DK IMAGES LICENCE AGREEMENT FOR LOAN AND REPRODUCTION OF PICTURES (SINGLE USE)
1.1 The “Client” means the person, company or organisation to whom pictures are supplied.
1.2 “Invoice” means the computer generated or pre-printed standard from invoice sent to the Client by DK either electronically or by post that may include without limitation, the High Res Pictures selected, any limitations or restrictions on the licence in addition to those specified herein and the price for such licence. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.3 "DK" means Dorling Kindersley Limited registered with Company No. 1177822 whose registered office is at 80 Strand, London WC2R 0RL
1.4 “Pictures” means all images owned or licensed by DK.
1.5 “High Res Picture(s)” includes all high resolution pictures provided to the Client by DK for end use as distinct from Low Res Pictures.
1.6 “Low Res Picture(s)” includes all low-resolution materials provided to the Client free of charge by DK for sample use to create provisional layouts. The use of Low Res Pictures by the Client is governed by clause 2 below.
1.7 “Reproduce” and “Reproduction” mean any form of copying or publication of the whole or a part of any Pictures, via any medium and by whatever means, and the distortion, alteration, cropping or manipulation of the whole or any part of the Pictures and the creation of any derivative work from the Pictures (where permitted under the Rights and Restrictions).
1.8 “Licence Fee” means the licence fee specified in the Invoice.
1.9 “Rights and Restrictions” means the information: (i) accompanying the Pictures on the DK Images website (including all areas of the purchase process); (ii) in the Invoice, or (iii) in any other written communication accompanying the Pictures. Such Restrictions may include, without limitation, the permitted scope of use, any territory or other use Restrictions applicable to the Pictures selected, and the corresponding price for the licence of such Pictures. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
2. GRANT OF RIGHTS AND RESTRICTIONS FOR LOW RES PICTURES (SAMPLE AND LAYOUT PURPOSES)
2.1 Grant of Rights DK grants to the Client, for a period of 30 days, a non-exclusive, non-sublicensable, non-transferable and non-assignable licence to copy and incorporate the Low Res Pictures in materials for sample use to create provisional layouts for the Low Res Pictures the Client has requested and any derivatives or copies on the Client’s digital library, network configuration or similar arrangement to be viewed by employees of the Client so long as there are no more than ten (10) employees using the Low Res Pictures. The Low Res Pictures may only be used in materials for test or sample use, including comps and layouts and personal, non-commercial use.
2.2 Restrictions The Low Res Pictures may not be used in any final materials distributed inside of the Client’s company or any materials distributed outside of the Client’s company or to the public, including, but not limited to, advertising and marketing materials or in any online or other electronic distribution system (except that the Client may transmit Low Res Pictures in the sample use or provisional layout digitally or electronically to the Client’s own clients for their review) and may not be distributed, sublicensed or made available for use or distribution separately or individually and no rights may be granted to the Low Res Pictures.
2.3 General. All rights to the Low Res Pictures are owned by DK and are protected by English copyright law, international treaty provisions and other applicable laws. DK retains all rights not expressly granted by this Agreement. The licence contained in this Agreement will terminate automatically without notice from DK upon expiry of the 30-day Low Res Picture licence period or, if sooner, upon the Client failing to comply with any provision of this Clause 2. Upon termination, the Client must immediately stop using the Low Res Pictures and destroy any digital Low Res Pictures and all hard copies of Low Res Pictures.
3. GRANT OF RIGHTS AND RESTRICTIONS FOR HIGH RES PICTURES
3.1 DK grants to the Client a non-exclusive, non-sublicensable and non-assignable right to use and Reproduce the High Res Pictures, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of the Client for preparation of the final product for the licensed use, provided that such subcontractors agree to abide by the terms of this Agreement.
3.2 Use of the High Res Pictures is strictly limited to the use, medium, period of time, print run, placement, size of High Res Pictures, territory and any other restrictions specified in the Rights and Restrictions. The Client may utilize the High Res Pictures in any production process that may be necessary for the intended use specified in the Rights and Restrictions.
3.3 High Res Pictures may be cropped, rotated, altered or changed provided that the Client retains on the High Res Pictures at all times the DK copyright symbol, the name of DK and any image number which may be included as part of the electronic file containing the High Res Pictures
3.4 Pornographic, defamatory or otherwise unlawful use of High Res Pictures is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter.
3.5 High Res Pictures shall not be incorporated into a logo or trademark
3.6 The Client may not make the High Res Pictures available in any medium in a manner intended to allow or invite persons to download or extract the High Res Pictures as a standalone product.
3.7 High Res Pictures may not be modified, reconfigured or repurposed for use in any mobile-directed web sites or mobile applications that are specifically created for viewing of High Res Pictures on mobile devices, without obtaining the prior written consent of DK
3.8 Unless otherwise authorised by applicable law or specified in the Rights and Restrictions, the Client may not, directly or indirectly, Reproduce the final product of the licensed use in any secondary Reproductions, such as compilations or screen shots. Such Reproductions require an additional licence from DK and may be subject to payment of additional licence fees.
3.9 High Res Pictures shall not be used contrary to any restriction on use that is provided to the Client prior to or at the time the High Res Pictures are delivered to the Client. Such restrictions may be included in the Rights and Restrictions or in any other written communication from DK. Any such restriction provided to the Client shall be incorporated into and become part of this Agreement.
4. INTELLECTUAL PROPERTY.
4.1 Copyright. No ownership or copyright in any High Res Pictures shall pass to the Client by the grant of the licence contained in this Agreement. Except as expressly stated in this Agreement, DK grants the Client no right or licence, express or implied, to the High Res Pictures.
4.2 Trademarks. In connection with the use of "DK" or any other of DK's trade names, trademarks, logos or service marks ("Marks"), the Client acknowledges and agrees that (i) DK's Marks are and shall remain the sole property of DK; (ii) nothing in this Agreement shall confer upon the Client any right of ownership in DK's Marks; and (iii) the Client shall not now or in the future contest the validity of DK's Marks.
4.3 Notice of Infringements. The Client will immediately notify DK if it becomes aware or suspects that any third party that has gained access to the High Res Pictures through the Client is wrongfully using the High Res Pictures, in whole or in part, or is infringing any of DK's intellectual property rights, including, but not limited to, the Marks and copyrights.
5. WARRANTY AND LIMITATION OF LIABILITY.
5.1 DK warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the High Res Pictures will be free from defects in material and workmanship for thirty (30) days from delivery (the Client's sole and exclusive remedy for a breach of this warranty being the replacement of the High Res Pictures); and (iii) the Client's use of the High Res Pictures in their original form, and when used in accordance with this Agreement in particular the Rights and Restrictions, will not infringe on any copyrights or moral rights of any person or entity;
5.2 DK 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. DK shall not be liable to licensee or any other person or entity for any punitive, special, indirect, consequential or incidental damages, or any other damages, costs or losses arising out of this Agreement, even if DK has been advised of the possibility of such damages, costs or losses.
6. CONDITION OF HIGH RES PICTURES.
The Client should examine all High Res Pictures for possible defects (whether digital or otherwise) before sending any High Res Pictures for Reproduction. Without prejudice to Section 5.1.(ii) above, DK shall not be liable for any loss or damage suffered by the Client or any third party, whether directly or indirectly, arising from any alleged or actual defect in any High Res Pictures or its caption or in any way from its Reproduction.
7. INTEREST OR CANCELLATION ON OVERDUE INVOICES.
If the Client fails to pay the Invoice in full within the time specified in the Invoice, DK may add interest of four percent (4%) above base rate per month, on any unpaid balance until payment is received. DK also reserves the right, in its sole discretion, to revoke the licence if payment is not made in full on time
8. UNAUTHORISED USE.
Any use of High Res Pictures in a manner not expressly authorised by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling DK to exercise all rights and remedies available to it under copyright laws around the world. The Client 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 DK's other remedies under this Agreement, DK reserves the right to charge and the Client agrees to pay a fee equal to up to five (5) times DK's standard licence fee for the unauthorised use of the High Res Pictures.
9. AUDIT/CERTIFICATE OF COMPLIANCE.
Within two weeks of use by the Client of the High Res Pictures, the Client shall provide sample copies of Reproductions containing High Res Pictures to DK and the Client agrees that DK may use such copies in publicity for DK Images. In addition, upon reasonable notice, DK may, at its discretion, either through its own employees or through a third party, audit the Client's records directly related to this Agreement and use of High Res Pictures in order to verify compliance with the terms of this Agreement. Where DK reasonably believes that High Res Pictures are being used outside of the scope of the licence granted under this Agreement, the Client shall, at DK's request, provide a certificate of compliance signed by an officer of the Client, in a form to be approved by DK.
10. ELECTRONIC STORAGE.
The Client must retain the copyright symbol, the name of DK and the image number or other identification number associated with the High Res Pictures as may be included as part of the electronic file containing the High Res Pictures that is stored on the Client's computers. The Client may not make additional high-resolution copies of the High Res Pictures and the Client shall maintain a robust firewall to safeguard against unauthorised third-party access to the High Res Pictures. Upon the expiration or earlier termination of this Agreement, the Client shall promptly delete and remove the High Res Pictures from the Client's premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise.
Upon notice from DK, or upon the Client's knowledge that any High Res Pictures are subject to a threatened or actual claim of infringement, or any other claim for which DK may be liable herein, or if DK withdraws any High Res Pictures for any good reason, the Client shall physically remove the High Res Pictures from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. DK shall provide the Client with comparable High Res Pictures (which comparability will be determined by DK in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
12. GOVERNING LAW.
This Agreement is subject to English law and the parties submit to the
exclusive jurisdiction of the English courts.
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.
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.
15. ENTIRE AGREEMENT.
This Agreement contains all the terms of the licence agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorised representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by the Client, the terms of this Agreement including the Rights and restrictions and any terms of the Invoice shall prevail.