License agreement of Phovoir

THIS IS A LEGAL AGREEMENT UNDERTAKEN BETWEEN YOU (THE ‘LICENSE HOLDER“) AND PHOVOIR. THIS AGREEMENT RELATES TO LICENSES ISSUED VIA WEBSITES AND LOCAL SALES REPRESENTATIVES AND SHALL BE USED FOR THE ON-LINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (“AGREEMENT“).

1. Definitions. The following definitions apply to this agreement:
1.1. “Invoice“ means an invoice created by a computer or ready-printed and issued by PHOVOIR or by an authorized distributor, which may, among other things, contain selected licensed materials, any limitations of validity of the license beyond the frameworks stated herein and the corresponding price for the license of such licensed materials.

1.2. “Licensed material“ refers to any shot, film or a video sequence, audio product, visual presentation generated optically, electronically, digitally or in another manner, including negatives, transparent foils, film prints, prints, original digital files or any reproduction of them or of any other products protected by copyright, trademark, patent or by other intellectual property right, which is licensed to the license holder PHOVOIR under the terms and conditions hereof.

1.3. “Reproduction“ and “Reproducing“ refer to any form of copying or publishing of the whole or partially licensed material via any medium in any manner and transformation or manipulation with the whole or partially licensed material and creation of any work derived from the licensed material.

1.4. “User" refers to any employees and sub-suppliers of the license holder who manipulates, adjusts or modifies the original digital file, which contains licensed material or includes licensed material within any derived work.

2. Accordance of rights. On the basis hereof:
2.1 The license holder gains the non-exclusive, non-transferable, further non-licensable right to reproduce the licensed materials indicated on the invoice to an unlimited number in all forms of media for the following purposes (together with “Permitted Use“):
2.1.1 promotional and advertising materials;
2.1.2 broadcasting and theater exposition;
2.1.3 printing of publications and physical products;
2.1.4 electronic publications including website designs to the maximum resolution of 72 dpi;
2.1.5 any other use approved in writing by PHOVOIR.

2.2 The license holder may modify, trim, manipulate and create work derived from the licensed material.

2.3 The license holder’s right to the licensed materials is valid and effective worldwide and is considered as permanent.

3. Limitation:
3.1 The license holder may store the licensed material in a digital library, on a net or similar means so employees, partners and clients of the license holder can view the licensed material.
3.2 The license holder must not further provide the license, sell, cede, let or transfer this agreement or any of its rights pursuant to this agreement, however, the license holder may sell or license derived works containing the licensed material. Nevertheless, the license holder must not include licensed material into an electronic template determined for reproduction by third parties on electronic or printed products.
3.3 The licensed material shall not be included in a logo, trademark or a service mark.
3.4 The license holder must not exhibit the licensed material on-line in a format, which allows for it to be downloaded and must not allow for it to be distributed via mobile telephone devices.
3.5 If, for any licensed material images, a model is used (i) in such manner, so the person in question may assume that s/he is personally using or recommending a product or a service or (ii) in connection with a subject, which would be detrimental or too controversial towards such person, the license holder must add a statement to such utilization from which it is obvious that such person is a model and that the licensed material is used for illustrative purposes only.
3.6 The licensed material must not be used in pornography, in a defamatory or illegal manner, whether directly or in connection with other materials or when compared to them.
3.7 The license holder must keep the copyright symbol, the name PHOVOIR., identification number of the licensed material and any other materials, which might be invisibly included into an electronic file containing the original licensed material.
3.8 Although considerable effort was expended on correcting the capture of the subject in question of the licensed material, PHOVOIR does not guarantee the exactness of such information.

4. Copyright
By issuing a license to the license holder stated herein, no property right or copyright for the licensed material transfers onto the license holder. With the exception explicitly stated herein, PHOVOIR does not provide the right or license for the licensed material stated explicitly or disclosed solely to the license holder.

5. Guarantee and limitation of liability
5.1 PHOVOIR guarantees that: (i) it is the holder of all necessary rights and authorizations to enter into and fulfill this agreement; (ii) the licensed material is free from material faults and will be processed within a period of thirty days from the date of delivery (the exclusive and only entitlement of the license holder is in this case a replacement of the licensed material); and (iii) the use of the licensed material in its original form and in accordance with this agreement and with the invoice by the license holder shall not violate any copyrights, moral right, trade mark or other intellectual property right and shall not violate any right for privacy or right for publication.

5.2 PHOVOIR DOES NOT PROVIDE ANY OTHER GUARANTEES, STATED EXPLICITLY OR HIDDEN, REGARDING THE LICENSED MATERIAL INCLUDING, FOR EXAMPLE, ANY HIDDEN GUARANTEES OF MARKETABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE. PHOVOIR SHALL NOT BE LIABLE TO THE LICENSE HOLDER OR TO ANY OTHER PARTY OR COMPANY FOR ANY GENERAL, CRIMINAL, SPECIAL, INDIRECT, SUBSEQUENT OR ACCIDENTAL DAMAGE OR LOSS OF PROFIT OR OTHER DAMAGE, COSTS OR DETRIMENT FOLLOWING ON FROM THE USAGE OF THE LICENSED MATERIAL BY THE LICENSE HOLDER OR FROM OTHER USAGE, EVEN IF PHOVOIR WAS NOTIFIED ABOUT A POSSIBILITY OF SUCH DAMAGES, COSTS OR DETRIMENTS. THE MAXIMUM LIABILITY OF PHOVOIR FOLLOWING FROM OR RELATED TO USE OF THE LICENSED MATERIAL BY THE LICENSE HOLDER OR FROM IMPOSSIBILITY TO USE THE LICENSED MATERIAL (WHETHER CONTRACTUALLY, AS A MISDEMEANOUR OR IN ANY OTHER MANNER) SHALL BE LIMITED TO THE VALUE OF TEN TIMES THE AMOUNT PAID BY THE LICENSE HOLDER FOR THE LICENSED MATERIAL TO THE EXTENT PERMITTED BY LAW.

6. Reimbursement:
6.1 Providing that the licensed material is used in accordance with this agreement and the license holder does not violate this agreement in any other way, PHOVOIR binds itself to reimburse and protect the license holder from any damages (excluding criminal damages), liabilities and expenses (including substantial fees for legal representation and permitted costs) following on from or in connection to any current or imminent legal proceedings, claim or legal action, within which it shall be stated that PHOVOIR violates its guarantee indicated in part 5 above. The aforementioned states that the single and entire liability for reimbursement by PHOVOIR pursuant hereto and the only and exclusive entitlement of the license holder in connection to the stated or actual violation of statement and guarantees is stated in part 5 above.
6.2 The license holder shall reimburse and protect PHOVOIR and its parent company, subsidiaries and companies owned or controlled by the company and its representatives, directors and employees from all damages (excluding criminal damages), liabilities and expenses (including substantial fees for legal representation and permitted and entitled costs) following on from or as a result of claims made by third parties on the grounds of usage of the licensed material by the license holder beyond the extent or on the basis of violation by the license holder.
6.3 The party demanding reimbursement pursuant to part 6 is under the obligation to notify the second party about such a claim without delay Pursuant to the opinion of the reimbursing party, the reimbursing party may take over solving, settlement or defending any claim or legal proceedings and in this case, the reimbursed party shall cooperate on the defense against the aforementioned. The reimbursed party has the right to participate in such legal proceedings from its own costs, via a legal representative chosen by the reimbursed party. The reimbursed party shall not be made liable for legal representation costs or other costs incurred before the second contracting party has been notified about the claim, on the basis of the required reimbursement.

7. Termination and retraction
7.1 In the event of the license holder not adhering to any of the provisions stated herein, the license shall be automatically terminated without prior notice of termination by PHOVOIR. In the event of termination, the license holder must immediately (i) stop using the licensed material; (ii) destroy or return the licensed material to PHOVOIR as requested by them and (iii) delete or remove the licensed material from any means, computer systems and memory media (both electronic and physical) of the license holder.
7.2 PHOVOIR reserves the right to retract the license for use of licensed material on the grounds of a viable reason and may replace such licensed materials by an alternative licensed material. In the event of notice of retraction of the license for a particular licensed material, the license holder is under the obligation to immediately stop using these licensed materials and if possible, shall try to ensure that their clients and customers do so likewise.

8. The state of licensed material
The license holder must review possible faults on all licensed materials (whether digital or other) before it sends any licensed material for reproduction. Without impacting on paragraph 5.1(ii), PHOVOIR shall bear no responsibility for any damages or detriments incurred to the license holder or to any third party, whether directly or indirectly, following on from any stated or actual fault to the licensed material or its title or any fault incurred by reproduction.

9. Miscellaneous provisions
9.1 Unauthorized use. Any use of the licensed material in a manner which is not explicitly stated herein or which violates any provision hereof, represents a violation of the copyright and allows PHOVOIR to assert all rights and reimbursements, which are available pursuant to copyrights worldwide. The license holder shall bear responsibility for any damages following on from any such violation of copyright, including all claims by third parties. In addition to and without affecting other claims of PHOVOIR pursuant to this agreement, PHOVOIR reserves the right to issue an invoice and the license holder consents to cover the fee, which amounts to five times the normal license fee collected by PHOVOIR for using licensed materials.
9.2 Decisive law. This agreement shall be governed in all respects by legislation of the French Republic without reference to its laws related to conflict of laws. Any disputes following on from this agreement or related to its enforceability shall be solved by a binding arbitration, which shall take place in the Court of Bordeaux, France, in case PHOVOIR and the license holder are not able to agree on the place of arbitration, the decision of PHOVOIR shall be binding. The convention of the UN on agreements for international sales of goods does not apply to this agreement. Irrespective of the aforementioned, PHOVOIR has the right to initiate and to carry out any legal and equity proceedings before any court with competent jurisdiction and the objective to obtain judicial or other help against the license holder in the event that such action is necessary or desirable in PHOVOIR ’s opinion.
9.3 Reparability. If one or more provisions stated herein turns out to be invalid, illegal or unenforceable in any respect, then the validity, legality or enforceability of the remaining provisions shall not be affected by this. Such provision shall be revised only to the extent required for it be enforced.
9.4 Waiver. No action of PHOVOIR with the exception of an explicit written waiver may be considered as a waiver of any of the provisions hereof. A delay of PHOVOIR in asserting its rights or reimbursements shall not be considered as a waiver of such rights or reimbursements and a one-off or partial assertion of such rights or reimbursements by PHOVOIR shall not exclude other or further assertions of such rights or reimbursements. The waiver of rights or reimbursements by PHOVOIR on any single occasion shall not be perceived as a legal obstacle or waiver of rights or reimbursements on any other occasion.
9.5 The entire agreement. This agreement contains all the terms and conditions of the license agreement and no terms or conditions can be added or deleted, unless the authorized representatives of both contracting parties consent to the aforementioned in writing. In the event of any disagreement arising between the terms and conditions stated herein and the conditions contained in any purchase order or other communication sent by the license holder, the provisions hereof shall be considered as valid.