Media License Agreement - "EULA"
- All transactions constitute a legal binding agreement between You, the Photographer, and Hawaiian LandMark Images Inc.
- Hawaiian LandMark Inc is indemnified against any cost, expense, or loss occurring as a result of any the violation of intellectual property rights.
- Your personal and credit card information will be used as necessary to complete your purchase from Hawaiian LandMark Images Inc.
- You agree to provide the Media end-users name and information to Hawaiian LandMark Images Inc upon request.
All media licensed by You from Hawaiian LandMark Images Inc will be subject to the Rights-Managed or Royalty-Free End User License contained herein.
RIGHTS-MANAGED END USER LICENSE
Grant of Rights-Managed License
If you are entering into this agreement on behalf of your employer, the license granted and restrictions and limitations recited herein apply to your employer and to you as a representative of your employer. You agree not to reproduce or use the High-Resolution Media in any manner including but not limited to layouts, Photostats, scanning, digitalization or color separations until you first negotiate a use fee and pay our invoice for the uses you require. (Low-resolution images, including Thumbnails and Previews, may be used in materials for Test or Sample use ONLY, including Comps and Layouts.) No rights are granted until payment is made to Hawaiian LandMark Images Inc, even though you have received an invoice. The INVOICE/COPYRIGHT LICENSE we grant is only to you and cannot be assigned or transferred without our proper written consent. Your use of Rights-Managed Media is strictly limited to the parameters established on our INVOICE/COPYRIGHT LICENSE under "Use Rights Granted". Any use beyond those specified is a violation of U.S. copyright law.
Should you fail to pay our invoice, we will contact your end client to notify them they are in violation of the U.S. copyright law and proceed with legal proceedings. In the event material from Hawaiian LandMark Images Inc. is published or used in any way without first obtaining a proper INVOICE/COPYRIGHT LICENSE for that use, Hawaiian LandMark Images Inc. may seek damages against you or the end user of the material. At its option, Hawaiian LandMark Images Inc. may issue a retroactive use license for material used without proper license in place prior to use. Retroactive use license fees will be assessed at a rate of up to ten times the normal use rate.
Unless specifically stated under "Media Use" on your invoice, licenses do not include any form of electronic reproduction of the image. Media may not be used in re-releases, subsequent or collective editions without first obtaining additional use rights. Rights-Managed Media is/are strictly limited to the specific use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in our INVOICE/COPYRIGHT LICENSE. The terms specified on the INVOICE/COPYRIGHT LICENSE shall not be modified without the express written consent of Hawaiian LandMark Images Inc. Any attempted deviation from the terms of our INVOICE/COPYRIGHT LICENSE is a violation of this agreement and the copyright act and shall nullify Hawaiian LandMark Images Inc. indemnity obligations, and the representations and warranties made by Hawaiian LandMark Images Inc. hereunder.
Fees assessed for your use of the Rights-Managed Media depends on the nature of the rights granted. You shall not undertake any expanded use of the Rights-Managed Media without the prior approval of Hawaiian LandMark Images Inc. and the payment of any additional use fees required by Hawaiian LandMark Images Inc. for such expanded use. You shall promptly notify Hawaiian LandMark Images Inc. of any expanded use of the Rights-Managed Media for which you have not received Hawaiian LandMark Images Inc’s prior approval, and shall pay to Hawaiian LandMark Images Inc any additional Use Fee required by Hawaiian LandMark Images Inc. for such expanded use. Any rights we grant to you for Rights-Managed Media from this web site are non-transferable. You may not re-sell, rent, loan, give, sublicense, or otherwise transfer to anyone the Media or the right to reproduce the Media (except insofar as it has been incorporated by you into one of the permitted uses outlined in the INVOICE/COPYRIGHT LICENSE) and nothing you produce shall grant or purport to grant to any third party a right to reproduce or duplicate the Media. You agree to take all commercially reasonable steps to prevent third parties from reproducing, duplicating, or distributing the Media.
Your use of the Media is predicated on the payment in full for the use of the Media. Should you use any Media and not make full payment, you are in violation of U.S. copyright law and subject to penalties. In such a case, Hawaiian LandMark Images Inc reserves the right, in its sole discretion, to revoke the license if payment is not made in full, and may use all legal means to collect damages. Unless you pay by Credit Card, all invoices are payable net thirty (30) days. A finance charge of 1.5% per month will be applied on any balances unpaid after thirty (30) days.
License Cancellation Fee
If Hawaiian LandMark Images Inc receives your request in writing to cancel the License within seven (7) days of the date of downloading or otherwise taking delivery of the Media, Hawaiian LandMark Images Inc may cancel this License Agreement and issue a credit to your account or credit card equal to one hundred percent (100%) of the License fee. No refunds or cancellations will be accepted after seven (7) days .
If you are unsure of your usage rights under this agreement, or if you wish to use the Media in a manner not specified or permitted under this agreement, please contact Hawaiian LandMark Images Inc by telephone at (808-977-8122).Hawaiian LandMark Images Inc
Photo Credit & Samples
The following credit line must appear adjacent to any Rights-Managed Media utilized in an editorial manner: (Photographer's name)/ Hawaiian LandMark Images Inc unless otherwise agreed in writing. If any Rights-Managed Media you reproduce for editorial purposes (i.e., for any non-promotional purpose) omits the credit line specified above, or any other credit line specified by Hawaiian LandMark Images Inc, the use fee will be doubled. You must register copyright in their name to afford protection to the photograph. Such copyright shall be immediately reassigned to Hawaiian LandMark Images Inc upon request, without charge. No photo credit is needed when used for advertising purposes. You agree to provide Hawaiian LandMark Images Inc with two copies of reproductions produced. It is agreed that Hawaiian LandMark Images Inc may use and publish the samples provided for its own self-promotion.
Condition of Rights-Managed Media
You are responsible for examining all Rights-Managed Media for possible defects prior to reproduction. Hawaiian LandMark Images Inc shall not be liable for any loss or damage suffered by you or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Media or its caption or in any way from its reproduction.
Media marked "Model Released" and/or "Property Release" is released. However, no model releases or other releases exist on any Media unless the existence of such release is specified in writing by Hawaiian LandMark Images Inc. Always double check with us. You shall indemnify Hawaiian LandMark Images Inc. against all claims arising out of the use of any Media where the existence of such release has not been specified in writing by Hawaiian LandMark Images Inc. In any event, the limit of liability of Hawaiian LandMark Images Inc. shall be the sum paid to it per the invoice for the use of the particular Media involved. Hawaiian LandMark Images Inc. does not purport to own the copyright to any historical images it provides and that the user is responsible for obtaining any necessary permissions.
Use of Media
No Media from this web site may be used in connection with any potentially sensitive issue including, but not limited to sex, sexual preference, pornography, diseases of any kind, drug or alcohol abuse, domestic violence, mental or physical abuse, substance abuse, alcohol, tobacco products, pregnancy, birth control, physical or mental challenges, homelessness, political campaigns, plastic or cosmetic surgery or possible defamation or disparagement of character or product, without obtaining prior written consent from Hawaiian LandMark Images Inc. You agree that you will not use the images for any unlawful purpose, or to defame any person, or to violate any person's right of privacy or publicity, or to infringe upon any trade name, trademark or service mark or any entity.
Electronic Delivery and Storage
For all Media that you take delivery via download, you must provide the copyright symbol, our company name, Hawaiian LandMark Images Inc., and the Media Identification Number (located as the “File Name”) as part of the electronic file. In addition, you may only use a single copy of the Media on a single computer. You may only download the Media onto one (1) computer hard drive or other computer medium and may not otherwise make, use or distribute copies of the Media for any purpose except as otherwise provided in this agreement and the Invoice/Copyright License. Notwithstanding the foregoing, you shall be allowed to make one (1) backup copy for security reasons only.
You may not use the Media on any image storage jukebox, network configuration or similar computer network arrangement. Upon the expiration of the License or earlier termination of this agreement, any and all digital files which we supplied or you have created and stored in ANY format including but not limited to hard disk, tape, optical disk, CD-ROM, floppy disk or other media MUST BE DESTROYED from your computer or other electronic storage system unless you plan to re-license use of the image, in which case you must notify us immediately for a fee reassessment. Should Hawaiian LandMark Images Inc. deliver to you digital files of our Media, the delivery of those digital files is solely an accommodation to our clients. Hawaiian LandMark Images Inc. does not warrant that the digital delivery will be on a timely basis, uninterrupted, error free or compatible with a client's particular system. Hawaiian LandMark Images Inc. makes no warranty, either express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose. In no event shall Hawaiian LandMark Images Inc. be liable for any direct, indirect, incidental, special or consequential damages arising out of or relating to the digital delivery of any image or otherwise.
ROYALTY-FREE END USER LICENSE
Grant Of Royalty-Free License
Hawaiian LandMark Images Inc grants to you a non-exclusive, non-sub licensable and non-assignable right to use and reproduce Media listed as Royalty-Free (the “Royalty-Free Media”) with an unlimited circulation/press run, an unlimited number of insertions, unlimited size or placement, worldwide and perpetually in any and all media solely subject to Prohibited Uses below and to the following ("Permitted Uses"):
- Advertising and promotional materials
- Broadcast and theatrical exhibitions
- Print publications and physical products
- Online and electronic publications up to a maximum resolution of 96dpi
- Personal and non-commercial use materials and
- Any other uses approved in writing by Hawaiian LandMark Images Inc.
Hawaiian LandMark Images Inc grants a ten (10) user single use, seat license for use of Royalty-Free Media. Only a maximum of ten (10) users may access or use Royalty-Free Media. You may store and distribute the Royalty-Free Media to no more than ten (10) computers/workstations within your company for use by one (1) person at a time. Additional users or installation on more than ten (10) computers/workstations will require the purchase of multiple seat licenses. Hawaiian LandMark Images Inc grants Permitted Uses subject to the following ("Prohibited Uses"):
- You may NOT sublicense, sell, assign, distribute, convey or transfer Hawaiian LandMark Images Inc Royalty-Free Media or any of its rights under this EULA.
- You may NOT feature the Media in a manner that would allow any third party to download, extract or access Royalty-Free Media as a standalone file, whether online or not, including, without limitation, template works, software, services or products that are intended for reproduction by third parties on electronic or printed products, and online formats which enable it to be downloaded or distributed via mobile phone devices.
- You may NOT use or reproduce Royalty-Free Media for wall decor prints or interior decoration of a corporate, retail, public or private environment. Please contact Hawaiian LandMark Images Inc for separate print license and pricing.
- You may NOT incorporate the Media into a logo, trademark or service mark.
- You may NOT remove any forms of identification information, copyright, trademark or watermark invisibly embedded in the electronic files as is in the original Royalty-Free Media.
- If Royalty-Free Media are used for editorial purposes, you must include the following credit adjacent to the image: (Photographer's name)/Hawaiian LandMark Images Inc
- If any image 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) if the depiction of the model in the image would be unflattering or unduly controversial to a reasonable person, you must accompany each such use with a statement indicating that the person is a model and the image is being used for illustrative purposes only.
- You may NOT reverse engineer, decompile, translate, or disassemble any part of the Media. - You may NOT use Royalty-Free Media in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, illegal, or other nature which could reasonably bring the photographer, Hawaiian LandMark Images Inc, a person or property in the image to disrepute, whether by direct or in context or juxtaposition with other materials.
- You may NOT use the Royalty-Free Media as part of any use involving sensitive subject matters, including, without limitation, sexual issues, sexual activity or sexual preferences, substance abuse, alcohol, tobacco, physical or mental ailments or abuse, or crime without advanced written consent from Hawaiian LandMark Images Inc. and any model in such Media. Sensitive subject use pertains to both commercial and editorial uses. Model releases do not grant the right to use the Media in any sensitive subject matters.
- You must abide by any restriction on use notified to you by Hawaiian LandMark Images Inc. before or at the time of delivery of the Media, either in the information accompanying the Media, the invoice or otherwise.
Hawaiian LandMark Images Inc. does not warrant the accuracy of the captioning, key wording, releases or any other information associated with the Media. You should make sure that you examine Royalty-Free Media for possible defects (whether digital or otherwise) before sending the Media for reproduction.
MEDIA FOR PERSONAL USE
By purchasing the any Media for Personal Use, you hereby agree and acknowledge that you are not acquiring any right, title or interest in or to the Images(s) or any associated copyrights, other than the right to possess, hold and use the Images(s) for personal, non-commercial purposes. Furthermore, you agree that you will: (i) not scan, copy, duplicate, distribute or otherwise reproduce the Images(s), (ii) not use the Images for any commercial purpose, without the express written consent of Hawaiian and (iii) indemnify Hawaiian LandMark Images Inc. and its affiliates, owner, members, managers, employees and agents against any claims, losses or damages incurred as a result of or in connection with your breach of the foregoing restrictions.
PURCHASING PRINTS OF MEDIA
By purchasing prints of Media (the "Prints") you hereby agree and acknowledge that you are not acquiring any right, title or interest in or to the Print(s) or any associated copyrights, other than the right to possess, hold and use the Print(s) for non-commercial purposes. Furthermore, you agree that you will: (i) not scan, copy, duplicate or otherwise reproduce the Print(s), (ii) not use the Print for any commercial purpose, without the express written consent of the photographer and (iii) indemnify Hawaiian LandMark Images Inc and its affiliates, owner, members, managers, employees and agents against any claims, losses or damages incurred as a result of or in connection with your breach of the foregoing restrictions. You also hereby acknowledge that the Prints are being produced and manufactured by a third party chosen by the Licensor, and that Hawaiian LandMark Images Inc is not involved nor otherwise responsible or liable for the production, manufacture, or delivery of such Prints.
Media listed on Hawaiian LandMark Images Inc with the text "no use available" in the copyright section is protected by international copyright law and is available for personal viewing only on Hawaiian LandMark Images Inc. You may not post this Media on public or private websites, whether they are not-for-profit or commercial unless you first receive e-mail permission from Hawaiian LandMark Images Inc. You may not distribute Non-licensed Media in any way. You may not alter or use elements from Non-licensed Media in your own work. No use is granted or implied beyond viewing Non-licensed Media on the Website.
All Media on this web site are copyrighted. Hawaiian LandMark Images Inc and its represented photographers, who shot the Media, own all rights to the Media. All rights not specifically granted to you by the INVOICE/COPYRIGHT LICENSE are reserved. You agree to provide applicable copyright notice and/or protection of Media your final product. You do not acquire any right, title or interest in or to any Media by the download of Media or by the granting of the license to reproduce Media. No copyright material shall be removed from any digital file. Hawaiian LandMark Images Inc reserves the right to (i) not permit use of any Media for any reason whatsoever; and (ii) notify you that certain Media are no longer available for use. Upon such notification, the license to use such Media shall automatically and immediately terminate. No copyright ownership or copyright in any image shall pass to you by the issuance of the license contained in this EULA. Except as expressly stated in this EULA, Hawaiian LandMark Images Inc grants you no right or license, express or implied, to the Media. All other rights not expressly granted to you are reserved solely for Hawaiian LandMark Images Inc.
WARRANTIES AND LIMITATIONS
Hawaiian LandMark Images Inc warrants that:
- Hawaiian LandMark Images Inc has all necessary rights and authority to enter into and perform this EULA.
- The Media will be free from defects in material and workmanship for 30 days from the date of license.
- The Media as provided hereunder, and used as permitted herein, will not infringe any copyright trademark, moral right, right of privacy or any other intellectual property right of any third party.
HAWAIIAN LANDMARK IMAGES INC.MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE MEDIA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HAN LLC SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFIT OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE MEDIA, HAN LLC'S BREACH OF THIS EULA OR OTHERWISE, EVEN IF HAN LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT SHALL HAN LLC'S MAXIMUM LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE MEDIA (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY HAN LLC FOR YOUR USE OF THE APPLICABLE MEDIA. THE REPRESENTATIONS AND WARRANTIES MADE BY HAN LLC IN THIS AGREEMENT APPLY ONLY TO THE MEDIA AS DELIVERED BY HAN LLC AND WILL BE INVALID IF YOU USE THE MEDIA IN ANY MANNER NOT SPECIFICALLY GRANTED IN THIS AGREEMENT OR IF YOU ARE OTHERWISE IN BREACH OF THIS AGREEMENT.
You warrant that:
- You are at least eighteen (18) years of age and have the full right and authority to enter into this EULA on behalf of you and/or your company, employer or principal.
- You do not reside in any country to which export of US products is prohibited or restricted and you may not ship, transfer or export any of the images into any country or use any of the images in any manner prohibited by any laws, restrictions or regulations.
- You will not use the Media in any way that is not permitted by this EULA. - If you are acting as an agent, you must inform your client/principal of the terms of this EULA.
TERMINATION, CANCELLATION AND REVOCATION
The rights granted in this EULA will terminate automatically without notice from Hawaiian LandMark Image Inc if you fail to comply with any provision of this EULA. Upon termination, you must immediately (i) stop using the Media; (ii) destroy or, upon the request of Hawaiian LandMark Images Inc, return the Media to Hawaiian LandMark Images Inc; and (iii) delete or remove the Media from your premises, computer systems and storage (both physical and electronic). In the event of termination, all rights granted will immediately revert to Hawaiian LandMark Images Inc.
You agree to indemnify and hold Hawaiian LandMark Images Inc and anyone associated with Hawaiian LandMark Images Inc, harmless against claims damages, losses, expenses or costs, including legal costs, arising in any manner whatsoever from your unauthorized use of any image supplied to you by Hawaiian LandMark Images Inc or any other breach by you of any of your obligations under this EULA. The foregoing states Hawaiian LandMark Images Inc entire indemnification obligation under this agreement and your sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth above. In case of cancellation of your invoice and this EULA, you are eligible to receive a full refund provided that you have not used the Media, return or destroy any Media or CDs, and submit a cancellation request in writing within seven (7) days of your invoice date. After seven (7) days, no cancellations will be accepted, no exceptions, no refunds made and you will be responsible for and must pay the full amount of the invoice. By requesting a cancellation and/or refund, you hereby represent and warrant that: (i) you have deleted or destroyed all downloaded Media, (ii) that you have not, and will not use any Media from the invoice or virtual cd, and (iii) that a breach of the foregoing shall require you to immediately repay the entire proper license fee plus damages to Hawaiian LandMark Images Inc. Hawaiian LandMark Images Inc reserves the right to revoke the rights granted in this EULA to use the Media for good cause and elect to replace such Media with alternative Media. Upon notice of any revocation of rights granted for any particular image, you shall immediately cease using such image and shall where possible ensure that its clients and customers do likewise.
This agreement incorporates the entire understanding of the parties concerning the subject matter contained herein. No variation of any of the terms in this agreement shall be effective unless agreed to in writing by an authorized representative of Hawaiian LandMark Images Inc (Licensor) and you (Licensee). No part of the content of Hawaiian LandMark Images Inc catalogs or other advertising materials shall form a part of this agreement. No action of Hawaiian LandMark Images Inc, other than an express written waiver, may be construed as a waiver of any term 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 a 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 bar to or waiver of those rights or remedies on any other occasion. Should any clause of this agreement be found unenforceable, that will not affect any other clause and each will remain in full force and effect. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by you, the terms of this agreement shall govern.
The interpretation of this agreement shall be governed by the laws of the State of Hawaii, United States of America. Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in the County Kauai located in the State of Hawaii pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of Hawaii. If recipient of this contract is an agent for or an employee of a non-U.S. company but operates in a place of business in the United States or its territories, said recipient expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. If Hawaiian LandMark Images Inc is caused to present claims or suit to you as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by recipient or user herein.