HAWAII STOCK IMAGES
Hawaii Stock Images (HSI) “PRIME” (Rights-Managed) and “INDIE” (Royalty Free) Image, Art and Video License Agreement
This Agreement; hereafter, referred to as “THE AGREEMENT” which also incorporates the “License Rights and Restrictions”, is established between the “Licensee”, and/or “Purchaser” (if any) and “HAWAII STOCK IMAGES LLC”, hereafter referred to as “HSI” for the purpose of this agreement.
This agreement applies to Licenses issued via the HSI Website and/or HSI Sales Representatives and Agents, and is applicable to Online, Digital, and Physical Delivery of Licensed Material provided to the Licensee; by ordering a License and/or purchasing Licensed Material.
Licensee and if applicable, Purchaser; by agreeing to the terms of this Agreement and ordering a License is confirming that it has the capacity to enter into a contract with HSI, under its local laws.
For the Purpose of this Agreement:
- “Licensed Material” means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by HSI under the terms of this Agreement. Any reference in this Agreement to the “Licensed Material” shall be to each individual item within the content and also to the Licensed Material partially or as a whole.
- “Editorial” means Licensed Material relating to events, people, public figures or content that are currently or historically newsworthy or of public interest as identified on the HSI website.
- “Stand-alone file” means the just the file content itself, separate from any project or end use.
- “Licensee” means the entity purchasing a license or if there is a separate Purchaser such as an Advertising Agency, PR or Marketing Firm, Buyers Agent or the any entity authorized by the Licensee or designated as Licensee during the purchase process or as recorded on the Invoice.
- “Purchaser” means an entity, agent or designee purchasing the license on behalf of a third-party Licensee.
- “Invoice” means the invoice provided by HSI setting out Hawaii Stock Images licensing and the terms of the agreement, and fees with the Licensee.
- “Licensee Work” means any end product, manufactured and/or digitally produced or service that has been created by or on behalf of Licensee using independent skill and effort and that incorporates a Reproduction, Reprint or any sort of visual Representation of the Licensed Material in any form.
- “Reproduction” and “Reproduce” mean any form of copying, printing or publishing of the Licensed Material, in whole or in part via any medium and by whatever means of the whole or any part of the Licensed Material, and the creation of any product, service or visual representation from, or that incorporates, the Licensed Material.
- “Rights and Restrictions” means the rights granted to the Licensee and the limitation(s) of usage of Licensed Material, either: provided with the “Licensed Material” on the HSI website or anywhere in the website referring to the usage of images or as might be reflected in the Invoice. Such restrictions may include the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Licensed Material, and any fees for the Licensed Material. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
Grant of Rights and Restrictions.
WHAT YOU GET WITH YOUR LICENSE? Licensee is granted non-exclusive, non-sub-licensable and non-transferable right to use and reproduce the Licensed Material solely to the extent explicitly stated in The Agreement. Licensee may utilize the Licensed Material in any production process as may be necessary for the intended use specified in the Rights and Restrictions.
WHAT ARE THE LIMITAIONS OF USAGE? Use of the Licensed Material is strictly limited to the use, media, mediums, period of time, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions. Unless otherwise specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the Licensee Work in any secondary Reproductions, such as compilations, screen shots, in-context promotions or on file-sharing or social networking websites such as YouTube, Facebook, Instagram, Pinterest, etc.
Licensed Material shall not be used in any manner or for any purpose contrary to the Rights and Restrictions.
WHO CAN USE THE LICENSE? Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed Material contained therein) as part of any manufacturing, production or distribution process as may be necessary or appropriate for the intended use specified in the Rights and Restrictions as part of the production and/or distribution process contemplated in the Rights and Restrictions in connection with the intended use specified therein and the Licensing Rights may be exercised by authorized subcontractors of the Licensee (including Purchaser) for preparation of the Licensee Work, provided that such subcontractors agree to abide by the terms of this Agreement.
WHAT’S THE STORY WITH “EDITORIAL” LICENSES? Unless additional rights are stipulated in the Rights and Restrictions or granted pursuant to a separate license agreement, Editorial Licensed Material may not be used for any commercial, promotional, endorsement, advertising, advertorial, marketing or merchandising use. You may crop or otherwise edit “Editorial Material” for technical quality and dimensional customization, provided that the editorial integrity of the Licensed Material is not compromised; but shall not, under any circumstances, otherwise be altered.
“Editorial Material” may not be modified, reconfigured or repurposed for use in any mobile-directed web sites, mobile applications or social media that are specifically created for viewing of Licensed Material and/or the Licensee Work on mobile devices, without obtaining prior written consent from HSI.
IMAGE INFORMATION: HSI makes every effort to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material. However, HSI does not warrant the accuracy of such information and cannot be held responsible or liable for any incorrect or mistaken information.
DON’T EVEN THINK ABOUT IT: Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes and all applicable Local, Federal and International Laws
SOMETHING TO THINK ABOUT: If any Licensed Material featuring a model or property is used in connection with a subject; that would be unflattering, socially or politically insensitive, morally questionable or controversial (except for Editorial Material used in an editorial manner), Licensee indicate 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 or actor.
YOU CAN’T DO THIS; Licensed Material of any kind, shall not be incorporated into a logo, corporate ID, trademark or service mark, or used in any form in association with company, business or property identification without obtaining the prior written consent of HSI.
YOU NEED TO DO THIS: Licensee must take all precautions and make every effort to protect the Licensed Material, and may not make the Licensed Material available in a manner intended to allow a third party to download, extract, reproduce, redistribute or access the Licensed Material as a standalone file.
WHAT IF YOU ARE THE PURCHASER FOR THE LICENSEE? Where the 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 (whether employed by the Licensee or as an independent contractor) 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 liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in the Agreement shall excuse Purchaser’s obligation to make payment to HSI of the License Fee. By entering into this agreement, Purchaser acknowledges that they are responsible for the protection of the Licensed Material and responsible for all fees.
SOMETHING ELSE YOU DEFINITELY CANNOT DO: Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator, artist or author of a visual work that derives a substantial part of its artistic content from the Licensed Material.
GOING DIGITAL: If the Rights and Restrictions allow Reproduction of the Licensee Work on websites, mobile applications or any other form of digital media, Licensee shall post terms and conditions that prohibit, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.
If the Rights and Restrictions include use on any social media platform or other third party website or mobile application; (i) such rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement, and (ii) in such event, Licensee shall immediately remove any Licensed Material from such platform or website, upon HSI request.
Credits, Marks and Intellectual Property.
ABOUT COPYRIGHTS: The Licensee shall not attempt to copyright or register the Licensed Material in any form or in a manufactured product, without prior written consent from HSI. No ownership or copyright in any Licensed Material shall pass to Licensee or Licensees Agent(s) by the issuance of the license contained in this Agreement. Except as expressly stated in the terms of this Agreement, Licensee is not granted rights or license, express or implied, to the Licensed Material. As no rights of ownership or copyright in the Licensed Material are transferred to Licensee, Licensee may not assert any right to revenue in respect of photocopying, digital copying or other secondary uses of the Licensed Material contained in a Licensee Work.
ABOUT TRADEMARKS: Trademarks. In connection with the use of “Hawaii Stock Images” or any other “HSI” Images or its trade names, trademarks, logos or service marks and/or any technological or proprietary content contained on or within the website or HSI marketing tools and collateral (MARKS), Licensee acknowledges and agrees that (i) such Marks are and shall remain the sole property of Hawaii Stock Images; (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 the Marks.
ABOUT CREDITS. If the Licensed Material is used in an editorial context, it must include the following credit line adjacent to the Licensed Material: ” (Photographer’s or Artists Name)/Hawaii Stock Images” unless otherwise directed by HSI to use a different “credit”. If Licensee omits the credit, an additional fee in an amount up to two hundred percent (200%) of the License Fee may be payable by Licensee, at Hawaii Stock Images’ sole discretion. The foregoing fee shall be in addition to any other rights or remedies that HSI and the original creator may have at law or in equity.
If Licensed Material is used in an audio/visual production in either an editorial context, non-editorial or social media context, credit shall be accorded, where credits are accorded to other providers of licensed material, in equal size and comparable placement to such credit(s), in the following form: ” (Video) (Imagery) (Photograph) supplied by (Artist Name)/Hawaii Stock Images”.
VIOLATIONS: Licensee will immediately notify HSI if it becomes aware of any violation of the Licensing Rights or suspects that any third party that has gained access to the Licensed Material through Licensee and is wrongfully using the Licensed Material, in whole or in part, or is violating any of Hawaii Stock Images’ intellectual property rights, including, but not limited to, Marks and copyrights.
Releases and Privacy Rights
HSI accepts contributor’s images with the understanding that the image creator has received any and all releases necessary to publish their images. HSI will make its best effort to notify the Licensee if the “Image Creator” has not obtained a model release and/or property release for Licensed Material. However, HIS is not responsible for obtaining releases and can only rely on the information provided by the Image Creator. We do our best to try to get releases, but sometimes it doesn’t happen. Some Material may not have a release and it is the sole discretion of the Licensee if Licensee wants to use Material that does not have a signed release. Licensee acknowledges that they are aware of certain legal protections against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. Licensee shall be responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) as a result of Licensee’s use of the Licensed Material.
Except where Licensee is specifically notified that a model and/or property release has been obtained, HSI does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of Licensed Material, and Licensee shall be solely responsible for obtaining all necessary release(s).
Warranties and Limitation of Liability.
Hawaii Stock Images warrants that: (i) the Licensed Material will be free from defects in material and workmanship upon delivery (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 Hawaii Stock Images, excluding any modifications by Licensee, will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by HSI, Licensee’s use of the Licensed Material in accordance with this Agreement and in the form delivered by HSI, Licensee will not infringe on any trademark or other intellectual property right and/or will not violate any right of privacy or right of publicity.
Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice, HSI 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.
HAWAII STOCK IMAGES DOES NOT MAKE ANY OTHER WARRANTIES, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES FOR A PARTICULAR PURPOSE. HAWAII STOCK IMAGES 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 HAWAII STOCK IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. HAWAII STOCK IMAGES 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 OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
HSI INDEMINFICATION: Provided that the Licensed Material is only used in accordance with this Agreement and the Rights and Restrictions, and Licensee is not otherwise in breach of this Agreement HSI shall, defend, indemnify and hold harmless Licensee 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 attorney fees), arising out of or as a result of claims by third parties relating to any actual or alleged breach by HSI of its warranties. HSI shall have no obligation for any Claims that arise out of or are a result of: (i) Licensee modification, where the Claim would not have arisen but for the modification made by Licensee; (ii) the context in which Licensed Material is used in a Licensee Work; where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee’s continued use of Licensed Material following notice from Hawaii Stock Images, or upon Licensee’s knowledge, that Licensed Material is subject to a claim of infringement of another’s right. The foregoing states Hawaii Stock Images entire indemnification obligation under this Agreement.
LICENSEE INDEMNIFICATION: Licensee shall, defend, indemnify and hold harmless Hawaii Stock Images and its 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: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee’s failure to obtain any required release.
RESONSIBILITY OF BOTH PARTIES: 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 of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
License Cancellation Fee. Licensee or Purchaser may request cancellation of this Agreement, in writing within 15 days of the date of receipt by Licensee or Purchaser of the Licensed Material. If the Licensed Material has not been used by Licensee, HSI may cancel this Agreement and issue a credit to Licensee’s or Purchaser’s account or credit card. In each case an administration fee of US$50 or equivalent will be charged. No credits are available for any cancellation request received after 15 days from receipt of Licensed Material.
- Invoicing: Licensee and Purchaser agree to receive invoices from Hawaii Stock Images electronically via the email address associated with Licensee’s and/or Purchasers Hawaii Stock Images account. If Licensee fails to pay Hawaii Stock Images’ Invoice in full within 30 days of the date specified on the Invoice, Hawaii Stock Images may add a service charge of three percent (1.5%) per month, on any unpaid balance until payment is received.
UNAUTHORIZED USE AND TREMINATION: Any use of Licensed Material in a manner not expressly authorized by this Agreement and the Rights and Restrictions constitutes copyright infringement, entitling Hawaii Stock Images 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. In addition and without prejudice to Hawaii Stock Images’ other remedies under this Agreement, Hawaii Stock Images reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times Hawaii Stock Images’ standard license fee for the unauthorized use of the Licensed Material. Hawaii Stock Images reserves the right to terminate this Agreement at any time in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from Hawaii Stock Images relating to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the time of entering the Agreement; (iii) fails to pay the License Fee on the due date; or (iv) otherwise breaches the terms of this Agreement. Upon termination, Licensee must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Hawaii Stock Images, return the Licensed Material and, in the case of termination by Hawaii Stock Images for cause, the Licensee Work in the possession or control of Licensee.
Upon notice from Hawaii Stock Images, or upon Licensee’s knowledge, that any Licensed Material may be subject to a claim of infringement of another’s right for which Hawaii Stock Images may be liable, Hawaii Stock Images may require Licensee to immediately and at its own expense: (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) require its clients do likewise. In such case, Hawaii Stock Images shall provide Licensee with comparable Licensed Material free of charge, but subject to the other terms and conditions of this Agreement.
COMPLIANCE: Upon notice by HSI, Licensee shall provide sample copies of samples of product or reproductions containing Licensed Material, to Hawaii Stock Images and provide Hawaii Stock Images (free of charge) access to websites or platforms where the Licensed Material is reproduced. In addition, Hawaii Stock Images may, at its discretion, 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. If such an audit reveals a breach of the Agreement by Licensee to HSI, Licensee shall reimburse Hawaii Stock Images for the costs of conducting such audit and any costs related to the Where Hawaii Stock Images reasonably believes that Licensed Material is being used outside of the scope of the license granted under this Agreement, Licensee shall, at Hawaii Stock Images’ request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by Hawaii Stock Images.
PROTECTIVE STORAGE: For all Licensed Material that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of Hawaii Stock Images, and any other information embedded in the electronic file containing the original Licensed Material. Licensee may not make additional high-resolution copies of the Licensed Material. Licensee shall do everything within its’ power to protect all Licensed Material to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only.
This Agreement will be governed in all respects by the laws of the State of Hawaii U.S.A. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator in the State of Hawaii, selected using the rules and procedures for arbitrator selection per HRS Section 658A and Dispute Prevention & Resolution, Inc. (DPR) Arbitration Rules, Procedures and Protocols (Rules). The arbitration proceeding shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. 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. Notwithstanding the foregoing, Hawaii Stock Images Images 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 Hawaii Stock Images, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitations, any arbitration proceeding shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
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 barrier to or waiver of rights or remedies on any other occasion.
Entire Agreement. This Agreement is intended for business customers of Hawaii Stock Images and contains all the terms of the license agreement inclusive of the “Rights and Restrictions”. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Hawaii Stock Images and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
Taxes. All License Fees are accessed the Hawaii Sate Government Excise Tax (GET) of 4.712 %. All other applicable sales, use, withholding or other transactional taxes, within “its’” jurisdiction are the sole responsibility of Licensee or Purchaser (if any).