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• "End User License Agreement" refers to this document.
• "Company" refers to Newscom, LLC
• "Content" refers to any photographs, graphics, other images or text that is provided by Newscom.
• "Metadata" refers to the descriptive text that accompanies the Content.
• "Service" refers to sublicensing images and text for the purposes of publishing that Content.
• "Subscriber" means any person, group, business, department or entity that uses Newscom.
• "Information Partner" refers to a third party provider of information made available through the Newscom Service.
• "Editorial Use" means use relating to stories or events that are of public interest or newsworthy.
• "Commercial Use" means use of the content for purposes other than Editorial Use, including but not limited to commercial, merchandizing, advertising or promotional use.
In accordance with the terms and conditions set forth herein, Newscom grants to Subscriber the non-exclusive right and privilege of access to the Newscom Service via Subscriber's Newscom username and password. Subscriber agrees to abide by all terms, conditions and instructions from the Company and its Information Partners concerning dissemination and use of Content obtained through Service of which the Subscriber is notified, or which is presented to Subscriber upon access to the Service. Subscriber agrees to comply with all instructions, embargoes and restrictions provided with the Content.
Use of Content is restricted to use by Subscriber as agreed upon in this Newscom End User License Agreement. Unless noted otherwise within the Metadata that the Content is available for Commercial Use, Content is licensed to Subscriber for Editorial Use only.
Subscriber may maintain an electronic archive of Content obtained from Newscom for internal, non-commercial use, provided that the Service is archived in the same format as its original editorial use. Subscriber must retain all associated data with the Content as may be included as part of the electronic file containing the Content that is stored on Subscriber's computers. Subscriber may not make additional high-resolution copies of the Content and Subscriber shall maintain a robust firewall to safeguard against unauthorized third-party access to the Content. Notwithstanding the foregoing, Subscriber may make one (1) high-resolution backup copy of the Content for security purposes only. Upon the expiration or earlier termination of this Agreement, Subscriber shall promptly delete and remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical) and shall ensure that its subcontractors do likewise.
Upon notice from Newscom, or upon Subscriber's knowledge that any Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Newscom may be liable herein, or if Company withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Company shall provide Licensee with comparable Licensed Material (which comparability will be determined by Company in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
Unless subject to a separate license agreement from Newscom, Content is licensed for one-time use and may not be re-used by Subscriber in another format without prior written consent from Newscom. Subscriber may not re-distribute or sell Content obtained via Newscom to third parties.
Within five (5) days of termination or expiration of this Agreement, all Content that has been archived or caused or allowed to be archived by Subscriber must be removed from any archival databases, including but not limited to Subscriber's internal archives and any third party archives.
Subscriber shall have the right to translate, modify and abridge text, illustrations and graphics. Subscriber may color-correct, re-size and crop photographs (each a "Change") provided that there shall be no Change made by Subscriber that alters the facts, meaning, tone or general context thereof. Subscriber agrees that no Change will compromise the original intent of the Content. Subscriber shall not use or permit the use of the Content in any way not authorized by this Agreement. Any Change whatsoever to any Content is solely the responsibility of Subscriber.
This Agreement does not constitute a representation that any photograph or other image is compatible for use with any other Content from Newscom or any other source. Subscriber is solely responsible for the use of a photograph or other image in combination with any other Content from Newscom or any other source. Without limitation, Subscriber shall not use and shall be solely responsible for use of any photograph or image in combination with Content covering sensitive subjects including, without limitation, topics that may depict the subject matter of a photograph or image in a negative light or subject persons to ridicule, and topics regarding all sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or other serious physical or mental ailments, or the disparagement of a person or product.
Pornographic, defamatory or otherwise unlawful use of Content is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter.
All credit lines and copyrights (the "Marks") as provided with the Content delivered by Newscom must be retained and displayed whenever Subscriber uses the Content. Credit lines include (i) a byline, in cases where the Content includes a byline; (ii) the name of the Information Partner that is the original source of the Content; and (iii) the name of Newscom as the provider of the Content to Subscriber. Newscom reserves the right to charge a penalty fee whenever Subscriber uses the Content and fails to display the Marks as described above.
As an example, Photographer.s Name / Special Collection Name (if any) / Information Partner / Newscom.
Unless specifically included within the Metadata, Subscriber acknowledges that Newscom does not obtain releases from subjects, individuals, groups or entities contained in its photographs or quoted in its texts, and further acknowledges that no clearance is obtained from the owners of any copyrighted materials whose Marks and materials are included in Newscom photographs or materials. Subscriber also acknowledges that it will be solely responsible for obtaining any and all necessary releases from whatever individuals and/or entities are necessary for Subscriber's own uses of Content.
If any Content featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person, Subscriber must accompany each such use with a statement that indicates that: (i) the Content is being used for illustrative purposes only; and (ii) any person depicted in the Content, if any, is a model.
Newscom represents and warrants that it has all the rights necessary to enter into this Agreement and will indemnify, defend and hold Subscriber and its officers, directors, employees, agents, subsidiaries, parents, affiliates, successors and assigns harmless from any damages, expenses and costs (including reasonable attorneys' fees) arising from any claims of third parties brought after the effective date of this Agreement alleging that the Content infringes the copyright of such third party, is libelous, infringes a proprietary right or invades privacy. The foregoing warranty and obligation to defend does not extend to any Change in the Content by Subscriber or any use of Content by Subscriber that violates the terms of the Agreement.
Subscriber represents and warrants that its services do not violate or infringe any common law or statutory right of any third party including, without limitation, any contractual right, trademark, copyright or patent right, or any right of privacy or publicity. Subscriber also represents and warrants that its services and all advertising, promotion and solicitation for its services will not violate any applicable law, rule or regulation, including, without limitation, any applicable law relating to false or deceptive advertising, the Telephone Consumer Protection Act, the CAN-Spam Act, the Federal Trade Commission's Telemarketing Sales Rule, and all applicable state, national and international laws and regulations governing telephone sales, facsimile advertising and the distribution of commercial email.
Except for claims that the Content, when used as specifically permitted by the terms of this Agreement and in the form provided by Newscom, infringes upon the rights of a third party, Subscriber shall indemnify, defend and hold harmless Newscom and its officers, directors, employees, agents, subsidiaries, Information Partners, parents, affiliates, successors and assigns from and against any and all claims, suits, losses, liabilities, causes of action, damages and costs (including, attorneys' fees and court costs) arising out or relating to (i) Subscriber's breach or alleged breach of the terms of this Agreement, including without limitation any of its warranties, representations, covenants or agreements hereunder; (ii) Subscriber's use of the Marks or the Content in a manner not authorized under this Agreement; (iii) unauthorized use of the Content by users of Subscriber's services, or (iv) use of the services or the promotion of the services, including, without limitation, claims that the services or the promotion of the services violate or infringe any copyright, literary, privacy, publicity, trademark, service mark, patent, or any other personal or property right of any person.
The party seeking indemnification 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. 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 and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
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. Notwithstanding the foregoing, Newscom 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 Newscom, such action is necessary or desirable.
Upon reasonable notice, Subscriber shall provide sample copies of Reproductions containing Content to Newscom. In addition, upon reasonable notice, Newscom may, at its discretion, either through its own employees or through a third party, audit Subscriber's records directly related to this Agreement and use of Content in order to verify compliance with the terms of this Agreement. Where Newscom reasonably believes that Content is being used outside of the scope of the license granted under this Agreement, Subscriber shall, at Newscom's request, provide a certificate of compliance signed by an officer of Subscriber, in a form to be approved by Newscom.
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.
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 bar to or waiver of rights or remedies on any other occasion.
This Agreement constitutes the entire understanding between Newscom and Subscriber regarding the use of the Newscom Service and the license of Content to Subscriber and supersedes all prior agreements, discussions or Newscom terms and conditions of use. Newscom reserves the right to modify theses terms and conditions from time to time without notice.
Subscriber will immediately notify Newscom if it becomes aware or suspects that any third party that has gained access to the Content through Subscriber is wrongfully using the Content, in whole or in part, or is violating any of Newscom.s Information Partners' intellectual property rights, including, but not limited to, Marks and copyrights.
Subscriber assumes the responsibility to take adequate precautions against damages to its operation that could be caused by interruption of or errors in Newscom's Service. Newscom expressly disclaims any warranty, representation or opinion, whether expressed or implied, as to the legal enforceability or admissibility as evidence of any relationship into which Subscriber may enter, through Newscom's Service. Newscom's Service and access to Newscom's Service is provided "as is." Newscom makes no express or implied warranties in connection with its Service or activities in connection with this Agreement, including but not limited to any implied warranties of merchantability or fitness for a particular purpose, and all implied warranties are hereby disclaimed. Newscom will not be liable for any loss of use, interruption of business, indirect, special or incidental damages, or for lost profits. This applies to any and all causes of action in the aggregate, including without limitation breach of contract, breach of warranty, negligence, strict liability and other torts.
While efforts have been made to correctly caption the subject matter of the Content, Newscom does not warrant that such information is accurate. Subscriber should examine all Content for possible defects (whether digital or otherwise) before sending any Content for Reproduction. Newscom shall not be liable for any loss or damage suffered by Subscriber or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Content or its caption or in any way from its Reproduction.
Unless subject to a separate license agreement from Newscom, Subscriber agrees that downloading of Content constitutes Subscriber's agreement to comply with the terms of this Agreement and an obligation to pay the license fees as presented with the Content at the time of download. However, Payments will be due no later than thirty (30) days after the date of an invoice mailed to Subscriber, after which Newscom may charge an interest rate of 1.5 percent per month.
Subscriber agrees to pay Newscom for its costs and expenses, including but not limited to any attorney's and collection agency's fees and expenses incurred by Newscom in connection with the enforcement by Newscom of any right or remedy, or the collection of any amount due, under this Agreement.
Newscom employs security that meets industry standards in the protection of Subscribers' usernames and passwords. Subscriber agrees to use best commercial efforts to safeguard the use of its usernames and passwords. Subscriber is solely responsible for all fees and any other damages that might result from any unauthorized use of Subscriber's usernames or passwords.
Unless subject to a separate license agreement from Newscom, Subscriber may close its Newscom account upon 30 days written notification to Newscom. Subscriber will be responsible for any and all outstanding fees due at the time of termination and will remit the full amount within 30 days of termination date. Company may, at its discretion, discontinue or suspend Service for any reason on ten days' notice. Company reserves the right to terminate or suspend Service immediately to any Subscriber or Subscriber's account for material breach of Agreement, including non-payment of fees and charges, or to any Subscriber or Subscriber's account deemed in Company's judgment to have used the Service or information obtained through the Service (i) for immoral, illegal, or indecent purposes, (ii) in a manner that might expose Company or its Information Providers to the risk of liability, (iii) in a manner that breaches the terms and conditions of this Agreement or the terms and conditions of use posted on the Service by Company or its Information Providers, or (iv) in a manner that infringes or violates the copyright or other proprietary rights of any Information Provider or other third party. Company does not warrant that the Service will meet Subscriber's requirements or that the operation of the Service will be uninterrupted or error-free.
Effective August 6, 2007
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