J.C. Backings Corporation License Agreement
This J. C. Backings Corporation License Agreement governs usage of the Images you license from J. C. Backings Corporation (“Licensor”). The pricing for the Images are based on several factors, including size, placement, duration of use and geographic distribution of the Image(s). (Pornographic, defamatory, libelous or otherwise unlawful use of any Image is prohibited.)
Here are some examples of Image uses for which you will need an Image License:
- Use in magazines, books, feature films, television productions, commercials and print advertisements; theme parks;
- Website, online and multimedia designs;
- Online or Electronic Distribution Systems, including web page design to a maximum resolution of 72dpi;
- Advertising and promotional campaigns, presentations and brochures;
- Book jackets and interior pages;
- Packaging for software, music albums, CDs, cassettes and videotapes;
- Calendars, greeting cards and posters;
- Trade show displays, billboards and exhibits;
- Products for resale in any quantity;
- Broadcast and Theatrical Exhibitions;
- Publications and Products; and
- Any other uses with prior approval, in writing, by Licensor.
Please review this document carefully and thoroughly and contact J. C. Backings Corporation customer service if you do not understand this Agreement, if you wish to use an Image in a manner not permitted under this Agreement, or have any questions. The following terms and conditions apply to your access and use of all material and Images from J. C. Backings Corporation.
J. C. Backings Corporation License Agreement
- Standard Terms and Conditions: THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND J. C. BACKINGS CORPORATION, ("LICENSOR"). BY CHECKING THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES', ENTERING YOUR NAME AND COMPANY, AND CLICKING THE 'COMPLETE ACCEPTANCE' BUTTON YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE LICENSED MATERIAL USAGE SPECIFICATIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES'. THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND DIRECTLY FROM LICENSOR, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED MATERIAL. IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT J. C. BACKINGS CORPORATION.
- Definitions: In this Agreement the following definitions apply:
- "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 Licensor under the terms of this Agreement.
- "Image" means all images and related informational materials in any medium furnished by Licensor hereunder, including related text, captions, or information, all of which are part of the Licensed Material.
- "Invoice" means the computer-generated or pre-printed invoice provided by Licensor that sets forth, without limitation, the specific party contracting as Licensee, the specific areas of use for the Licensed Material selected, the grant to Licensee of the Reproduction rights chosen, limitations on the license (if any) and states the corresponding price(s) for the license of such Licensed Material. The Invoice shall be made a part of this Agreement and shall be incorporated by reference herein, and together with this Agreement shall constitute the entire agreement between Licensor and Licensee regarding the Licensed Material. All references to the Agreement shall include the Invoice.
- "Reproduction" and "Reproduce" include any form of copying, reproduction or publication of the whole or a part of any Licensed Material, whether by printing, photography, photocopying, slide projection (whether or not to an audience), layout or presentation, use in a production process, electronic, digital or mechanical means, use as a reference by an artist or in an artist's illustration or by any other means. Reproduction further includes the distortion or manipulation of the whole or a part of the Licensed Material (for example, by computer, electronically, digitally by an artist or by any other means), even though the resulting Licensed Material may not appear to a reasonable person to be derived from the original Licensed Material. Reproduction also includes distribution in whole or in part of any Licensed Material via television, cable, telecommunications network or internet transmission.
- Grant of Rights: Unless otherwise specified in the J. C. Backings Corporation Invoice, Licensed Material obtained from Licensor is licensed to you on a personal, non-transferable, one-time, non-exclusive basis, and is strictly limited to the use, medium, time period, print run, placement, size of Licensed Material, territory, and all other restrictions indicated in the Invoice or contained on Licensor's web site (www.jcbackings.com), and are licensed only for use for one year from the date of the Invoice.
Unless otherwise specified in a separate writing signed by Licensor, Licensee's rights to reproduction of the Licensed Material is limited to the specific use described in your Invoice, which together with these terms shall constitute the full license granted. Additional restrictions indicated on Licensor’s web site or in the Invoice may contain limitations on the use, medium, time period, print run, placement, size of Image, territory, and any other restrictions. Any license granted by J. C. Backings Corporation is conditioned upon (i) Licensee's meeting all conditions and restrictions imposed by Licensor, and (ii) Licensor's receipt of full payment for such use as invoiced by Licensor. The failure to make full payment when due shall immediately and without further notice terminate any license granted and entitles Licensor to pursue all remedies available under copyright and other laws.
Licensee agrees to pay the payment amount for the license of the Image and Licensed Material as described in the Invoice and this Agreement. Licensee is required to pay for all Licensed Material that you obtained, regardless of whether they are used, unless Licensee complies with the cancellation provisions of this Agreement, pursuant to paragraph 12 hereof.
- Limited Use License: The limited license granted is personal, nonexclusive, non-sublicensable, non-transferable and non-assignable; the work produced incorporating the Licensed Material must be for Licensee's own use or for the use of Licensee's direct employer. If Licensee is licensing an Image on behalf of, or for use by a client, that client must be the sole end user of the work. Licensee may not sell, rent, loan, give, sublicense or otherwise transfer to anyone the Image or any right to reproduce the Image or Licensed Material (except insofar as it has been incorporated by you into the permitted use as stated in the Invoice).
- Electronic Storage: For all Licensed Material that Licensee takes delivery via download or scan, Licensee must provide the copyright symbol, the name of Licensor and the Licensed Material identification number as part of the electronic file. In addition, Licensee may only use a single copy of the Licensed Material on a single computer. Licensee may only download the Licensed Material onto one (1) computer hard drive or other computer medium and may not otherwise make, use or distribute copies of the Licensed Material for any purpose except as otherwise provided in this Agreement and the Invoice. Licensee may not use the Licensed Material on any image storage jukebox, network configuration or similar computer network arrangement. Upon the expiration or earlier termination of the License, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage system. This section shall survive termination of the License.
- Model and Property Releases/Clearances: The rights Licensor grants to you DO NOT INCLUDE a license to any persons, places, property, or subject matter depicted in any Licensed Material, which may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to third persons. You shall assume that no model or property releases, or other releases or licenses exist in connection with any of the Licensed Material, unless specifically stated in a separate writing by licensor, and Licensor makes no representations or warranties that it owns or licenses any rights nor does Licensor grant you any rights including copyright, trademarks, or rights of publicity belonging to any person, place, property, or subject matter depicted in any Licensed Material. Licensor gives no rights and makes no warranties with regard to the use of names, trademarks, logos, registered, unregistered or copyrighted designs or works of art depicted in any Licensed Material. Further, Licensor makes no representation or warranty as to the accuracy of any information provided with the Licensed Material. You are solely responsible for determining whether your use of any Licensed Material requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by Licensor. If you are unsure whether additional rights are needed for your use, you are responsible for consulting with competent legal counsel. Any license granted by Licensor is conditioned upon your obtaining all necessary third-party rights, releases and permissions. You agree to provide Licensor with proof of such releases and permissions upon request.
- Permission Needed: Pictures that Contain People, Places, and Things: Images often depict a variety of subject matter: people, buildings, art, animals, etc. When you license an Image from Licensor, you acquire from Licensor only the limited right to reproduce that Image. However, to use the Image you still may need: 1) the permission of the people depicted in an image and/or 2) the permission of the owners of places and things who may have rights in such material. You need to obtain additional permissions depends upon the nature and circumstance of your intended use, the material that you may add to an Image, the way that you might manipulate an Image, and the laws that may apply to your use. Generally, Licensor does not license these additional rights to you when you acquire a license to use a Licensor Image. It is your responsibility to license these rights from the proper right owners, or obtain legal guidance on whether your intended use requires that you obtain these rights. This following information illustrates some of the rights and issues.
None of the following constitutes legal advice and you should seek the advice of legal counsel if you have any questions regarding the scope of the license granted by Licensor. It is provided here merely to inform you about some issues you should consider before using any Licensed Material. Licensee agrees that the information is provided merely for informational purposes and that Licensor shall have no liability of any kind relating to this information.
- Copyright: Among the most important questions to ask regarding the licensing and use of any image is: Does the image depict works protected by copyright? If an image contains fine art (including paintings, sculptures, photographs, etc.) additional licenses may be required from the artist or his/her estate or agency. You will need to determine whether the art depicted is protected under copyright laws, and whether your use requires that you obtain permission of the artist. Agencies such as the Visual Artist (VAGA) represent many artists and may assist you in acquiring such rights. In addition to the copyright, artist may also have a right of integrity over how images of their art are reproduced, modified, and whether proper attribution is required to be given to the artist. This right of integrity or “moral right” gives the artist certain control over the integrity of his/her work and the right to receive (or not receive) attribution or credit as the artist responsible for the work.
- Trademarks: Another important question to ask regarding the licensing and use of any image is: Does the image depict trademarks, trade dress, or trade names? A picture containing a trademark, trade dress, or trade name may require you to obtain the permission of the trademark owner if your use could confuse the public as to the source, origin, or approval. For example, if you use in your advertisement a picture of an airplane that contains that airline’s logo and colors on the tail, you may need the permission of the airline. Another example is a billboard that may be in a background. You may need to permission of trademark or trade name owner of a product depicted in the billboard. Not every use of a photograph depicting trademarks (such as signage or logos) will infringe the rights of the trademark owner, but the risk increases when such you use images for advertising or promotion.
- Rights of Publicity: Yet another question to ask regarding the licensing and use of any image is: Does the image depict a person? In many states and countries, people have a “right of publicity” that allows them to control how their name, likeness, voice, and signatures are used. The laws can vary widely, with many laws requiring you to obtain permission of the person before using their picture in certain ways, whether these people are famous or not, or whether they are still living or not. You must make sure that your intended use complies with the law of every territory where you intend to use the Image. Use of a person’s name, image, or likeness in advertising and promotion nearly always requires their permission. You must contact the person or the people or group representing the personality to clear rights of the personalities. For living personalities, this contact can be a manager, agent, publicist, company, or the person themselves. For famous and deceased personalities, the contact can be an agency (like Curtis Management Group or Global Icons), their estate, lawyer, family foundation, Bank Trust Division, etc. Often, people who appear in images produced for use in commercial advertising sign a “model release” that allows you to use the image in certain ways without obtaining their further permission.
- Rights of Privacy: Also ask this question prior to licensing or using an image: Does the image depict a person? The right of privacy protects against unreasonable intrusions into a person’s private affairs. In certain countries, the right of privacy prohibits the use of certain images (for example a picture depicting a crime victim or an accused party). In many states and countries, the person depicted in the photograph must still be living to claim the right. Images licensed for commercial use or for sensitive subject editorial and commercial use may also require model, property, or estate releases (that is, permission from photographed subjects or owners of the objects to reprint their image). When obtaining a model release, you should consider where and how the image will be used, as well as what other material will be used with or added to the image such as captions or text.
- Property Rights: Another question to ask regarding the licensing and usage of any image is: Does the image depict property belonging to others? Better viewed as an “access right,” this right may protect the owner of the property depicted in an image from unauthorized use of the material. A good example is a museum that owns several rare artifacts and restricts access and photography of the artifacts, and may have a right to restrict access and use of their property, or the owner of an animal that may limit access to the animal in return for a fee. Property rights are often claimed by property owners but may not be legally enforceable.
- Prior Approvals Required by Third Parties: Images that require pre-approval for usage may restrict the Licensee from certain uses of the Image. For example, a photographer or a model may require that the image not be used in certain industries (tobacco or alcohol), or he may request prior approval before an image is licensed or manipulated. Additionally, images may be restricted from use in certain territories or for certain periods of time due to prior licenses. You should read the restrictions associated with an image to determine if any prior approvals are needed.
- Unauthorized Use: Without limitation, Licensed Material may not be utilized as a logo, trademark or service mark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person's right of privacy or publicity, or to infringe upon any copyright, trade name, trademark, or service mark of any person or entity, whether directly or in context or juxtaposition with specific subject matter. Unauthorized use of these Images shall entitle Licensor to exercise all rights and remedies under applicable laws, including immediate and permanent injunctions preventing further use and monetary damages against all users and beneficiaries of the use of such Images. Licensor in its sole discretion reserves the right to bill you (and you hereby agree to pay) ten (10) times the normal license fee for any unauthorized use, in addition to any other fees, damages, or penalties Licensor may be entitled to under this Agreement or applicable law. The foregoing is not a limiting statement of Licensor's rights or remedies in connection with any unauthorized use.
- Captions: While Licensor makes efforts to correctly caption the subject matter of the Licensed Material, Licensor does not warrant that such information is accurate.
- Limitations on Rights, Releases and Required Credit Lines
- Credit Line and Copyright Notice: For editorial uses, you shall include a copyright notice and photo credit adjacent to each Image (in the format: "© J. C. Backings Corporation" or as specified on the Licensor's web site) with each publicly distributed Image of Licensed Material. Receiving credit is a material aspect of the Agreement for Licensor, and in editorial uses of Images or any Licensed Material, you agree to pay triple the Invoice amount if you do not provide such credit and copyright notice. For commercial uses, you shall include the credit described above when customary and appropriate.
- J. C. Backings Corporation Trademarks: Except for credits as required above, you may not use the trademarks or service marks of J. C. Backings Corporation without J. C. Backings Corporation's prior written consent.
- Film Collections: A screen credit must be provided for any film or video footage used in a feature film, broadcast television, or cable production that will be equal in size and placement to like footage, and must read: Film Imagery supplied by J. C. Backings Corporation.
- Copyright is Owned by Licensor: All right, title and interest throughout the world, including copyright and all other intellectual property rights, whether currently or in the future recognized, in the Licensed Material is owned by Licensor. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the License contained in this Agreement. Except as expressly set forth in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Licensed Material. Upon demand, Licensee shall immediately assign to Licensor (or Licensor's designee) any copyright of or to the Licensed Material arising out of the publication of the Licensed Material. No copyright information shall be removed from any digital file.
- Omission of Credit Line: Unless otherwise agreed in writing, if any Licensed Material reproduced by Licensee for editorial purposes (i.e., for any non-promotional purpose) omits the credit line specified above, or any other credit line specified by Licensor, an additional fee equal to twenty percent (20%) of the original amount Invoiced shall be payable by Licensee at Licensor's discretion. The foregoing fee shall be in addition to, and not in lieu of, any other rights or remedies that Licensor may have at law or in equity.
- Confidentiality: During this Agreement, Licensor may provide you with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets and is proprietary to Licensor, and you shall maintain the confidentiality of any "Confidential information" that Licensor may provide to you, and you shall not use or disclose the same without the prior written consent of Licensor. "Confidential information" includes any information that is either designated as confidential by Licensor or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by you, namely information or data not available to the general public and is considered to have some importance to the Licensor.
- Warranty: Subject to the restrictions and limitations contained in Licensor's web site, the Invoice, or under this Agreement, Licensor warrants that it has sufficient rights to grant you the limited license under this Agreement and as further described in the accompanying Invoice. Additionally, Licensor warrants that the digital copy of the Licensed Material provided by Licensor to you will be free from defects (but not visual artifacts inherent in the original Image) for ninety (90) days following delivery; and, Licensor will as your sole and exclusive remedy for your inability to use an Image and at Licensor's sole discretion, provide you with a replacement of the digital copy of such Image, or refund any fee paid by you to Licensor provided you have not made any licensed use of the Image. While Licensor makes efforts to use accurate caption information, Licensor does not warrant that caption information is accurate. Licensor provides you with its online system on an "as is" basis. Licensor makes no other warranty, express or implied regarding any Licensed Material, its online systems, its web site, or any rights or licenses under this agreement including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
- Limitation of Liability: EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, LICENSOR SHALL NOT BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT OR YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF, OR RELATING TO THE USE OR INABILITY FOR YOUR USE OF THE LICENSED MATERIAL, WHETHER FRAMED AS A BREACH OF CONTRACT, WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL LICENSOR’S LIABILITY FOR YOUR USE OF ANY LICENSED MATERIAL PROVIDED HEREUNDER EXCEED THE AMOUNT INVOICED TO YOU FOR THE USE OF THAT LICENSED MATERIAL.
- Indemnification: Licensee agrees to indemnify, defend, and hold Licensor harmless, including their directors, officers, employees, and agents, against all claims (including without limitation claims by third parties), for liability, damages, costs and expenses, including attorney fees and expenses, arising out of or related to any breach of this Agreement or representation or warranty by Licensee, Licensee's activities under this Agreement, or any use by Licensee of any Licensed Material for any unauthorized purpose or for which Licensee was required to have obtained prior third party rights or permissions or which otherwise is a violation of any third party's intellectual property, moral, privacy or other recognized right.
- Parties' Obligations on Notice: Upon notice from Licensor, or upon Licensee's knowledge and Notice thereof to Licensor pursuant to the provisions of paragraph 21, hereof, that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, or if Licensor retires any Licensed Material for any reason, Licensee treat the License for that Licensed Material as terminated and Licensee shall comply with Paragraph 11 of this Agreement at its own expense
- Termination: Subject to Licensor's rights under paragraph 14 of this Agreement to charge interest for overdue Invoices and not terminate the Agreement, the license contained in this Agreement will terminate automatically without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon termination for any reason, Licensee must immediately
- stop using the Licensed Material,
- destroy or, upon the request of Licensor, return the Licensed Material and all copies thereof in Licensee's control to Licensor (in the case of analogue materials),
- permanently delete all electronically stored Licensed Material from Licensee's premises, computer systems and storage (electronic or physical), and
- certify in writing to Licensor that it has completed the foregoing actions.
- Cancellations: If Licensee cancels rights granted in the Invoice within seven (7) business days from the date of the Invoice, and you have not used any of the Licensed Material, and Licensee has not used any of the Licensed Material, Licensee will be charged a $50 transaction fee per Licensed material cancelled. If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the Invoice date, a cancellation fee equal to fifty (50%) percent of the amount of the Invoice will be charged to Licensee. AFTER THIRTY DAYS, NO CANCELLATIONS WILL BE ACCEPTED AND THE FULL AMOUNT OF THE INVOICE MUST BE PAID WHETHER OR NOT LICENSEE USES THE LICENSED MATERIAL. For any cancellations, Licensee must also pay the full service charge, production fee, processing and handling fee and shipping fee. No license to use the Licensed Material will be granted upon cancellation; all cancellations are final. Licensee agrees to pay all the foregoing applicable fees without any right of set-off or other defense.
- Copies: At Licensor's request, Licensee shall provide to Licensor free of charge, up to three (3) copies of any printed product or publication you create using the Licensed Material, or if electronic use is permitted, the URL and any required passwords or the screen captures for our records.
- Interest on Overdue Invoices: If Licensee fails to pay Licensor's Invoice in full within thirty (30) days of the Invoice date, Licensor shall add, and Licensee shall pay without any right of set-off or defense, a service charge of One point Five Percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance. Licensor may, in its sole discretion, decide not to terminate this License and Agreement for any unpaid Invoice or portion thereof, but Licensee shall pay any service charge pursuant to this Agreement, whether or not Licensor terminates the Agreement.
- Taxes: Licensee is responsible for the payment of all sales and use tax, when applicable, and all income and other tax related to the use of the Licensed Material by Licensee under this Agreement. Licensor does not accept resale certificates without prior written approval and at Licensor's discretion.
- Right to Information: Licensor may at any time, on Two (2) days' minimum notice, inspect any Licensee records, accounts and books relating to the reproduction of any of Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement and is being paid for by Licensee to Licensor.
- Date and Delivery of Agreement: Notwithstanding anything to the contrary contained in this Agreement, the parties intend that this Agreement shall be deemed effective, executed, and delivered for all purposes under this Agreement, and for the calculation of any statutory time periods based on the date an agreement between parties is effective, executed, and/or delivered, as of the date set forth on the Invoice.
- Third Party Beneficiaries / Parties in Interest: This Agreement has been made and is made solely for the benefit of Licensor and Licensee and their respective successors and permitted assigns. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either party an agent, employee or legal representative of the other party. Nor shall this Agreement be deemed to establish a joint venture or partnership.
- Assignment: Licensee shall not voluntarily or by operation of law assign, hypothecate, give, transfer, mortgage, sublicense, license, or otherwise transfer or encumber all or any part of its rights, duties, or other interests in this Agreement or the proceeds thereof (collectively, Assignment), without Licensor’s prior written consent. Any attempt to make an Assignment in violation of this provision shall be a material default under this Agreement and any Assignment in violation of this provision shall be null and void.
- Binding on Successors and Assigns: Each and all of the provisions hereof shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
- Notices: All notices, requests, demands, and other communications to the parties hereto, pursuant to this Agreement or as called for by law, shall be in writing and deemed effective when given by:
- Personal Delivery. Personal delivery is when a notice is hand delivered to the other party. But, personal delivery shall only be effective if evidenced by a signed receipt; or
- Facsimile or Email. Actually transmitted by the person giving the notice by electronic means (including but not limited to facsimile) to the recipient. But, notices given by facsimile or other electronic means, including Email, shall not be effective unless either:
- a duplicate copy of such facsimile or electronic communication notice is promptly given by depositing same in a United States post office with first-class postage prepaid and addressed to the parties as set forth below, or
- the receiving party delivers a written confirmation of receipt for such notice either by facsimile or any other method permitted under this paragraph;
- additionally, any notice given by electronic means, telex or facsimile shall be deemed received on the next business day if such notice is received after 5:00 p.m. (recipient's time) or on a nonbusiness day); or
- U.S. Mail. Sent via United States mail, first class, postage fully prepaid, certified mail with return receipt requested, effective as of the date of receipt, at the addresses of the parties set forth below; or
- Next Day Carrier. The next business day after same have been deposited with a national overnight service reasonably approved by the parties (Federal Express, UPS, Airborne Express, and DHL Express being deemed approved by the parties), postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider.
J. C. Backings Corporation
5905 Smiley Drive
Culver City, California 90232
With a copy to
NEAL M. RIMER,
Attorney at Law
16055 Ventura Boulevard
Encino, California 91436
Pursuant to the information on the Invoice or at such other address as a party hereto may request in writing to be used for that purpose, by giving notice of such address change in conformance with this paragraph. Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this paragraph, and that any person to be given notice actually receives such notice. In the event that notice is not accepted or is refused by the receiving party and/or is returned to the sender unsigned, then notification by regular United States mail to the last known address provided in conformance with the terms of this Agreement shall be deemed effective four (4) days after mailing.
- Commercial Impracticability / Force Majeure: No party shall be liable for any failure to perform its obligations in connection with any action described in this agreement, if such failure results from an act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such party's reasonable control (including any mechanical, electronic, or communications failure, but excluding failure caused by a party's financial condition or negligence).
- Counting of Days: lf a party is required to complete the performance of an obligation under this Agreement by a date certain and such date is a Saturday, Sunday, or Federal holiday (collectively, a Nonbusiness Day), then the date for the completion such performance will be the next succeeding day that is not a Nonbusiness day.
- Waiver by Accepting Varied Performance: No waiver of any provision or consent to any action shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a party shall be null and void if the party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested.
- Amendments and Modifications: No amendment, modification, or supplement to this Agreement shall be binding on any of the parties unless it is in writing and signed by a duly authorized representative of J. C. Backings Corporation. No purchase order or similar document issued by you shall modify this Agreement even if signed by J. C. Backings Corporation. Only the Invoice or a specific written amendment to this Agreement shall be binding on J. C. Backings Corporation, as Licensor.
- Integration / Parol Evidence: This Agreement, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the Parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the parties. There are no agreements, representations, or warranties between or among the parties other than those set forth in this Agreement or the documents and agreement referred to in this Agreement.
- Severability: If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and a valid provision that is as similar in tenor to the stricken provision as is legally permissible.
- Representation on Authority of Parties/signatories: Licensee represents and warrants that he or she is duly authorized and has legal capacity to enter into this Agreement and accept the terms and conditions hereof. Licensee represents and warrants to the Licensor that the acceptance of this Agreement and the performance of Licensee’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement, binding on Licensee and enforceable in accordance with its terms.
- Jury Trial Waivers: TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY EXPRESSLY ACKNOWLEDGES THE INCLUSION OF THIS JURY TRIAL WAIVER.
- Attorneys' Fees. If either party to this Agreement shall bring any action, suit, counterclaim, arbitration, or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder (collectively, an Action), the losing party shall pay to the prevailing party a reasonable sum for attorneys' fees and costs (at the prevailing party's attorneys' then-prevailing rates as increased from time to time by the giving of advance written notice by such counsel to such party) incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling, or award (collectively, a Decision) granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision. Any Decision entered in such Action shall contain a specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing such Decision. The court or arbitrator may fix the amount of reasonable attorneys' fees and costs on the request of either party. For the purposes of this paragraph, attorneys' fees shall include, without limitation, fees incurred in the following: (1) postjudgment motions and collection actions; (2) contempt proceedings; (3) garnishment, levy, and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation. "Prevailing party" within the meaning of this paragraph includes, without limitation, a party who agrees to dismiss an Action on the other party's payment of the sums allegedly due or performance of the covenants allegedly breached, or who obtains substantially the relief sought by it.
- The Consent to Jurisdiction and Forum Selection: The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Los Angeles, State of California shall have in personam jurisdiction and authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement, or in the manner set forth in paragraph 21 of this Agreement for the giving of notice. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in any other jurisdiction.
- Choice of Law: This Agreement shall be governed by and construed under the laws of the State of California, irrespective of such state's choice-of-law principles.
- Meaning of Certain Words: The terms "includes" and "including" shall not be construed to imply any limitation. Unless otherwise stated, any reference contained in this Agreement to an Article, Section, or Subsection refers to the provisions of this Agreement. Wherever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns or pronouns shall include the plural and vice versa.
- Headings and Labels: Each Article, section, and subsection titles and captions contained in this Agreement are inserted as a matter of convenience and for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any of its provisions.
- Cumulation of Remedies: No remedy or election hereunder shall be deemed exclusive but shall, where possible, be cumulative with all other remedies at law or in equity.
You, as Licensee, acknowledge that you have read this Agreement and understand it, and agree to be bound by all its terms and conditions. YOU, AS LICENSEE, ACCEPT THE LICENSE(S) FOR THE LICENSED MATERIAL AND BY CLICKING THE 'I AGREE TO THE TERMS AND CONDITIONS OF THE IMAGE LICENSE AGREEMENT' BOX AND SUBMIT IMAGE REQUEST BUTTON YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE LICENSED MATERIAL USAGE SPECIFICATIONS SET FORTH HEREIN.
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