This Agreement governs the terms by which Clients of IND FILMS obtain the right to use this website as well as concepts, layouts, designs, photographs, video, footage, montages, installations, illustrations, animations, programming code and any other media content provided by IND FILMS (the “Artist”, the “Company” or “Us”).
1. Background of Agreement
(a) This is a fairly lengthy document and it contains many important provisions that affect your rights and obligations. By accepting, utilizing, publishing or reproducing in any manner any materials or concepts (the “Content”) provided by us or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the end client or end user, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the end user, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, you must notify us IMMEDIATELY and refrain from using the Content. The Content produced for you by IND FILMS, its agents, subsidiaries and affiliates shall not be defined as “Work for Hire” and does not imply or grant the Client intellectual ownership of any kind unless otherwise expressed in writting.
Any sample, proof, sketch, draft, in any primitive form of the Content before its FINAL VERSION as accepted and approved by you, that has been presented to you for approval, feedback or as a suggestion or for testing purposes as well as any Content that is NOT IDENTICAL to the one you have received and accepted as the FINAL VERSION AND in its FINAL FORMAT is property of IND FILMS and subject to a separate Licence and related fees;
Any and all source files, techniques and advice on how to recreate, modify or alter the Content purchased in its FINAL VERSION AND FORMAT is property of IND FILMS and subject to a separate Licence and related fees without exception.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or other entity, then “you” means that employer or entity and affiliates; (ii) “EQUINOXE, IND FILMS”, “we/us” or “the Artist” means IND Films Inc.; and (iii) “Content” means any photographic image, illustration, animation, Flash file, film or video footage, montage, installation, web site and the code created for such web site, programs and visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are or have obtained, together with any accompanying material.
(c) This Agreement is set up as a user-determined document where you will choose to enter into either our standard content license (the “Standard License”) or an extended license where one or more of the restrictions of the Standard License are amended for your proposed use of the Content (an “Extended License”). You must clearly specify the intended licence desired BEFORE such licence is granted as “Standard License” or an “Extended License”. The options for the Extended License uses are dependent upon the Content. If you do not specify an Extended License your use or accceptance of Content will be subject to the Standard License.
(d) You accept and acknowledge that IND FILMS may negociate and obtain model, property or location releases for the Content created for you and that such releases and agreements are governed by the models, agents and property owners and may have additional limitations such as usage and longevity. These conditions and limitations will be made clear to you BEFORE the Content is created and /or delivered to you and by taking posession or using of the Content, you agree to the terms and conditions imposed by such model, location and property releases and any additional cost they may carry.
2. Standard License Terms
We hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the intended activity or use is a Permitted Use, you cannot use the Content for such use or activity. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by IND Films with no exceptions.
3. Permitted Standard License Uses
(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License which is available for the Content; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement). For example, you cannot superficially modify the Content and sell it to others for consumption, reproduction or re-sale unless such use has been clearly made known to Us BEFORE the Content has been produced or delivered to you. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should either obtain an Extended License or contact IND Films for guidance and pricing. Any use of the Content that is not a Permitted Use shall constitute INDringement of copyright.
(b) Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Content from any file you provide. You may install and use the Content as you see fit, subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Content an unlimited number of times adn you may physically transfer the Content and its archives from one location to another. You must reproduce all proprietary notices on every copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:
advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations (not for broadcast), commercials (not for broadcast), catalogues, brochures, promotional greeting cards and promotional postcards (ie. not for resale or license); entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletter; on–line or electronic publications, including web pages, prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and any other uses approved in writing by IND Films.
If there is any doubt that a proposed use is a Permitted Use, you should contact IND Films for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are “Prohibited Uses” and you MAY NOT:
Use the Content in broadcast and theatrical presentations, in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites;
use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo unless the Content was made expressely with that purpose;
incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
use the Content in a fashion that is considered by IND Films (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, INDringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself; to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code; remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement; use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement; use Content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial Use Only” of Content means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor); use the Content for editorial purposes without including the following credit adjacent to the Content or in audio/visual production credits: “©IND Films.
5. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from IND Films if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to IND Films in writing that you have complied with these requirements.
(b) IND Films reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact INDormation provided by you, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
(c) Upon notice from IND Films, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of INDringement of another’s right for which IND Films may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise. IND Films shall provide you with replacement Content (which shall be determined by IND Films in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
6. IND Films Representations and Warranties
(a) IND Films warrants that, except in respect of Content identified as “Editorial Use Only”,: (i) your use of the Content in accordance with this Agreement and in the form delivered by IND Films will not INDringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained. You acknowledge that no releases are generally obtained for Content that is identified as “Editorial Use Only” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. For Content identified as “Editorial Use Only”, IND Films does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted therein. In such cases, you shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of the Content identified as “Editorial Use Only”, and shall be responsible for obtaining such release(s) unless otherwise agreed by IND Films.
(b) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 6(a), THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
(c) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
7. IND Films Indemnification and Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 6 (a) above, IND Films shall, subject to the terms of Sections 7(b),(c),(d) and (e) hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages and liabilities, arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 6(a) above. The foregoing states IND Films’s entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 7(a) above is conditioned on your prompt notification in writing to IND Films of such claim and our right to assume the handling, settlement or defence of any claim or litigation. You agree to cooperate with IND Films in the defence of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. IND Films shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL IND Films OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INDORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INDRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, IND Films SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF IND Films UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF IND Films UNDER SECTION 7(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) CDN DOLLARS. FOR GREATER CLARITY, IND Films’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) CDN DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM IND Films.
(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Your Indemnification
You agree to indemnify, defend and hold IND Films, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “IND Films Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any IND Films Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
9. General Provisions
(a) You specifically agree and acknowledge that you have reviewed the terms of this Agreement and you agree to be bound by it.
(b) IND Films’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without IND Films’s prior written consent. IND Films may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the Province of Quebec and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact INDormation provided by you at the time the Content was received by you, or such other address as you may advise us in writing to use, from time to time.
(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Montreal, Quebec.
(h) The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s’y rattachent soient en anglais.
11. Contact
If you have concerns relating to this Agreement, please contact us at hello@indfilms.ca or via phone at 1 514 570 2427.
12. Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF IND Films 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 IND Films, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND IND Films RELATING TO THE SUBJECT OF THIS AGREEMENT.
© IND Films Inc. a/o IND FILMS 1998 – 2020. All rights reserved.
Last revision: September, 2020
