Contrat de licence d'utilisateur final libre de droits (Siège Unique)

THIS LICENSE AGREEMENT (‘Agreement’), sets forth the terms and conditions between you (‘Licensee’, ‘you’) as licensee and MotionElements Private Limited, a Singapore company (‘MotionElements’) as licensor. The term licensee includes the client if the agent is acting on behalf of the client and provided both agent and client are jointly and severally liable to MotionElements under the agreement.

This license agreement is in addition to 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. In the event of any inconsistency, the terms of this Agreement shall govern. If you do not agree to the terms in the documents, cease the use of the Website and do not continue with any license purchase.

1. License Terms

   1. Subject to the terms of this License Agreement, MotionElements grants you a perpetual, worldwide, non-transferable, non-exclusive right to use, modify, reproduce, transmit and display, in whole or in part, and right to create derivative works with respect to the Content, an unlimited number of times, in any and all media for all uses other than the restrictions in Section 3 below.

   2. Anything you produce using the Content must be for your own use, or for the use of your employer, client or customer, who must be the end-user of your work.

2. Seat Restrictions

   1. The Single-Seat license authorizes one (1) natural person (user) to license and use the Content. You are however, allowed to transfer materials or derivative work containing the Content to third parties for reproduction within the scope of the permitted uses, with the provision that they do not receive any additional rights to the Content and cannot access the Content or extract them from materials you provided.

   2. Shared and simultaneous use of the same account by multiple users is not permitted. Each user needing to access and use the Content must have his/her own account.

      Multi-Seat license for multiple users or corporate usage with additional collaborative rights and administrative functionality is available here.

3. Restrictions on Use

   1. Except as provided herein, you may not:

      1. sell, convey, assign or otherwise transfer or distribute any portion of the Content or the rights granted under this Agreement;

      2. use Content marked as “Editorial Use Only” for commercial purposes;

      3. incorporate the Content into a logo, trademark or service mark;

      4. use any Content in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other subject matter and materials. The Content may not under any circumstances be used in a way that would defame, malign, slander, asperse, libel, or vilify the persons, property, countries, races, customs, cultures, religions, governments or military visible on the Content;

      5. use any of the Content in any manner prohibited by any export laws, restrictions or regulations;

      6. falsely represent, expressly or impliedly, that you are the original creator of an audio / visual work that derives a substantial part of its artistic components from the Content;

      7. sell its End Product in such a way that permits Content Users to extract or access the Content as a stand-alone file;

      8. without obtaining the prior written consent of MotionElements and the payment of additional License Fees: include the Content in an electronic template intended to be used by third parties on electronic or printed products, or where the purpose is to create multiple impressions, whether online or not, including templates, backgrounds in video editing applications, electronic greeting cards, screensavers or wallpaper for mobile devices or any other electronic or printed matter;

      9. use, sell, reproduce, distribute, display, incorporate into or otherwise make available the Content and any derivative work incorporating the Content, in whole or in part, as screensavers, templates, standalone backgrounds, stock elements, effects imagery elements, ‘hold’ music, ringtones or downloadable files. You may not distribute any Content via mobile devices or upload online that enables it to be downloaded or shared, including, without limitation, websites, electronic bulletin boards, P2P file sharing services, FTP, IRC, cloud storage services or the like. The Content and any derivative work containing the Content may not, in whole or in part, be included in any other clip media/stock product, library, collection, or set of clips for distribution or resale. These restrictions apply even if the Content has been significantly altered.

   2. All copyrights, trademarks and service marks remain the exclusive property of the trademark or service mark proprietor. If there are any incidental trademarks or logos contained in the Content, you may not alter these items or use them in any way which implies an association with or an endorsement by the owner(s) of such trademarks, and the inclusion of these incidental trademarks in the Content does not in any way imply such association with or endorsement of this Content.

   3. Any music inherent (other than the Audio Content made available for purchase on the Website) which may be included with the Content is ambient sound only. It was not recorded and is not compressed in a format suitable for any other use, and MotionElements authorizes no use. Additionally, audio to certain performance sections may require additional clearances from any performer. MotionElements authorizes no use of copyrighted music or performances.

   4. Content shall not be used contrary to any restriction on use that is notified to you prior to or at the time the Content is delivered to you. Such restrictions may be included in the information provided with the Content on MotionElements web site or in any other communication by MotionElements. Any such restriction provided to you shall be incorporated in this Agreement.

   5. Upon notice from MotionElements, or upon your knowledge that any Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which MotionElements may be liable herein, or if MotionElements withdraws any Content for any good reason, you will physically remove the Content from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. MotionElements shall provide you with comparable Content (which comparability will be determined by MotionElements in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

   6. Availability For Musical Works: Unless Audio Content is stated on the Website as being "Available For Musical Works", you may not:

      1. use it, in whole or in part without synchronization or other combination with other original work(s) of authorship so that the combination forms a derivative work;

      2. use it, in whole or in part, as an element of a new musical work (e.g., by combining the music Audio Content with other work so that a copyright can be asserted in the resulting song); or

      3. modify it, in whole or in part, so that a copyright can be claimed in the resulting song other than as part of an End Product that consists of an audio visual work, an internet page or computer or mobile device application.

      4. edit, modify, or alter it (i) beyond basic editing (e.g., setting fade-in/fade-out points, determining start and end points, or using only a selection of the piece), (ii) in a way that alters its fundamental character, harmonic structure, lyrics and/or melody, or (iii) to the prejudice of the unwaivable moral rights of the Contributor;

   7. Product Endorsement or Sensitive Use Disclaimer: If any Content featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, you must accompany each such use with a conspicuous statement that indicates that the person is a model and the Content is being used for illustrative purposes only. These requirements are without prejudice to the obligations of MotionElements regarding use of the Content contained elsewhere throughout this Agreement.

   8. Releases and Clearances: MotionElements will notify you where it has obtained a model release and/or a property release for Content, either in the Website, or by other means. You agree not to use any Content in a politically partisan manner without written permission from MotionElements, such approval may be withheld for any reason. Except as specifically notified by MotionElements to you, We do not provide any copyright clearance or model or property releases with respect to the Content and grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Content. You shall be solely responsible for determining whether a clearance or release is required in connection with any proposed use of such Content. You acknowledge that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes without their consent. MotionElements makes no representations or warranties as to whether or not any additional fees or payments may be due to any trade union, trade organization or model depicted in Content.

4. Credit Attribution

   1. If any Content is used in an editorial context, you will use reasonable efforts to provide a credit line hyperlink back to www.motionelements.com (where applicable) in the form: "Stock media provided by [Contributor's name]/MotionElements.com".

   2. If any Content is used in a film, television broadcast, documentary, audio/visual, multimedia project or any other works where crediting is customary, you shall use reasonable efforts to provide a credit line in the form: "Stock media provided by MotionElements.com". The inclusion of a hyperlink back to www.motionelements.com is optional.

   3. The unintentional omission of credit attribution will not be considered to be a breach of this Agreement provided that you cure such omission upon email notice from MotionElements.

5. Additional Provisions Regarding Audio Content

   1. For Non-PRO Audio Content, the Contributor has represented and warranted that: (i) the license to us includes rights to the composition of the Audio Content, if there is one; and (ii) except as provided in the next sentence, the licenses that we are authorized by the Contributor to grant includes the nonexclusive right to publicly perform, transmit to the public and distribute the Content, as contained in a Works for Distribution and when used as permitted under the other provisions of this Agreement.

   2. For PRO Audio Content, this agreement shall not be deemed a waiver of any PRO royalties. You shall submit, and will instruct any third Person acquiring rights to the Works for Distribution, to submit cue sheets to the relevant PRO and you will timely pay any PRO royalties or ensure such royalties are timely paid.

6. Payment

   1. All Content sales are final and cannot be returned. Refunds if any are based strictly on our Sales Policy, given at the sole discretion of MotionElements.

   2. Prices, offers and products are subject to availability and may change.

   3. You are responsible for paying any applicable taxes and duties, in addition to the price shown on the Website, imposed by any jurisdiction as a result of the License or usage of the Content.

7. Term and Termination

   1. The license contained in this Agreement will terminate automatically without notice from MotionElements if you fail to comply with any provision of this Agreement.

   2. You can also terminate this Agreement by giving us written notice.

   3. Upon termination, all Content Users must immediately (i) stop using the Content, and (ii) destroy the Content and any derivative works, along with any copies of it, from Content Users’s premises, computer systems and storage (electronic or physical).

8. MotionElements Representations and Warranties

   1. LIMITED WARRANTY: MOTIONELEMENTS WARRANTS THE CONTENT TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR THIRTY (30) DAYS FROM THE DATE OF LICENSE SALE.

   2. EXCLUSIVE REMEDY: THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE LIMITED WARRANTY IS THE REPLACEMENT OF THE CONTENT OR REFUND OF THE PURCHASE PRICE, AT OUR OPTION.

   3. DISCLAIMER OF WARRANTIES EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, MOTIONELEMENTS AND OUR CONTRIBUTORS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE IN TRADE. MOTIONELEMENTS DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE OR PAYMENT OF PERFORMING RIGHTS OR OTHER SIMILAR FEES BE REQUIRED, YOU (AND NOT MOTIONELEMENTS) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS OR PAYMENTS.

   4. While MotionElements has made reasonable efforts to correctly categorize and tag keywords, captions, titles and other metadata of the Content, MotionElements does not warrant the accuracy of such information.

   5. You should examine all Content for possible defects (whether digital or otherwise) before purchasing or using it. We 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.

9. Indemnification

   1. You assume full responsibility for the use of the Content. You agree to defend, indemnify and hold MotionElements Parties harmless from and against any and all claims, lawsuits, demands, damages, torts, loss, liability, or expenses (including reasonable attorneys' fees and costs), arising out of or as a result of claims by third parties relating to your use of the Content outside the scope of this Agreement or any other breach of this Agreement by you, your end-users, customers or anyone acting on your behalf.

10. Limitations of Liability

    1. IN NO EVENT SHALL MOTIONELEMENTS PARTIES OR OUR CONTRIBUTORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE CONTENT, OR OTHERWISE, EVEN IF WE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

    2. NOTWITHSTANDING ANY OTHER TERM IN THIS OR ANY OTHER AGREEMENT, NONE OF THE MOTIONELEMENTS PARTIES OR OUR CONTRIBUTORS SHALL BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU, ANY OF YOUR REPRESENTATIVES OR ANY THIRD PARTY OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.

    3. MOTIONELEMENTS’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY YOU. THE PRICE STATED FOR THE CONTENT IS A CONSIDERATION IN LIMITING MOTIONELEMENTS’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

11. Miscellaneous Provisions

    1. You represent and warrant that you have full right and authority, and if you are an individual, you are over 18 years of age and have the capacity to enter into and create binding legal obligations set out in this agreement.

    2. This Agreement is a license, not an agreement of sale. We and/or the Contributors will retain all other rights, including copyright and other proprietary rights in the Content, that are not specifically granted in this Agreement.

    3. Electronic Storage: For all Content that you take delivery of in electronic form, you must retain the copyright symbol, the name of MotionElements and the element number, all metadata or other identification number associated with the Content may be included as part of the electronic file. You will take all reasonable measures to safeguard against unauthorized third-party access to the Content.

    4. Unauthorized Use: Any use of Content by you or your customers in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling MotionElements to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting in a breach and from any breach or copyright infringement, including any claims by third parties.

    5. Inspection: Upon reasonable notice, MotionElements may inspect any records, accounts and books relating to the use of any of the Content to ensure that the Content is being used in accordance with this Agreement.

    6. Copyright and Copyright Notice: All Content is copyright MotionElements or its licensors and is protected by Singapore Copyright laws, United States Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Content are transferred to you. You agree to provide copyright attribution as requested.

    7. Withdrawal: MotionElements shall have the right to withdraw Content because of actual or threatened litigation with respect to the Content; any binding declaration or order issued by a competent court or government authority that prevents the content from being distributed; or any reason beyond our control. We shall give you as much advance notice as practicable of any such withdrawal. You acknowledge that our right to withdraw content pursuant to this paragraph is of a special and unique character which gives it a peculiar value and that your license or other exploitation of Content after the effective date of a notice of withdrawal could cause us irreparable injury and damage. You, therefore, agree that in addition to any right or remedy granted MotionElements hereunder, we shall be entitled to injunctive and other equitable relief against you to prevent any exploitation after the effective date of a notice of withdrawal.

    8. Third party: If you are agreeing to these terms on behalf of someone else (like your employer), you represent and warrant that you have full legal authority to bind that third party.

    9. Survival: Any provisions that by their sense and context are intended to survive the termination of this agreement shall survive such termination. Any cause of action that MotionElements may have against you for breach of this agreement prior to the date of termination shall survive such termination.

    10. Severability: If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

    11. Interpretation: Words like ‘include’ and ‘including’ are not words of limitation and where anything is within our discretion we mean our sole discretion.

    12. Choice of Law: This Agreement will be governed in all respects by the laws of the Republic of Singapore, without reference to its laws relating to conflicts of law. We 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 our opinion, such action is necessary or desirable.

    13. Language of the Terms: Where MotionElements has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with us. If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.

    14. Changes to Terms: Notwithstanding anything else in this or any other agreement, (i) We reserve the right to modify this Agreement at any time, and without prior notice, by posting amended terms on the Website, and (ii) you will be subject to the terms of this Agreement in force at the time that you download the Content.

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