material and/or Licensed Material collections will be available for use during the Agreement Term. Hästens may discontinue licensing certain Licensed Material and/or Licensed Material collections in its sole discretion.
9.3 Governing Law. This Agreement will be governed in all respects by the laws of Sweden. Any disputes arising from this Agreement or its enforceability shall be finally settled by binding arbitration under the Stockholm chamber of Commerce ("SCC"). Notwithstanding the foregoing, Hästens 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 Hästens, such action is necessary or desirable.
9.4 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.
9.5 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.
9.6 Entire Agreement. This Agreement is intended for business partners of Hästens and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either signed by an authorized representative of Hästens or issued electronically by Hästens and signed by its authorized representative. Notwithstanding the foregoing, Hästens reserves the right to change any of the terms of this Agreement at any time, and you agree to be bound by such changes. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.