Last update: 15 June 2018
This license agreement (the “Agreement” or the “Subscription”) complements the commercial terms agreed between Subscriber and Midia Research (the “Commercial Terms”) and sets forth the terms and conditions by which Midia Research’s subscriber (“Subscriber”) shall have access to Midia Research Subscriber Content.
1. Definitions. In this Agreement the following definitions apply:
“Fees” means the license fees paid by Subscriber to Midia Research in consideration of the license rights granted under this Agreement, as specified in the Commercial Terms
“Midia Research Website” means the Midia Research website where Subscriber Content will be made available to Subscriber, located at http://www.midiaresearch.com or any successor URL.
“Reproduction” and “Reproduce” mean any form of copying or publication of the whole or part of any Subscriber Content, via any medium and by whatever means, the distortion, alteration or manipulation of the whole or any part of Subscriber Content, and the creation of any derivative work from, or that incorporates, Subscriber Content.
“Rights and Restrictions” means the information available to Subscriber at the time of Subscriber Content selection, either: (i) in the Commercial Terms; (ii) accompanying the Subscriber Content on the Midia Research Website (including all areas of the download process); (iii) in a written quote issued by Midia Research. Such restrictions may include, without limitation, the permitted scope of use, duration of license, any territory or other use restrictions applicable to the Subscriber Content selected. The Rights and Restrictions shall be incorporated into this Agreement and all references to the Agreement shall include the Rights and Restrictions.
“Subscriber Content” means Subscriber Content, as specified in the Commercial Terms. Any reference in this Agreement to Subscriber Content shall be to each individual item of Subscriber Content and also to Subscriber Content in the aggregate.
“Subscriber Work” means an end product, production, program or service that has been created by or on behalf of Subscriber using independent skill and effort and that incorporates a Reproduction of Subscriber Content, as well as other material.
“Subscriber Website(s)” means the website(s) owned or operated by Subscriber, as specified in the Commercial Terms.
“Term” means a period of 12 months starting on the date of the invoice generated by Midia Research upon acceptance by Subscriber of the Commercial Terms.
“User” means any employee or subcontractor of Subscriber who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Subscriber Content; (ii) is otherwise directly involved in the process utilizing the Subscriber Content; or (iii) incorporates the Subscriber Content within any derivative work.
2. Grant of Rights.
2.1. Subject to the terms of this Agreement, Midia Research grants Subscriber a non-exclusive, non-transferable, non-sublicensable right to (i) download Subscriber Content from the Midia Research Website; and (ii) Reproduce the Subscriber Content, for the duration of the Term in each case only as specified in the Commercial Terms.
2.2. Any other use requires prior written consent from Midia Research and the payment of additional license fees. Except as licensed hereunder, Midia Research retains and reserves all rights, title, and interest in and to the Subscriber Content. There are no implied licenses to any of the Subscriber Content. However, Subscriber may license and/or transfer ownership of any Subscriber Work (but not any Subscriber Content contained therein) solely as part of any distribution process as may be necessary or appropriate for the intended use specified in the Commercial Terms.
2.3. Subscriber may have the Subscriber Content Reproduced by its subcontractor Users for preparation of the Subscriber Work, provided that such subcontractors agree to abide by the provisions of this Agreement and, provided further, that Subscriber remains primarily liable to Midia Research for any act or omission by such subcontractors that would constitute a breach of this Agreement if performed (or not performed) by Subscriber.
2.4. Subscriber may Reproduce the Subscriber Content only for the duration of the Reproduction Rights specified in the Commercial Terms.
3.1 If the Commercial Terms allow Reproduction of the Subscriber Work on Subscriber’s Website(s): (i) Subscriber shall post terms and conditions on Subscriber’s Website(s) that prohibit the downloading, republication, retransmission, reproduction or other use of the Subscriber Content as a stand-alone file.
3.2. Subscriber may not: (i) make the Subscriber Content available (separate from the end product into which it is incorporated) in any medium accessible by persons other than authorized Users; (ii) sell, license or distribute the Subscriber Content in a way that is intended to allow or invite a third party to download, extract, redistribute or access the Subscriber Content as a standalone file, (iii) decompile, disassemble, electronically transfer, de-encrypt, or reverse engineer the Content, or translate the Subscriber Content into another computer language.
3.3. Midia Research reserves all rights not expressly granted herein.
4. User Accounts.
4.1. Midia Research will provide Subscriber with a number of User accounts as specified in the Commercial Terms, to access Subscriber Content on the Midia Research Website.
4.2. Subscriber will be responsible for tracking all activity for each User account and shall, furthermore: (a) maintain the security of all passwords and identifications issued in connection with each User account; (b) notify Midia Research immediately of any unauthorized use of any User account or other breach of security; (c) accept all responsibility for any and all activities that occur under each User account; and (d) accept all risks of unauthorized access to the User accounts by individuals acting or purportedly acting on Subscriber’s behalf.
5. Intellectual Property.
5.1. Copyright. No ownership or copyright or other Intellectual Property Right in any Subscriber Content shall pass to Subscriber by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Midia Research grants Subscriber no right or license, express or implied, to the Subscriber Content.
5.2. Trademarks. In connection with the use of “Midia Research”, Subscriber acknowledges and agrees that nothing in this Agreement shall confer upon Subscriber any right of use in or to the mark and Subscriber shall not now or in the future contest the validity of the mark.
5.3. Notice of Violations. Subscriber will immediately notify Midia Research if Subscriber becomes aware or suspects that any third party that has gained access to the Subscriber Content through Subscriber is wrongfully using the Subscriber Content, in whole or in part, or is violating any of Midia Research’s intellectual property rights.
6. Warranty and Limitation of Liability.
6.1. Midia Research warrants that: (i) the Subscriber Content will be free from defects in material and workmanship for thirty (30) days from delivery (Subscriber’s sole and exclusive remedy for a breach of this warranty being the replacement of the Subscriber Content); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Subsriber’s use of the Subscriber Content, in accordance with this Agreement and in the form delivered by Midia Research (i.e., excluding any modifications by Subscriber), will not infringe on any copyright.
6.2. Subscriber should examine all Subscriber Content for possible defects (whether digital or otherwise) before using any Subscriber Content. Once Subscriber has started Reproduction, then, Midia Research shall not be liable for any loss or damage suffered by Subscriber or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Subscriber Content or its caption or in any way from its Reproduction.
6.3. THE PRODUCTS ARE PROVIDED TO YOU “AS IS”. ANY OPINIONS REFLECT MIDIA RESEARCH’S JUDGMENT AT THE TIME AND ARE SUBJECT TO CHANGE. MIDIA RESEARCH HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AS TO ACCURACY, COMPLETENESS, OR ADEQUACY OF INFORMATION. MIDIA RESEARCH SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF MIDIA RESEARCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
7.1. Indemnification from Midia Research. Provided Subscriber Content is used only in accordance with this Agreement and Subscriber is not otherwise in breach of this Agreement, and as Subscriber sole and exclusive remedy for any breach of the warranties set forth herein Midia Research shall defend, indemnify and hold harmless Subscriber and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees) arising out of or as a result of claims by third parties (“Claims”) relating to any actual or alleged breach by Midia Research of its warranties set forth herein. Midia Research shall have no obligation for any Claims that arise out of or are a result of: (i) Subscriber’s modification, of the Subscriber Content, where the Claim would not have arisen but for the modification, made by Subscriber; (ii) the context in which Subscriber Content is used in a Subscriber Work, where the Claim would not have arisen but for such context; (iii) Subscriber’s failure to comply with the terms of this Agreement; or (iv) Subscriber’s continued use of Subscriber Content following notice from Midia Research, or upon Subscriber’s knowledge, that Subscriber Content is subject to a claim of infringement of another’s right. The foregoing states Midia Research’s entire indemnification obligation under this Agreement.
7.2. Indemnification from Subscriber. Subscriber shall defend, indemnify and hold harmless Midia Research and its parent, subsidiaries and commonly owned or controlled affiliates, and content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or as a result of Claims relating to: (i) Subscriber’s use of any Subscriber Content outside the scope of this Agreement; (ii) any other actual or alleged breach by Subscriber of this Agreement.
7.3. Conditions of Indemnification. The party seeking indemnification shall promptly notify the other party of such Claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement or defense of any Claim or litigation, in which event indemnified party shall cooperate in the defense of any such Claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees or other costs incurred prior to the other party giving notice of the Claim for which indemnity is sought
8.1. In exchange for the rights granted hereunder, Subscriber agrees to pay Midia Research the Fees, to be invoiced and payable as set forth in the Commercial Terms, in advance. All invoices are payable within 30 days of the date of invoice. Subscriber agrees to receive invoices from Midia Research electronically via the email address associated with Subscriber’s Midia Research account.
8.2. Midia Research reserves the right, in its sole discretion, to revoke the license(s) granted hereunder if payment is not made in full on time.
8.3. In the event where such renewal is provided for in the commercial terms, each Agreement renewal shall trigger a 5% (five percent) increase of the Fee. The increase shall be calculated using the amount invoiced in relation to the period immediately preceding the renewal.
9. Renewal, Expiry and Termination.
9.1. Except if otherwise provided in the Commercial Terms, the present Agreement shall be set for a fixed period of 12 months from the date of the invoice being issued.
9.2. Either party may terminate this Agreement prior to the end of the Term by providing notice in writing in the event that either (i) the other party materially defaults in performing any obligation under this Agreement and such default continues uncured for a period of twenty (20) days following written notice of default; or (ii) the other party ceases or threatens to cease carrying on its business, an administrator or similar officer is appointed over all or part of the assets or undertaking of the other party, or the other party makes an arrangement for the benefit of its creditors or goes into liquidation.
9.3. Except as otherwise provided in the Commercial Terms, upon expiration or termination of the Agreement, all of Subscriber’s licenses hereunder, including without limitation rights to Reproduce the Subscriber Content, shall immediately cease. Notwithstanding the foregoing, Subscriber may, after expiration of the Term, continue to publish and display (without the rights to modify, alter, or manipulate) the Subscriber Works created during the Term (unless the Agreement was terminated pursuant to Section 9.1.) Subscriber Content may in no instance continue to be Reproduced or otherwise used in a new product, or for the first time, after the Term.
10. Miscellaneous Terms.
10.1. Unauthorized Use. Any use of Subscriber Content in a manner not expressly authorized by this Agreement (including, without limitation, unauthorized access to User accounts) may constitute copyright infringement, entitling Midia Research to exercise all rights and remedies available to it under copyright laws around the world. Subscriber shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
10.2. Audit/Certificate of Compliance. Upon reasonable notice, Subscriber shall provide sample copies of Reproductions containing Subscriber Content to Midia Research, including by providing Midia Research with free of charge access to any pay-walled or otherwise restricted access website or platform where the Subscriber Content is Reproduced. In addition, upon reasonable notice, Midia Research may, at its discretion, either through its own employees or through a third party, audit Subscriber’s records directly related to this Agreement and use of Subscriber Content in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Subscriber to Midia Research of five percent (5%) or more of the amount Subscriber should have paid for the time period that is the subject of the audit, in addition to paying Midia Research the amount of such underpayment, Subscriber shall also reimburse Midia Research for the costs of conducting such audit. Where Midia Research reasonably believes that Subscriber Content is being used by unauthorized Users, or that Subscriber Content is being used outside of the scope of the license granted under this Agreement, Subscriber shall, at Midia Research’s request, provide a certificate of compliance signed by an officer of Subscriber, in a form to be approved by Midia Researcg, within one (1) week of receipt of such notice.
10.3. Electronic Storage. For all Subscriber Content that is delivered to Subscriber in electronic form, Subscriber must retain the copyright symbol and any other information as may be embedded in the electronic file containing the original Subscriber Content. Subscriber shall maintain a robust firewall to safeguard against unauthorized third-party access to the Subscriber Content.
10.4. Withdrawal. Midia Research makes no representations or warranties that all Subscriber Content will be available for use during the Term. Midia Research may discontinue licensing certain Subscriber Content in its sole discretion. Upon notice from Midia Research, or upon Subscriber’s knowledge, that any Subscriber Content may be subject to a claim of infringement of another’s right for which Midia Research may be liable, Midia Research may require Subscriber to immediately and at its own expense: (i) stop using the Subscriber Content; (ii) delete or remove the Subscriber Content from its premises, computer systems and storage (electronic or physical); and (iii) ensure that any subcontractors, affiliates or clients (as applicable) do likewise. Midia Research shall provide Subscriber with comparable Subscriber Content (which comparability will be determined by Midia Research in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement and the Commercial Terms.
10.5. Governing Law. English law shall govern the interpretation of this Agreement and the parties hereby select the courts of London, United Kingdom to resolve any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties under this Agreement.
10.6. Severability. If one or more of the provisions contained in the 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 shall be revised only to the extent necessary to make them enforceable.
10.7. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy by either party on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
10.8. Taxes. All Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Subscriber.
10.9. Confidentiality. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under this Agreement, any website passwords and usernames issued by Midia Research, and all information clearly identified in writing as confidential. Each party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information of like nature and to use such Confidential Information only as permitted under this Agreement. Confidential Information does not include any information that (i) is or subsequently becomes available to the general public other than through a breach of this Agreement by the receiving party; (ii) was in the possession of receiving party prior to the execution of this Agreement; (iii) the receiving party has rightfully received or later receives from a third party without any restriction as to confidentiality or use, so long as the receiving party does not know or have any reason to know that the third party’s provision of such information or material is in violation of an obligation or duty of confidentiality to the disclosing party; or (iv) is independently developed by the receiving party without the use of Confidential Information. Each party agrees to hold each other’s Confidential Information in confidence for as long as such party possesses any such Confidential Information. The parties agree that unless required by law, they will not make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement.
10.10 Entire Agreement. This Agreement is intended for business customers of Midia Research and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by Midia Research and accepted in writing by an authorized representative of Subscriber. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Subscriber, the terms of this Agreement shall govern.