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Royalty Free Image and Film License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE (AS DEFINED BELOW) AND THE LICENSOR (AS DEFINED BELOW). THIS AGREEMENT APPLIES TO CERTAIN LICENSES ISSUED VIA THE PHOTOSHELTER.COM WEBSITE (THE "SITE"), AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE "AGREEMENT"). THE LICENSOR AND LICENSEE HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER THE SITE NOR ITS OWNER, BITSHELTER, LLC (COLLECTIVELY, "PHOTOSHELTER"), IS A PARTY TO THIS AGREEMENT AND NO CLAIM SHALL BE MADE BY THE LICENSOR, THE LICENSEE OR ANY OF THEIR AFFILIATES AGAINST PHOTOSHELTER OR ITS AFFILIATES FOR ANY LOSS, DAMAGE OR ANY DISPUTE RELATING TO THE LICENSED MATERIAL (AS DEFINED BELOW) AND THE LICENSOR AND THE LICENSEE WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTIONS AGAINST PHOTOSHELTER TO THE FULLY EXTENT PERMITTED UNDER LAW. THE LICENSOR AND LICENSEE HEREBY AGREE TO JOINTLY AND SEVERALLY INDEMNIFY PHOTOSHELTER AGAINST ANY CLAIM, DAMAGE, EXPENSE OR OTHER LOSS INCURRED BY PHOTOSHELTER AND ITS AFFILIATES AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE MATTERS REFERENCED HEREIN.

1. Definitions. In this Agreement the following definitions apply:

1.1 "Invoice" means the computer-generated or pre-printed invoice provided by or through the Site that may include, without limitation, names of the Licensor and Licensee, the permitted scope of use of the Licensed Material selected and the corresponding price for the license of such Licensed Material.

1.2 "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 Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Licensor 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 taken as a whole.

1.3 "Licensee" means the person or entity set forth in the applicable Invoice as the "licensee" and receiving the rights to the Licensed Materials as specified hereunder.

1.4 "Licensor" means the person or entity set forth on the Invoice as the "licensor" and granting the rights to the Licensed Materials as specified hereunder. For the avoidance of doubt, in no event shall PhotoShelter be deemed for any purposes hereunder as the Licensor.

1.5 "Reproduction" and "Reproduce" mean any form of duplication, copying or publication of any or all of the Licensed Material, via any medium and by whatever means, and/or the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.

1.6 "User" means any employee or subcontractor of the Licensee who manipulates, edits, or modifies the original digital file containing the Licensed Material or incorporates the Licensed Material within any derivative work.

2. Grant of Rights. Subject to the terms of this Agreement:

2.1 Licensee has the non-exclusive, non-transferable, non-sublicensable right to Reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media for the following purposes (together the "Permitted Uses"):

2.1.1 Advertising and promotional materials;

2.1.2 Broadcast and theatrical exhibitions;

2.1.3 Print publications and physical products;

2.1.4 Electronic publications including website design, up to a maximum resolution of 72dpi; and

2.1.5 Any other uses approved by the Licensor in the Invoice or otherwise in writing.

2.2 Licensee has the right to have the Licensed Material Reproduced by subcontractors of Licensee, provided that Licensee ensures that such subcontractors agree to abide by the provisions of this Agreement.

2.3 Licensee may alter, crop, manipulate and create derivative works of the Licensed Material.

2.4 Licensee's rights to the Licensed Material are worldwide and perpetual.

3. Restrictions.

3.1 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, but under no circumstance may the Licensed Material ever be used by more than 10 Users unless otherwise provided in writing by the Licensor.

3.2 Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement but Licensee may sell or license derivative works incorporating the Licensed Material. However, Licensee may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products.

3.3 Licensee may not sell, license or distribute any derivative work containing the Licensed Material in a way that would allow a third party to download, extract or access the Licensed Material as a standalone file.

3.4 Licensed Material shall not be incorporated into a logo, trademark or service mark.

3.5 Licensee may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices.

3.6 If any Licensed Material featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) 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 the person is a model and the Licensed Material is being used for illustrative purposes only.

3.7 The Licensed Material may not be used in a pornographic, defamatory or otherwise illegal manner.

3.8 Licensee must retain the copyright symbol, the name of Licensor or such other credit information, if any, provided in the invoice, the Licensed Material's identification number and any other information as may be invisibly embedded in the electronic file containing the original Licensed Material.

3.9 Licensee must abide by any restriction on use notified to it by Licensor before or at the time of delivery of the Licensed Material, either in the Invoice, information accompanying the Licensed Material or otherwise.

3.10 If any Licensed Material is Reproduced in an editorial manner, Licensor's name or, such other credit information, if any, provided in such Invoice, must appear adjacent to the Licensed Material in the credit line accompanying the Licensed Material.

4. 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, Licensor grants Licensee no right or license, express or implied, to the Licensed Material.

5. Warranty and Limitation of Liability.

5.1 Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); and (iii) Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement and the Invoice, 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.

5.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE LICENSED MATERIAL OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. LICENSOR'S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF 5 TIMES THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.

5.3 THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

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, Licensor shall defend, indemnify and hold Licensee harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Licensor is in breach of its warranties given in section 4 above.

THE FOREGOING STATES LICENSOR'S ENTIRE INDEMNIFICATION OBLIGATION TO LICENSEE UNDER THIS AGREEMENT AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 ABOVE.

6.2 Where Licensee's use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs) 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 breach by Licensee of this Agreement.

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 thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

7. Termination and Revocation.

7.1 The license contained in this Agreement will terminate automatically without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of Licensor, return the Licensed Material to Licensor; and (iii) delete or remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical).

7.2 Licensor reserves the right to revoke the license to use the Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material and shall where possible ensure that its clients and customers do likewise.

8 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 5.1, Licensor 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.

9. Miscellaneous Terms.

9.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor 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.

9.2 Governing Law. This Agreement will be governed in all respects by the laws of the State of New York, without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in New York, New York. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

9.3 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.

9.4 Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor 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 Licensor 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 by Licensor on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

9.5 Entire Agreement. This Agreement contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. 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.

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