Image Sales Agreement
Licence Fee shall mean the sum payable by the Licensee to the Licensor in consideration of the licence hereunder, and as indicated by the Rights Schedule.
Licensed Material shall mean any image file, digital print, film or audio-visual material, audio product, or visual representation which is supplied to the Licensee by the Licensor in accompaniment to, and under the terms of, this Agreement.
Licensee shall mean the individual or entity purchasing a licence hereunder.
Licensee Work shall mean 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 the Licensed Material as well as other material.
Licensor shall mean the Museum of New Zealand Te Papa Tongarewa.
Purchaser shall mean an individual or entity purchasing the licence hereunder on behalf of a third-party Licensee.
Reproduction or Reproduce shall mean any form of copying or publication of the whole or a 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 the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.
1.1 The Museum of New Zealand Te Papa Tongarewa (the Licensor) grants to the Licensee a non-exclusive and non-transferable right to use and Reproduce the Licensed Material, solely in accordance with the Rights Schedule and Image Sales Agreement, which together form the Agreement. This right may be exercised by employees or subcontractors of the Licensee for preparation of the Licensee Work, provided that such subcontractors or employees agree to abide by the terms of this Agreement.
1.2 Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, territory and any other restrictions specified in the Rights Schedule.
1.3 Licensee may utilise the Licensed Material in any production process as may be necessary for the intended use specified in the Rights Schedule. 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 Rights Schedule.
1.4 Use of the Licensed Material is subject to the payment of any fees indicated by the Licensor in the Rights Schedule. The total sum to be paid to the Licensor by the Licensee, if payment is not made prior to receipt of the Licensed Material, shall be invoiced to the Licensee at the date of the despatch of the Licensed Material and shall be paid to the Licensor in full by the 20th day of the month following the month during which the relevant tax invoice was received. Failure to make payment on or before the due date shall terminate this Agreement and the Licensor shall be obliged to immediately return the Licensed Material unused to the Licensor at the Licensee’s cost.
1.5 Any additions or alterations to the Licensed Material not specifically provided for under the Rights Schedule, including, but not limited to, cropping or overprinting, are strictly prohibited. If the Licensee wishes to make alterations to the Licensed Material that are not provided for in the Agreement, a letter of amendment to the Agreement must be obtained from the Licensor giving permission to this effect before such alterations to the Licensed Material are made.
1.6 While the Licensor uses its best endeavours to supply image files and reproductions that are colour accurate to the original items, and to supply correct captions and other information related to the Licensed Material, the Licensor does not warrant the accuracy of such information.
1.7 Defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context with other material or subject matter. Licensee shall also comply with any applicable regulations and/or industry codes.
1.8 Licensee may not make the Licensed Material available in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.
1.9 Unless otherwise specified in the Rights Schedule, 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.
1.10 Where Purchaser is licensing Licensed Material on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorised to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement.
1.11 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.
1.12 If the Rights Schedule allows Reproduction of the Licensee Work on a website, Licensee shall post terms and conditions on its permitted websites that prohibit downloading, republication, retransmission, reproduction or other use of the Licensed Material as a stand-alone file.
1.13 Licensed Material may not be made available, reproduced, copied or otherwise used for publication, distribution or sale other than by the Licensee, or the Licensee’s employees or subcontractors in preparation of the Licensee Work, and only in accordance with the intended used as specified in the Rights Schedule.
2.1 Acknowledgement of the Licensor’s rights in relation to the image, in accordance with paragraph 2.2 below, must accompany any use of Licensed Material and must be placed in such a form that the acknowledgement is immediately obvious to the ordinary reader, user or viewer. Where the Licensee Work is a television, film, or other audio-visual production, it is acceptable to prominently display the acknowledgement at the beginning or the end credits.
2.2 The acknowledgement must include the words ‘Museum of New Zealand Te Papa Tongarewa’, or ‘Te Papa, Wellington, New Zealand’, and should include the original photographer or creator’s name if known. The photograph’s negative or registration number must also accompany the acknowledgement. This number must be placed either alongside the photograph or indexed elsewhere in the publication. For example, ‘Photograph by Alfred H Burton, Museum of New Zealand Te Papa Tongarewa, negative number 1234’.
2.3 Where reproduction of Licensed Material is for advertising or promotional purposes, the Licensor will notify the Licensee of the form of acknowledgement to be given to the Licensed Material.
2.4 When, in the opinion of the Licensor, publication of an acknowledgement might indicate the Licensor’s endorsement of a particular political or religious belief, the Licensor may notify you that no acknowledgement is to be made.
3.1 The Licensee acknowledges that the Licensor may not be the copyright owner of images in its collection. The Licensee is solely responsible for obtaining permission from the copyright holder for use of the Licensed Material. Where possible, the Licensor will assist the Licensee by supplying the copyright owner’s contact details. In no event will Te Papa be liable for any failure by the Licensee to obtain required copyright authorisation for Licensed Material.
3.2 Except where the Licensee is specifically notified that a model and/or property release has been obtained, the Licensor does not grant any right or warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Licensed Material. Licensee shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of Licensed Material, and Licensee shall be solely responsible for obtaining all necessary release(s).
3.3 No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the licence contained in this Agreement. Except as expressly stated in this Agreement, the Licensor grants Licensee no right or licence, express or implied, to the Licensed Material.
3.4 Licensee will immediately notify the Licensor if it becomes aware or suspects that any third party that has gained access to the Licensed Material via the Licensee and is wrongfully using the Licensed Material, in whole or in part, or is violating any of the Licensor’s intellectual property rights.
4.1 An Orphaned Work is an item for which the Licensor has been unable, despite its best endeavours, to ascertain copyright ownership. If the Licensor notifies the Licensee that it considers the Licensed Material to be an Orphaned Work and the Licensee proceeds with the incorporation of the Orphaned Work in the Licensee Work in this knowledge, the Licensee will indemnify and hold harmless the Licensor in respect of all liabilities, costs, claims, demands or damages arising out of, or incidental to, the use of the Licensed Material.
5.1.1The Licensor 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 the Licensor (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not, to the best of the Licensor’s knowledge, infringe on any copyrights or moral rights of any person or entity.
6.1 Licensee shall defend, indemnify and hold harmless the Licensor, its content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), arising out of or as a result of claims by third parties relating to Licensee's use of any Licensed Material outside the scope of this Agreement or any other actual or alleged breach by Licensee of this Agreement.
7.1 The Licensor may terminate the Agreement immediately by written notice to the Licensor if the Licensor is in breach of any of the terms in this Agreement.
7.2 This term of the Agreement commences on the date of the Licensor’s despatch of the Licensed Material and continues until end of the licence Term as indicated on the Rights Schedule.
7.3 The Licensor reserves the right to require the Licensor to return Licensed Material to the Licensor upon termination or expiry of the Agreement. Accordingly, Licensee must delete any copies of the Licensed Material it may have in its possession upon completion or expiry of the Agreement.
8.1 Licensee should examine all Licensed Material for possible defects (whether
digital or otherwise) upon receipt of the Licensed Material. The Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its use in the Licensee Work.
9.1 The Agreement contains the entire understanding and agreement between the Licensor and Licensee relating to its subject matter.
9.2 This Agreement is governed by, and is to be construed in accordance with, New Zealand law.
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