KIRBY STOCK EXCHANGE
CONTENT LICENSE AGREEMENT
LAST UPDATED: October 9, 2018
This content license agreement (the “Agreement”) is by and between (i) Kirby Stock Exchange LLC, a New Jersey limited liability company (“Kirby”), and (ii) you, and if you are using the Site or any Content (as such terms are hereinafter defined) on behalf of your employer or company (either, your “Company”), then also your Company. References to the terms “you” or “your” in the remainder of this Agreement refer collectively to both you and, if applicable, your Company.
This Agreement explains how you may use photograph(s) and/or video clip(s) (individually and collectively, “Content”) that you license from Kirby and download or access from www.kirbystockexchange.com (the “Site”).
Please read this Agreement carefully. By downloading Content from the Site, you hereby agree that your use of the Site and such Content will be subject to this Agreement, and you shall be deemed to have accepted and agreed to be bound by this Agreement. In that regard, you represent and warrant that:
(i) you have read, understood and agreed to be bound by this Agreement; (ii) you have the power, authority and legal right to use the Content in accordance with this Agreement; (iii) if using the Content on behalf of your Company, such use has been duly authorized by all requisite action, corporate or otherwise; and (iv) this Agreement is a valid, legal and binding obligation of you, enforceable in accordance with its terms. If you do not agree to this Agreement, you cannot use the Site or any Content.
Kirby may amend this Agreement from time to time, without prior notice, which amendments will be posted on the Site and will become effective upon posting. It is your responsibility to review this Agreement to determine if there have been any changes, which will be indicated by a revision to the “last updated” date posted above. Your continued use of the Site or any Content after posting shall constitute your acceptance of and agreement to be bound by the amended Agreement.
1. Your Rights and Obligations
Every file downloaded from the Site comes with a standard license (a “License”). By purchasing a License for a particular piece of Content, you have the following rights and obligations with regard to such Content:
a. The License
Kirby hereby grants you a non-exclusive, worldwide, perpetual, non-transferrable, non-sublicensable right and license, on the terms and subject to the conditions set out in this Agreement, to:
(i) use, copy, reproduce, edit, modify, manipulate and synchronize the Content in any independently authored derivative work (for commercial and/or editorial purposes, in any media now known or hereinafter devised) which incorporates the Content, together with other substantial independently created works, and is created by you on your behalf or on behalf of your client as permitted by the terms of this Agreement (a “Work”);
(ii) directly or indirectly copy, publish, publicly display, perform, transmit, broadcast, telecast and distribute the Content within such Work (by any means now known or hereafter devised); and
(iii) use the information and documentation that are available on the Site or otherwise provided by Kirby to you with, in or otherwise relating to Content to facilitate the foregoing with regard to
Notwithstanding the foregoing or anything to the contrary contained in this Agreement:
(i) a License entitles no more than ten (10) individuals to access and/or use the Content
independent of a Work;
(ii) subject to the foregoing seat limitation, you may allow subcontractors (for example, your printer or mailing house) to use Content in any production or distribution process related to a Work;
(iii) you may not re-sell any Content independent of a Work or otherwise use content in connection with any goods or services intended for re-sale where the primary value lies in the Content itself;
(iv) for any publication of Content via social media, whether as a static photo or embedded within audiovisual content, an attribution must accompany the social media post with specific mention of Kirby and the Site;
(v) you shall not use Content for any Restricted Use (as hereinafter defined); and
(vi) you acknowledge and agree that (1) all of the Content is owned by either Kirby or the artist who supplied the Content, (2) Kirby (or the artist supplier, if applicable) retains all rights in and to the Content, including copyright, title, and other intellectual property rights, and (3) except for the rights expressly granted to you by Kirby under this Agreement, no right in or to any Content is granted to you.
If you would like additional rights for a particular piece of Content which are not included in the License, please contact Kirby at email@example.com and please note that additional fees will apply.
Unless otherwise agreed in writing by Kirby, your use of Content is subject to the License terms and conditions.
b. Restricted Uses
Without limiting any previously mentioned restrictions, you acknowledge and agree that you shall not do any of the following with regard to any Content, unless otherwise agreed in writing by Kirby:
(i) remove any notice of copyright, trademark or other proprietary right from any place where it is on or embedded in the Content;
(ii) use any of the Content as part of a trademark, design mark, trade name, business name, service mark, or logo;
(iii) re-sell, sublicense, assign, convey, share, or transfer any Content, in whole or in part, or rights thereto to any person or entity except as expressly permitted under this Agreement;
(iv) sell or distribute Content or a Work containing Content in any way that allows the Content to be extracted, accessed, or downloaded as a stand-alone file;
(v) use, reproduce, distribute, or display the Content in a way that is considered by Kirby (in its sole discretion) or under applicable law, to be considered pornographic, obscene, immoral, infringing, or defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
(vi) use Content in any way or take any action relating to Content that violates any law, regulation or statute in any applicable jurisdiction;
(vii) use Content in any way that suggests or implies that any individual in the Content is personally (in their individual capacity) endorsing any product, service, idea, or site, without the express
prior written consent of Kirby;
(viii) use Content is any way that falsely implies you are the original creator of the Content;
(ix) use Content that includes an identifiable individual in connection with a subject that would be unflattering, embarrassing, or unduly controversial to a reasonable person; or
(x) use Content that includes an identifiable individual in a manner that depicts such person in a potentially sensitive subject matter, including, but not limited to actual or implied sexual activity, substance abuse and recovery, sexually transmitted infections, mental health concerns and disorders, gambling, abuse, abortion, promotion of tobacco use, or any implication that the individual engages in activity that is immoral or illegal. Please contact Kirby for express written permission to use Content with cigarettes, alcohol, tobacco, politics or any similar subjects.
2. Termination of this Agreement
This Agreement is effective until it is terminated by either party.
a. Termination by You
You may terminate this Agreement at any time by destroying the Content (along with all copies and archives of same) and ceasing to use the Content for any purpose. In the event that you terminate this Agreement, Kirby is under no obligation to and shall not refund any fees previously paid by you.
b. Termination by Kirby
Kirby may terminate this Agreement without notice and at any time if you fail to comply with any of the terms or conditions hereof. Upon such termination, you must immediately (i) cease using the Content for any purpose, (ii) destroy or delete all copies and archives of the Content, and (iii) if requested by Kirby, confirm to Kirby that you have complied with of the foregoing requirements. Kirby is under no obligation to and shall not refund any fees previously paid by you in the event that this Agreement is terminated by reason of your breach of this Agreement.
c. Termination due to a Legal Claim
Upon notice from Kirby at any time in its sole discretion, or upon your discovery that any Content is subject to a threatened, potential or actual claim of infringement of another’s right for which Kirby may be liable, you must immediately, and at your own expense (i) stop using the Content, (ii) delete and remove the Content from your premises, computer systems and storage (electronic and physical); and (iii) ensure that your clients, employees and subcontractors do likewise. In any such case, Kirby shall not refund any fees previously paid by you, however, Kirby will provide you with replacement Content free of charge, but subject to availability and the other terms and conditions of this Agreement.
For the avoidance of doubt, all fees are non-refundable, irrespective of any termination of this Agreement.
3. Limited Warranties and Disclaimers
a. Kirby’s Limited Warranties and Disclaimers
Kirby warrants to you as of the date of this Agreement that:
(i) Kirby has the right and authority to enter into and grant the rights in the Content granted to you under this Agreement, subject to all applicable limitations and exclusions contained in this
(ii) subject to the terms and conditions hereof (including, without limitation the liability limitations set forth herein), to the best of Kirby’s knowledge and belief, unaltered Content when downloaded and used in compliance with this Agreement and applicable law, will not infringe any copyright or trademark; and
(iii) there are no material defects in the Content which would prevent it from being downloaded from the Site and used as permitted herein. If there are material defects in the Content, your sole and exclusive remedy will be as follows: upon request to Kirby within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content free of charge.
Notwithstanding anything to the contrary contained herein: (i) Kirby does not hold licenses for any sound recordings (or the underlying musical compositions) that may accompany video Content and Kirby does not grant you any right or license whatsoever in or to any such recordings (or compositions) and any use of such recordings or compositions is at your sole risk; and (ii) Kirby uses commercially reasonable efforts to procure, but does not guarantee the procurement of any model or property releases for any individuals or properties which may appear in the Content and Kirby makes no representations or warranties that your use of the Content will not violate any privacy or publicity rights and you are solely responsible for your use of Content featuring identifiable individuals, buildings or architecture.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE ARE NO WARRANTIES
WHICH EXTEND BEYOND THE EXPRESS TERMS OF THIS PARAGRAPH 3. OTHER THAN
AS EXPRESSLY PROVIDED IN THIS SECTION 3, THE SITE AND THE CONTENT ARE
PROVIDED “AS IS” WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF
ANY KIND, EITHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
CONCERNING INFRINGEMENT, TITLE OR THE LIKE AND ANY WARRANTIES ARISING
FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE, ALL
OF WHICH ARE EXPRESSLY DISCLAIMED. KIRBY DISCLAIMS ANY REPRESENTATION
OR WARRANTY THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS
USE WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT
PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES.
b. Your Warranties
You warrant that:
(i) if you are an individual, you represent and warrant that you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement;
(ii) if you are using the Content on behalf of your Company, such use has been duly authorized by all requisite action, corporate or otherwise; and
(iii) you represent that all information provided to Kirby by you is accurate and true, including, without limitation all payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
4. Liability Limitations
THE MAXIMUM LIABILITY OF KIRBY ARISING OUT OF OR RELATING TO THIS
AGREEENT OR YOUR USE OF CONTENT SHALL BE LIMITED TO THE PURCHASE PRICE
FOR THE CONTENT LICENSED TO YOU HEREUNDER TO THE EXTENT ACTUALLY PAID
FOR BY YOU AND RECEIVED BY KIRBY. THIS LIMITATION IS WITHOUT REGARD TO
THE NUMBER OF TIMES SUCH CONTENT IS USED BY YOU OR YOUR CLIENT.
UNDER NO CIRCUMSTANCES SHALL KIRBY BE LIABLE TO YOU OR ANY OTHER
PERSON FOR ANY: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, INDIRECT
OR SPECIAL DAMAGES, OR LOST PROFITS, EXPENSES OR LOSSES DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO ANY THIS AGREEMENT OR
OTHERWISE, REGARDLESS OF WHETHER KIRBY KNEW OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
a. Indemnification by Kirby
Subject to paragraph 4 above, provided that you have not breached the terms of this Agreement or any other agreement with Kirby, Kirby will defend, indemnify, and hold you harmless from any third party legal claims for direct damages which are directly attributable to Kirby’s breach of its representations and warranties contained in this Agreement. Notwithstanding anything to the contrary contained herein, Kirby shall not be liable for any damages, liabilities, losses, costs or expenses resulting from any claim arising out of: (i) modifications made by you to the Content or (ii) as a result of the context in which the Content is used by you or your client.
The foregoing indemnification is conditioned upon your notifying Kirby, in writing, of a legal claim or threatened legal claim, no later than ten (10) business days from the date you know or reasonably should have known of the claim or threatened claim. The notification must: (i) include all details of the claim known to you at that time (including, without limitation a copy of the Content used, name and contact information of person and/or entity making the claim, the nature and date of alleged claim, and copies of any correspondence received and/or sent in connection with the claim); and (ii) be mailed to Kirby at the address set forth herein.
Kirby will have the right to assume the handling, settlement and/or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Kirby in the defense of any such claim. You will have the right to participate in any litigation at your own cost and expense. Kirby shall not liable for any legal fees and/or costs incurred prior to receiving complete notification of the claim as provided in this Agreement.
b. Indemnification by You
You agree to indemnify and hold Kirby, its members, managers, officers, affiliates, and representatives harmless from and against any and all claims, liabilities, damages, losses, costs and expenses of any kind arising from or relating to (i) any breach of this agreement by you, (ii) any use of Content other than as expressly permitted by this Agreement, and (iii) any negligence or willful misconduct by you.
6. Payment Terms and Taxes
Fees for Licenses are due in full at the time of purchase. All sales of Licenses are final, and Kirby is under no obligation to and shall not refund any fees paid by you for Content under any circumstance.
You are responsible for promptly paying all applicable sales taxes, use taxes, value added taxes, customs, duties (if any) and any related interest or penalties imposed by any jurisdiction as a result of or relating to your purchase of a License or any use of Content.
7. Governing Law and Mandatory Arbitration
You acknowledge and agree that this Agreement shall be a contract made in the United States, State of New Jersey. All questions pertaining to the validity, construction, execution and performance of this Agreement shall be construed and governed in accordance with the domestic laws of the State of Jersey, without giving effect to principles of (i) comity of nations or (ii) conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE THIS
AGREEMENT, THE SITE OR USE OF CONTENT SHALL BE SETTLED BY BINDING
CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT, 9 U.S.C SEC. 1 ET SEQ., AND ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES. THE
ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN ENGLISH, BEFORE A PANEL
OF THREE (3) NEUTRAL ARBITRATORS. THE PLACE OF THE ARBITRATION SHALL BE
IN NEW JERSEY. ANY AWARD IN AN ARBITRATION INITIATED UNDER THIS
AGREEMENT SHALL BE IN ACCORDANCE WITH NEW JERSEY LAW AND MAY BE
ENTERED INTO A COURT WITH COMPETENT JURISDICTION. IN ANY ARBITRATION
INITIATED HEREUNDER, THE ARBITRATORS WILL HAVE NO AUTHORITY TO AWARD
ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, COMPENSATORY,
DIRECT, INDIRECT, OR SPECIAL DAMAGES, OR LOST PROFITS OR EXPENSES OF
WHATSOEVER KIND AGAINST KIRBY OR ITS AFFILIATES. NOTWITHSTANDING ANY
OTHERWISE APPLICABLE STATUTE(S) OF LIMITATION, ANY ARBITRATION
PROCEEDING SHALL BE COMMENCED WITHIN TWO (2) YEARS OF THE ACTS, EVENTS
OR OCCURRENCES GIVING RISE TO THE CLAIM.
Notwithstanding the foregoing, Kirby shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Kirby, such action is necessary or desirable to protect its intellectual property rights.
8. Entire Agreement
This Agreement, together with any and all other terms and conditions and policies posted on the Site, constitutes and contains the entire agreement between Kirby and you with respect to your access and use of the Site and Content, and supersedes and replaces all prior agreements, whether written or oral, with respect to same. The terms of this Agreement may not be modified or amended except in a writing signed by both parties or unilaterally by Kirby as permitted herein.
All notices to be given to Kirby hereunder shall be in writing and shall be sent to the following address:
Kirby Stock Exchange LLC
P.O. Box 468
Rutherford, NJ 07070
You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
a. This Agreement is not assignable by you without Kirby’s express prior written consent. Kirby may assign this Agreement to any third party at any time, without notice or consent.
b. If one or more of the provisions in this 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 should be revised only to the extent necessary to make them enforceable.
c. The parties to this Agreement are independent contractors, and nothing in this Agreement shall
create a joint venture, partnership or franchise or fiduciary relationship between the parties.
d. All of the covenants, terms and provisions contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns.
e. No action of Kirby, other than express written waiver, may be construed as a waiver of any
provision of this Agreement.
f. You grant Kirby the perpetual right to use your name and your Company name, if applicable, and any associated logos or trademarks solely in connection with the advertising and promotion of Kirby, including, without limitation by listing your Company as a “featured client” on the Site.
g. Kirby’s rights and remedies set out in this Agreement are cumulative and are in addition to Kirby’s rights and remedies at law or in equity.