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![http://mediabin.visitcalifornia.com/ImageInfo.asp?repoid={FC0380BE-9598-4C30-9858-BC7A34E2DAFB}&sortdir=1&container=search# Photo Credit: California Travel & Tourism Commission / Mering Rights Advertising - Broadcast Advertising - Online Advertising - Print Industrial Media - Online Media - Print Travel Trade Source Mering CONTENT LICENSE AGREEMENT This Content License Agreement ("Agreement") contains the terms and conditions under which the California Travel and Tourism Commission ("Commission") agrees to provide you, the end user, with a non-exclusive, limited license to download and reproduce the Licensed Material. By clicking on the "I Accept" button below, you acknowledge your acceptance of this Agreement. This is a legal agreement between you and the Commission, and you are granted this limited license to download and reproduce the Licensed Material only if you accept all of the terms contained in this Agreement. Before clicking on the "I Accept" button below, please read all of the terms and conditions of this agreement. 1. Background. The Commission has obtained from third parties ("Content Providers") various licenses and other rights to use certain content, to which you have access pursuant to the Commission’s web-based digital rights management system, pursuant to the terms and conditions of his Agreement. 2. Definitions. In this Agreement the following definitions apply: 2.1 "Confirmation" means the computer-generated or pre-printed Confirmation provided by Commission that may include, without limitation, the permitted Use Categories for the Licensed Material selected, any limitations on the license in addition to those specified herein and the corresponding price for the license of such Licensed Material. The Confirmation is incorporated into this Agreement and all references to the Agreement shall include the Confirmation. 2.2 "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 right, which is licensed to Licensee by Commission under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole. 2.3 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, and the alteration, distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material. 2.4 "Use Categories" means the following: Advertising PRINT: For the purpose of advertising California in print ads, advertorials, flyers, postcards (ie. not for resale or license) and other like promotional projects intended for distribution. WEB: on–line or electronic publications, including web pages, banners all sites including Visitcalifornia.com (and it’s international sites and micro-sites). BROADCAST: film and video presentations, commercials. Editorial PRINT: Used in printed format relating to CA events or subject matter that are considered newsworthy or of public interest by the media. WEB: Same as the above but online. Travel Trade Assets given to a 3rd party for the sole purpose of promoting California product – for their use in printed and web materials, includes adverting and editorial uses. Industrial For use internally for reproductions for personal use such as product packaging, posters, presentations (hard copy and electronic), collateral design, greeting cards, video, for the purpose to promote California but not for the purposes of resale, license or other distribution. 3. Grant of Rights and Restrictions. 3.1 Your rights to Reproduce the Licensed Material is subject to the restrictions and limitations indicated on the Confirmation. You have the non-exclusive, non-transferable, non-sublicensable (except as provided in Section 3.2 below) right to Reproduce the Licensed Material identified in the Confirmation (i) the number of times, (ii) in the Use Cateories, (iii) within the geographical area, and (iv) for those other purposes as identified in the Confirmation (together the "Permitted Uses"). 3.2 Licensee may have the Licensed Material reproduced by your subcontractors provided that you ensure that such subcontractors agree to abide by the provisions of this Agreement. 4. Restrictions. 4.1 No Transfers. You may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement including any derivative works incorporating the Licensed Material. You may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products. You may not sell, license or distribute any derivative work containing the Licensed Material in a way that would allow a third party to download, extract or access the Licensed Material as a standalone file. You may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices. 4.2 Other Restrictions. 4.2.1 Licensed Material shall not be incorporated into a logo, trademark or service mark. 4.2.2 If any Licensed Material featuring a model is used (i) in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) in connection with a subject that would be unflattering or unduly controversial to a reasonable person, you must accompany each such use with a statement that indicates that the person is a model and the Licensed Material is being used for illustrative purposes only. 4.2.3 The Licensed Material may not be used in a pornographic, defamatory or otherwise illegal manner, whether directly or in context or juxtaposition with other materials. 4.2.4 You must abide by any restriction on use notified to it by Commission before or at the time of delivery of the Licensed Material, either in the information accompanying the Licensed Material, on the Confirmation, or otherwise. 5. Releases. Commission will notify you if it has obtained a model release and/or a property release for Licensed Material, either in the release status information accompanying the Licensed Material on Commission website, in the Confirmation or by other means. If no such notification is given, then no such model or property release has been obtained. Except where you are specifically notified, Commission grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material. Where Licensed Material is unreleased, you shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. You acknowledge that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Commission makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union and you shall be solely responsible for any such additional fees or payments to such trade union. You must retain the copyright symbol, the name of Commission, the Licensed Material's identification number and any other information as may be invisibly embedded in the electronic file containing the original Licensed Material. If the Licensed Material is used in an editorial manner, you must include the following credit adjacent to the Licensed Material: "[Photographer's name]/[Name of collection]/Commission". 6. ENFORCEMENT RESPONSIBILITY. YOU ACKNOWLEDGE THAT THE LICENSED MATERIAL PROVIDED PURSUANT TO THIS AGREEMENT MAY HAVE USE RESTRICTIONS WHICH ARE NOT KNOWN OR COMMUNICATED TO COMMISSION. YOU AGREE THAT COMMISSION CANNOT AND DOES NOT TAKE RESPONSIBILITY FOR THE NOTIFICATION BY CONTENT PROVIDER OF ANY APLICABLE RESTRICTIONS ON THE USE OF THE LICENSED MATERIAL, AND YOU ACKNOWLEDGE AND AGREE TO THE POSSIBILITY OF LICENSED MATERIAL BEING USED IN A MANNER THAT IS IN VIOLATION OF THIRD PARTY INTELLECTUAL PROEPRTY RIGHTS. YOU ALSO AGREE THAT NOTWITHSTANDING ANY RIGHTS PROVIDER MAY HAVE TO PURSUE THE CONTENT PROVIDER FOR DAMAGES, COMMISSION SHALL HAVE NO LIABILITY TO YOU OR ANY PERSON CLAIMING THROUGH YOU FOR ANY BREACH BY CONTENT PROVIDER OF THE TERMS OF ANY AGREEMENT RESPECTING THE LICENSED MATERIAL. NOTWITHSTANDING THE FOREGOING, COMMISSION WILL USE COMMERCIALLY REASONABLE EFFORTS TO ASSIST YOU IN THE RECOVERY OF DAMAGES FROM THE APPLICABLE CONTENT PROVIDER FOR ITS FAILURE TO HAVE ACCURATELY AND FULLY IDENTIFIED ALL APPLICABLE RESTRICTIONS AND USE LIMITATIONS ON THE LICENSED MATERIAL. YOU SHALL HAVE THE RIGHT ANT ANY TIME, AT YOUR’S SOLE EXPENSE, TO RECOVERY OF DAMAGES FROM THE APPLICABLE CONTENT PROVIDER FOR ITS FAILURE TO HAVE ACCURATELY AND FULLY IDENTIFIED ALL APPLICABLE RESTRICTIONS AND USE LIMITATIONS ON THE LICENSED MATERIAL. 7. Warranty and Limitation of Liability. 7.1 Limited Warranty. Commission has obtained the right to use the Licensed Materials pursuant to license and other use agreements with Content Providers ("Content Provider Agreement"). In the Content Provider Agreement, the Content Provider represents and warrants that it has the full and exclusive right to grant the Commission the licenses granted in the Content Provider Agreement, subject to any identified restrictions. Commission warrants that: (i) it has accurately identified in the Confirmation all of the restrictions on use identified by the Content Provider; and (ii) will use commercially reasonable efforts to assist in the recovery of damages from the applicable Content Provider for its failure to have accurately and fully identified all applicable restrictions and use limitations on the Licensed Material. 7.2 Disclaimer of Damages. THE LICENSED MATERIAL IS PROVIDED "AS IS", "WHERE IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. THE ENTIRE RISK AS TO THE QUALITY OF THE LICENSED MATERIAL IS WITH YOU. SHOULD THE LICENSED MATERIAL PROVE DEFECTIVE DUE TO UNDISCLOSED USE RESTRICTIONS OR THIRD PARTY RIGHTS BY CONTENT PROVIDER, MISUSE, ALTERATIONS OR MODIFICATIONS BY YOU, OR DUE TO USE OUTSIDE THE SCOPE OF USE FOR WHICH THE LICENSED MATERIAL WAS INTENDED, YOU (AND NOT COMMISSION OR ANY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IN NO EVENT WILL COMMISSION OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, USE OR DELIVERY OF THE LICENSED MATERIAL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, SAVINGS, LOST OR DAMAGED DATA OR OTHER PROGRAMS ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED MATERIAL, EVEN IF COMMISSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTHWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR ANY CLAIM BY YOU OR ANY OTHER PARTY. COMMISSION’S SOLE LIABILITY TO YOU OR ANY THIRD PARTY AND YOUR SOLE REMEDY ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE WILL NOT EXCEED THE LICENSE FEE PAID BY YOU FOR THE LICENSED MATERIAL. 8. Indemnification. You shall defend, indemnify and hold Commission and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by you, to the extent that such claim relates to the absence of a model or property release, Licensee’s creation and use of a derivative work incorporating the Licensed Material or your unauthorized use of the Licensed Material. 9. Termination and Revocation. 9.1 Breach by Licensee. The license contained in this Agreement will terminate automatically without notice from Commission if you fail to comply with any provision of this Agreement. Upon termination, you must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of Commission, return the Licensed Material to Commission; and (iii) delete or remove the Licensed Material from your premises, computer systems and storage (electronic or physical). 9.2 By Licensor. Commission reserves the right to revoke the license to use the Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material. 10. Parties’ Obligation. Upon notice from Commission, 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 related claim, or if Commission withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, cease any future use at its own expense. Commission shall provide Licensee with comparable Licensed Material (which comparability will be determined by Commission in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement. 11. Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Commission and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material [and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material]. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security reasons only. Immediately subsequent to Licensee’s Permitted Use of the Licensed Material, you shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise. 12. Credit Lines for Editorial Use. If any Licensed Material is Reproduced in an editorial manner, the credit line, "[Photographer's name]/Commission", must appear adjacent to the Licensed Material, except where otherwise indicated in Section 14 below, in the credit line accompanying the Licensed Material on Commission website or as otherwise notified by Commission. If any Licensed Material Reproduced by you for editorial purposes omits the requisite credit line, an additional fee equal to twenty percent (20%) of the original amount charged shall be payable by you at Commission discretion. The foregoing fee shall be in addition to any other rights or remedies that Commission may have at law or in equity. 13. General Provisions. This Agreement will be governed by the laws of the State of California. This Agreement is the complete agreement between Commission and you, and supersedes all prior agreements, oral and written, with respect to the subject matter contained herein. This Agreement may only be modified by a written document signed by Commission and you. If any provision of this Agreement is held unenforceable or invalid, the remaining provisions shall be given full effect, and the parties agree to negotiate, in good faith, a substitute valid provision. If any remedy provided by this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages shall remain in effect. Any waiver of any right or remedy under this Agreement must be in writing and signed by the party to be bound. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. 14. Acknowledgement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVISE PRIOR TO AGREEING TO IT, IN CONSIDERATION OF COMMISSION AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND COMMISSION, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND COMMISSION RELATING TO THE SUBJECT OF THIS AGREEMENT. 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![http://mediabin.visitcalifornia.com/ImageInfo.asp?repoid={FC0380BE-9598-4C30-9858-BC7A34E2DAFB}&sortdir=1&container=search# Photo Credit: California Travel & Tourism Commission / Mering Rights Advertising - Broadcast Advertising - Online Advertising - Print Industrial Media - Online Media - Print Travel Trade Source Mering CONTENT LICENSE AGREEMENT This Content License Agreement ("Agreement") contains the terms and conditions under which the California Travel and Tourism Commission ("Commission") agrees to provide you, the end user, with a non-exclusive, limited license to download and reproduce the Licensed Material. By clicking on the "I Accept" button below, you acknowledge your acceptance of this Agreement. This is a legal agreement between you and the Commission, and you are granted this limited license to download and reproduce the Licensed Material only if you accept all of the terms contained in this Agreement. Before clicking on the "I Accept" button below, please read all of the terms and conditions of this agreement. 1. Background. The Commission has obtained from third parties ("Content Providers") various licenses and other rights to use certain content, to which you have access pursuant to the Commission’s web-based digital rights management system, pursuant to the terms and conditions of his Agreement. 2. Definitions. In this Agreement the following definitions apply: 2.1 "Confirmation" means the computer-generated or pre-printed Confirmation provided by Commission that may include, without limitation, the permitted Use Categories for the Licensed Material selected, any limitations on the license in addition to those specified herein and the corresponding price for the license of such Licensed Material. The Confirmation is incorporated into this Agreement and all references to the Agreement shall include the Confirmation. 2.2 "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 right, which is licensed to Licensee by Commission under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole. 2.3 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, and the alteration, distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material. 2.4 "Use Categories" means the following: Advertising PRINT: For the purpose of advertising California in print ads, advertorials, flyers, postcards (ie. not for resale or license) and other like promotional projects intended for distribution. WEB: on–line or electronic publications, including web pages, banners all sites including Visitcalifornia.com (and it’s international sites and micro-sites). BROADCAST: film and video presentations, commercials. Editorial PRINT: Used in printed format relating to CA events or subject matter that are considered newsworthy or of public interest by the media. WEB: Same as the above but online. Travel Trade Assets given to a 3rd party for the sole purpose of promoting California product – for their use in printed and web materials, includes adverting and editorial uses. Industrial For use internally for reproductions for personal use such as product packaging, posters, presentations (hard copy and electronic), collateral design, greeting cards, video, for the purpose to promote California but not for the purposes of resale, license or other distribution. 3. Grant of Rights and Restrictions. 3.1 Your rights to Reproduce the Licensed Material is subject to the restrictions and limitations indicated on the Confirmation. You have the non-exclusive, non-transferable, non-sublicensable (except as provided in Section 3.2 below) right to Reproduce the Licensed Material identified in the Confirmation (i) the number of times, (ii) in the Use Cateories, (iii) within the geographical area, and (iv) for those other purposes as identified in the Confirmation (together the "Permitted Uses"). 3.2 Licensee may have the Licensed Material reproduced by your subcontractors provided that you ensure that such subcontractors agree to abide by the provisions of this Agreement. 4. Restrictions. 4.1 No Transfers. You may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement including any derivative works incorporating the Licensed Material. You may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products. You may not sell, license or distribute any derivative work containing the Licensed Material in a way that would allow a third party to download, extract or access the Licensed Material as a standalone file. You may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices. 4.2 Other Restrictions. 4.2.1 Licensed Material shall not be incorporated into a logo, trademark or service mark. 4.2.2 If any Licensed Material featuring a model is used (i) in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) in connection with a subject that would be unflattering or unduly controversial to a reasonable person, you must accompany each such use with a statement that indicates that the person is a model and the Licensed Material is being used for illustrative purposes only. 4.2.3 The Licensed Material may not be used in a pornographic, defamatory or otherwise illegal manner, whether directly or in context or juxtaposition with other materials. 4.2.4 You must abide by any restriction on use notified to it by Commission before or at the time of delivery of the Licensed Material, either in the information accompanying the Licensed Material, on the Confirmation, or otherwise. 5. Releases. Commission will notify you if it has obtained a model release and/or a property release for Licensed Material, either in the release status information accompanying the Licensed Material on Commission website, in the Confirmation or by other means. If no such notification is given, then no such model or property release has been obtained. Except where you are specifically notified, Commission grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material. Where Licensed Material is unreleased, you shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. You acknowledge that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Commission makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union and you shall be solely responsible for any such additional fees or payments to such trade union. You must retain the copyright symbol, the name of Commission, the Licensed Material's identification number and any other information as may be invisibly embedded in the electronic file containing the original Licensed Material. If the Licensed Material is used in an editorial manner, you must include the following credit adjacent to the Licensed Material: "[Photographer's name]/[Name of collection]/Commission". 6. ENFORCEMENT RESPONSIBILITY. YOU ACKNOWLEDGE THAT THE LICENSED MATERIAL PROVIDED PURSUANT TO THIS AGREEMENT MAY HAVE USE RESTRICTIONS WHICH ARE NOT KNOWN OR COMMUNICATED TO COMMISSION. YOU AGREE THAT COMMISSION CANNOT AND DOES NOT TAKE RESPONSIBILITY FOR THE NOTIFICATION BY CONTENT PROVIDER OF ANY APLICABLE RESTRICTIONS ON THE USE OF THE LICENSED MATERIAL, AND YOU ACKNOWLEDGE AND AGREE TO THE POSSIBILITY OF LICENSED MATERIAL BEING USED IN A MANNER THAT IS IN VIOLATION OF THIRD PARTY INTELLECTUAL PROEPRTY RIGHTS. YOU ALSO AGREE THAT NOTWITHSTANDING ANY RIGHTS PROVIDER MAY HAVE TO PURSUE THE CONTENT PROVIDER FOR DAMAGES, COMMISSION SHALL HAVE NO LIABILITY TO YOU OR ANY PERSON CLAIMING THROUGH YOU FOR ANY BREACH BY CONTENT PROVIDER OF THE TERMS OF ANY AGREEMENT RESPECTING THE LICENSED MATERIAL. NOTWITHSTANDING THE FOREGOING, COMMISSION WILL USE COMMERCIALLY REASONABLE EFFORTS TO ASSIST YOU IN THE RECOVERY OF DAMAGES FROM THE APPLICABLE CONTENT PROVIDER FOR ITS FAILURE TO HAVE ACCURATELY AND FULLY IDENTIFIED ALL APPLICABLE RESTRICTIONS AND USE LIMITATIONS ON THE LICENSED MATERIAL. YOU SHALL HAVE THE RIGHT ANT ANY TIME, AT YOUR’S SOLE EXPENSE, TO RECOVERY OF DAMAGES FROM THE APPLICABLE CONTENT PROVIDER FOR ITS FAILURE TO HAVE ACCURATELY AND FULLY IDENTIFIED ALL APPLICABLE RESTRICTIONS AND USE LIMITATIONS ON THE LICENSED MATERIAL. 7. Warranty and Limitation of Liability. 7.1 Limited Warranty. Commission has obtained the right to use the Licensed Materials pursuant to license and other use agreements with Content Providers ("Content Provider Agreement"). In the Content Provider Agreement, the Content Provider represents and warrants that it has the full and exclusive right to grant the Commission the licenses granted in the Content Provider Agreement, subject to any identified restrictions. Commission warrants that: (i) it has accurately identified in the Confirmation all of the restrictions on use identified by the Content Provider; and (ii) will use commercially reasonable efforts to assist in the recovery of damages from the applicable Content Provider for its failure to have accurately and fully identified all applicable restrictions and use limitations on the Licensed Material. 7.2 Disclaimer of Damages. THE LICENSED MATERIAL IS PROVIDED "AS IS", "WHERE IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. THE ENTIRE RISK AS TO THE QUALITY OF THE LICENSED MATERIAL IS WITH YOU. SHOULD THE LICENSED MATERIAL PROVE DEFECTIVE DUE TO UNDISCLOSED USE RESTRICTIONS OR THIRD PARTY RIGHTS BY CONTENT PROVIDER, MISUSE, ALTERATIONS OR MODIFICATIONS BY YOU, OR DUE TO USE OUTSIDE THE SCOPE OF USE FOR WHICH THE LICENSED MATERIAL WAS INTENDED, YOU (AND NOT COMMISSION OR ANY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IN NO EVENT WILL COMMISSION OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, USE OR DELIVERY OF THE LICENSED MATERIAL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, SAVINGS, LOST OR DAMAGED DATA OR OTHER PROGRAMS ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED MATERIAL, EVEN IF COMMISSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTHWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR ANY CLAIM BY YOU OR ANY OTHER PARTY. COMMISSION’S SOLE LIABILITY TO YOU OR ANY THIRD PARTY AND YOUR SOLE REMEDY ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE WILL NOT EXCEED THE LICENSE FEE PAID BY YOU FOR THE LICENSED MATERIAL. 8. Indemnification. You shall defend, indemnify and hold Commission and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by you, to the extent that such claim relates to the absence of a model or property release, Licensee’s creation and use of a derivative work incorporating the Licensed Material or your unauthorized use of the Licensed Material. 9. Termination and Revocation. 9.1 Breach by Licensee. The license contained in this Agreement will terminate automatically without notice from Commission if you fail to comply with any provision of this Agreement. Upon termination, you must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of Commission, return the Licensed Material to Commission; and (iii) delete or remove the Licensed Material from your premises, computer systems and storage (electronic or physical). 9.2 By Licensor. Commission reserves the right to revoke the license to use the Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material. 10. Parties’ Obligation. Upon notice from Commission, 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 related claim, or if Commission withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, cease any future use at its own expense. Commission shall provide Licensee with comparable Licensed Material (which comparability will be determined by Commission in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement. 11. Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Commission and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material [and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material]. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security reasons only. Immediately subsequent to Licensee’s Permitted Use of the Licensed Material, you shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise. 12. Credit Lines for Editorial Use. If any Licensed Material is Reproduced in an editorial manner, the credit line, "[Photographer's name]/Commission", must appear adjacent to the Licensed Material, except where otherwise indicated in Section 14 below, in the credit line accompanying the Licensed Material on Commission website or as otherwise notified by Commission. If any Licensed Material Reproduced by you for editorial purposes omits the requisite credit line, an additional fee equal to twenty percent (20%) of the original amount charged shall be payable by you at Commission discretion. The foregoing fee shall be in addition to any other rights or remedies that Commission may have at law or in equity. 13. General Provisions. This Agreement will be governed by the laws of the State of California. This Agreement is the complete agreement between Commission and you, and supersedes all prior agreements, oral and written, with respect to the subject matter contained herein. This Agreement may only be modified by a written document signed by Commission and you. If any provision of this Agreement is held unenforceable or invalid, the remaining provisions shall be given full effect, and the parties agree to negotiate, in good faith, a substitute valid provision. If any remedy provided by this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages shall remain in effect. Any waiver of any right or remedy under this Agreement must be in writing and signed by the party to be bound. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. 14. Acknowledgement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVISE PRIOR TO AGREEING TO IT, IN CONSIDERATION OF COMMISSION AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND COMMISSION, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND COMMISSION RELATING TO THE SUBJECT OF THIS AGREEMENT. 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