HDSplash Content License Agreement

WEB

Last Modified: October 10, 2012

This Content License Agreement – Web (“Agreement”) is an enforceable legal contract between you or the employer or other person or entity that is identified as the “Client Account Holder” on whose behalf you are entering into this Agreement (the “Client” or “You” or “Your”) and Abbott Media Productions, LLC (DBA HDSplash.com) (“HDSplash.com” or “We” or “Our”).
Please read this Agreement carefully before completing Your purchase from HDSplash.com. HDSplash.com and Client are sometimes each referred to herein as a “Party,” and together as the “Parties.” By clicking [I Accept] below, you represent and warrant that you have full legal authority to bind the Client, and that you and they agree to be bound by the terms of this Agreement, and HDSplash.com’s Website Terms of Service, which Terms of Service are incorporated herein and made a part hereof by this reference. In the event of any inconsistency between this Agreement and the Terms of Service, the terms of this Agreement shall govern.
If the use You are contemplating is not permitted by this Agreement, please review our Content License Agreement – Broadcast which, subject to market restrictions and other different terms, conditions and limitations of that agreement, permits You to license, use, display and disseminate high-resolution broadcast quality customized HDSplash.com Content over broadcast television, closed circuit, special venue, satellite and cable networks.
“Content” means all and each part of the content on this website and all of the content that is generated and provided to You through the use of this website, including, without limitation, all text, music, sound tracks, sound effects, voice-over, 2D and 3D animation, illustrations, graphic elements, color schemes, rendered material, photographic images, Flash files, film, video files (including each and all individual video frames) and/or other visual representations generated manually, optically, electronically, digitally or by any other means, or in any media or other material that You receive from Us or download from Our website, together with any accompanying material; provided, however, “Content” does not include the specific branding objects, items and elements, standing alone, that belong exclusively to Client and that Client has provided to Us (hereinafter, the “Client’s Marks and Branding Elements”) and that We have incorporated along with our Content into the combined body of material which is licensed to Client pursuant to this Agreement.
All of the Content is protected by United States and international copyright laws and treaties. HDSplash.com owns all of the rights, including the exclusive and reserved copyright in and to all of the Content on the HDSplash.com website. We reserve all rights in and to the Content not expressly granted to you by the terms of this Agreement.

Limited License
Upon Your acceptance of this Agreement and Our receipt of payment from You (hereinafter, the “Effective Date”), We hereby grant You a non-exclusive, non-transferable worldwide license, during the Use Term, to use the Content for the Permitted Uses (as defined below).
The use of the Content by You must be a Permitted Use. If it is not, it is prohibited by this Agreement. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained and reserved by Us.

Permitted Uses
The Content is available during the Use Term (as defined herein) for use by the Client, persons affiliated with the Client, full- and part-time employees and independent contractors of the Client, that are acting on behalf of the Client (collectively the “Authorized Users”), solely for those advertising, promotional and other purposes which are specified herein as Permitted Uses.Subject to the restrictions described under “Prohibited Uses,” below, the following are “Permitted Uses” of the Content:
• advertising and promotional projects, commercials, electronic catalogues and brochures, that are posted, downloaded or otherwise distributed and used on the Internet;
• on-line or electronic publications, including Web pages, podcasts and vidcasts;
• private, in-person, presentations to customers and prospective customers of the Client;
• training, educational and internal corporate videos, and
• any other uses expressly approved in writing, in advance by Us.

Prohibited Uses
You may not do anything with the Content that is not expressly listed in the preceding section as one of the Permitted Uses. In addition, you may not do anything with the Content that would constitute or involve any of the following “Prohibited Uses”:
• Under no circumstances is the Client permitted to submit all or any part of the Content to any content identification system, such as, but not limited to, YouTube Content ID, or any other system that would prevent the same or similar content from being used by other users.
• Except as specifically provided elsewhere in this agreement, the Client shall not knowingly permit anyone other than Authorized Users to use any Content.
• Content may not be sent as a viral email. Digital copies of any portion of the Content must be specifically authorized by Us in writing.
• The Client and Authorized Users may not print any portion of the Content without Our prior written authorization.
• You may not place all or any portion of the Content on a diskette, CD, network server, web server, website or any other medium, including any future medium, and offer such Content to third parties for use, redistribution, reuse or resale of any kind or in any manner.
• You may not use all or any of the Content in products for resale, license or other distribution.
• Sale, resale or distribution of the Content for profit either as a single background, effect, piece of footage, music file, sound effect file, composition, software project file or as a part of any background, effect, sound effect, music or footage library collection, software project file, set or product is prohibited;
• Sub-licensing, re-selling, renting, lending, assigning, gifting or otherwise transferring or distributing any Content, or the rights granted under this Agreement, is prohibited;
• Incorporation of any Content in any product that results in a re-distribution or re-use of the Content (such as templates), or by which any Content is otherwise made available in such a way that one could extract or access or reproduce any Content as a separate file, is prohibited;
• Removal of any notice of copyright, trademark or other proprietary right (including the rights of HDSplash.com derived under this Agreement), from any place where any such notice is on or embedded in the Content, is prohibited;
• Use of any of the Content, in whole or in part, as any part of a trademark, design mark, trade name, service mark, business name, logo, or other indication of origin, or otherwise to endorse or imply the endorsement of any goods and/or services, is prohibited;
• Use of any of the Content in any way by the Client or any employee or affiliate of the Client in connection with a false representation to any person that such Client, employee or affiliate of the Client is an agent or employee of HDSplash.com.
• To the extent that any computer object code or source code is contained within the Content, to reverse engineer, decompile, or disassemble any part of such code is prohibited;
• Use of any Content in connection with pornography or in connection with any publicly available presentation or material which could be considered (within the sole discretion of HDSplash.com) obscene, immoral, degrading, defamatory or libelous in nature, or that could be reasonably likely to bring any of the Content or any person, living or dead, property, lifestyle, belief or creed reflected or portrayed in such presentation or material into disrepute, is prohibited;
• Use of or display of the Content in an electronic format that enables it to be downloaded or distributed as the original stock media file via mobile devices or shared in any peer-to-peer or similar arrangement is prohibited;
• Breaking the Content into smaller pieces and selling these pieces as stock media is prohibited;
• Release of Content that is music on any commercial audio-only product (e.g., compact discs or other records or tapes, audio books, etc) is prohibited.
• Use of GMP music in any way other than the final HDSplash video is prohibited. Any other usage would require additional licensing from www.gmpmusic.com. YOUTUBE presentation may require GMP MUSIC white list authorization. Register the youtube URL for the video by emailing it to info@gmpmusic.com.
• The Client shall not modify or create a derivative work of the Content without the prior written permission of HDSplash.com;
• Use any of the Content for any purpose is prohibited if You have, through any means (including the use of an automated program, applet, bot or the like), obtained any Content without completing and transferring the required payment to HDSplash.com in accordance the normal procedures contemplated on the HDSplash.com website; and
• Any use of the Content that is not a Permitted Use shall constitute infringement of copyright and a breach of this Agreement.

Purchase and Delivery of Your Customized HDSplash.com – Web Advertisement
Setting Up Your Account
To make any purchase on or through the HDSplash.com website, the Client must be registered as the “Client Account Holder” by an Authorized User and must comply with the terms of this Agreement (including the HDSplash.com Terms of Service). The Client acknowledges that Client is responsible for maintaining the security of, and restricting access to, their account and password (and any account and password of any Authorized User associated with Client), and Client agrees to accept responsibility for all purchases and other activities that occur under their account(s). HDSplash.com sells its products and services only to those who can legally make purchases with a credit card/debit card. If You are under 18, You may make purchases on or through HDSplash.com only with the involvement of a parent or guardian. HDSplash.com reserves the right to refuse or cancel any customer order or terminate any customer account with HDSplash.com, at any time in its sole discretion (except as prohibited by law).
Notice of License Terms to Authorized Users – Prevention of Prohibited Uses
Client shall make reasonable efforts to provide Authorized Users with appropriate notice of, and training about, the duties of Client and Authorized Users relating to restrictions on access to and use of the Content, as well as the consequences for the Client and Authorized Users if the terms of this Agreement relating to the Permitted and Prohibited Uses of the Content and the HDSplash.com website are violated.
In the event of any Prohibited Use of the Content by an Authorized User or Client, HDSplash.com may terminate such Authorized User’s access or, depending on the circumstances, exercise any other rights of HDSplash.com under this Agreement, including termination of Client’s right to use, and/or access to, the Content.

HDSplash.com Customization and Delivery of the Content — Client Warranty
Upon our verification of Your acceptance of this Agreement and Our receipt of payment from You, Your order, including your uploaded Client Marks and Branding Elements (the Client’s Logo, website, business address, phone number and any other text, images or other information that the Client requests to be attached to the Content) will be automatically forwarded to the production department at HDSplash.com by the next business day.
By uploading your Client Marks and Branding Elements on the HDSplash.com website, you hereby expressly warrant that You, the Client, own all rights to the Client Marks and Branding Elements (that are susceptible of being protected under applicable law and are not in the public domain), and that the Client Marks and Branding Elements, both taken as a whole and considering each separate mark, component or element, do/does not infringe any trademark, trade name, service mark, trade secret, right of privacy, confidentiality agreement, right of publicity, or other intellectual or other property right of any third party. In addition, the rights You possess in and to the Client Marks and Branding Elements also include all necessary rights to grant to Us the license set forth in the following paragraph.
You hereby give HDSplash.com a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make), communicate, publish, publicly perform, publicly display and distribute the Client Marks and Branding Elements in connection with Our Content. The license rights that You grant to Us in this paragraph are for the limited purpose of operating, promoting, and improving Our services for which You have subscribed by entering into this Agreement, and to develop new services. The license You have granted Us in this paragraph continues indefinitely after the end of the Use Term.
Within two business days following the date on which all required elements of the Client’s order are received by Us, HDSplash.com shall make the Content available to the Client and Authorized Users by way of electronic download, and will advise you of its availability by Email.
Once final delivery has been made, there will be no further revisions to the Content. For this reason, it is very important that, at the time you place your order, Your Client Marks and Branding Elements have been internally approved by Your management, correctly input, carefully reviewed to ensure correctness, and properly submitted.

Important Things to Remember After You Make Your Purchase
Maintaining Confidentiality of Your Account Information
You may not disclose to any person any order information which includes, but is not limited to, Order ID, passwords, download link, etc.
No Assignment of Your License or This Agreement
You may not sub-license, assign, or transfer this Agreement, the license, or any of Client’s rights hereunder to any person or entity without the prior written consent of HDSplash.com.
No Exclusivity
This Agreement grants the Client the non-exclusive global rights to use the customized HDSplash.com – Web advertisement licensed by Client (containing our Content and the Client’s Marks and Branding Elements) in accordance with, and subject to, all of the terms, limitations and conditions of this Agreement. The Client hereby agrees and understands that HDSplash.com may license the same or similar standard Content to other parties during the Use Term (as defined below) for global webcast (as well as for broadcast in markets in which the Client operates).
Limitations on Use of the Content
Your right to use the Content is limited to the Permitted Uses expressly listed in this Agreement. (See “Permitted Uses,” herein). You may not use the Content for Prohibited Uses (See “Prohibited Uses,” herein).

Term and Termination
The “Use Term” shall commence on the Effective Date and shall continue for a period of twelve (12) months, until the first anniversary of the Effective Date. During the Use Term, the Client holds a non-exclusive right to use the Content for the Permitted Uses, subject to all of the terms, limitations and restrictions of this Agreement.
Upon expiration of the Use Term, this Agreement shall continue in effect; the license granted under this Agreement and the rights of the Client to use the Content shall terminate at the end of the Use Term. Notwithstanding the expiration of the Use Term and termination of the license rights granted to Client hereunder, all other terms, conditions, limitations with respect to Client’s possession, use and treatment of the Content, and the remedies of HDSplash.com set forth herein shall continue in effect.
If the Client terminates this Agreement, the Client must destroy or delete the Content, along with all copies and archive files containing any of the Content and any accompanying materials (if applicable), and cease using the Content for any purpose. All of the Client’s rights under this Agreement terminate automatically without notice if at any time the Client breaches any of its terms. The Client must, if requested, confirm to HDSplash.com in writing that the Client has complied with these requirements and provide any proof thereof reasonably requested by HDSplash.com.

Renewal
This Agreement shall be renewable by Client by contacting HDSplash.com during the last six months of the current Use Term and paying the required license fee for an extension of the Use Term. Such renewal shall have the effect of extending the Use Term under this Agreement for an additional year until the next anniversary of the end of the then current Use Term.

Our Warranty Regarding the Content
Subject to the Limitations set forth elsewhere in this Agreement:
HDSplash.com warrants that it has the right to license the rights granted under this Agreement to use Content, that it has obtained any and all necessary permissions from third parties to license the Content, and that your use of the Content in accordance with the terms of this Agreement shall not infringe the copyright of any third party. HDSplash.com shall indemnify and hold the Client and Authorized Users harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney’s fees, which arise from any claim by any third party of an alleged infringement of copyright or any other property right arising out of the use of the Content by the Client or any Authorized User in accordance with the terms of this Agreement. This indemnity shall survive the termination of this Agreement. Client shall provide written notice to HDSplash.com within three (3) business days following Client’s receipt of any communication, from or with respect to any third party, alleging that any Content infringes on marks or other intellectual property owned by said third party. NO LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT IS APPLICABLE TO THIS INDEMNIFICATION.

Product and Services Availability and Errors in the Content
HDSplash.com may revise, discontinue or modify products or services offered on or through the HDSplash.com site, at any time without prior notice to You. If a product or service offered to the Client is or becomes unavailable, HDSplash.com may decline or cancel the Client’s order (and issue the Client a refund if You have paid for the order), with no further liability or obligation to the Client. If a product or service offered to the Client is or becomes unavailable, HDSplash.com may, in its sole discretion, offer to substitute the order with another product or service of equal value, and will make such substitution only with the Client’s written or recorded consent.
While We strive to eliminate errors on the HDSplash.com, We do not warrant that all products, services, information and content offered on the HDSplash.com will be accurate, complete, reliable, current, or error-free. Unless expressly otherwise noted, all products, services, information and content offered on the HDSplash.com are provided “as is” without warranty of any kind. In the event of an error by HDSplash.com in processing or delivering Your order, HDSplash.com may, at its election:
(1) correct such error and revise Your order accordingly if necessary (including charging the correct price and billing the Client for any undercharged amount or refunding to the Client any overcharged amount, as the case may be); or
(2) cancel Your order affected by the error and issue a refund of the credit purchase amount actually paid by the Client for such order. By placing an order on or through HDSplash.com, the Client acknowledges and agrees that, in the event of an error by HDSplash.com in processing or delivering Your order, the Client’s sole remedy is to cancel the order. Unless required by Law, since HDSplash.com is offering non-tangible, customized, irrevocable goods and services, We do not issue refunds once the order is accomplished and the download is available. As a customer You are responsible for understanding this policy before purchasing any item at our site. HDSplash.com is NOT responsible for users’ mistakes and mistaken orders (for example, ordering wrong products) – all transactions are controlled by the user. User receives what he or she pays for.

Limitations on Warranties
Notwithstanding anything else in this Agreement:
Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Content.
HDSplash.com makes no representation or warranty, and expressly disclaims any liability with respect to the Client Marks and Branding Elements, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.
HDSplash.com makes no representation or warranty, and expressly disclaims any liability with respect to the misuse of the Content by the Client or any or its Authorized Users. Except for the express warranties stated herein, the Content are provided on an “as is” basis, and HDSplash.com disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Content or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. HDSplash.com further expressly disclaims any warranty or representation to Authorized Users, or to any third party.

Limits on Our Liability to You
HDSplash.com’s entire liability and the Client’s exclusive remedy, with respect to any claims arising out of the Client’s use of the Content, or out of the Client’s actions in downloading the Content, shall be as follows:

• You may, after approval by Us, be allowed to download the Content again.
• If the Client is repeatedly unable to download the Content, HDSplash.com may refund the fee actually paid by the Client for such the Content, provided HDSplash.com can confirm, in Our sole discretion, that the Client has been unsuccessful in downloading the Content.
IN ANY EVENT, HDSplash.COM’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ALL OR ANY PART OF THE HDSplash.COM WEBSITE OR THE CONTENT IN ANY MANNER SHALL BE LIMITED TO THE FEES COLLECTED BY FOR THE CLIENT’S PURCHASE OF THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED $199.00 UNITED STATES DOLLARS. IN NO EVENT SHALL HDSplash.COM OR ANY OF ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE WEBSITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO THE CLIENT HEREUNDER, EVEN IF HDSplash.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF HDSplash.COM OR ANY OF ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR PRODUCERS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Indemnity
You agree to indemnify, defend and hold HDSplash.com and its affiliates, and their respective directors, officers, employees, shareholders, agents and producers of the Content (collectively, the “HDSplash.com Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees) incurred by any HDSplash.com Party as a result of (i) any breach by the Client of this Agreement; (ii) any claim threatened or asserted against any HDSplash.com Party that alleges that the Client has breached this Agreement or infringed any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party. HDSplash.com reserves the right, at the Client’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Client, and the Client agrees to cooperate with HDSplash.com’s defense of such claim.

Miscellaneous Provisions.
Assignment
This Agreement is not assignable by either party without the consent of the other Party, except that this Agreement shall be assignable by Us to an affiliated entity or upon the sale or other transfer (by operation of law or otherwise) of the entire business, operations and all rights of HDSplash.com, to a purchaser of same. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors.
Applicable Law — Arbitration
Except as otherwise expressly provided in and with respect to specific provisions hereof, this Agreement shall be governed by and construed in accordance with the laws of the United States (where specifically applicable) and the State of Arizona. The Parties agree that, in the event of a dispute, controversy or claim relating to or arising out of this Agreement (except a petition for equitable relief), the Parties hereby agree to submit the matter to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The seat of arbitration shall be Tucson, Arizona. Demand for arbitration shall be made in writing and shall be served upon the Party to whom the demand is addressed by registered mail. Each Party shall pay their respective share of the arbitration fees when due as assessed by the AAA. (If a Party fails to pay their share of the arbitration fees when due, in calculating the Award, the Party that does pay such fees shall be credited same along with interest at 10% per annum on the unpaid fees due from the other Party from the due date of such fees to the date final judgment on the Award is rendered.) Judgment upon the award rendered (including reasonable costs, arbitration administration and arbitrator fees, as adjusted for any interest due pursuant to the preceding parenthetical sentence, and attorney’s fees) may not be appealed to any court but may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement as the case may be. Such arbitration shall be conducted in the English language. Jurisdiction and venue for any court action to compel arbitration pursuant this Paragraph shall lie with the U.S. Federal and State of Arizona courts located in Tucson, Arizona.
Attorneys’ Fees
In case of any action or proceeding to compel compliance with, or for a breach of, any of the terms and conditions of this Agreement, the arbitrator(s), or a court in the case of a proceeding for equitable relief, to enforce an arbitration award or to compel arbitration, may award to the prevailing Party all costs of such action or proceeding, including, but not limited to, reasonable attorneys’ fees. Should any defendant in any court action at law seek and obtain an order from the court that the dispute must be submitted to arbitration, such defendant shall be deemed the prevailing Party for purposes of an immediate award of costs and attorneys’ fees incurred by such defendant in obtaining such order.
Severability
This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations of the jurisdictions in which the Parties transact business hereunder. If any provision of this Agreement, or any application thereof to any person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by law.
Entire Agreement
This Agreement contains the entire integrated agreement and understanding between the Parties and supersedes any prior understandings and agreements between them respecting the subject matter hereof. There are no representations or warranties, oral or written, expressed or implied, between Parties relating to the subject matter of this Agreement which are not fully expressed herein. Except as expressly contemplated herein, all prior and contemporaneous agreements, representations and understandings of the Parties, oral or written, are hereby superseded and merged herein.
Amendments, No Waiver
No alteration, amendment, change or addition to this Agreement shall be binding upon the Parties unless reduced to writing and signed by both Parties. No delay or omission of either Party to exercise any right or power shall impair any such right or power, or be construed as a waiver of, or acquiescence in, any nonperformance by the other Party. No waiver of any nonperformance shall be effective unless it is in writing. No written waiver of one act or Agreement provision shall be deemed a waiver of any other act or provision, or of any subsequent breach by the other Party of the same or any other provision.
By specific agreement of the Parties hereto (intending that this paragraph be fully enforced as written), this paragraph shall be governed by, construed and enforced in accordance with the laws of the State of New York, United States of America.
Headings
Headings in this Agreement are for reference only and shall not limit or define the meaning of any provision.
No Third Party Rights
Except as expressly provided herein, no provision of this Agreement is intended to or shall be for the benefit of any person not a Party hereto, and no such other person shall have any right or cause of action hereunder.

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