CONTENT LICENSE AGREEMENT
This Agreement governs the terms by which clients of Mystic Media Custom Publishing (DBA Tea Biz Blog) to obtain the right to use text, photos, illustrations, charts, video and other media content displayed at the web site located at www.tea-biz.com (the “Site”).
1. Background of Agreement
(a) This document contains many important provisions that affect your rights and obligations. By selecting “I Agree to these terms” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the client, and agree to be bound by its provisions. If you are accepting on behalf of your employer, you represent and warrant that you have full legal authority to make binding agreements. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not use the Content.
(b) In this Agreement: (i) “you” or the “Client” means you or, if accepting on behalf of an employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “Tea Biz” or “we” means Tea Biz, operator of the Site and copyright holder; and (iii) “Content” means text, photos, illustrations, charts, video and other media content generated electronically, digitally or by any other means or in any media or other material that you are downloading from the Site, together with any accompanying material.
(c) This Agreement is set up as a user-determined document where you will choose to enter into our standard royalty-free content license (the “Standard License”).
2. Standard License Terms
Tea Biz hereby grants to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below) and only for those designated uses. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Tea Biz or the supplier of the Content, as the case may be.
3. Permitted Standard License Uses
(a) You may only use the Content for those editorial, advertising, promotional and other specified purposes which are Permitted Uses (as defined below). You may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License negotiated with Tea Biz; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work.
If there is any doubt you should either contact Tea Biz’s Publisher for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.
(b) Seat Restrictions. Only the Client is permitted to use the Content, although you may transfer files containing Content to your own clients, marketing partners, printers, or ISP for the purpose of reproduction, provided that such parties shall have no further or additional rights to use the Content.
You are entitled to utilize the content an unlimited number of times. In addition to posted content you may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:
- newsletters, websites, Client social media and sharing sites, on–line or electronic publications;
- advertising and marketing and promotional projects, including printed materials, brochures, trade show materials (ie. not for resale or license);
- prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and
- any other uses approved in writing by Tea Biz.
If there is any doubt that a proposed use is a Permitted Use, you should contact Tea Biz’s Publisher for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you may not:
- use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of Tea Biz copyrighted Content.
- resale, license or distribute for profit the Content including use in posters, books, magazines e-publications or websites;
- incorporate the Content in any product that results in a re-distribution or re-use of the Content or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
- use the Content in a fashion that is considered by Tea Biz (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
- use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour unless accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model; or (b) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content
- remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
- sub-license, re-sell, rent, lend, assign, gift (without permission) or otherwise transfer or distribute the Content or the rights granted under this Agreement;
- use the Content for editorial purposes without including the following credit adjacent to the Content or in audio/visual production credits: ©Tea Biz used with permission;
- If the Content 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 website seeks to exploit purported rights to the Content contrary to the terms of this Agreement, and (ii) in such event, upon Tea Biz’s request, you shall remove any Content from such platform or website.
6. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Tea Biz if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Tea Biz in writing that you have complied with these requirements.
(b) Tea Biz reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
(c) Upon notice from Tea Biz, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another’s right for which Tea Biz may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise. Tea Biz shall provide you with replacement Content (which shall be determined by Tea Biz in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
7. Tea Biz Representations and Warranties
(a) Tea Biz warrants that (i) our use of the Content in accordance with this Agreement and in the form delivered by Tea Biz 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; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained.
(b) While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, Tea Biz does not warrant the accuracy of such information. Additionally, Tea Biz does not warrant the accuracy of any metadata that may be provided with the Content.
(c) CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TEA BIZ DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT TEA BIZ) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
8. Tea Biz Indemnification and Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties above, Tea Biz shall defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth above. The foregoing states Tea Biz’s entire indemnification obligation under this Agreement.
(b) The indemnification set out above is conditioned on your prompt notification in writing to Tea Biz of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with Tea Biz in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Tea Biz shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL TEA BIZ OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, TEA BIZ SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF TEA BIZ UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER 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 TEA BIZ UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF ONE THOUSAND ($1,000) US DOLLARS. FOR GREATER CLARITY, TEA BIZ’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED ONE THOUSAND ($1,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM TEA BIZ.
(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Your Indemnification
You agree to indemnify, defend and hold Tea Biz, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Tea Biz Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Tea Biz Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
10. General Provisions
(a) Tea Biz’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(b) This Agreement is personal to you and is not assignable by you without Tea Biz’s prior written consent. Tea Biz may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(c) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(d) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
(e) This Agreement will be governed under the laws of the Province of Manitoba and the federal laws of Canada (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Winnipeg, Manitoba, Canada, and shall be conducted in the English language.
(h) The parties have requested that this Agreement and all related documents be drawn up in English.
If you have concerns relating to this Agreement, please contact Tea Biz at firstname.lastname@example.org or via phone at 204 788-1359
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF TEA BIZ AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND TEA BIZ, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND TEA BIZ RELATING TO THE SUBJECT OF THIS AGREEMENT.
©Tea Biz 2013. All rights reserved.