It may not seem so, but a lot of work goes into taking a single Acuity9 photograph. Scouting the location, the best angle, and once those are found, waiting for the best light- or creating it, more often waiting inordinate amounts of time for humans or cars to get out of the way, then capturing that single image with the highest quality equipment on the planet.
The following agreement is long, but the premise is simple- Acuity9 works hard and travels far with very expensive photographic equipment in order to provide you with the best images possible, and protects that work, for everyone involved.
Acuity9 sincerely hopes you enjoy the images, and thanks you- our customers, for your consideration and patronage.
Now, the ugly stuff;
ACUITY9 LLC CONTENT LICENSE AGREEMENT
LAST UPDATED: November 1st, 2019
This is a license agreement between you and Acuity9 LLC that explains how you can use images, and video clips (individually and collectively, “content”) that you license from Acuity9 LLC. By downloading content from Acuity9 LLC, you accept the terms of this agreement.
1. What types of licenses does Acuity9 LLC offer? Acuity9 LLC offers three types of license models: Royalty-Free (“RF”), Rights-Managed (“RM”) and Rights-Ready (“RR”). Rights-Managed and Rights-Ready content is licensed for specific types of use, and pricing is based on factors such as size, placement, duration of use, and geographic distribution.
2. How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Acuity9 LLC are:
Royalty-free does not mean there is no cost for the license. Instead, Royalty-Free means that the license fee is paid once and there is no need to pay additional royalties if the content is re-used. Royalty-free content is licensed for perpetual, worldwide, unlimited, any-and-all-media, non-exclusive use, and pricing is based per image. These images are typically of lower resolution, yet are fully appropriate for social media, web site and small print use. All such images are copyrighted and watermarked with the Acuity9 logo in the bottom left corner.
Certain restrictions apply;
• The images licensed as Royalty-Free are licensed ONLY to the original customer paying for, and downloading the images, and the visible copyright and Acuity9 logo must not be removed.
• Perpetual, meaning there is no expiration or end date on your rights to use the content.
• Worldwide, meaning content can be used in any geographic territory.
• Unlimited, meaning content can be used an unlimited number of times.
• Any and all media, meaning content can be used in print, in digital or in any other medium or format.
• Non-Exclusive, meaning that you do not have exclusive rights to use the content. Acuity9 LLC can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Acuity9 LLC to discuss a buy-out.
Rights-Managed / Rights-Ready
Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Acuity9 LLC website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that, unless otherwise indicated on the website, your invoice, sales order or separate agreement, you do not have exclusive rights to use the content. Acuity9 LLC can license the same content to other customers. Exclusive licenses may be available for rights-managed content as further set out on the website.
For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.
a) No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.
b) No Commercial Use of Editorial Content. Unless additional rights are specified on the Acuity9 LLC invoice or sales order, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
c) No Alteration of Editorial Content. Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.
d) No Standalone File Use. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
e) No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.
f) No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
g) Rights Managed / Rights-Ready Exclusivity. Except in the exclusions set out below, or where you are otherwise advised on the website, your invoice, sales order or other license agreement, the license for a commercial use of Rights Managed content shall be exclusive to you only for the terms stated (specific to your use, your industry and your duration). Exclusions include: all editorial and charitable uses (including but not limited to television and film use, documentary use, news programming, music video, advertorial use, all advertising related to television or film, book cover, magazine cover), wall covering and displays, theatrical display, museum display, calendars, promotional products (e.g., apparel, gift wrap, mugs), posters and stationery (including postcards). Please note that there may be other content that is similar to the content that you have licensed. Nothing in this Agreement prohibits Acuity9 LLC from licensing such similar content to other customers.
Restricted Uses – unless additional license purchased. The following are prohibited without the prior written consent of Acuity9 LLC and payment of an additional license fee:
h) No ‘On Demand’ Products. Unless you purchase a custom license, you may not use content in connection with “on demand” products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom designed websites, as well as sites such as vistaprint.com, zazzle.com and cafepress.com).
i) No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
j) No Use in Trademark or Logo. Unless you purchase a custom license, you may not use content (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, tradename, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such content (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third party use of the content or any similar content (including by us, our customers, or the copyright owner of such content).
k) No Machine Learning, AI, or Biometric Technology Use. Unless expressly authorized by Acuity9 LLC, you may not use content (including any caption information, keywords or other metadata associated with content) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons. Additionally, Acuity9 LLC does not represent or warrant that consent has been obtained for such uses with respect to model-released content.
l) No Metadata Exploitation. Unless expressly authorized by Acuity9 LLC, you may not use the caption information, keywords, accompanying text, or other metadata associated with content separate and apart from the content, or allow any third parties to access or use any such information associated with content.
4. Who, besides me, can use the licensed content? The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
• Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase a royalty-free image, only one of you (and not both) may re-use that image for multiple projects.
• Sharing and Storage Restrictions for RF Content. Please note that sharing and storage restrictions apply for royalty-free content. Up to 10 individuals (total, not at any given time) may use an item of content, and all individuals must be from the same legal entity, however you may make RF content available for viewing by any of your employees, clients and subcontractors. There are no restrictions on where each individual may store the content. If included, the raw file of content or metadata may not be provided to anyone outside of your legal entity other than subcontractors. If you require content to be available to more than 10 users, please contact Acuity9 LLC to purchase rights for additional users. If you are downloading content under a committed solution (i.e., Microsoft OneDrive, Google Drive etc.), unless renewed prior to the end of your term, all sharing rights terminate at the end of the term and all content must be removed from your shared server, digital asset management system or other storage system and stored only on individual devices.
• Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.
5. User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Acuity9 LLC immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Acuity9 LLC reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Acuity9 LLC determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.
6. Intellectual Property Rights.
• Who owns the content? All of the licensed content is owned by Acuity9 LLC. All rights not expressly granted in this agreement are reserved by Acuity9 LLC and the content suppliers. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the licensed content.
Do I need to include a photo credit?
Royalty-Free: You do not need to include a photo credit for commercial use as each image includes copyright attribution and the Acuity9 LLC logo which must not be removed.
Rights-Managed / Rights Ready: If you are using content for editorial or charitable purposes, you must include a credit adjacent to the content or in production credits. The credit should be in the following form or as otherwise stipulated: “Copyright [Current Year] Dale S. Dervin, Acuity9 LLC, www.acuity9.com”.
Do I need to include a video credit? If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit in comparable size and placement. The credit should be in the following form or as otherwise “Copyright [Current Year] Dale S. Dervin, Acuity9 LLC, www.acuity9.com”.
• Must I use the Acuity9 LLC name or logo? You must use the name of Acuity9 LLC to give attribution, but you may not otherwise use the name, logo, or trademark(s) without prior written approval.
a) Termination. COPYRIGHT INFRINGEMENT BY WAY OF IMAGE THEFT IS A CRIME. Acuity9 uses leading Internet-crawling technologies to retain these rights, punishable under copyright law. Acuity9 LLC may terminate this agreement at any time if you breach any of the terms of this or any other agreement with Acuity9 LLC, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Acuity9 LLC in writing that you have complied with these requirements.
• Social Media Termination. If you use the content on a social media platform or other third party website, and the platform, a third party user of that platform, or publisher of the third party website shares, uses, or announces that it plans to share or use the content FOR THEIR OWN COMMERCIAL PURPOSES INCLUDING, BUT NOT LIMITED TO COMMERCIAL PROMOTION, or in a way that is contrary to this agreement, Acuity9 LLC reserves the right to contact the third party and request that they remove the content immediately. If the third party refuses or ignores the request, the rights granted to you for such use shall immediately terminate, and in that event, UPON ACUITY9 LLC’s REQUEST, you agree to remove any content from such platform or website UNDER YOUR CONTROL, thus “breaking” the downstream shared, unlicensed use. Social Media “Sharing” is a normal function of a Social Media platform, but “SHARING” ACUITY9 IMAGES BY THIRD-PARTIES FOR THEIR OWN COMMERCIAL PURPOSES IS COPYRIGHT INFRINGEMENT.
b) Refunds/Cancellation. All requests for refunds/cancellations must be made in writing. Provided that the request is made within 7 days and the licensed content has not been used, Acuity9 LLC may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
c) Content Withdrawal. Acuity9 LLC may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Acuity9 LLC, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Acuity9 LLC may be liable, Acuity9 LLC may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Acuity9 LLC will provide you with replacement content (determined by Acuity9 LLC in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
8. Representations and Warranties. Acuity9 LLC makes the following representations and warranties:
a) Warranty of Non-Infringement. For all licensed content, Acuity9 LLC warrants that your use of such content in accordance with this agreement and in the form delivered by Acuity9 LLC (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights Acuity9 LLC.
b) Additional Warranties for Certain Content.
• Royalty-Free: For licensed Royalty-Free content (excluding content marked “editorial”), Acuity9 LLC warrants that your use of such content in accordance with this agreement and in the form delivered by Acuity9 LLC (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
• Rights-Managed / Rights-Ready: For licensed Rights-Managed and Rights-Ready content where Acuity9 LLC specifically notifies you that a model and/or property release has been obtained, Acuity9 LLC warrants that your use of such content in accordance with this agreement and in the form delivered by Acuity9 LLC (that is, excluding any modifications, overlays or re-focusing done by you) will not, where a property release has been obtained, infringe on any trademark or other intellectual property right and/or will not, where a model release has been obtained, violate any right of privacy or right of publicity.
c) Warranty Disclaimer. Unless specifically warranted above, Acuity9 LLC does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
d) Caption/Metadata Disclaimer. While Acuity9 LLC has made reasonable efforts to correctly categorize, keyword, caption and title the content, Acuity9 LLC does not warrant the accuracy of such information, or of any metadata provided with the content.
e) Rights-Managed Exclusivity Disclaimer. While Acuity9 LLC has made reasonable efforts to correctly categorize and record grants of exclusivity for commercial use of RM content, Acuity9 LLC does not warrant or guarantee exclusivity in respect to editorial use of RM content. All such grants of commercial exclusivity do not preclude prior, concurrent, or subsequent licenses granted for editorial usage of the same RM content.
f) No Other Warranties. Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Acuity9 LLC does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.
9. Indemnification/Limitation of Liability.
a) Indemnification of Acuity9 LLC by you. You agree to defend, indemnify and hold harmless Acuity9 LLC and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Acuity9 LLC; and (iii) your failure to obtain any required release for your use of content.
b) Indemnification of you by Acuity9 LLC. Provided that you are not in breach of this or any other agreement with Acuity9 LLC, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 8 above, Acuity9 LLC agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Acuity9 LLC of its warranties in Section 8 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from Acuity9 LLC, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.
c) The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying 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.
d) Limitation of Liability. ACUITY9 LLC WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ACUITY9 LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.10. General Provisions.
a) Assignment. This agreement is personal to you and is not assignable by you without Acuity9 LLC’ prior written consent. Acuity9 LLC may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
b) Audit. Upon reasonable notice, you agree to provide to Acuity9 LLC sample copies of projects or end uses that contain licensed content, including by providing Acuity9 LLC with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Acuity9 LLC may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Acuity9 LLC of five percent (5%) or more of the amount you should have paid, then in addition to paying Acuity9 LLC the amount of the underpayment and any other remedies to which Acuity9 LLC is entitled, you also agree to reimburse Acuity9 LLC for the costs of conducting the audit.
c) Electronic storage. You agree to retain the copyright symbol, the name of Acuity9 LLC, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
d) Governing Law/Arbitration. This agreement will be governed by the laws of the State of Florida, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) if you are in North America, or of the International Centre for Dispute Resolution (“ICDR”) or JAMS if you are outside of North America (the applicable rules to be at your discretion), in effect on the date of the commencement of arbitration to be held Tampa, Florida. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Acuity9 LLC 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 you in the event that, in the opinion of Acuity9 LLC, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
e) Severability. If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
f) Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
g) Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Acuity9 LLC and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
h) Notice. All notices required to be sent to Acuity9 LLC under this agreement should be sent via email to email@example.com. All notices to you will be sent via email to the email set out in your account.
i) Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
j) Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, Acuity9 LLC may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
k) Licensing Entity. The Acuity9 LLC, Safety Harbor, Florida is the sole licensing entity under this agreement.