1. Definitions. In this Agreement the following definitions apply:
1.1 - “End Users” means visitors to Licensee’s Website(s) to whom Licensee displays
Licensed Material and sells or distributes the Licensee Work.
1.2 - “Fees” means the license fees paid by Licensee to Shotzr in consideration of the
license rights granted under this Agreement specified in the Commercial Terms,
including any Minimum Guarantee.
1.3 - “Shotzr API” means the Shotzr application programming interface (API) through
which Licensed Material is made available to Licensee, the use of which is subject to
the terms set forth in the Shotzr Web Services Addendum, available at
http://www.shotzr.com/webservicesterms, or any successor URL.
1.4 - "Licensed Material" means any still image or visual representation, whether
generated optically, electronically, digitally or by any other means, made available
to Licensee by Shotzr under the terms of this Agreement. Any reference in this
Agreement to Licensed Material shall be to each individual item of Licensed
Material and also to Licensed Material in the aggregate.
1.5 - “Licensee’s Website(s)” means the website(s) or other online platform or point of
presence owned or operated by Licensee, as specified in the Commercial Terms.
1.6 - "Licensee Work" means an end product or service that has been created by or on
behalf of Licensee using independent skill and effort and that incorporates a
Reproduction of Licensed Material, as well as other material, as may be further
described in the Commercial Terms.
1.7 - “Report” means the report of sales, uses, views, or other details required to be
provided by Licensee, as set forth in the Commercial Terms.
1.8 - "Reproduction" and "Reproduce" mean any form of copying or publication of the
whole or part of any Licensed Material, via any medium and by whatever means,
the distortion, alteration, cropping or manipulation of the whole or any part of
Licensed Material, and the creation of any derivative work from, or that
incorporates, Licensed Material.
1.9 - "Rights and Restrictions" means the information available to Licensee at the time of
Licensed Material download, whether: (i) in the Commercial Terms or (ii) displayed
with or in the metadata of the Licensed Material when made available to Licensee.
Such restrictions may include, without limitation, the permitted scope of use,
duration of license, any territory or other use restrictions applicable to the Licensed
Material selected. The Rights and Restrictions shall be incorporated into this
Agreement and all references to the Agreement shall include the Rights and
1.10 - “Term” means the term of this Agreement as set forth in the Commercial Terms.
2. Grant of Rights. Subject to the terms of this Agreement:
2.1 - Shotzr grants Licensee a non-exclusive, non-transferable, non-sublicensable right to (i)
download Licensed Material through the Shotzr API; and (ii) Reproduce Licensed Material
solely as specified in the Usage Rights set out in the Commercial Terms. Use of the Licensed
Material in any other manner, whether owned by or licensed on behalf of Licensee or its
parent or subsidiary companies, is not covered by this Agreement. Any other use requires
prior written consent from Shotzr and the payment of additional license fees. Except as
licensed hereunder, Shotzr retains and reserves all rights, title, and interest in and to the
Licensed Material. There are no implied licenses to any of the Licensed Material. However,
Licensee may license and/or transfer ownership of any Licensee Work (but not any Licensed
Material contained therein) as part of any distribution process as may be necessary or
appropriate for the intended use specified in the Usage Rights set out in the Commercial
2.2 - Licensee may have the Licensed Material Reproduced by its subcontractors for preparation
of the Licensee Work and/or Licensee’s Website(s) and/or may contract with subcontractors
for distribution of the Licensee Work, provided that such subcontractors agree to abide by
the provisions of this Agreement and, provided further, that Licensee remains primarily
liable to Shotzr for any act or omission by such subcontractors that would constitute a
breach of this Agreement if performed (or not performed) by Licensee.
3.1 - If the Usage Rights allow Reproduction of the Licensee Work on Licensee’s Website(s),
Licensee shall post terms and conditions on Licensee’s Website(s) that prohibit the
downloading, republication, retransmission, reproduction or other use of the Licensed
Material as a stand-alone file.
3.2 - Licensee may utilize the Licensed Material in any production process that may be necessary
for the exercise of the Usage Rights.
3.3 - Unless such rights are expressly identified in the Usage Rights, Licensee may not: (i) make
the Licensed Material available (separate from the end product into which it is incorporated)
in any medium accessible by third parties; (ii) sell, license or distribute the Licensee Work in
a manner intended to allow or invite a third party to download, extract, redistribute or
access the Licensed Material as a standalone file; (iii) include the Licensed Material in an
electronic template intended to be Reproduced by third parties on electronic or printed
products; or (iv) use or display the Licensed Material on websites or in any other medium
designed to induce or involving the sale, license or other distribution of “on demand”
products (e.g., products in which Licensed Material is selected by a third party for
customization of such product on a made-to-order basis), including, without limitation,
postcards, mugs, t-shirts, calendars, posters, electronic greeting cards, wallpaper or
ringtones for mobile telephones and other items. Unless otherwise specified in the Usage
Rights, Licensee may not, directly or indirectly, Reproduce the Licensee Work in any
secondary Reproductions, such as compilations, screen shots, in-context promotions or on
file-sharing or social networking websites such as YouTube, Facebook, MySpace, Bebo, etc.
3.4 - If the Usage Rights include use on any social media platform or other third-party website
(each, a “Platform”), such rights with respect to any specific Platform shall automatically be
revoked in the event that such Platform seeks to exploit purported rights to the Licensed
Material contrary to the terms of this Agreement and upon Shotzr’ request, Licensee shall
remove all Licensed Material posted on such Platform in such event.
3.5 - Licensee may not falsely represent, expressly or impliedly, that Licensee is the original
creator of a visual work that derives a substantial part of its artistic components from the
Licensed Material, nor may it make the Licensed Material available in the form of fine art
3.6 - Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service
mark without obtaining the prior written consent of Shotzr, which may require payment of
an additional fee.
3.7 - Licensed Material may not be modified, reconfigured or repurposed for use in any mobile directed web sites or mobile applications that are specifically created for viewing of Licensed
Material and/or the Licensee Work on mobile devices, unless specifically provided for in the
Commercial Terms or otherwise permitted via the prior written consent of Shotzr, which
consent might require payment of an additional fee. For clarification, this restriction on
mobile use is not breached if Licensed Material that is licensed for website use can be
viewed via mobile devices in a "pull" (as opposed to "push") fashion, provided it is not so
specifically modified, reconfigured or repurposed for this purpose.
3.8 - If any Licensed Material featuring a model or property is used in connection with a subject
that would be unflattering or controversial to a reasonable person, Licensee must
accompany each such use with a statement that indicates that: (i) the Licensed Material is
being used for illustrative purposes only; and (ii) any person depicted in the Licensed
Material, if any, is a model.
3.9 - Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly
prohibited, whether directly or in context or juxtaposition with other material or subject
matter. Licensee shall also comply with any applicable regulations and/or industry codes.
3.10 - Licensed Material shall not be used contrary to the Rights and Restrictions.
3.11 - Prior to permitting End Users to access Licensed Material pursuant to the Usage Rights,
Licensee must ensure, through technological or other means, that either (i) Licensed
Material may not be downloaded by End Users for use other than within the Licensee Work
and that Licensed Material may not be Reproduced, distributed or archived by an End User
or other third party in a manner not permitted by this Agreement; or (ii) End Users agree to
terms and conditions that include restrictions on downloading the Licensed Material for use
other than in connection with the Licensee Work and prohibit (a) reverse engineering,
decompiling or disassembling any Licensee Work in a manner that enables an End User to
download Licensed Material separate from a Licensee Work and (b) republication,
retransmission, reproduction or other use of the Licensed Material.
3.12 - Licensee retains full responsibility for passing on all restrictions and obligations under
this Agreement to its permitted sub-licensees and third-party distributors.
4. Credit and Intellectual Property.
4.1 - Copyright. 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 stated in this
Agreement, Shotzr grants Licensee no right or license, express or implied, to the Licensed
4.2 - Trademarks. In connection with the use of “Shotzr” or any other of Shotzr’ or its partners’
trade names, trademarks, logos or service marks, including the names of all Licensed
Material collections ("Marks"), Licensee acknowledges and agrees that (i) such Marks are
and shall remain the sole property of Shotzr or its partners; (ii) except as expressly required
in order to satisfy the credit obligations under this Agreement, nothing in this Agreement
shall confer upon Licensee any right of use in or to the Marks; and (iii) Licensee shall not
now or in the future contest the validity of the Marks. For the avoidance of doubt, no rights
are granted under this Agreement to use the Marks, except in the context of fulfilling
Licensee’s obligations under Sections 4.3 and 4.4.
4.3 - Notice of Violations. Licensee will immediately notify Shotzr if Licensee becomes aware or
suspects that any third party that has gained access to the Licensed Material through
Licensee is wrongfully using the Licensed Material, in whole or in part, or is violating any of
Shotzr' intellectual property rights, including, but not limited to, Marks and copyrights.
5. Warranty and Limitation of Liability.
5.1 - Shotzr warrants that: (i) the Licensed Material will be free from defects in material and
workmanship for thirty (30) days from delivery (Licensee’s sole and exclusive remedy for a
breach of this warranty being the replacement of the Licensed Material); (ii) it has all
necessary rights and authority to enter into and perform this Agreement; (iii) Licensee’s use
of the Licensed Material, in accordance with this Agreement and in the form delivered by
Shotzr (i.e., excluding any modifications, overlays or re-focusing by Licensee), will not
infringe on any copyright or moral right of any person or entity; and (iv) all necessary model
and/or property releases for use of the Licensed Material authorized under this Agreement
have been obtained.
5.2 - SHOTZR DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING
THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WITH RESPECT TO THE LICENSED MATERIAL, CAPTIONS OR METADATA
ACCOMPANYING LICENSED MATERIAL OR ANY DIGITAL DELIVERY SYSTEMS, EQUIPMENT,
SOFTWARE OR SERVICES PROVIDED BY ANY THIRD PARTY. SHOTZR SHALL NOT BE LIABLE
TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING
OUT OF THIS AGREEMENT, EVEN IF SHOTZR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE
EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN
CATEGORIES OF DAMAGES. WITHOUT LIMITING ANY OTHER TERM HEREIN, SHOTZR SHALL
NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF
MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN
WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
6.1 - Indemnification from Shotzr. Provided Licensed Material is used only in accordance with this
Agreement and Licensee is not otherwise in breach of this Agreement, and as Licensee's sole
and exclusive remedy for any breach of the warranties set forth in Sections 5.1(ii)-(v), Shotzr
shall, subject to the terms of Sections 5.2 and 6.3, defend, indemnify and hold harmless
Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their
respective officers, directors and employees from all damages, liabilities and expenses
(including reasonable outside attorney fees) arising out of or as a result of claims by third
parties (“Claims”) relating to any actual or alleged breach by Shotzr of its warranties set
forth in Sections 5.1(ii)-(v). Shotzr shall have no obligation under this Section 6.1 for any
Claims that arise out of or are a result of: (i) Licensee’s modification, overlay or re-focusing
of the Licensed Material, where the Claim would not have arisen but for the modification,
overlay or re-focusing made by Licensee; (ii) the context in which Licensed Material is used
in a Licensee Work, where the Claim would not have arisen but for such context; (iii)
Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee's continued
use of Licensed Material following notice from Shotzr, or upon Licensee's knowledge, that
Licensed Material is subject to a claim of infringement of another's right. The foregoing
states Shotzr' entire indemnification obligation under this Agreement.
6.2 - Indemnification from Licensee. Licensee shall, subject to the terms of Section 6.3, defend,
indemnify and hold harmless Shotzr and its parent, subsidiaries and commonly owned or
controlled affiliates, and content providers and their respective officers, directors and
employees from all damages, liabilities and expenses (including reasonable outside attorney
fees), arising out of or as a result of claims by third parties relating to: (i) Licensee's use of
any Licensed Material outside the scope of this Agreement; (ii) any other actual or alleged
breach by Licensee of this Agreement; or (iii) any Licensee Work for any transaction with an
End User (except to the extent that Shotzr is obligated to indemnify same pursuant to
6.3 - Conditions of Indemnification. The party seeking indemnification pursuant to this Section 6
shall promptly notify the other party of such claim. At indemnifying party's option,
indemnifying party may assume the handling, settlement or defense of any claim or
litigation, in which event indemnified party shall cooperate in the defense of any such claim
or litigation as may be reasonably requested by indemnifying party. Indemnified party shall
have the right to participate in such litigation, at its expense, through counsel selected by
indemnified party. Indemnifying party will not be liable for legal fees or other costs incurred
prior to the other party giving notice of the claim for which indemnity is sought.
7. Electronic Invoicing; Fees.
7.1 - In exchange for the rights granted hereunder, Licensee agrees to pay Shotzr the Fees, to be
invoiced and payable as set forth in the Commercial Terms, in advance. All invoices are
payable within thirty (30) days of the date of invoice. Licensee agrees to receive invoices
from Shotzr electronically via the email address associated with Licensee’s Shotzr account.
For the avoidance of doubt, in the event Licensee utilizes a third-party contractor for the
administration of its payment and invoice system, any service fees or other charges imposed
by such third party shall be the sole responsibility of Licensee.
7.2 - If Licensee fails to pay Shotzr' invoice in full within the time specified in the invoice, Shotzr
may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser
amount as is allowed by law, on any unpaid balance until payment is received. Shotzr also
reserves the right, in its sole discretion, to revoke the license(s) granted hereunder if
payment is not made in full on time.
8. Expiry and Termination.
8.1 - Either party may terminate this Agreement prior to the end of the Term by providing notice
in writing in the event that either (i) the other party materially defaults in performing any
obligation under this Agreement and such default continues uncured for a period of twenty
(20) days following written notice of default; or (ii) the other party ceases or threatens to
cease carrying on its business, an administrator or similar officer is appointed over all or part
of the assets or undertaking of the other party, or the other party makes an arrangement for
the benefit of its creditors or goes into liquidation. Failure to pay any applicable Fees as the
same become due constitutes a material breach hereunder.
8.2 - Except as otherwise provided in the Commercial Terms, upon expiration or termination of
the Agreement, all of Licensee’s licenses hereunder, including without limitation rights to
Reproduce the Licensed Material, shall immediately cease. Licensee will remove all Licensed
Material and Licensee Works from Licensee’s Website(s), cease all distribution of Licensee
Works consisting of products, dispose of any such unsold products, and ensure that any
subcontractors or distributors do the same. Licensed Material may in no instance continue
to be Reproduced or otherwise used in a new Licensee Work or product, or for the first
time, after the Term.
8.3 - If Licensee is obligated to provide any Reports pursuant to the Commercial Terms, within
thirty (30) days of expiration of this Agreement or termination for any reason, Licensee will
submit such Report for the applicable reporting period (or partial period) ending on the
effective date of such expiration or termination, and Shotzr will invoice for any Fees due for
such period, the same to be paid in accordance with the terms of this Agreement.
9. Miscellaneous Terms.
9.1 - Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by
this Agreement (including, without limitation, unauthorized access to the Shotzr API)
constitutes copyright infringement, entitling Shotzr to exercise all rights and remedies
available to it under copyright laws around the world.
9.2 - Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample
copies of Reproductions containing Licensed Material to Shotzr, including by providing
Shotzr with free of charge access to any pay-walled or otherwise restricted access website
or platform where the Licensed Material is Reproduced. In addition, upon reasonable notice,
Shotzr may, at its discretion, either through its own employees or through a third party,
audit Licensee’s records directly related to this Agreement and use of Licensed Material
(including any Reports required hereunder) in order to verify compliance with the terms of
this Agreement. If any such audit reveals an underpayment by Licensee to Shotzr of five
percent (5%) or more of the amount Licensee should have paid for the time period that is
the subject of the audit, in addition to paying Shotzr the amount of such underpayment,
Licensee shall also reimburse Shotzr for the costs of conducting such audit. Where Shotzr
reasonably believes that Licensed Material is being used by unauthorized Users, or that
Licensed Material is being used outside of the scope of the license granted under this
Agreement, Licensee shall, at Shotzr’ request, provide a certificate of compliance signed by
an officer of Licensee, in a form to be approved by Shotzr, within one (1) week of receipt of
9.3 - Electronic Storage. For all Licensed Material that is delivered to Licensee in electronic form,
Licensee must retain the copyright symbol, the name of Shotzr, the Licensed Material's
identification number and any other information as may be embedded in the electronic file
containing the original Licensed Material. Licensee shall maintain a robust firewall to
safeguard against unauthorized third-party access to the Licensed Material.
9.4 - Withdrawal. Shotzr makes no representations or warranties that all Licensed Material
and/or Licensed Material collections will be available for use during the Term. Shotzr may
discontinue licensing certain Licensed Material and/or Licensed Material collections in its
9.5 - Governing Law. This Agreement shall be interpreted under and governed by the laws and
decisions of the State of Colorado.
9.6 - Severability. If one or more of the provisions contained in the Agreement is found to be
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions shall not be affected. Such provisions shall be revised only to the
extent necessary to make them enforceable.
9.7 - Waiver. No action of either party, other than express written waiver, may be construed as a
waiver of any provision of this Agreement. A delay on the part of either party in the exercise
of its rights or remedies will not operate as a waiver of such rights or remedies, and a single
or partial exercise by either party of any such rights or remedies will not preclude other or
further exercise of that right or remedy. A waiver of a right or remedy by either party on any
one occasion will not be construed as a bar to or waiver of rights or remedies on any other
9.8 - Taxes. All Fees are exclusive of any applicable sales, use, withholding or other transactional
taxes, which are the sole responsibility of Licensee, and the amounts of any such taxes will
not reduce any Fees due hereunder.
9.9 - Confidentiality. By virtue of this Agreement, the parties may have access to information that
is confidential to one another (“Confidential Information”). Confidential Information shall be
limited to the terms and pricing under this Agreement, any website passwords and
usernames issued by Shotzr, and all information clearly identified in writing as confidential.
Each party agrees to maintain all Confidential Information in confidence to the same extent
that it protects its own similar Confidential Information of like nature and to use such
Confidential Information only as permitted under this Agreement. Confidential Information
does not include any information that (i) is or subsequently becomes available to the
general public other than through a breach of this Agreement by the receiving party; (ii) was
in the possession of receiving party prior to the execution of this Agreement; (iii) the
receiving party has rightfully received or later receives from a third party without any
restriction as to confidentiality or use, so long as the receiving party does not know or have
any reason to know that the third party’s provision of such information or material is in
violation of an obligation or duty of confidentiality to the disclosing party; or (iv) is
independently developed by the receiving party without the use of Confidential Information.
Each party agrees to hold each other's Confidential Information in confidence for as long as
such party possesses any such Confidential Information. The parties agree that unless
required by law, they will not make each other's Confidential Information available in any
form to any third party for any purpose other than the implementation of this Agreement.
Each party agrees to take all reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in violation of this Agreement.
9.10 - Privacy/End User Data. Licensee acknowledges and agrees that Shotzr will have no
access, responsibilities, obligations or rights with respect to any personally-identifiable
information or other consumer data regarding any End User.
9.11 - Force Majeure. If the performance of this Agreement or any obligation under it is
prevented by reason of acts of God, acts of government, strike, civil unrest, terrorism or any
other cause not within the reasonable control of either party (a “Force Majeure Event”), the
party so affected will be excused from such performance, but only for so long as and to the
extent that the Force Majeure Event prevents that party’s performance. Notwithstanding
the foregoing, the party not affected by a Force Majeure Event may terminate this
Agreement immediately upon written notice if the Force Majeure Event continues for more
than thirty (30) consecutive days or an aggregate of sixty (60) days whether consecutive or
9.12 - Independent Contractors. The parties are independent contractors with respect to their
activities under this Agreement. Neither the making of this Agreement nor the performance
of its provisions will be construed to constitute either party an agent, employee or legal
representative of the other party, nor to this establish a joint venture or partnership.
9.13 - Publicity. Neither party may make any public announcement or press release relating to
the terms or the existence of this Agreement, nor use the other party’s name or trademarks
in any public communication, without the other party’s prior written consent.
9.14 - Assignment; Binding Effect. Neither party may assign this Agreement or its rights and
obligations hereunder to any third party without the advance written permission of the
other party; provided , however, that either party may assign this Agreement without such
consent to (a) its corporate affiliate (existing as of the Effective Date) or (b) an acquiror of
substantially all of its equity, business or assets. This Agreement will be binding upon and
inure to the benefit of the parties and their respective parent, successors and permitted
9.15 - Notices. All notices, requests, demands and other communications required or
permitted under this Agreement shall either be delivered personally, sent by certified
mail, return receipt requested, by reputable overnight courier service with confirmation of
delivery and addressed to the parties at their addresses first set forth above or as
otherwise provided by one party to the other, provided that either party may change its
address by notice thereof.
9.16 - Entire Agreement; Counterparts. This Agreement is intended for business customers of
Shotzr and contains all the terms of the license agreement. No terms or conditions may be
added or deleted unless made in writing and either accepted in writing by an authorized
representative of both parties or issued electronically by Shotzr and accepted in writing by
an authorized representative of Licensee. In the event of any inconsistency between the
terms contained herein and the terms contained on any purchase order or other
communication sent by Licensee, the terms of this Agreement shall govern. This Agreement
may be executed in counterparts, which taken together will constitute a single agreement.