This Licensing Agreement (hereinafter referred to as “Agreement”) is hereby being entered between You and Aurakomms Media Pictures Pvt. Ltd., having its address at No. 403, Wing -A, Pruthvi Enclave, W.E.Highway, Borivali East, Mumbai – 400066, (hereinafter referred to as “AMPPL”, which expression shall mean and include its promoters, shaeholders, affiliates, successors, nominees, permitted assigns, administrators, etc.). “You” and “AMPPL” shall be individually referred to as “Party” and jointly as “Parties”.
All content, images, videos, digital files etc., on this Website are owned by AMPPL and are protected by Indian copyright laws and international treaty provisions. You have represented to AMPPL that you are desirous of obtaining the permission of AMPPL to use certain protected intellectual property material owned exclusively by AMPPL and in view of Your acceptance to the Terms and Conditions and the obligations, covenants, representations and warranties contained in this Agreement, AMPPL is hereby granting You a limited License to such Licensed Material as further detailed herein.
You acknowledge and agree that you have read this Agreement and understand it prior to agreeing to it. In consideration of AMPPL agreeing to provide the License, you agree to be bound by all the terms and conditions of this Agreement. you further agree that this is the entire agreement and supersedes any proposal or prior agreement, oral or written, and any other communication between AMPPL and you relating to the subject of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is hereby covenanted and agreed by You and AMPPL that the Licensees’ continued use of Website and / or the Licensed Materials will imply the Licensees’ unconditional acceptance of this Agreement and the terms herein as listed below:
1. Definitions – In the context of this Agreement, the following words shall have the following meanings:
1.1. “Agreement” shall mean and include this Image Licensing Agreement, along with any subsequent revisions / modifications / alterations / additions / addendum. AMPPL shall have and retain the right to alter / modify the Agreement at any time without any requirement of any notice to You and it shall be your sole duty to ensure that you have the latest version of the Agreement for your reference and further action.
1.2. “Invoice” shall mean the final invoice generated by AMPPL wherein the exact items of Licensed Material that are being Licensed to You under this Agreement are identified along with the Territory and Term of the License.
1.3. “License” herein means the limited, non-exclusive, non-sub-licensable, non-transferable, temporary, restricted and non-assignable right being granted to You by AMPPL to reproduce the Licensed Material identified in the Invoice strictly as per the terms of this Agreement.
1.4. “License Fee” shall mean the consideration payable by you to AMPPL for the License to the Licensed Material as per the terms of this Agreement.
1.5. “Licensed Material” means and includes any proprietary work or content of AMPPL that is Licensed to You under this Agreement, whether the same includes any photographic work, still image, digital files, dreamscape, film, visual representation generated optically, electronically, digitally or by any other means, or video footage, audio, sound recording, or in any other format protected by all the rights, including, without limitation copyright, trademark, patent or other intellectual property rights and proprietary rights 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.
1.6. “Term” shall be the Term of the License under this Agreement and the Term shall be Ten Years (10 years) unless mutually decided by the Parties and identified in the Invoice.
1.7. “Territory” shall be the mutually agreed Territory within which You are permitted to exercise the under this Agreement and the same shall India unless otherwise identified in the Invoice.
1.8. “Website” shall be the website of AMPPL at www.aurashots.com
1.9. “You” herein means and includes the person / entity / organization acquiring the License under this Agreement, whether for Yourself or on behalf of another entity. If the end user is a separate purchaser from the person / entity applying hereunder, then during the purchase process of the Licensed Material, You will be asked to identify that specific "Designated End User" of the Licensed Material. The Designated End User shall be the entity specifically designated as the Licensee during the purchase process and set forth as such in the Invoice. “You” and “Designated End User” may jointly be referred to as “Licensee”.
2.1. Subject to receipt of the License Fee, the veracity of Your representations, warranties and strict adherence to the Terms and Conditions and this Agreement, AMPPL hereby grants the Licensee a limited, non-exclusive, non-sub-licensable, non-transferable, temporary, restricted and non-assignable License to reproduce the requested Licensed Material, for the Term, and Territory (as identified in Your Invoice), as per the terms of this Agreement. Use of the Licensed Material shall be strictly limited to the use, medium, period of time, placement, size of the Licensed Material, Territory and any other restrictions conveyed and specified to the Licensee by AMPPL by way of (a) accompanying the Licensed Material (b) in any quotes offered by AMPPL, (c) in the Agreement, (d) in the Terms and Conditions, (e) through the Website, and (f) Invoice. The Licensee shall be permitted to edit, crop and colour the Licensed Material and make use of the same as per the terms of the Agreement.
2.2. The License granted to the Licensee under the Agreement may be exercised by the Licensee’s employees / sub-contractors / personnel provided that the Licensee shall ensure that all such personnel, sub-contractors agree to abide by all the terms and conditions of this Agreement and the Terms and Conditions of the Website, www.aurashots.com
2.3. Licensee may edit the Licensed Material, provided that the Licensee shall ensure that the editorial integrity of the Licensed Material shall be maintained at all time and shall never be compromised.
2.4. The License granted to the Licensee hereunder shall automatically terminate, unless terminated earlier, at the end of the Term as per the Invoice. If the Licensee wishes to continue to use the Licensed Material after the end of the Term, or if they wish to use the Licensed Material in any other territory/country, then the Licensee shall have to procure a fresh License from AMPPL, the terms of which shall be negotiated at the relevant time.
3. Restrictions – The Licensee agrees and understands, and hereby undertakes that:
3.1. You acknowledge that any use of the Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement and other violation, entitling AMPPL to exercise all rights and remedies available to it under copyright laws and / or any other laws, rules, regulations in India and around the world. You and the Designated End User shall be responsible for any damages resulting from any such illegal acts, infringement and violation, including any claims by a third party. In addition and without prejudice to AMPPL' other remedies under this Agreement, AMPPL reserves the right to charge and You and the Designated End User agree to pay a fee equal to up to five (5) times AMPPL’ standard License Fee for any such unauthorized use of the Licensed Material.
3.2. You shall not, under any circumstances, rotate, alter, change, manipulate and/ or tamper with the Licensed Material, either manually or electronically, without AMPPL's prior written permission.
3.3. You shall not, under any circumstances portray any person depicted in the Licensed Materials ("Model") in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, "adult videos", adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco or alcohol products; c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
3.4. Any of the body parts or basic features of the Model(s) in the Licensed material must not be cropped, altered, manipulated or distorted without taking a prior written approval from AMPPL.
3.5. The Licensed Material may not be modified, reconfigured or repurposed for any use in any mobile-directed websites or mobile applications that are specifically created for viewing of the Licensed Material on mobile applications, without obtaining the prior written consent of AMPPL.
3.6. The Licensed Material shall not be incorporated into a logo, trademark or service mark.
3.7. For all Licensed Material that You and / or the Designated End User takes delivery of in electronic form, the copyright symbol, the name of AMPPL and the image number or other identification number associated with the Licensed Material must be retained as part of the electronic file containing the Licensed Material that is stored on Your computers. You shall not remove any copyright or other proprietary rights notice contained in the Licensed Material and in any related promotional materials provided on this Website.
3.8. You may not make additional high-resolution copies of the Licensed Material and You / the Designated End User shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Upon the expiration or earlier termination of this Agreement, the Licensed Material shall be promptly deleted from Your and / or the Designated End User’s premises, computer systems and storage (electronic or physical) and shall ensure that Your subcontractors do likewise.
3.9. Unless permitted by AMPPL in writing, the Licensed Material may not be used for any commercial, promotional, endorsement, advertising or merchandising use, as part of billboard, trade show or exhibit display.
3.10.Unless otherwise authorized by applicable law or AMPPL, You may not, directly or indirectly, reproduce the final product of the Licensed Material in any secondary reproductions, such as compilations, in-context promotions or on file-sharing, social networking websites such as Instagram, Snapchat, YouTube, Facebook, Reddit, etc,. Such reproductions require an additional license and prior written permission from AMPPL and may be subject to payment of additional fees.
3.11. You shall not, under any circumstances, use the Licensed to give a testimonial, endorsement or use the name of the Model(s) in any manner without the specific prior written permission from AMPPL for the same.
3.12. You should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for reproduction.
3.13. You shall not use the Licensed Material in a manner that infringes upon any third party's trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition.
3.14.If any Licensed Material featuring a Model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person to believe that the model personally uses or endorses a product or service or if the Licensed Material is used along with some descriptive information, including, but not limited to name, educational qualification, age, career related information, You 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.
3.15.Pornographic, defamatory, libelous, immoral, obscene, fraudulent or otherwise unlawful use of the Licensed Material is strictly prohibited, whether directly or in context or in juxtaposition with specific subject matter.
3.16.You shall not use the Licensed Material for any sensitive subject matter, as determined by AMPPL, including, but not limited to illegal and immoral products and services, sexually transmitted diseases, substance abuse, alcohol, tobacco, chronic ailments, mental ailments, alternative lifestyle issues, physical or mental abuse, etc., without advance written consent from AMPPL.
3.17.Upon notice from AMPPL, or upon Your 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 AMPPL may be liable herein, or if AMPPL withdraws any Licensed Material for any other reason, You and / or the Designated End User will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, cease any future use at its own expense.
3.18.You shall 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.
3.19.You shall not have the right to keep in possession or store any high-resolution files of the Licensed Material on their server, any digital media, disk or drive whether online or in any other medium from where any third party can have access to the Licensed Material.
3.20.Licensed Material shall not be used contrary to any restriction on use that is provided to You prior to or at the time the Licensed Material is delivered. Such restrictions may be included in the Terms and Conditions, and / or this Agreement and / or in any other written communication from AMPPL. Any such restriction by AMPPL on the License herein shall be incorporated into and become part of this Agreement
3.21.That if You are permitted to use the Licensed Material on Your website, then You shall post terms and conditions on Your permitted websites that include restrictions on downloading the Licensed Material, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.
3.22.You must not, at any time, falsely represent, expressly or impliedly, that You are the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.
4.1. The Parties agree and acknowledge that the pricing of the Licensed Material and the amount of License Fee is based on the duration and territory of usage of the Licensed Material.
4.2. The License Fee must be paid in its entirety to AMPPL at the time of generation of the Invoice. The License hereunder shall only come into effect once the License Fee has bene received by AMPPL.
5. Intellectual Property Rights
5.1. Parties agree and Acknowledge that AMPPL is the sole and exclusive owner and / or duly authorised agent, of all the Licensed Material and all material and content on the Website, including but not limited to design, layout, images, 3D illustrations, documents, files, photographs, content, text, graphics, sound, videos, footage, trade-dress, trademarks, patents, written material, etc. ("AMPPL IP") are the sole and exclusive property of AMPPL and the same are protected by all the applicable laws, including, without limitation copyright, trademark, trade-names, patents, designs, internet domain names, data protection, IT Act, privacy and publicity rights and other rights and statutes. All rights, title, ownership, intellectual property rights and proprietary rights in the AMPPL IP shall always remain with AMPPL, and shall not pass on to You, your representatives or any third party at any time.
5.2. All trade names, trademarks, logos or service marks and any slogan / tagline of AMPPL and / or any design contained in AMPPL’s website and otherwise used in trade by AMPPL, including the names of all Licensed Material collections (collectively, “AMPPL TM”) shall remain the sole and exclusive property of AMPPL, its affiliates and subsidiaries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of AMPPL or the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by AMPPL.
5.3. You agree and understand that this Agreement does not provide you with any license to the AMPPL or permits any usage of AMPPL TM by You. You specifically agree and understand that have no right to use any AMPPL TM at any point of time unless specifically permitted by AMPPL in writing. You shall not use AMPPL TM in any manner that might tarnish, disparage, or reflect adversely on AMPPL TM and / or AMPPL.
5.4. If so requested by AMPPL, the Licensed Material must include the following credit line adjacent to the Licensed Material: "Credit AMPPL/Photographer's Name" or as otherwise notified by AMPPL. If You omit the credit line in the use of Licensed Material, an additional fee in an amount up to one hundred percent (100%) of the original License fee may be payable by Licensee, at AMPPL's sole discretion. The foregoing fee shall be in addition to any other rights or remedies that AMPPL may have at law or in equity.
5.5. You and / or the Designated End User, as the case maybe, hereby grants to AMPPL the irrevocable, perpetual, royalty-free, non-exclusive right and license to use the end product produced by using the Licensed Materials pursuant to this Agreement, including, but not limited to use in magazines, books, feature films, television productions and other print, solely for the promotion of AMPPL or any of its affiliates / subsidiaries.
6. Representation and Warranties
6.1. Both Parties warrant and represent that they have all the necessary rights and authority to enter into and perform this Agreement.
6.2. AMPPL represents and warrants that Your or the Designated End User’s use of the Licensed Material in its original form, and when used strictly in accordance with this Agreement, will not infringe on any copyrights or moral rights of any person or entity and if a Release is provided by AMPPL as per this Agreement, any 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.
6.3. You represent and warrant that Your usage of the Licensed Material shall at all times be strictly in accordance with the terms of this Agreement.
6.4. You represent and warrant that you shall not use, register, or assist others in using or registering any trademarks, trade names, logos, internet domain names, or any mark or name confusingly similar to AMPPL TM or any variant thereof including misspellings at any time for any purpose whatsoever.
7. Limitation of Liability
7.1. AMPPL uses reasonable efforts to ensure the accuracy, correctness and reliability of the Licensed Materials, but makes no representations or warranties as to the accuracy, correctness and reliability of the Licensed Materials and to content posted by the third party user(s) as to its accuracy, correctness, reliability and any other irregularity.
7.2. AMPPL shall not be liable for any loss or damage suffered by You / the Designated End User 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.
7.3. It is the Licensee’s responsibility to obtain from AMPPL a Model release and/or a property release for the Licensed Material (“Release”), where such Release has been previously procured by AMPPL. Except where the Release has been provided, AMPPL does not make any warranties with regard to the use of names, people, likeness, property, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. The warranties by AMPPL and indemnity by AMPPL herein are only provided if and when such Release is provided by AMPPL to You. If no such Release has been provided, then warranties by AMPPL and indemnity provided by AMPPL as set forth herein would become void and not enforceable. If no Release is provided by AMPPL, then AMPPL shall not be liable for any claims made by any third parties relating to use of the Licensed Material.
7.4. You shall be solely responsible for determining whether a Release is required in connection with any proposed use of the Licensed Material, and You shall be solely responsible for obtaining any required Release. If not provided by AMPPL, it shall be Your / the Designated End User’s responsibility to obtain all necessary individual, model, 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.
7.5. Neither AMPPL nor any party on whose behalf AMPPL licenses Licensed Material makes any representations or warranties as to whether any additional fees or payments may be due to any Model in the Licensed Material pursuant to the requirements of any applicable law, and You / the Designated End User shall be solely responsible for any such additional fees or payments.
7.6. AMPPL does not make any 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. in no event shall AMPPL be liable to You and / or the Designated End User or any other person or entity for any punitive, special, indirect, consequential or incidental damages, or any other damages, costs or losses, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including, but not limited to negligence) or otherwise, arising out of this agreement, in any way connected with the use of the Website and / or the Licensed Materials, including without limitation any damages caused by or resulting from reliance by user on any information obtained from AMPPL, or that results from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to AMPPL's records, programs or services, even if AMPPL or its licensors, as applicable, have been advised of the possibility of such damages, costs or losses.
7.7. AMPPL shalll not be liable for any damages, costs or losses arising out of or as a result of modifications made to the Licensed Material by You or the context in which Licensed Material is used.
7.8. In no event shall the aggregate liability of AMPPL, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the site exceed the amount of Licensed Fee paid by You / the Designated End User to AMPPL under this Agreement.
8.1. Upon reasonable notice, Licensee shall provide sample copies of end products containing Licensed Material to AMPPL.
8.2. In addition, upon reasonable notice, AMPPL 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.
8.3. Where AMPPL reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at AMPPL’ request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by AMPPL.
9.1. AMPPL shall subject to the terms of this Agreement, specifically Clause 7, defend, indemnify and hold You and the Designated End User harmless from damages (except punitive damages), liabilities and expenses arising out of or connected with any actual lawsuit, claim or legal proceeding alleging that AMPPL is in breach of its warranties as set forth hereinabove, to the maximum amount equal to the total License Fee paid by the Licensee.
9.2. You and the Designated End User shall defend, indemnify and hold AMPPL and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors, agents 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 authorized costs) arising out of or as a result of claims by third parties relating to: (i) You and/or the Designated End User's use of any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged breach by You and/or the Designated End User of this Agreement; or (iii) Your and/or the Designated End User 's failure to obtain any required Release. Such indemnification is in addition to AMPPL' right to terminate for a breach of the representations and warranties and is not a waiver or limitation of AMPPL' other rights or remedies.
9.3. The party seeking indemnification pursuant to this Clause 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 own 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.
10.1. AMPPL shall have the right, without notice in its sole discretion, to terminate Your account and/or block Your / Designated End User’s use of the Website and/ or the Licensed Material, for any reason whatsoever.
10.2. AMPPL reserves the right to terminate this Agreement in the event Your and/or the Designated End User: (i) provides inaccurate information for proposed usage of the Licensed Material; or (ii) otherwise breaches any of the terms and conditions of the Agreement and Terms and Conditions of the Website;
10.3. Upon termination, Your / Designated End User must destroy and cease to use, delete all Licensed Material including but not limited to all digital files from Your / Designated End User’s database and return to AMPPL the Licensed Material copies and related documentation thereof with immediate effect..
11. Governing Law and Jurisdiction
11.1. This Agreement shall be governed as per laws of India and the courts at Mumbai shall have the exclusive jurisdiction over the same.
11.2. Any dispute, violation, controversy, contest or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (hereinafter the "Disputes") shall be resolved amicably in the first instance.
11.3. The Parties agree to make all reasonable attempts to resolve the Dispute in good faith. If the Parties are unable to resolve the Dispute within thirty days from the date of commencement of the dispute, difference or disagreement or such longer period of time as may be mutually agreed by the Parties in writing, such Dispute shall be referred to Arbitration. The Arbitration shall be presided over by a sole arbitrator as mutually decided by the Parties.
11.4. The arbitration proceedings shall be in accordance with the Indian Arbitration and Conciliation Act 1996 and Rules there under as at present in force. The seat of arbitration shall be Mumbai, India. The arbitration shall be administered in accordance with its practice, rules and regulations. Any order/directions/awards of the majority of the tribunal shall be final and binding on both the Parties.
AMPPL reserves the right to change any of the terms and conditions contained in this Agreement or any policy or guideline of the Website, at any time and in its sole discretion. The Licensees’ continued use of the Website following the posting of such changes will constitute the Licensees’ acceptance of such changes and Agreement.
13. Remedy for Breach
You and the Designated End User agree that any breach of this Agreement by You and/ or the Designated End User or representatives would cause AMPPL irreparable harm, injury, loss and damage, the extent of which would be impossible to ascertain and for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies AMPPL may have at law or in equity, AMPPL shall be entitled to injunctive and other equitable relief in the event of any such breach of this Agreement by You and the Designated End User or Your representatives.
If one or more of the provisions contained in this Agreement is found to be invalid, illegal or enforceable 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.
15. Entire Agreement
This Agreement, Terms and Conditions of the Website and any other guidelines or policies of AMPPL (incorporated by reference) contain all the terms of this Agreement.
No action of AMPPL, other than express written waiver, may be construed as a waiver of any of provisions of this Agreement. A delay on the part of AMPPL of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by AMPPL 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 occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion. Any rights not expressly granted herein are reserved.