This is an agreement between Fly and Dive, SL, doing business as FOOTAGE.FILM (“FOOTAGE.FILM”, “Licensor’, “We” and “Us””) and you, or the employer on whose behalf you are entering this agreement (“You” and “LICENSEE”). By using our website and/or purchasing a license from us, you agree to be bound by the following terms and conditions (the “Agreement”) as same pertain to the license you purchase.
1. Defined Terms.
"Content" means all content available for license from the FOOTAGE.FILM website
"Video", “Clip”, “Footage” means any moving images, animations, films, videos or other audio/visual representations, video elements, visual effects elements, templates, graphics packs, and motion design projects excluding still images, recorded in any format (also known as “Footage”).
2. License Fee and Taxes.
- License Fee. The License Fee is a one-time non-refundable fee and is due at the time of purchase. Once FOOTAGE.FILM has received the License Fee, the license shall be fully paid up.
- Payment. All sums payable hereunder shall be payable in U.S. dollars or Euro.
- Taxes; Withholding. Fees payable hereunder are exclusive of taxes. LICENSEE shall be responsible for all sales, use, excise, and value added taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on any amounts payable by LICENSEE hereunder. LICENSEE shall pay all such sums free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law, LICENSEE shall pay to FOOTAGE.FILM such sum as will, after the deduction or withholding has been made, leave FOOTAGE.FILM with the same amount as it would have been entitled to receive without any such requirement to make a deduction or withholding. LICENSEE will notify FOOTAGE.FILM of any required withholding and provide any related documentation to FOOTAGE.FILM promptly.
3. Grant of Rights.
- Reservation of Rights. Licensed Content is, and will continue to be, owned by FOOTAGE.FILM and its contributors. No ownership or copyright in any content included in the Licensed Content shall pass to LICENSEE by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, FOOTAGE.FILM grants LICENSEE no right or license, express or implied, to the Licensed Content or any derivative works of the Licensed Content.
- Clearance Obligations. Licensed Content [that is film footage] may contain third party materials that require permission or fair use analysis prior to LICENSEE’s Use of such Licensed Content. LICENSEE is responsible for taking appropriate measures to blur, obscure, or remove any materials it determines require additional permissions, or alternatively, for obtaining such permissions. More specifically, but without limiting the general obligations above, LICENSEE is responsible for performing clearance analysis on any business names, logos, trade dress, or other words/designs protectable under trademark law that are depicted within the Licensed Content; and LICENSEE is also responsible for identifying copyright protected materials, including without limitation, works of art and architectural works, depicted within the Licensed Content and for performing clearance analysis on such materials.
- Credits. LICENSEE is not obligated to credit the Licensed Content to FOOTAGE.FILM in the End Product or otherwise. If LICENSEE includes credit in the End Product, it shall be done using the following credit line: “Stock Footage supplied by FOOTAGE.FILM” or something similar. If LICENSEE is interested in including the FOOTAGE.FILM logo or other trademark (“Marks”) in a credit, LICENSEE must first obtain FOOTAGE.FILM’s consent and all such use must be pursuant to FOOTAGE.FILM’s trademark usage guidelines, a copy of which will be provided to LICENSEE upon request. LICENSEE acknowledges and agrees that (i) such Marks are and shall remain the sole property of FOOTAGE.FILM; (ii) except as expressly required in order to satisfy the credit obligations under this Agreement, nothing shall confer upon LICENSEE any right of use in or to the Marks; and (iii) LICENSEE shall not now or in the future contest the validity of the Marks. All use of the Marks by LICENSEE shall benefit FOOTAGE.FILM. All goodwill arising out of LICENSEE's use of the Marks shall apply solely to the benefit of FOOTAGE.FILM.
4. Reservation of Rights.
LICENSEE shall use the Licensed Clips only as permitted under this Agreement and shall not, and shall not authorize, permit, or enable any other person or entity to, access, use, exploit, distribute, or perform any other act on or relating to any of the Licensed Clips except as expressly permitted by this Agreement. FOOTAGE.FILM reserves all rights not expressly granted to LICENSEE under this Agreement. LICENSEE acknowledges and agrees that nothing in this Agreement limits or restricts FOOTAGE.FILM’s rights in or use of the Licensed Clips in any way. Neither this Agreement, nor any act, omission, or statement by FOOTAGE.FILM or LICENSEE, conveys any ownership right to LICENSEE in any Licensed Clip, or to any element or portion thereof. As between the parties, FOOTAGE.FILM owns and retains all right, title, and interest in and to the Licensed Clips. LICENSEE’s permission to use the Licensed Clips is expressly conditioned on LICENSEE not impairing FOOTAGE.FILM’s copyright in the Licensed Clips in any way.
5. Restrictions on Use
LICENSEE may not use or permit the use of the Content beyond the terms of this Agreement without first obtaining an additional license.
LICENSEE may not:
- Sublicense, sell, distribute, assign, convey, or transfer the Content, this Agreement, or any of its rights under this Agreement;
- Sell, license, or distribute its final product in such a way that allows others to extract or access the Content as a stand-alone file;
- Use or display the Content in any item intended for resale, license, or other distribution or for use in "video on demand" products,
- Distribute, post, or upload the Content online or on a server in a downloadable format or enable it to be distributed via mobile telephone devices;
- Use the Content in any electronic template or application, including those that are internet-based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to: website designs, presentation templates, electronic greeting cards, or any other electronic or printed matter;
- Use any Content in any way that is in Licensor's reasonable opinion pornographic, defamatory, fraudulent, lewd, obscene, offensive, libelous, immoral, or in any way illegal, whether directly or in context or juxtaposition with specific subject matter and/or other materials, or that promotes illegal behavior, hostility or discrimination based on age, sex, race, disability, religion, ethnic background, sexual preferences, or any other subject matter that would in Licensor's reasonable opinion be offensive or unflattering;
- Use any Content in any way that infringes on any copyright, trade name, trademark, service mark, or intellectual property;
- Use Content in connection with sensitive subjects, including, without limitation, topics that may depict the subject matter of the Content in a negative or unfavorable light, topics that subject persons to ridicule, and topics regarding all sexual or implied sexual activity, sexual preferences or orientation, feminine or personal hygiene, birth control, incontinence, impotence, sexually transmitted diseases, teen pregnancy, abortion, adoption, welfare or economic aid, dating agencies, escort or similar services, adult videos or the like, adult entertainment clubs or similar venues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, political or religious affiliation, herbal supplements or digestive aids, medical products/conditions/procedures, AIDS, cancer, and other physical, health and mental health issues or ailments, or the disparagement of a person or product;
- Use Content in any way in connection with or condoning crime or illegal activities of any kind, including, without limitation, unlawful Internet gambling;
- Use Content featuring a model in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, without accompanying such use with a written statement that indicates that the person is a model and the Content is being used for illustrative purposes only;
- Use any Content to promote a business that sells or licenses videographic products, or otherwise competes with Licensor in any manner;
- Remove any copyright notice, trademark, identification number, or other proprietary right from the Content file;
- Use an automated program to download Content;
- Ship, transfer, or export any Content into any country where such Content is prohibited, or use any Content in any manner prohibited by any export laws, restrictions, or regulations;
- Use any video on a third party website or social media service that claims to acquire rights to the Content contrary to these terms as a result of such use
- Falsely represent, whether expressly or by way of reasonable implication, that the licensed Content was created by you or a person other than the copyright holder(s) of that file.
6. Memberships Downloads
In the case of a membership, the number of downloads available to LICENSEE during the Term is determined by the terms of LICENSEE's memberships. As it relates to this Agreement, the definition of a day is the twenty-four (24) hour period which begins at a set time and ends at the same time on the following day. Regardless to your membership (Creator/Pro/Partner) after downloading one hundred (100) clips, we ask you to come back after one (1) day if you want to download more.
7. Representations and Warranties.
FOOTAGE.FILM warrants and represents that:
- FOOTAGE.FILM's contributors have granted FOOTAGE.FILM all necessary rights in and to the Content to grant the rights set forth in Part I or Part II as applicable.
While FOOTAGE.FILM makes commercially reasonable efforts to ensure the accuracy of keywords and descriptions, FOOTAGE.FILM MAKES NO WARRANTIES AND/OR REPRESENTATIONS REGARDING ANY: I) KEYWORD, TITLES OR DESCRIPTIONS. For the sake of clarity, FOOTAGE.FILM will not indemnify or have any liability in respect of any claims arising from inaccurate keyword, titles or descriptions, any audio in Video.
FOOTAGE.FILM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS "WARRANTIES AND REPRESENTATIONS" SECTION.
LICENSEE shall indemnify, defend, and hold harmless FOOTAGE.FILM and its officers, directors, employees, agents, affiliates, successors, and assigns, from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any claim, suit, action, or proceeding relating to any actual or alleged breach by LICENSEE of its representations, warranties, covenants, or other obligations hereunder, or resulting directly or indirectly from the Production or LICENSEE's use of the Licensed Clips, including but not limited to failure to obtain any required Permission.
9. Limitation of Liability.
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 7, FOOTAGE.FILM HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT INCLUDING SPECIFICALLY ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR FOOTAGE.FILM’S OBLIGATION TO USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN FOOTAGE.FILM RELEASES APPLICABLE TO LICENSED CLIPS AVAILABLE FOR COMMERCIAL USE, FOOTAGE.FILM MAKES NO REPRESENTATION OR WARRANTY THAT IT POSSESSES ANY RELEASES FOR OR CONCERNING ANY INDIVIDUAL, PRODUCT, GRAPHIC, PICTORIAL, ARCHITECTURAL, OR OTHER WORK OF AUTHORSHIP, TRADEMARK, TANGIBLE PROPERTY, OR OTHER MATTER DEPICTED IN THE LICENSED CLIPS AND COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING ALL LICENSES, CONSENTS, RELEASES, RIGHTS, WAIVERS, AND PERMISSIONS REQUIRED FOR THEIR USE.
FOOTAGE.FILM WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER FOOTAGE.FILM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOOTAGE.FILM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE LICENSE FEE PAID DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM THAT IS THE BASIS FOR THE LIABILITY.
Breach by LICENSEE. This Agreement will terminate automatically with respect to all Licensed Clips if LICENSEE materially breaches or fails to comply with any terms or conditions of this Agreement and does not cure such breach or failure within 14 days.
Third Party Claim. FOOTAGE.FILM may terminate this Agreement upon notice by FOOTAGE.FILM, with respect to one or more Licensed Clips, if FOOTAGE.FILM reasonably determines that use of those Licensed Clips as authorized herein are, or are likely to become, the subject to a third party claim, in which event FOOTAGE.FILM will offer a refund for the affected Licensed Clips.
Effect of Termination. On the expiration or termination of this Agreement, including with respect to only those Licensed Clips that are subject to a termination notice by FOOTAGE.FILM, all rights licensed under this Agreement will terminate and immediately revert to FOOTAGE.FILM and LICENSEE shall (i) cause to be inactivated and erased all electronic copies of the Licensed Clips in its control and (ii) destroy any tangible copies of the Licensed Clips. For the avoidance of doubt, in the event FOOTAGE.FILM terminates the Agreement for breach, LICENSEE shall immediately cease all distribution, performance, and other use of any and all instances of Licensed Clips including as contained in any Production. Sections 4-11 shall survive termination of this Agreement.
11. Refund Policy
All refunds are subject to the approval of FOOTAGE.FILM. LICENSEE may be eligible for a refund, at FOOTAGE.FILM's reasonable discretion, for any of the reasons listed below. If a refund is approved, FOOTAGE.FILM shall refund LICENSEE's payment as a credit on LICENSEE's account or to the payment method used to purchase the Content, at FOOTAGE.FILM's discretion.
An individual download may be eligible for a refund if it meets any of the following criteria:
- Duplicate Purchase: If an identical Content file and size is purchased multiple times.
- Failed Download: If there is a technical problem preventing the successful download of the Content. This may include a corrupt file, unexpected removal of file, or site technical difficulties. FOOTAGE.FILM must be contacted and provided up to one (1) hour to resolve the issue before a refund request can be processed. Refunds cannot be issued for LICENSEE technical problems, including browser, compatibility, or connectivity issues.
- Poor Quality: If there is a flaw in the file which does not meet FOOTAGE.FILM's professional quality standards, as confirmed by FOOTAGE.FILM staff.
- Licensor will not refund files which:
- Have been purchased, but are no longer wanted by the LICENSEE.
- LICENSEE is unable to open, due to not having compatible/required software. FOOTAGE.FILM only officially supports Adobe, Corel, and Quicktime suite of products, which have been released within the previous 8 years.
To be eligible for a membership refund, LICENSEE must not have used their purchased membership to download any Content files, and must notify FOOTAGE.FILM via support ticket in writing.
- Jurisdiction and Attorneys' Fees. This Agreement will be governed and construed in all respects by the laws of the Principality of Andorra applicable therein, without reference to its laws relating to conflicts of law. Any dispute, controversy, or claim between the parties arising out of or related to this Agreement shall be settled before the courts in Andorra la Vella, Andorra, which shall be the only proper venue for any dispute, controversy, or claim arising hereunder, and each party hereby consents to the exclusive jurisdiction to such court to hear all disputes, controversies, and claims, and consent to service of process by registered mail or overnight courier with proof of delivery. To the extent that it would otherwise apply, the United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. If Licensor is obligated to go to court to enforce any of its rights, LICENSEE agrees to reimburse Licensor for its legal fees and disbursements if Licensor is successful. The parties agree that this Agreement has been and shall be written in the English language.
- Assignment. FOOTAGE.FILM may assign this Agreement, without notice or consent, to any Affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms. LICENSEE may not assign or transfer to anyone else the rights granted to LICENSEE in this Agreement without the prior written consent of Licensor.
- Severability. Electronic Signature; Notice. If any provision of this Agreement is found to be invalid, void or otherwise unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. The parties hereto specifically agree to contract with each other via electronic transmissions and that email communications shall be the primary format for all communications regarding this Agreement. Any notice to be provided to FOOTAGE.FILM pursuant hereto shall be delivered to firstname.lastname@example.org. Any notice to be provided to LICENSEE shall be by email to the email address FOOTAGE.FILM then currently has on file as the email of record, postings within the LICENSEE/PURCHASER’s FOOTAGE.FILM online account or other reasonable means. Any such notice shall be considered received when actually sent to the recipient's correct email address or FOOTAGE.FILM account, if applicable, by the sender.
- Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion, and it will not be construed as a waiver of any other right or provision.
- Entire Agreement. This Agreement contains all the terms of the agreement between Licensor and LICENSEE concerning the use of the Content and no term or conditions may be added or deleted unless made in writing and signed by Licensor. Licensor shall have the right to modify the terms of this Agreement at any time, and such modifications will be deemed effective when posted on Licensor's website. LICENSEE agrees to be bound by such modifications; however, if such modifications are not acceptable to LICENSEE, LICENSEE may terminate this Agreement in accordance with Section 7. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by LICENSEE, the terms of this Agreement shall govern.
- Headings Not Controlling. The section headings contained herein are for reference only and are not part of this Agreement. The headings shall not control or alter the meaning of this Agreement as set forth in the text.
- Relationship. The parties are independent contractors with respect to each other. Neither party shall be deemed a partner, agent, or representative of the other party. Each party shall be responsible for its own business activities including its own liabilities and business expenses and the other party shall have no liability therefore
- No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or may be construed to confer on any person, other than the parties, any right, remedy, or claim under or with respect to this Agreement.