THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND A SUBSIDIARY OF Maniki S.A., INC. ("Maniki S.A."). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE
WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE “AGREEMENT”).
1. Definitions. In this Agreement the following definitions apply:
1.1. "Invoice" means the computer-generated or pre-printed invoice provided by Maniki S.A. or an authorized distributor that may include, without
limitation, the Licensed Material selected, any limitations on the license in addition to those specified herein and the corresponding price for the license
of such Licensed Material. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
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 Maniki S.A. 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. "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or part of any Licensed Material, via any medium by whatever
means, and 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.
1.4. “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 in writing by Maniki S.A..
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 a
separate seat license is purchased for each additional User, before such additional use begins.
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, whether directly or in context or juxtaposition with
other materials.
3.8. Licensee must retain the copyright symbol, the name of Maniki S.A., 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 Maniki S.A. before or at the time of delivery of the Licensed Material, either in the
information accompanying the Licensed Material or otherwise.
3.10. If the Licensed Material is used in an editorial manner, Licensee must include the following credit adjacent to the Licensed Material:
“[Photographer’s name]/[Name of collection]/Maniki S.A.”.
3.11. While efforts have been made to correctly caption the subject matter of the Licensed Material, Maniki S.A. does not warrant the accuracy of such
information.
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, Maniki S.A. grants Licensee no right or license, express or implied, to the Licensed Material.
5. Warranty and Limitation of Liability.
5.1. Maniki S.A. 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) the 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. Maniki S.A. 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. Maniki S.A. 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 Maniki S.A. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. Maniki S.A.’ 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 10 TIMES THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.
5.3. THE REPRESENTATIONS AND WARRANTIES MADE BY Maniki S.A. IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY Maniki S.A. 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 that the Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Maniki
S.A. shall defend, indemnify and hold Licensee harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable
attorney’s fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging
that Maniki S.A. is in breach of its warranties given in section 5 above. The foregoing states Maniki S.A.' entire indemnification obligation 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. Licensee shall defend, indemnify and hold Maniki S.A. and its parent, subsidiaries and commonly owned or controlled affiliates and their respective
officers, directors and employees harmless from all damages (except punitive damages), liabilities and expenses (including reasonable attorneys’ fees and
permitted and authorized 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 Maniki S.A. 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 Maniki S.A., return
the Licensed Material to Maniki S.A.; and (iii) delete or remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or
physical).
7.2. Maniki S.A. 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.(ii), Maniki S.A. 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 Maniki S.A. 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 Maniki S.A.’ other remedies under this Agreement, Maniki S.A. reserves the right to charge and Licensee agrees to pay a fee equal to five times Maniki
S.A.’ normal license fee for use of the Licensed Material.
9.2. Governing Law. 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. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in either Seattle,
Washington; New York, New York; London, England; Paris, France; or Singapore. If Maniki S.A. and Licensee are unable to agree on the location of the
arbitration, Maniki S.A.’ decision shall be final. The United Nations Convention on Contracts for the International Sale of Goods does not govern this
Agreement. Notwithstanding the foregoing, Maniki S.A. 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 Maniki S.A., such action is
necessary or desirable.
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 Maniki S.A., other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the
part of Maniki S.A. 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
Maniki S.A. 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 Maniki S.A.
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.
