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Commercial-Use Licensing Agreement

 

This FotoGenie Commercial-Use License Agreement (this “Agreement”) is made as of:

October 16, 2018

(the “Effective Date”)

by and between Ubergram, LLC (“FotoGenie®”) and:

Mighty Audio, Inc.

3221 Hutchinson Ave, Suite H

Los Angeles, CA 90034

The Parties agree as follows:

 

GENERAL TERMS

 

A] Copyright remains the sole exclusive property of the Pro Lenser (Photographer) and is also shared for commercial use by Ubergram, LLC as stated in its Terms of Use. Client also agrees that Photographer is, and will remain, the sole and exclusive owner of all right, title, interest, throughout the world, to all Photos and copies or renditions of the Photos. Except as expressly provided in this Agreement, Photographer reserves all exclusive rights and licenses not expressly granted in this Agreement.

 

B] Full resolution copies of all selected Photos will supplied upon payment in full of all invoiced Creative Fees, Licensing Fees and applicable taxes. No use of Photos may occur in any way until all fees are paid upfront.

 

C] Use of Photos and Commercial Licensing is restricted to the following sliding scale of percentage based on the total Media Buy/Ad-Spend stated by Client herein. If that total Ad-Spend/Media Buy should increase, Client agrees to notify Ubergram, LLC as soon as possible so this Agreement can be amended and re-signed to secure additional licensing fees as well as issue new terms.

 
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MEDIA TERMS

 

FotoGenie hereby grants to Client a non-exclusive, limited license to use the following work (the “Photos”) for the following fees, in the following ways for the following period of time:

 

1.     LICENSE:

Non-Exclusive

1 Year Term

Commercial-Use



2.     LICENSE FEE:

$720

3.     CAMPAIGN NAME:

Vibe Collection

4.     TOTAL CAMPAIGN AD-SPEND/MEDIA BUY:

$72,000

5.     TOTAL CAMPAIGN AUDIENCE:  

TBD

6.     PHOTOS DESCRIPTION AS STATED BY CLIENT:

Vibe Collection is the v2.0 of

Mighty Audio wireless satellite radio devices.

7. INTENDED IMAGE USE/DISTRIBUTION:

Social Media, Paid Social Media Ads, Content for Emails, Website Images, Amazon Images, Resources for Press Kit, and 1 image for print (potentially, still tbd).

We intend to use the images for multiple marketing channels including: Social Media, Paid Social Media Ads, Content for Emails, Website Images, Amazon Images, Resources for Press Kit, and 1 image for print (potentially, still tbd).

Social Media: Many of the photos we have selected we would like at one point in the next year to post on our Instagram and Facebook. The timing is still TBD, but they will all be used within a year

Paid Media: We switch out our Ads every week, so images that we marked for this purpose will be used occasionally. The white seamless photos front facing and angle will be used to create ads, putting them on other backgrounds, etc.

Emails: It's hard to be exact with the use for emails. We just need general photo resources for our designers to use to create emails that we have throughout the year. I tried to select the photos that I think would be ideal for an email, but it's hard to say exactly if we will use those or not. This more falls under a creative resource in my opinion.

Website/Amazon: Images for product pages and panels

Press kit: We give Press several images that they can use in their write-ups

Print: Right now we are designing a banner for an expo we are going to in November. I would like to consider using a photo for this banner. However, we may not end up using any photos. We don't do much print, so this is totally 1-off.

8.     TOTAL PHOTOS LICENSED:

37

9.     RAW PHOTO FILE NAMES LICENSED:

DSC_9660.jpg; 9624 9528 9266 9585 9143 9167 9145 9182 9147 9193 9204 9642 9636 9631 9307 9306 9303 9319 9325 9622 9177 9169 9174 9180 9184 9187 9191 9195 9199 9228 9507 9411 9272 9219 9207 9662

 
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10.     CORRESPONDING FOTOGENIE PHOTO FILE NAMES LICENSED:

20180926001-0900 001.jpg

20180926001-0900 002.jpg

20180926001-0900 003.jpg

20180926001-0900 004.jpg

20180926001-0900 005.jpg

20180926001-0900 006.jpg

20180926001-0900 007.jpg

20180926001-0900 008.jpg

20180926001-0900 009.jpg

20180926001-0900 010.jpg

20180926001-0900 011.jpg

20180926001-0900 012.jpg

20180926001-0900 013.jpg

20180926001-0900 014.jpg

20180926001-0900 015.jpg

20180926001-0900 016.jpg

20180926001-0900 017.jpg

20180926001-0900 018.jpg

20180926001-0900 019.jpg

20180926001-0900 020.jpg

20180926001-0900 021.jpg

20180926001-0900 022.jpg

20180926001-0900 023.jpg

20180926001-0900 024.jpg

20180926001-0900 025.jpg

20180926001-0900 026.jpg

20180926001-0900 027.jpg

20180926001-0900 028.jpg

20180926001-0900 029.jpg

20180926001-0900 030.jpg

20180926001-0900 031.jpg

20180926001-0900 032.jpg

20180926001-0900 033.jpg

20180926001-0900 034.jpg

20180926001-0900 035.jpg

20180926001-0900 036.jpg

20180926001-0900 037.jpg

 
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11.  TERRITORIES: Client is authorized to us the Photos in the following locations:

Worldwide.

“Globally, these will mostly all be used online. With the exception of print, if we do use an image for the banner. That will be used in Las Vegas.”

12.  LICENSE TERM DURATION: From the Effective Date (listed above) ending on:

October 16, 2019

13.  MEDIA PERMISSIONS: Client may use the Photos for commercial purposes in the following Media:

Web-based eCommerce, Social Media Ads, Email Campaigns, Press Releases.

14.  DISTRIBUTION FORMAT:

Digital & Print.

15.  PLACEMENT:

Photos may appear as banner images, product images, retargeted ads, backgrounds or featured images for blogs and email campaigns. There are no limits to the number of use-cases per image; Client may use Photos as many times as necessary to ensure the success of the campaign.

16.  PHOTO SIZE:

Unlimited size dimensions on all Photos may be used to promote Client’s campaign.

17.  VERSIONS/ALTERATIONS:

Client may reproduce or alter Photos in any way necessary to ensure the success of the campaign.

18.  QUANTITY:

Client may circulate as many Photos as necessary to ensure the success of the campaign.

19.  LANGUAGE:

Client may distribute Photos in conjunction with any copy in any language necessary to ensure the success of the campaign.

20.  MEDIA CONSTRAINTS:

None

21.  RESTRICTIONS:

 

a.     Resale or licensing of Photos to stock archives or any third-party agencies, distributors, businesses, individuals or their affiliates, either commercial or non-profit is strictly prohibited.

b.     No Unlawful Use: Client will not use the Photos in any unlawful or disreputable manner, such as pornography or defamation.

c.     No Standalone File Use: Client will not use the Photos in any way that allows a standalone file or content file to be downloaded, extracted or redistributed by others. Exceptions include: Press Kits and Advertising Partners (Social Media Influencer marketers who repost content).

d.     No Use in Trademark or Logo: Client will not use the Photos in any trademark, design, logo or other mark that represents its business.

e.     No Products for Resale: Client will not use the Photos in any goods or products where the Photos are the primary value.

f.      No Sublicenses: Client will not sublicense the Photos without prior written consent of Photographer or Ubergram, LLC.

g.     Photo Copyright Notice: If possible, Client is asked to credit “Photos by FotoGenie” for each use in commerce either as a caption under the photo or in the footnotes of the website/print page where the Photos appear. If it’s not possible to provide Photo credit without adversely altering the aesthetics of an image, web/blog post or ad, Client may provide credit including FotoGenie’s website: “http://www.fotogenieapp.com” in the ALT-click tag of the Photo or Instagram copy. Social Media ads and Product posting, and consumer-facing image advertisements excluded.

h.     Proprietary Photo File Name Alteration: Client may not alter the custom names of the Photo files provided by FotoGenie. Any alteration of the file names as issued by FotoGenie will be considered a material breach of this Agreement.

 

ADDITIONAL TERMS

INTELLECTUAL PROPERTY RIGHTS: The content on the FotoGenie® Web site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to FotoGenie®, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Web site is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

FotoGenie® reserves all rights not expressly granted in and to the Web site and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein for any commercial purposes. If you download or print a copy of the Content for personal use, you must adhere to all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the FotoGenie® Web site or is SmugMug® distribution features that prevent or restrict use or copying of any Content or enforce limitations on use of the FotoGenie® Web site or the Photos Content therein.

It is the policy of FotoGenie® to respond to all claims of intellectual property infringement. We will promptly investigate notices of alleged infringement and will take appropriate actions required under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and other applicable intellectual property laws. Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to a Service Provider’s Designated Agent.

Notification must be submitted to the following Designated Agent for this web site: FotoGenie, Inc. Email: fotogenie@fotogenieapp.com To be effective, the notification must be a written communication that includes the following: 1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; 4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; 5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; 6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

User Content Unless otherwise agreed in a writing signed by FotoGenie, by submitting content, photos, video, data or other materials directly through its Web site or via SmugMug® (collectively, “Materials”), You hereby grant to FotoGenie a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sublicensable right and license to access, store, copy, modify, display, distribute, perform, create derivative works from, and otherwise use and exploit all such Materials in any form, media, software or technology of any kind now existing or developed in the future and the right to sublicense the foregoing rights through multiple tiers. You further grant to FotoGenie a royalty-free right and license to use your name, image and likeness in advertising and in connection with the licensed rights for the Photos.

PHOTO COPYRIGHT PROTECTION NOTICE: All Photos are subject to search throughout all Media in all forms worldwide. Computer-vision algorithms and search engines may be employed by a third-party service contracted and retained by Ubergram, LLC to monitor Client’s use of Photos throughout the term of this Agreement and beyond. If Client or one of its affiliates is found to be in violation of Federal Copyright and Intellectual Property Laws, such a violation will be considered a material breach of this Agreement subject to all penalties and awards according to State and Federal legislation.

REPRESENTATIONS & WARRANTIES: You hereby represent and warrant that: (a) you have all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms, (b) the Materials are accurate, current and complete, (c) the Materials and your use of the FotoGenie® Web site shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and your use of the FotoGenie® Web site shall not violate any applicable law or regulation, including, without limitation, any applicable advertising or fair housing laws or regulations, or cause injury to any person; (e) your participation on or use of the FotoGenie® Web site shall not violate any agreements between you and a third party.

ASSIGNMENT: These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FotoGenie® without restriction.

INDEMNIFICATION: Client will indemnify, defend, and hold harmless Ubergram, LLC and Photographer from all liability, claims, demands, causes of action, judgements, damages, and expenses including reasonable attorneys’ fees and costs, arising out of or as a result from use of the Photos commissioned and licensed herein by Client.

 

LIMITATIONS OF LIABILITY: EXCEPT FOR ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, NOR ANY AFFILIATE, WILL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY, ANY AFFILIATE OR THIRD PERSON INDIVIDUAL OR ENTERPRISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THIS LIMITATION OF LIABILITY IS VALID IN ALL U.S. STATES, TERRITORIES AND THROUGHOUT THE WORLD. CLIENT MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION LAWS. NEITHER UBERGRAM, LLC NOR PHOTOGRAPHER SEEK TO LIMIT CLIENT’S WARRANTY OF REMEMDIES TO ANY EXTENT NOT PERMITTED BY LAW.

 

TERMINATION: Either party may terminate this agreement immediately upon delivery of written notice to the other party specifying clearly the grounds for termination if the other party commits a material breach of its obligations under this Agreement and fails to cure the breach within thirty (30) business days after the written notice of the breach is received by the breaching party. For the avoidance of doubt, termination will be without prejudice to any liability incurred prior to the date of termination.

 

ASSIGNMENT: This Agreement may not be assigned by Client without Ubergram, LLC’s or Photographer’s prior written consent. Ubergram, LLC or Photographer may assign this agreement, in whole or in part, to any affiliate or successor.

 

SEVERABILITY: If any provision of this Agreement is held invalid, or violated under these terms, the remainder of the Agreement will be valid and enforceable. If such a violation should occur, the Parties will negotiate in good faith, a substitute, valid and enforceable provision which most nearly puts into effect the intent of both Parties.

 

NO WAIVER: This Agreement may not be altered, modified or amended in any way except in writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party thereafter to enforce that provision or any other provisional right.

 

ENTIRE AGREEMENT: In conjunction with Ubergram, LLC’s Privacy Policy and Terms of Use, this Agreement represents and constitutes the entire agreement between the parties, and supersedes and merges all other negotiations, agreements, understandings, oral or written, with respect to any and all matters between the parties.

 

GOVERNING LAW: The Parties hereby agree that this Agreement will be governed by and enforced in accordance with the laws of the State of Florida, without reference to rules governing the choice of laws.

 

DISPUTES: Any dispute arising from this Agreement shall be resolved through mediation. If the dispute cannot be resolved through mediation, then the dispute will be resolved through binding arbitration conducted in accordance with the rules of the American Arbitration Association.





ATTORNEY’S FEES: If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover from the other party its expenses including any arbitration, attorney’s fees and costs as well as damages incurred in connection with the action on any appeal.

 

NOTICES: All notices, demands or other communications to be given under this Agreement by either Party to the other may be effected either by personal delivery in writing via U.S. Mail, third party carrier or registered court official/law enforcement officer. Notices delivered will be deemed communicated as actual receipt. Any mailed notices will be deemed communicated as of two (2) days after date of mailing.

 

IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE EFFECTIVE DATE LISTED ABOVE. BY SIGNING THE DIGITAL FORM BELOW, YOU AGREE THAT YOU HAVE READ AND ACKNOWLEDGE THE TERMS OF THIS AGREEMENT AND BY YOUR ELECTRONIC SUBMISSION, YOU AGREE TO UPHOLD THE TERMS OF THE AGREEMENT:


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AGREEMENT SUBMISSION FORM

(Same Agreement as above…)

 
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