TSS Photography - tssphotography.co.uk

TSS Photography Editorial, Rights-Managed Licence Agreement
THIS IS A LEGAL AGREEMENT BETWEEN LICENSEE, PURCHASER (IF ANY) AND TSS Photography. THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE "AGREEMENT").

1. Definitions. In this Agreement the following definitions apply:

1.1 "Editorial Licensed Material" means Licensed Material relating to events that are newsworthy or of public interest and that is licensed for use in an editorial manner.

1.2 "Invoice" means the computer-generated or preprinted standard form invoice provided by TSS Photography or an authorised distributor setting out terms agreed with the Licensee. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.

1.3 "Licensed Material" means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by TSS Photography under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.

1.4 "Licensee" means the person or entity purchasing a licence hereunder or if there is a separate Purchaser, the person or entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.

1.5 "Purchaser" means a person or entity purchasing the licence hereunder on behalf of a third party Licensee.

1.6 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, and the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.

1.7 "Rights and Restrictions" means the information: (i) accompanying the Licensed Material on the TSS Photography website (including all areas of the purchase process); (ii) in the Invoice; (iii) in the editorial feed; or (iv) in any other written communication accompanying the Licensed Material. Such restrictions may include, without limitation, the permitted scope of use, any territory or other use restrictions applicable to the Licensed Material selected, and the corresponding price for the licence of such Licensed Material. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.

2. Grant of Rights & Restrictions.

2.1 TSS Photography grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to use and Reproduce the Licensed Material identified in the Rights and Restrictions, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee (including Purchaser) for preparation of the final product for the licensed use, provided that such subcontractors agree to abide by the terms of this Agreement.

2.2 Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions. Licensee may utilise the Licensed Material in any production process that may be necessary for the intended use specified in the Rights and Restrictions.

2.3 Unless additional rights are stipulated in the Rights and Restrictions or granted pursuant to a separate licence agreement, Editorial Licensed Material may not be used for any commercial, promotional, advertising or merchandising use.

2.4 Editorial Licensed Material may be cropped, provided that the editorial integrity of the Licensed Material is not compromised, but shall not, under any circumstances, otherwise be rotated, altered, changed or tampered with, either manually or electronically, without Getty Images' express written permission.

2.5 While efforts have been made to correctly caption the subject matter of the Licensed Material, TSS Photography does not warrant that such information is accurate.

2.6 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter.

2.7 Licensed Material shall not be incorporated into a logo, trademark or service mark.

2.8 Licensee may not make the Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Material.

2.9 Licensed Material may not be modified, reconfigured or repurposed for use in any mobile-directed web sites or mobile applications that are specifically created for viewing of Licensed Material on mobile devices, without obtaining the prior written consent of TSS Photography.

2.10 Unless otherwise authorised by applicable law or specified in the Rights and Restrictions, Licensee may not, directly or indirectly, Reproduce the final product of the licensed use in any secondary Reproductions, such as compilations or screen shots. Such Reproductions require an additional licence from TSS Photography and may be subject to payment of additional licence fees.

2.11 Licensed Material shall not be used contrary to any restriction on use that is provided to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the Rights and Restrictions or in any other written communication from TSS Photography. Any such restriction provided to Licensee shall be incorporated into and become part of this Agreement.

2.12 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorised to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee disputes Purchaser's power and authority to act on behalf of Licensee with respect to this Agreement, Purchaser shall be bound and liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section 2.12 shall serve to excuse Purchaser's obligation to make payment to TSS Photography for the Licensed Material.

3. Photo Credit and Intellectual Property.

3.1 Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the licence contained in this Agreement. Except as expressly stated in this Agreement, TSS Photography grants Licensee no right or licence, express or implied, to the Licensed Material.

3.2 Trademarks. In connection with the use of "TSS Photography" or any other of TSS Photography trade names, trademarks, logos or service marks ("Marks"), Licensee acknowledges and agrees that (i) TSS Photography Marks are and shall remain the sole property of TSS Photography; (ii) nothing in this Agreement shall confer upon Licensee any right of ownership in TSS Photography Marks; and (iii) Licensee shall not now or in the future contest the validity of TSS Photography Marks.

3.3 Photo Credit. Except as otherwise noted in Section 11, Editorial Licensed Material must include the following credit line adjacent to the Licensed Material: "[Photographer's Name]/[Special Collection Reference, if any]/ TSS Photography " or as otherwise notified by TSS Photography. If Licensee omits the credit, an additional fee in an amount up to one hundred percent (100%) of the original invoiced amount attributable to the Licensed Material may be payable by Licensee, at TSS Photography sole discretion. The foregoing fee shall be in addition to any other rights or remedies that TSS Photography may have at law or in equity.

3.4 Notice of Violations. Licensee will immediately notify TSS Photography if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of TSS Photography intellectual property rights, including, but not limited to, Marks and copyrights.

4. Releases.

4.1 TSS Photography will notify Licensee if it has obtained a model release and/or a property release for Licensed Material, either in the Rights and Restrictions or by written notice to Licensee. The warranty and indemnity set forth in Sections 5.1(iv) and 6.1 below are only provided if and when such written notification is given. If no such notification is given, then no such model or property release has been obtained. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Neither TSS Photography nor any party on whose behalf TSS Photography licenses Licensed Material (each, a "Licenser") makes any representations or warranties as to whether any additional fees or payments may be due to any person depicted in Licensed Material pursuant to the requirements of any applicable trade union, and Licensee shall be solely responsible for any such additional fees or payments to such trade union.

4.2 Except where Licensee is specifically notified that a model and/or property release has been obtained by TSS Photography, neither TSS Photography nor any Licenser grants any rights or makes any warranties with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of Licensed Material, and Licensee shall be responsible for obtaining any required release. As to any release delivered with any Editorial Licensed Material, neither TSS Photography, nor any Licenser, makes any representation, warranty or guarantee as to its sufficiency with regard to any use of the Licensed Material made by Licensee. Licensee shall obtain all necessary individual, property, team logo, trademark, audio and other releases, approvals and clearances from third parties as may be required for the Licensee's use of the Licensed Material prior to using the Licensed Material.

4.3 If any Licensed Material (other than Editorial Licensed Material) featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.

5. Warranty and Limitation of Liability.

5.1 TSS Photography warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (iii) Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement, will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by TSS Photography pursuant to Section 4.1, Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement will not infringe on any trademark or other intellectual property right and will not violate any right of privacy or right of publicity.

5.2 NEITHER TSS PHOTOGRAPHY NOR ANY LICENSER MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER TSS PHOTOGRAPHY NOR ANY LICENSER SHALL BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIALOR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF TSS PHOTOGRAPHY OR ITS LICENSERS, AS APPLICABLE, HAVE 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 FOR CERTAIN CATEGORIES OF DAMAGES.

6. Indemnification.

6.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement and as Licensee's sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Section 5 above, TSS Photography shall defend, indemnify and hold Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of TSS Photography), liabilities and expenses (including reasonable attorneys' fees and permitted and authorised costs) arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that TSS Photography is in breach of its warranties set forth in Section 5 above. The foregoing states TSS Photography entire indemnification obligation under this Agreement.

6.2 Licensee shall defend, indemnify and hold TSS Photography and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages (except punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable attorneys' fees and permitted and authorised costs) arising out of or as a result of claims by third parties relating to: (i) Licensee's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by Licensee of this Agreement; or (iii) Licensee's failure to obtain any required release.

6.3 The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defence of any claim or litigation, in which event indemnified party shall cooperate in the defence 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.

7. Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to Section 5.1.(ii) above, TSS Photography shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

8. Licence Cancellation Fee. If Licensee or Purchaser requests in writing to cancel this Agreement within thirty (30) days of the date of receipt by Licensee or Purchaser of the Licensed Material, and such Licensed Material has not been used by Licensee, TSS Photography may cancel this Agreement and issue a credit to Licensee's or Purchaser's account or credit card in an amount up to one hundred percent (100%) of the licence fee minus a composite/layout fee that will be charged at TSS Photography then standard rate. Nothing in this Section 8 shall apply to research, lab, service fees, administration fees or editorial subscription fees which shall be payable according to the terms stated on the Invoice and shall be non-refundable.

9. Interest or Cancellation on Overdue Invoices. If Licensee fails to pay TSS Photography Invoice in full within the time specified in the Invoice, TSS Photography may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. TSS Photography also reserves the right, in its sole discretion, to revoke the licence if payment is not made in full on time.

10.Miscellaneous Terms.

10.1 Unauthorised Use. Any use of Licensed Material in a manner not expressly authorised by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling TSS Photography to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Getty Images' other remedies under this Agreement, TSS Photography reserves the right to charge and Licensee agrees to pay a fee equal to up to five (5) times TSS Photography standard licence fee for the unauthorised use of the Licensed Material.

10.2 Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to TSS Photography. In addition, upon reasonable notice, TSS Photography may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where TSS Photography reasonably believes that Licensed Material is being used outside of the scope of the licence granted under this Agreement, Licensee shall, at TSS Photography request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by TSS Photography.

10.3 Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of TSS Photography and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file containing the Licensed Material that is stored on Licensee's computers. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorised third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only. Upon the expiration or earlier termination of this Agreement, Licensee 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.

10.4 Withdrawal. Upon notice from TSS Photography, or upon Licensee's knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which TSS Photography may be liable herein, or if TSS Photography 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. TSS Photography shall provide Licensee with comparable Licensed Material (which comparability will be determined by TSS Photography in its reasonable commercial judgement) free of charge, but subject to the other terms and conditions of this Agreement.

10.5 Governing Law. 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. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in one of the following jurisdictions (whichever is closest to Licensee's corporate headquarters, if Licensee is an entity, or principal residence, if Licensee is an individual): Seattle, Washington; New York, New York; London, England; Paris, France; or Singapore. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, TSS Photography 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 TSS Photography, such action is necessary or desirable.

10.6 Severability. 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.

10.7 Waiver. 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.

10.8 Entire Agreement. This Agreement contains all the terms of the licence agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorised representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.

	Gatecrasher (32 images) Summer Sound System 2008 24th May 2008

	Chelsea v Liverpool (53 images) Champions League Semi-Final 30th April 2008

	Zutons (17 images) Cambridge Corn Exchange 19th May 2006

	Beth Orton (7 images) Cambridge Corn Exchange 26th February 2006

	Franz Ferdinand (9 images) Nottingham Ice Arena 28th November 2005

	Blondie (9 images) Cambridge Corn Exchange 26th November 2005

	Hives (14 images) Cambridge Corn Exchange 23rd April 2005

	KT Tunstall (19 images) Norwich UEA 29th November 2005

	Kings of Leon (22 images) Brixton Academy 23rd December 2004

	Kings of Leon (27 images) Cambridge Corn Exchange 14th December 2004

	Joss Stone (17 images) Cambridge Corn Exchange 13th November 2004

	Kings of Leon (10 images) Norwich UEA October 22nd 2004

Air
	Cambridge Corn Exchange December 2003 7 images

Beth Orton
	Cambridge Corn Exchange February 2006 7 images

Blondie
	Cambridge Corn Exchange November 2005 9 images

Chelsea v Liverpool
	Champions League Semi-Final 30th April 2008 53 images

Doves
	Cambridge Corn Exchange December 2002 6 images

Elbow
	V2004 Festival August 2004 4 images

Franz Ferdinand
	Nottingham Ice Arena November 2005 9 images

Gatecrasher
	Gatecrasher (32 images) Summer Sound System 2008 24th May 2008

Gomez
	Nottingham Rock City May 2004 12 images

Hives
	Cambridge Corn Exchange April 2005 14 images

Joss Stone
	Cambridge Corn Exchange November 2005 17 images

Joy Zipper
	Cambridge Corn Exchange December 2003 4 images

Keane
	V2004 Festival August 2004 6 images

Kings Of Leon
	Norwich UEA October 2004 10 Images	Cambridge Corn Exchange December 2004 27 images

	Brixton Academy December 2004 22 images

KT Tunstall
	Norwich UEA October 2005 19 images

Pixies
	V2004 Festival August 2004 8 images

Scissor Sisters
	V2004 Festival August 2004 13 images

Snow Patrol
	V2004 Festival August 2004 10 images

Starsailor
	Cambridge Corn Exchange September 2003 17 images

Strokes
	V2004 Festival August 2004 14 images

Zutons
	Cambridge Corn Exchange May 2006 17 images

Apr 2008 -	Photographed Chelsea v Liverpool UEFA Champions League Semi-Final.

June 2007 -	TSS Photography is now listed on MYSPACE. Please visit www.myspace.com/tss_photography add us as a friend and leave comments about our photographs.

Jan 2005 -	Several photographs of the Kings of Leon are on www.kingsofleon.com in the gallery section, photos include Norwich, Brixton, Cambridge and a selection from the after party all taken by our photographer Chris White.

Dec 2004 -	The Kings of Leon have signed a 1 off enlarged poster of lead singer Caleb Followill at Norwich UEA.

Nov 2004 -	A couple of photographs of Snow Patrol from the V2004 festival and on the Snow Patrol Official website www.snowpatrol.com

Oct 2004 -	Photograph of Strokes’ Nick Valensi used for the Strokes Official Newsletter.

Sept 2004 -	A selection of our Strokes photographs from the V2004 festival are on the Strokes official website www.thestrokes.com