This Agreement governs the terms by which members and clients of BigfootHD™ obtain the right to use stock footage and any other audio/visual media content (the “Content”) provided by members of the BigfootHD.com community through the web site located at www.BigfootHD.com (the “Site”).
This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting the correct box at the end of this Agreement and typing “I Agree” 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 member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, 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, do not accept the Agreement and do not download the Content.
In this Agreement:
(i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates;
(ii) “BigfootHD” or “we” means BigfootHD LLC, operator of the Site; and
(iii) “Content” means any stock footage or other audio/visual media content that you are downloading from the Site, together with any accompanying material.
TERMS AND CONDITIONS OF USE
BigfootHD hereby grants to you a non-exclusive, non-transferable license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. 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 BigfootHD or the supplier of the Content, as the case may be.
PERMITTED USES
Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content: entertainment applications, such as film feature, video, broadcast, multimedia work, advertisement, live performance, internet website, presentation or print project; and any other use approved in writing by BigfootHD.
If there is any doubt that a proposed use is a Permitted Use, you should contact BigfootHD for guidance.
PROHIBITED USES
You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:
1. use the Content in a fashion that is considered by BigfootHD (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
3. use or display any Content that features a model or person in a manner that
(i) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or
(ii) 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;
4. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
5. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
6. use or display any Content as a trademark or service mark;
7. install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
8. 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.
SEAT RESTRICTIONS
Only you are permitted to use the Content, although you may transfer files containing Content 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 and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Permitted Uses an unlimited number of times. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location or accessible by more than one person, you must download the Content from the Site for each such use or obtain a multi-seat license for the Content. You may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
GENERAL PROVISIONS
1. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
2. BigfootHD’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.
3. This Agreement is personal to you and is not assignable or otherwise transferable by you without BigfootHD’s prior written consent.
4. If any term or provision of this Agreement is wholly or partially unenforceable, the remainder of this Agreement shall not be affected thereby. Each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law.
5. 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.
6. Unless BigfootHD receives written notification from you to the contrary, you hereby grant BigfootHD the right to display any derivative works within your possession or control that incorporate the Content at tradeshows, in collateral, and/or via electronic distribution for BigfootHD marketing, educational, and promotional purposes as examples of customer usage. At your request, BigfootHD will identify you as the author of such derivative work.
7. When incorporating the Content in film features, broadcast productions, or video products, BigfootHD kindly requests a credit line that reads “©BigfootHD.com/Artist’s Member Name”.
TERM AND TERMINATION
This Agreement shall be effective as of the earliest of the date you first purchase, download, install or use the Content and shall continue in effect until terminated. Unless expressly waived by BigfootHD in writing, all license rights granted pursuant to this Agreement shall automatically terminate upon your breach of this Agreement. All license rights granted pursuant to this Agreement shall also immediately terminate upon your cessation of business, insolvency, assignment of assets for the benefit of creditors, bankruptcy or appointment of a trustee for all or a portion of your assets. Upon termination of this Agreement for any reason, you must immediately cease all use of the Content in any form and immediately destroy or delete all copies of the Content and accompanying materials in your possession or control. If requested, you agree to confirm to BigfootHD in writing that you have complied with these requirements.
BigfootHD 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 information provided by you for your member account, 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 for future products and to take all reasonable steps to discontinue use of the replaced Content in products that already exist.
Any provisions in this Agreement that by their sense and context are intended to survive the termination of this Agreement shall survive such termination. Any cause of action that BigfootHD may have against you for breach of this Agreement prior to the date of termination shall survive such termination.
LIMITED REPRESENTATIONS AND WARRANTIES
The Site acts as an exchange of Content between those who provide Content to the Site and those who wish to use such Content. BigfootHD grants no rights and makes no warranties regarding the use of names, people, trademarks, trade dress, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content. While we have made reasonable efforts to correctly categorize and keyword the Content, BigfootHD does not warrant the accuracy of such information.
BigfootHD warrants the Content to be free from defects in material and workmanship for 90 days from delivery. Your sole and exclusive remedy for a breach of this warranty is the replacement of the Content or a refund of the purchase price, at the option of BigfootHD. BIGFOOTHD MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH REGARD TO THE CONTENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT ARE HEREBY DISCLAIMED.
LIMITATION OF WARRANTIES AND LIABILITY
IN NO EVENT SHALL BIGFOOTHD OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, 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), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. BIGFOOTHD’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR USE OF THE CONTENT, OR OUT OF YOUR ACTIONS IN DOWNLOADING THE CONTENT, SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PARTICULAR CONTENT. YOUR RIGHTS MAY VARY FROM STATE TO STATE.
IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF BIGFOOTHD UNDER THIS AGREEMENT, THE LICENSE PROVIDED HEREUNDER, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO BIGFOOTHD UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE RELEVANT CONTENT.
INDEMNIFICATION
You agree to indemnify, defend and hold BigfootHD, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents harmless from and against any and all claims, liability, losses, damages, costs and expenses arising from your use of the Content in any form, any breach of the terms and conditions of this Agreement, or your negligent act, omission or willful misconduct.
APPLICABLE LAW; JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of the State of Arizona, USA, without regard to Arizona conflict of laws principles. The parties agree that any claim asserted in any legal proceeding by one party against the other shall be commenced and maintained exclusively in a state or federal court located within Pima County, Arizona, having subject matter jurisdiction with respect to the dispute between the parties (except that a judgment by such courts may be enforced by any court). Both parties hereby submit to the jurisdiction of such courts over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum. 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 information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
CONTACT
If you have concerns relating to this Agreement, please contact BigfootHD at help@ BigfootHD.com.
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 BIGFOOTHD 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 BIGFOOTHD, WHICH SUPERSEDES ANY PRIOR OR CONTEMPORANEOUS AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND BIGFOOTHD RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES.