License Agreement of FX Elements LLC
LICENSE AGREEMENT
By purchasing one of our licenses and/or downloading and/or using the Content, you agree to be bound by the terms and conditions of the following License Agreement (the “Agreement”). We encourage you to print a copy of the Agreement for your records.
This License Agreement herein is a legal agreement between you and “FX Elements LLC,” the owner of the Website: www.fxelements.com (hereinafter: the “Website”), and governs your use of the Content and the terms by which you obtain the right to download it. This Agreement applies to all users of the Content.
For additional information regarding how we handle the information you transmit to us, please visit the FX Elements Privacy Policy. By using the Website, you acknowledge that you have read the Privacy Policy. In the event of any inconsistency between this Agreement, the Terms of Use applicable to the Website and the Privacy Policy (all of which are incorporated into this Agreement by reference), the terms of this Agreement shall govern.
THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF LICENSED CONTENT. BY ORDERING A LICENSE, LICENSEE AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
1. Background of Agreement
a. By using the Website, checking “I Agree with the License Agreement” on the Website’s Sign Up page, accessing or using the Content or otherwise signifying your acceptance, you represent that, if an individual, you are at least 18 years of age, 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 the 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 nor use the Content. If you are accepting on behalf of your employer, should you cease working for your employer, your employer may continue to operate under this Agreement.
b. In this Agreement: (i) “you” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity, its affiliates and Users associated with it; (ii) “FX Elements” or “we” means FX Elements LLC, owner and operator of the Website; and (iii) “Content” means all content available for license from the FX Elements Website including any photographic image, illustration, animation, film or video footage, visual effects elements, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from the Website or obtaining via a Hard Drive, together with any accompanying material.
c. In this Agreement, “use” means to copy, reproduce, modify, edit, display, broadcast, publish or otherwise make use of.
d. In this Agreement, "User" means any person who: (i) downloads, manipulates, edits, modifies, or saves the digital file containing the Content; (ii) is otherwise directly involved in the creative process utilizing the Content; or (iii) incorporates the Content within any Permitted Derivative Work.
e. In this Agreement, "Purchaser" means the entity purchasing the License hereunder on behalf of a third-party Licensee.
f. In this Agreement, “Credits” means the number of items of Content you can license per day with a subscription.
2. Accounts and registration
a. You must register an account via the FX Elements Website to access the Content. The account must be registered to only one (1) individual physical person (“Registered User”); provided, however, that accounts registered and owned by a corporation or other legal entity may be shared solely for the purposes of practicing such entity’s rights and obligations under this Agreement. You may not, under any circumstances, whether intentionally, or through negligence or inaction, allow or enable others to access your account, unless specifically permitted in writing by FX Elements. You are not permitted to transfer your account or any Licensed Content to another person or entity, unless specifically permitted in writing by FX Elements.
b. When registering an account, you must provide FX Elements with a valid e-mail address and password which will be registered by FX Elements. You acknowledge and agree that you will (a) provide true, accurate, current, and complete information as requested when registering an account and (b) maintain and update this registration information to keep it true, accurate, current, and complete. It is forbidden to provide a non-existent email address or an email address which does not belong to you, to impersonate another person or body, or to mislead in any other way regarding your identity or your credit card details. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to any computer or device that you use for accessing the Content. You are responsible for all activities that occur under your account. FX Elements reserves the right to suspend or terminate accounts, remove or edit licensed Content, or cancel orders in its reasonable discretion if you provide registration information which is false, inaccurate, not current, or incomplete. FX Elements may share your registration information with its partners, affiliates, and third parties solely as necessary to operate FX Elements’ businesses (e.g., process orders and payments etc.).
3. Licenses
Please contact [email protected] if you have questions regarding which License you qualify for.
a. Personal License. The Personal License is for individuals generating less than $125,000 USD per year in annual gross revenue and funds raised. The Personal License grants usage rights for a single entity and is tailored for hobbyists, freelancers, or individuals who work alone. Sharing your Personal License account information or your licensed Content with others is strictly prohibited.
b. Studio License. The Studio License is for entities within a corporate group that generates an aggregate of less than $2,000,000 USD per year in annual gross revenue and funds raised. The Studio License grants usage rights for a single entity. Sharing your Studio License account information or your licensed Content with others outside your business is strictly prohibited, except to permit subcontractors to practice your License subject to Section 4.f.
c. Studio Plus License. The Studio Plus License is for entities within a corporate group that generates an aggregate of less than $20,000,000 USD per year in annual gross revenue and funds raised. The Studio Plus License grants usage rights for a single entity. Sharing your Studio Plus License account information or your licensed Content with others outside your business is strictly prohibited, except to permit subcontractors to practice your License subject to Section 4.f.
d. Enterprise License. The Enterprise License is for entities within a corporate group that generates an aggregate of more than $20,000,000 USD per year in annual gross revenue and funds raised. The Enterprise License grants usage rights for a single entity. Sharing your Enterprise License account information or your licensed Content with others outside your business is strictly prohibited, except to permit subcontractors to practice your License subject to Section 4.f. Please contact [email protected] for more information.
e. Audit. You agree to keep accurate books and records related to your use of the Content, including without limitation financial documents confirming your eligibility for any particular License plan. FX Elements may conduct reasonable audits of those books and records. Audits will be conducted during business hours on reasonable prior notice to you. If you have exceeded the scope of your License, you will be responsible for the cost of the audit, and you will need a new License plan to continue using the Content.
4. License Terms
a. Subject to your payment of applicable fees and your continued compliance with this Agreement, FX Elements hereby grants you an unlimited, non-exclusive, perpetual, revocable, non-transferable, non-sublicensable worldwide right to use the Content licensed by you, only as incorporated as an inseparable part of your Permitted Derivative Works. You may use the Content in any way that is not restricted (see License Restrictions below).
For clarity,
“Perpetual” means that there is no expiration or end date on your rights to use the Content downloaded during your agreement.
“Non-exclusive” means that you do not have exclusive rights to use the Content. FX Elements can license the same Content to other customers. The Agreement herein does not limit FX Elements in any manner from selling or transferring or granting Licenses to use any of the Content, in whole or in part, to third parties, at its own discretion.
“Worldwide” means that the Content can be used in any geographic territory.
“Unlimited” means that you can use the Content in an unlimited number of projects and in any media.
“Permitted Derivative Work” means that in order to use the Content, you must fundamentally modify or sufficiently transform it so that it constitutes an original work where the primary value of such transformed or derivative work is not attributable to the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file. If there is any doubt that a work is a Permitted Derivative Work, you should contact FX Elements at [email protected] for guidance.
Examples of Permitted Uses of the licensed Content include: film, video, broadcast, animation and theatrical presentations, advertising and promotional projects, digital media, on–line or electronic publications, multi-media presentations, video games and websites. If there is any doubt that a proposed use is a Permitted Use, you should contact [email protected] for guidance.
b. The License gives you the right to make reasonable use of the Website and the licensed Content, and does not limit the number of Permitted Derivative Works in which you are entitled to use the Content you download from the Website. If you purchased a subscription, you are allowed to license and download no more than 15 clips per day for a Personal License, 40 clips for a Studio License and 100 clips for a Studio Plus License (for an Enterprise License, please contact us). Any unused credits do not roll over into the following day. If you use your allotment of credits before the day ends, you will need to wait until the next day to download more Content. The License is valid in perpetuity if the Content has been downloaded with a valid subscription.
c. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content and all the information included in the Website and the services offered therein, are retained by FX Elements.
d. The Content is licensed, not sold. You hereby declare and confirm that you do not and will not have any ownership and/or intellectual property rights in the Content of the Website and/or the Website’s trademarks or its design or the information contained in it, and that your right is restricted to the limited rights under the License granted in the Agreement herein. You agree not to assert against FX Elements any claim, action or proceeding for infringement of any intellectual property rights.
e. Feedback. If you provide any ideas, feedback or suggestions regarding the Content to FX Elements, you agree to assign and hereby do assign all right, title and interest in and to such feedback to FX Elements and acknowledge that FX Elements may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such feedback without payment of any royalties or other consideration to you.
f. Subcontractors. You may allow subcontractors (for example, your printer) or distributors to use the Content in any production or distribution process related to your Permitted Derivative Work. These subcontractors and distributors may not use the Content for any other purpose. You are directly and primarily responsible for the acts and omissions of such subcontractors and affiliates under this Agreement and applicable laws as your own acts and omissions.
g. Unauthorized Use. Any use of the Content by you and/or by anyone on your behalf in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling FX Elements to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement. To the extent the violation is done by a person other than you but who is under your control, you are additionally required to take any possible action to immediately cease the violation. FX Elements will be entitled, at its exclusive discretion and without any prior notice, to block your access to the Website, temporarily or permanently, in case you violate the law or any of the Website’s terms of use or this Agreement. To the extent you breach (or there is an allegation of your breach of) the Agreement, FX Elements will be entitled to disclose your name and details known to it about you in any legal proceeding, even without a judicial order so instructing.
5. License Restrictions
The Content is intended solely for use in your Permitted Derivative Works.
a. No Stand-Alone File Use. You may not license, sell, lease, share, rent, assign, gift or otherwise transfer or provide the Content to third parties on a “stand-alone” basis, i.e., you may not use the Content in any way that allows others to download, extract, or redistribute the Content as a stand-alone file (meaning just the Content file itself, separate from the project or end use). The Content must be embodied within a Permitted Derivative Work created by you and your Permitted Derivative Work must reasonably add value beyond the value of the Content.
b. No Content Creation Software. You may not bundle, incorporate, or distribute the Content in or with any digital content creation software (including, without limitation, tools for the creation of user generated content) that is monetized or used to generate revenue, directly or indirectly, by you or any third party; you may not permit third parties to use or access the Content to modify or extend your Permitted Derivative Work (including, without limitation, via digital content creation software) if such use or access is monetized or used to generate revenue, directly or indirectly, by you or any third party.
c. You may not fail to maintain a robust firewall, to safeguard against unauthorized third-party access to the Content and to hold your password for your account in the strictest of confidence.
d. You may not fail to notify in writing FX Elements if you become aware or suspect that any third party that has gained access to the Content through you is wrongfully using the Content, in whole or in part, or is violating any of FX Elements' intellectual property rights.
e. No file sharing sites. You may not store and/or share and/or upload the Content as an independent file to any internet site and/or to enable access to it by any third party (inclusive of file sharing sites or social networks such as YouTube, Facebook, Twitter, etc).
f. No inclusion in a library. You may not make available the Content and any Permitted Derivative Work thereof as stock elements or effects imagery elements or be included in any clip media/stock product, library, collection, database, or set of clips for distribution or resale. For example and not by way of limitation, you can not display the Content as, or as part of, a "gallery" of content through which third parties may search and select from such content. These Restrictions apply even if the Content has been significantly altered. Making modifications or alterations to any of the Content does not allow you to then sell, license or distribute it to anyone else.
g. No Electronic Templates. You may not use the Content in electronic or digital templates intended for resale or other distribution (for example, website templates, electronic greeting card templates, etc.).
h. No products for resale. You may not use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand”, “made to order” or “build it yourself” services or products; you may not use the Content in any posters or other items for resale, license or other distribution for profit.
i. No Use in Trademark or Logo. You may not use the Content (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, trade name, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such Content (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third party use of the Content or any similar Content (including by us or our customers).
j. No Unlawful Use. You may not use the Content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations or industry codes. You may not use the Content in connection with any media project that could be considered libelous, obscene, insulting, racist, or immoral; FX Elements reserves its full right to determine at its discretion whether a use of the Content constitutes a violation of this article and you hereby accept FX Elements’ right to do so.
k. No reverse engineering. You may not attempt to reverse engineer, decompile, translate, or disassemble the Content or other materials on the Website.
l. You may not remove the name of FX Elements, the Content’s identification number or any notice of copyright, trademark or other proprietary right from any place where it is on or embedded in the Content or included in the Content delivery file.
m. No mass downloading. You may not mass download and/or use the Content. You may not use bots, software, automated programs, applets or any other technical mean to download the Content and you may not take any action that imposes an unreasonable or disproportionately large load on FX Elements’ systems or servers.
n. You may not use any means that might damage, block, overload or harm the Website, the communication networks and any communication equipment, or interrupt any other user’s use of the Website. You may not attempt to obtain unauthorized access to the Website, the Content, other user’s accounts or computer systems or to networks connected to the Website by any means whatsoever.
o. No False Representation of Authorship. You may not falsely represent, expressly or by way of reasonable implication, that any Content was created by you or a person other than the copyright holder(s) of that Content and/or falsely represent, expressly or impliedly, that you are the original creator of a Permitted Derivative Work that derives a substantial part of its artistic components from the Content.
p. No unfair competition. You may not use the Content in any manner which violates the rights of a third party, including without limitation intellectual property of FX Elements or would give rise to a claim of deceptive advertising or unfair competition. You may not use the Content or materials for any middleware, or other software or service that competes with FX Elements in whole or in part.
q. You may not use any items of Content in connection with an immutable digital asset intended for sale (such as a non-fungible token).
r. No Machine Learning, AI, or Biometric Technology Use. Unless expressly authorized by FX Elements, you may not use the Content (including any caption information, keywords or other metadata associated with the Content) for any machine learning and/or artificial intelligence purposes.
s. You may not use the Content in any manner that breaches this Agreement.
Please contact [email protected] if you have any questions regarding the License restrictions in this Agreement.
6. Payment
a. Content will not be considered licensed to you until credit charges and terms have been approved. You shall have no obligation to use the Content; however, payment is still required for any Content whether or not used.
b. You agree to fully pay any and all fees for the Content Licenses you ordered from FX Elements with any form of payment method accepted by FX Elements. You are responsible for providing FX Elements with valid credit card information to secure payments. FX Elements reserves the right to cancel any License you ordered and/or deactivate your subscription without prior notice if FX Elements is unable to process payment through the credit card provided by you. Payments may be processed in cooperation with third party payment service providers.
c. You authorize FX Elements or its partners to charge your credit card, or use other forms of payment methods accepted by FX Elements, for the fees in accordance with the payment terms. FX Elements and its partners reserve the right to change the fees, the payment terms, or any availability of the Content at any time without notice; provided, however, such changes will not affect the fees paid and payment terms for any products and services already purchased and paid for in full. You are responsible for reviewing the Agreement or the Website for any changes in the fees or payment terms. If a change is unacceptable to you, you may, as your sole and exclusive remedy, terminate and close your account as described in the termination section.
d. Subscription payment. You authorize FX Elements to charge you all subscription fees for the duration of the term agreed to at the time of purchase. If your subscription is set to AUTOMATICALLY RENEW (“Auto-renew”), you authorize FX Elements to charge the applicable subscription fees at the then applicable rate and taxes for the subscription to your credit card on file at the expiration of the term. The monthly subscription is valid for one month and is automatically renewed every month unless you decide to cancel. The yearly subscription is valid for one year and is automatically renewed every year unless you decide to cancel. Responsibility for cancelling the subscription is yours and you are required to take the necessary actions in order to cancel your automatic-recurring subscription payment in your account. You can disable automatic renewal at any time prior to renewal using your account settings.
e. FX Elements may offer premium services, either for one-time fees or for recurring fees. You are informed of the fees, charges and payment terms during the registration or purchase process. FX Elements and partners may amend the fees and payment terms at any time. All fees are in U.S. Dollars unless otherwise specified.
f. Coupon codes. Any coupon or discount code applied to a purchase hereunder shall apply only to the first payment made in connection with such purchase, unless otherwise specified in the coupon.
g. Refunds. Please note that once you have ordered the Content, paid for it and downloaded it, you have started consuming the Content, and you cannot disclaim the ordered Content or demand return payment. Since the Content is sold as digital files, it is not refundable nor exchangeable; FX Elements does not offer refunds for downloaded files. File returns will only be considered based on technical issues with the file at the sole discretion of FX Elements.
h. Subscription refunds. You are entitled to cancel the subscription within 14 days from the date of its purchase and/or renewal and get a refund, provided that you have not yet downloaded or licensed any Content unless this Content is labeled “free” and belongs to the Free Clips section of the Website. Except when required by law, FX Elements shall be under no obligation to issue refunds under any circumstances except as stated above. By the end of 14 days from the purchase and/or renewal of the subscription, all fees become non-refundable, even if your subscription is terminated before its expiration. In the event that FX Elements determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase.
i. All requests for refunds/cancellations must be made in writing. If the request is approved, FX Elements will issue a credit to your account or credit card. In the event of cancellation, your rights to use the Content terminate, and you must delete or destroy any copies of the Content.
j. Files can be replaced if damaged or lost, within one year after purchase. Simply send us an email at [email protected].
k. For an Enterprise License, if you did not break the Hard Drive seal nor download any Content or any material provided, you may return the Hard Drive unused, within thirty days (30) after purchase, for a full refund of your payment.
l. If a Hard Drive malfunctions, FX Elements will replace it at no cost within thirty days (30) after purchase, provided you mail the malfunctioning Hard Drive back to us (shipping at our charge). Simply send us an email.
m. Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction (including those taxes and tariffs FX Elements or its partners are not required to collect) as a result of the license granted to you, or of your use of the licensed Content. Where FX Elements or you are required to collect or remit direct or indirect taxes, you may be required to self-assess said tax under the applicable laws of your country of residence.
n. You are also responsible for all hardware, software, Internet service costs and other costs you incur to access the Content.
7. Termination
Any termination will not affect your obligations to FX Elements (including, without limitation, intellectual property rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such termination.
a. Termination. Except in the case of subscriptions, this Agreement is effective until it is terminated by either party. Upon the termination of this Agreement, the rights granted to you under this Agreement shall immediately terminate, unless otherwise mutually agreed-upon by the Parties in writing. You can terminate your License at any time by contacting us at [email protected], ceasing use of the Content and deleting or destroying any copies.
b. Subscription termination. Unless renewed, subscription Agreements terminate automatically at the end of the subscription period. If your subscription ends, any perpetual Licenses granted as to the Content will survive and you may continue to use the licensed Content, subject to the rules of the Agreement. You should download any Content that you have licensed, as such licensed Content may not be available after termination or expiration. However, If we terminate your right to use the Content due to your breach of the Agreement and/or your abuse of your subscription account, you must immediately cease all use of the Content, delete or destroy any copies of it and confirm to FX Elements in writing that you have complied with these requirements.
c. Termination for breach. The Agreement terminates without notice from FX Elements if at any time you fail to comply with any of its terms or if you fail to make any payment due under this Agreement. Termination of the Agreement will result in your account being deactivated and your License being terminated. Upon termination of this Agreement, you must immediately (i) cease using the Content for any purpose; (ii) destroy or delete all copies and archives of the Content and accompanying materials; and (iii) confirm to FX Elements in writing that you have complied with these requirements. FX Elements shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of a breach.
d. Content withdrawal. FX Elements may discontinue licensing any item of Content at any time in its sole discretion. Upon notice from FX Elements, or upon your knowledge, that any Content may be subject to a claim of infringement of a third party's right for which FX Elements may be liable, FX Elements may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. FX Elements will provide you with replacement content (determined by FX Elements in its reasonable commercial judgment) free of charge, subject to the other terms of this Agreement.
8. Representations and Warranties
a. FX Elements warrants that it has all necessary rights and authority to enter into and perform this Agreement;
b. Warranty of Non-Infringement. FX Elements warrants that your use of the Content in accordance with this Agreement and in the form delivered by FX Elements will not infringe on any copyright, moral right or other intellectual property right and will not violate any right of privacy or right of publicity.
c. While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, FX Elements does not warrant the accuracy of such information. Additionally, FX Elements does not warrant the accuracy of any metadata that may be provided with the Content. FX ELEMENTS MAKES NO REPRESENTATION OR WARRANTY AS TO THE COMPLETENESS OR ACCURACY OF THE INFORMATION CONTAINED IN THE WEBSITE AND THE CONTENT. THE INFORMATION CONTAINED IN THE WEBSITE AND THE CONTENT MAY BE INCOMPLETE, MAY CONTAIN ERRORS, OR BECOME OUT OF DATE AT ANY TIME.
d. FX Elements may provide you with an alpha channel or a grayscale alpha matte file made from the Content. This alpha channel or alpha matte is only provided as a courtesy, without warranty of any kind, either expressed or implied. FX Elements encourages you to make your own “alpha” from the Content.
e. You should examine all Content for possible defects (whether digital or otherwise) before sending any Content for Reproduction. FX Elements shall not be liable for any loss or damage suffered by you or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Content or its caption or in any way from its Reproduction.
f. FX Elements does not represent or warrant that the Website will be available at all times or that it will function in a manner or as fast or efficient as you may expect or desire. You acknowledge that websites and products may be subject to temporary shutdowns from time to time for maintenance or due to causes beyond reasonable control and that FX Elements shall not have any liability to you by reason of such shutdowns. Under no circumstances shall FX Elements be liable for any damages whatsoever resulting from your use or inability to use the Website and/or Content, due to, but not limited to, mistakes, omissions, interruptions, deletion of files or electronic mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access thereto.
g. FX Elements reserves the right to add, modify, or delete content at any time. FX Elements makes no representations or warranties that all Content will be available at all times. FX Elements may discontinue licensing certain Content at its sole discretion. FX Elements will bear no liability in case any Content is not available on the Website, for any reason whatsoever.
h. FX Elements will bear no liability in any manner for the use of any other additional content which you may integrate in the Permitted Derivative Works and you will bear full and exclusive liability for using it.
i. OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 8(b), THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. FX ELEMENTS DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. FX ELEMENTS SHALL HAVE NO OBLIGATION TO CORRECT ERRORS IN, PROVIDE UPDATES FOR, OR OTHERWISE SUPPORT THE CONTENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT FX ELEMENTS) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
j. 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.
9. Indemnification and Limitation of Liability
a. Indemnification of you by FX Elements. 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 any breach of the warranties set forth in Section 8(b) above, FX Elements agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with any breach or alleged breach by FX Elements of its warranty in Section 8(b) above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the Content or the context in which the Content is used by you. This indemnification also does not apply to your continued use of the Content following notice from FX Elements, or upon your knowledge, that the Content is subject to a claim of infringement of a third party's right. The foregoing states FX Elements’s entire indemnification obligation under this Agreement.
b. Indemnification of FX Elements by you. You assume full responsibility for the use of the Content. You agree to indemnify, defend and hold harmless FX Elements, its affiliates and each of their respective directors, officers, employees, shareholders, partners and agents (collectively, the “FX Elements Parties”) from any and all claims, actions, demands, liabilities, losses, damages, costs and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with your use or misuse of the Content and/or any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this Agreement.
c. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation, in which case the indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal costs including attorney fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
d. IN NO EVENT SHALL FX ELEMENTS OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY GENERAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING 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 RELATED DOCUMENTATION 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 AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
e. NOTWITHSTANDING ANY OTHER TERM HEREIN, FX ELEMENTS SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU. FX ELEMENTS SHALL HAVE NO LIABILITY TO YOU IN THE EVENT THAT YOU HAVE FAILED TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
f. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF FX ELEMENTS 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 FX ELEMENTS UNDER SECTION 9(a) SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR LICENSING THE CONTENT. For greater clarity, in no event, will FX Elements' total aggregate liability to you or any third party claiming through you, arising out of or in connection with your use of or inability to use the FX Elements Website and/or Content contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by FX Elements from you for the applicable Content License.
g. 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.
10. General Provisions
a. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the Terms of Use and 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.
b. This Agreement is personal to you and is not assignable by you without FX Elements’ prior written consent. For more clarity, you shall not, without the prior written consent of FX Elements, assign, transfer, charge, sub-contract, license or deal in any other manner with all or any of your rights or obligations under this Agreement. FX Elements may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without notice to you.
c. This Agreement shall be to the benefit of and bind the respective heirs, executors, administrators and assigns of the Parties hereto.
d. Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
e. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions which shall continue in full force and effect.
f. No Partnership. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between FX Elements and you. Neither party hereto shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.
g. In works incorporating the Content where crediting is customary, or where other such credits are provided, FX Elements requests a credit line, where technically feasible, in equal size and comparable placement to such other credit(s), that reads “VFX Stock Footage provided by FX Elements.”.
h. FX Elements may contact you at any time and request your approval to display or reference your Permitted Derivative Work using or incorporating any licensed Content, for any reasonable marketing, educational, and/or promotional purpose as an example of customer usage. Upon receipt of your written approval, FX Elements will identify you as the author of such derivative work.
i. You hereby grant FX Elements a worldwide, non-exclusive, limited license to use your trademarks in FX Elements' promotional materials, including a public customer list. FX Elements' use of your trademarks shall at all times conform to your then-current trademark use policies as made available to FX Elements and shall at all times inure to your benefit. FX Elements further agrees that it will use commercially reasonable efforts to terminate any particular use of your trademark no later than thirty (30) days from the date of receipt by FX Elements of your email request to [email protected].
j. FX Elements may monitor, as frequently as FX Elements determines, anything you download from the FX Elements Website and track any abuse of your username(s) and password(s).
k. This Agreement will be governed by the laws of the State of Oklahoma, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement shall be settled by binding individual (not class) confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS' Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS") if you are in North America, or of the International Centre for Dispute Resolution ("ICDR") or JAMS if you are outside of North America, in effect on the date of the commencement of arbitration. The place of arbitration shall be the state and county of Oklahoma. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs including attorney fees relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, FX Elements 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 FX Elements, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within one (1) year of the acts, events or occurrences giving rise to the claim. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to this Agreement.
l. YOU AND FX ELEMENTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and FX Elements agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
m. Notices according to the Agreement will be given in writing and delivered by hand or be sent by email according to the email address you specified in the registration form. Any delivery of a notice by email as stated in this article will be considered a lawful delivery.
n. You expressly agree that any feedback provided to you by FX Elements or its representatives regarding any questions you may have about this Agreement or your use of the Content licensed hereunder, is solely for the purpose of interpreting this Agreement and is not legal advice. FX Elements cannot render legal advice to you and expressly disclaims any liability of any kind related to any feedback provided by FX Elements or its representatives.
11. Contact
If you have questions relating to this Agreement, please contact FX Elements at [email protected].
12. Acknowledgement
This Agreement constitutes the entire agreement between the parties with respect to this specific subject matter hereof and shall not be modified or amended except in writing signed by both parties. FX Elements reserves the right, at its discretion, to update or revise the Agreement at any time. FX Elements will post such changes in its Website, and/or communicate such changes via electronic mail or otherwise communicate such terms to you in a suitable manner decided by FX Elements and these additional or revised terms will become part of the Agreement effective immediately. Please check the Agreement or the Website periodically for changes. Your continued use of the Content constitutes your binding acceptance of the License Agreement, including any changes or modifications made by FX Elements as permitted above.
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 FX ELEMENTS 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 FX ELEMENTS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND FX ELEMENTS RELATING TO THE SUBJECT OF THIS AGREEMENT.
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