FlashStock Master License Agreement - Updated July 5, 2016

1.         THIS IS A BINDING AGREEMENT

1.1       This agreement (the “Agreement”) is by and between FlashStock Technology Inc., a Canadian corporation located at 410 Adelaide St. W Suite 301 Toronto, ON M5V 1S8 Canada,  (“we”, “us” or “FlashStock”) and the entity on behalf of which you are entering into this Agreement (“you” or “Customer”).  This Agreement governs Customer’s use, and FlashStock's provision, of the FlashStock proprietary image service and related technology (the “Service”).  If this Agreement is not acceptable to you, you are under no obligation to accept its terms or to use the Service. 

1.2       By agreeing to these terms and conditions, you represent and warrant that you have the authority to bind the Customer to all of the terms and conditions of this Agreement.

2.         DEFINITIONS

As used in this Agreement, the following terms shall have the meanings specified below.

“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party.

“Available Brief” shall mean a Brief that Customer is entitled to request.

“Available Images” shall mean, with respect to each Available Brief, the total number of Images that Customer is entitled to license.

“Brief” shall mean a request by Customer for FlashStock to provide new Images featuring specific themes, products, individuals or other visual elements.

“Confidential Information” shall mean technical, business and financial data, information, documents and materials relating to either party (the “Disclosing Party”) and its affiliates, contractors, suppliers and licensees disclosed to the other party (the “Receiving Party”) that is confidential to the Disclosing Party and which shall include all information relating to the Service and the terms and conditions of this Agreement (which information shall be deemed to be FlashStock's Confidential Information) and all information which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential.

“Effective Date” is the earlier of: (i) the date of the first License Order Form entered into hereunder; or (ii) the date on which you accept these terms and conditions.

“Images” shall mean photographic images made available to Customer by way of the Platform during the Service Term.

“License Order Form” means a license order form entered into by Customer.  License Order Forms may be entered into prior to or after agreement to these terms and conditions, and each License Order Form will be deemed to be part of this Agreement and incorporated herein by reference.

“Optional Services” shall have the meaning attributed to such term in Section 4.5 below.

“Platform” shall mean the password protected software-as-a-service platform by which the Service is provided by FlashStock, along with any update, fix, alteration or other improvement.

“Service Term” shall have the meaning attributed to such term in Section 11.1 below.

3.         LICENSE TO USE THE PLATFORM

3.1       Subject to the provisions contained in this Agreement, FlashStock hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-assignable, worldwide, revocable license, during the Service Term, to access and use the Platform.

3.2       Customer shall limit access to the Platform solely to Customer’s internal users and outside contractors (e.g. advertising agencies), provided that any use by outside contractors is limited solely to the extent required for such contractors to provide professional services directly to Customer.  For clarity, neither Customer nor any of its outside contractors shall be entitled to use the Platform as part of any resale, time-sharing or service bureauing arrangement, or to grant any sublicense to use the Platform. 

3.3       Customer may not, directly or indirectly, including through any person or entity under its control or direction, in any form or manner, copy, distribute, reproduce, modify or prepare derivative works of the Platform, or decompile, reverse engineer, disassemble or otherwise attempt to derive the source code for the Platform.

3.4       Customer shall take all reasonable security measures required to ensure that access to the Platform is restricted to those personnel who need access to the Platform in order to perform their duties to Customer, and Customer shall ensure that all such users are informed of and comply with the restrictions set out in this Agreement.  Customer shall be fully responsible for all of its authorized users' access to, and use of, the Platform.

4.         LICENSE ORDER FORMS; BRIEF REQUESTS

4.1       During the Service Term, Customer shall be entitled to request that FlashStock fulfill a specific Brief, up to the maximum number of Available Briefs.  Each such request will include, at a minimum, a name, the brand to which such Brief applies and a description that will give FlashStock sufficient detail with respect to the type of Images Customer wishes to receive. 

4.2       In the event FlashStock reasonably believes that Customer’s request is deficient in any manner (e.g. if it provides unclear or incomplete information), FlashStock will notify Customer at the e-mail address of the authorized user who requested the Brief, and FlashStock’s obligation to commence work on the applicable Brief will be postponed until such time as Customer has responded to FlashStock’s questions or request for additional information.

4.3       For clarity, in no event will Customer have the right to “carry forward” any unused Available Briefs beyond the period specified in the applicable License Order Form, or apply unused Available Images towards another Available Brief.

4.4       Each License Order Form will entitle Customer to the following basic services for up to the number of Available Briefs set out therein: (i) a 2 year Image Term (as defined below); (ii) access to a shared FlashStock client service representative via e-mail or telephone; and (iii) location specific images, as further described in each Brief. 

4.5       In addition, Customer will be entitled to purchase the following additional services (the “Optional Services”):

(i)         Perpetual Image Term;

(ii)         Dedicated FlashStock Client Manager: Customer will have access to a dedicated client manager through the duration of the term of the applicable License Order Form;

(iii)        Product Expense Allowance:  Customer will reimburse FlashStock the applicable amount set out in the License Order Form as a non-accountable prepayment of anticipated expenses to be incurred by FlashStock in providing the Available Briefs under such License Order Form;

(iv)        People Specifications:  Customer will be entitled to access specific kinds of people, based on the required characteristics set out in each Brief; and

(v)        Visual Identity Calibration:  Customer will be entitled to participate in up to the number of visual identity calibration sessions set out in the License Order Form within the term of the License Order Form.  If Customer requests an in-person calibration, costs for travel may be applicable and billed back to Customer.

The Optional Services (if any) purchased by Customer, and the number of Briefs for which they are being purchased, will be set out in each License Order Form.

4.6       Each License Order Form will commence on the order start date set out therein and will remain in force until the order end date set out therein, provided that each License Order Form will automatically renew on identical terms at FlashStock’s then-current fees, unless either party provides written notice of its intention to terminate no later than 60 days before the end of the then-current term for such License Order Form.  FlashStock will provide notice to Customer of any fee increase applicable to a License Order Form (with e-mail being sufficient for such purposes) no later than 90 days before the end of the then-current term for such License Order Form.

5.         LICENSE TO USE IMAGES

5.1       FlashStock hereby grants Customer, or if Customer is an agency entering into this Agreement on behalf of one or more specific clients, the Customer’s client as set out in each License Order Form, an exclusive, non-transferable worldwide license to use, reproduce, modify, distribute and electronically or via other means transmit Images, during the term set out in the applicable License Order Form (the “Image Term”) and as otherwise set out herein, solely for the purpose of use for any advertising, public relations, promotional or other marketing materials in any and all media now known or hereinafter created relating to Customer, the applicable Customer client, and/or their respective products and services and not, for clarity, any third party or its products or services.

5.2       Notwithstanding any expiration of the Image Term, Customer (or if applicable the specific client of Customer) will be entitled to continue to use Images for non-commercial corporate archival, historical or other internal purposes as well as for presentations and advertising industry awards and publicity related thereto.  In addition, posts or Tweets made during the Image Term that include Images may remain on social media sites, provided that neither Customer nor any party authorized by Customer may re-Tweet or repost such Images after expiration of the Image Term.  FlashStock acknowledges that Customer cannot prevent third parties from re-Tweeting or reposting Images to the extent permitted by social media platforms, and accordingly, any such re-Tweeting or reposting after the Image Term by third parties that are not related to or authorized by Customer will not be deemed to be a breach of this Agreement.

5.3       Customer acknowledges that the total number of Images to which the license under this Agreement applies will be limited to the number of Available Briefs and Available Images set out in the applicable License Order Form.  Accordingly, the total number of Images made available to Customer for review by way of the Platform may exceed the number of Images that are subject to the foregoing license and FlashStock will state in each License Order Form how many Images are subject to the license under that License Order Form.

5.4       Notwithstanding the licenses granted pursuant to Section 5.1 and Section 5.2 above, Customer acknowledges and agrees that the following additional terms and conditions shall apply with respect to Customer’s use of any Image:

(i)         Customer will be solely responsible for any text or other additional material not provided by FlashStock and used in connection with any Image, and Customer will defend, indemnify and hold FlashStock harmless from and against any damages, losses, liabilities, expenses and costs arising from Customer’s use of any such text or additional material;

(ii)         Customer will not use or permit the use of any Image in a defamatory, libellous, pornographic or unlawful context or any other manner that is contrary to ethical business practices; and

(iii)        if any Image depicting a person is to be used in a sensitive context (including, without limitation, a context relating to sexual conduct, criminal activity, substance abuse, mental condition, financial distress, or religious, political or racial bias), then the existence of a model release may not be sufficient to protect Customer from legal action by the person(s) depicted in the Image, and notwithstanding the foregoing, if Customer elects to use any Image in such a context, Customer agrees to: (a) review the applicable model release with Customer’s legal counsel to confirm that use in such a context is permitted by such model release; and (b) print a statement adjacent to the reproduction indicating that the person appearing in the Image is a model and is used for illustrative purposes only.

6.         OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

6.1       Customer acknowledges and agrees that FlashStock and its suppliers own all right, title and interest in the Platform and the Images, and in all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets or other intellectual property rights relating to the Platform, Images or the marketing thereof.  The use by Customer of the Platform and Images is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason, or expiration of the Service Term or Image Term (as applicable), except as expressly permitted under Section 5.2, such authorization shall immediately cease.  There are no implied licenses granted under this Agreement, and all rights not expressly granted to Customer in this Agreement are reserved. 

Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) Customer’s rights with respect to the Images are limited solely to the right to use such Images in accordance with this Agreement during the applicable Image Term (and, except as expressly permitted under Section 5.2, not at any time after expiration or termination of the Image Term); (ii) in no event will ownership of any of the Images be transferred to Customer; and (iii) after expiration of the Image Term, FlashStock may use, reuse, distribute, make available, license, electronically transmit, create derivative works from, or otherwise exploit the Images, in whole or in part (including any modified version of any Image) in its sole discretion and without any obligation to notify, obtain the consent of, or make payments to, Customer. 

7.         FEES AND PAYMENTS

7.1       Customer shall pay to FlashStock the fees and charges set out in each License Order Form in accordance with the payment terms set out therein. 

7.2       All fees are nonrefundable.  For clarity and avoidance of doubt, FlashStock shall have no obligation to issue refunds or credits for any unused Available Briefs or Available Images, partial months or in connection with any downgrade, cancellation, termination or otherwise.  If FlashStock provides discounts, incentives or any other special pricing terms in a License Order Form, in no event will such discounts, incentives or other special pricing terms affect any previously agreed upon License Order Form or be deemed a precedent for future License Order Forms.  The pricing terms in each License Order Form relate to that specific License Order Form only.

7.3       The fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties.  Customer is responsible for paying same.

7.4       Except as set out in Section 4.5(iii), any additional expenses that are incurred by FlashStock in providing the Service on behalf of Customer, and for which FlashStock seeks reimbursement, will be pre-approved by Customer.

8.         CONFIDENTIALITY

8.1       The Receiving Party shall not at any time during the Service Term or for a period of 5 years after any termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement, nor shall the Receiving Party use any such Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement.  The Receiving Party shall take all reasonable measures to maintain the confidential nature, and protect the secrecy, of all Confidential Information of the Disclosing Party, which measures shall include the highest degree of care that the Receiving Party utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care.  The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information of the Disclosing Party which may or should come to the Receiving Party’s attention.  The foregoing restrictions shall not apply to information that (i) is known to the Receiving Party without any confidentiality restrictions at the time of disclosure to the Receiving Party, (ii) has become publicly known through no wrongful act of the Receiving Party, (iii) has been rightfully received by the Receiving Party from a third party authorized to make such disclosure without restriction, or (iv) has been approved for release by written authorization of the Disclosing Party.  In addition, nothing in this Agreement shall prohibit the Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding; provided that the Receiving Party shall (i) give the Disclosing Party prompt notice of such required disclosure prior to disclosure, (ii) cooperate with the Disclosing Party to contest such disclosure or seek a protective order with respect thereto, and/or (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically required to be disclosed.

8.2       Upon termination or expiration of this Agreement, and upon the request by the Disclosing Party, the Receiving Party shall immediately stop using and shall return to the Disclosing Party all Confidential Information of the Disclosing Party, all copies, notes, diagrams, computer memory media and other materials that contain any portion of such Confidential Information, and, in the case of Customer, all specifications, data sheets, drawings and designs relating to the Platform, and reproductions thereof, and any and all similar materials in any way, in whole or in part, based thereon, as well as any and all similar materials which in any way contain, reflect or relate to the Platform. 

8.3       Notwithstanding the foregoing, it is understood that the Receiving Party’s computer systems may automatically back-up the Confidential Information of the Disclosing Party. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Receiving Party may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the Receiving Party. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality and non-use restrictions under this Agreement.

9.         REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNITY

9.1      FlashStock represents, warrants and covenants that to its knowledge: (i) the Platform, any Images provided to Customer, and the use thereof, when used for the purposes for which they were designed and in the manner authorized herein, do not infringe or misappropriate any valid and enforceable intellectual property right or confidential information of any third party; (ii) the Platform will operate substantially in accordance with its specifications; (iii) the Platform does not contain any viruses, worms, time bombs, logic bombs, trap doors, Trojan horses, or similar malicious instructions, techniques, or devices capable of disrupting, erasing, disabling, damaging or shutting down a computer system or software or hardware components thereof; (iv) FlashStock will take reasonable security measures in providing the Service and the Platform in order to protect any data, personal information or intellectual property provided by Customer; and (v) FlashStock has obtained, from each individual submitting an Image to which Customer has access, a submission agreement in FlashStock’s then-current standard form pursuant to which, among other things, the individual submitting such Image has represented and warranted to FlashStock that he/she has obtained from any identifiable individual appearing in the Image, a model agreement in FlashStock’s then-current standard form.  FlashStock’s current form of submission agreement and model agreement may be viewed at FlashStock’s website. 

9.2       Subject to Section 10, FlashStock will defend Customer against, and pay any resulting final judgments (or settlements that FlashStock consents to) for, any claims made by an unaffiliated third party that the Platform or any Images provided to Customer infringes its valid and enforceable intellectual property rights.  FlashStock’s obligations under this Section 9.2 are subject to all of the following conditions: (i) Customer must notify FlashStock, in a timely manner and in writing of the claim; (ii) Customer must give FlashStock sole control over defense and settlement of the claim; and (iii) Customer must provide FlashStock with reasonable assistance in defending the claim (FlashStock will reimburse Customer for reasonable prior approved out-of-pocket expenses that Customer incurs in providing that assistance).

9.3       Except as expressly set out herein, the Service, the Platform and the Images are provided to Customer on an “as-is”, “as available” and “with all faults” basis, and FlashStock expressly disclaims any and all representations, warranties and conditions concerning the Service, the Platform and the Images, including any and all representations, warranties or conditions of design, merchantability or fitness for any particular purpose, and any and all representations, warranties or conditions that might otherwise arise during the course of dealing, usage or trade and those which may be implied by law.

10.       LIMITATION OF LIABILITY

10.1     In no event will FlashStock or its suppliers be liable to Customer or any of its authorized users for any consequential, indirect, exemplary, special, or incidental damages, or damages for any lost data or lost profits, arising from or relating to this Agreement, even if FlashStock has been advised of the possibility of such damages.  FlashStock’s total cumulative liability in connection with this Agreement, the Service, the Platform, fulfillment of Brief request, and the Images, whether in contract or tort or otherwise, will not exceed: (i) in the case of liability arising from FlashStock’s indemnification obligations under Section 9.2 above, $4 million; and (ii) in the case of any other liability, the amount paid to FlashStock under this Agreement in the 12 month period immediately preceding the final event giving rise to such liability.  Customer acknowledges that the fees payable to FlashStock under this Agreement reflect the allocation of risk set forth in this Agreement and that FlashStock would not enter into this Agreement without these limitations on its liability. 

11.       TERM AND TERMINATION

11.1    This Agreement shall commence on the Effective Date and continue until terminated as set forth herein (the “Service Term”).

11.2    Either party may terminate this Agreement (or one or more License Order Forms), by written notice to the other party, upon the occurrence of either of the following events: (i) the other party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors; or (ii) the other party materially breaches any term, provision, representation or warranty of this Agreement, including non-payment, and such breach or default is not cured to the terminating party's reasonable satisfaction within 15 days of written notice to the other party.  In addition, the parties may terminate this Agreement, or one or more License Order Forms, by mutual written agreement.

11.3    In the event that FlashStock terminates this Agreement pursuant to Section 11.2(i) or Section 11.2(ii) above:  (a) Customer shall pay FlashStock for all fees and charges applicable for the then-current License Order Forms within 10 days after any such termination; and (b) the Service Term and all Image Terms will immediately terminate and Customer’s right to use the Platform or to use or reproduce the Images will immediately cease, subject to the limited rights set out in Section 5.2 above.

11.4    In the event of any termination of this Agreement by mutual agreement or by Customer pursuant to Section 11.2(i) or Section 11.2(ii) above, or any expiration of this Agreement: (a) the Service Term will immediately terminate and Customer’s right to use the Platform will immediately cease; and (b) Customer’s right to use and reproduce the Images will continue for the duration of the applicable Image Terms under the applicable License Order Forms then in effect.

11.5    The applicable provisions set out in Sections 11.4 and 11.5 above will apply, mutatis mutandis, to any termination of one or more License Order Forms.

11.6    Customer acknowledges and agrees that while the Image Term under one or more License Order Forms may continue beyond the Service Term, in order to access the Platform Customer must at all times have a valid license, and accordingly, Customer’s access to the Platform will expire at the end of the Service Term.

11.7    Upon termination or expiration of this Agreement for any reason, the following provisions shall survive and remain effective:  Section 6, Section 7, Section 8, Section 9.3, Section 10, Section 11 and Section 12.

11.8    Any termination or expiration of this Agreement will be without prejudice to any obligation of either party to the other accruing prior to or at such termination or expiration, and any remedies available to one party due to the other party's breach of this Agreement will survive termination of this Agreement.

12.       GENERAL

12.1     This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, shall be governed by the laws (excluding any conflicts of laws principles), and in the courts, of the Province of Ontario.  The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement.

12.2     Customer shall not make or purport to make any assignment, transfer or conveyance, in whole or in part, of its rights or obligations under this Agreement without the prior written consent of FlashStock.  Subject to the foregoing, the rights and benefits of the parties under this Agreement shall accrue to, and run in favor of, each party’s successors and assigns.  The obligations of the parties under this Agreement shall be binding upon their respective successors and assigns.  Nothing in this Agreement shall be construed to grant any person or entity not a party hereto any rights or powers whatsoever, and no person or entity shall be a third party beneficiary of this Agreement. 

12.3     The provisions of this Agreement are severable.  If any provision or part of this Agreement shall be held by any court or other official body of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions or parts hereof shall continue to be given effect and shall bind the parties hereto. 

12.4   All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand, (ii) sent by electronic means if confirmed and promptly followed by written confirmation, or (iii) sent by overnight delivery services prepaid and shall be addressed to each party’s respective address as indicated on FlashStock’s website and as provided by Customer during the account registration process.

12.5     In the event that either party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control, including, but not limited to, acts of God, accidents, fire, natural disaster, accident, act of government, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, strike, labor dispute or walkout, Internet backbone outage, or any other cause beyond the reasonable control of the affected party, then the performance of the obligations of the affected party shall be excused during the continuance of any inability so caused provided that the party whose performance is delayed or prevented promptly notifies the other party of the nature and anticipated duration of the force majeure event.

12.6     The headings of the Sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement.  As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine; (ii) the words “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all attachments, exhibits and schedules as the same may be from time to time amended or supplemented and not to any subdivision of this Agreement; (iii) the words “party” and “parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” is not intended to be exclusive and means “including without limitation”; and (v) unless specified otherwise, the word “days” refers to calendar days.  The terms “will” and “shall” are used interchangeably and indicate that the specified action or forbearance is mandatory.  The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.

12.7   It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Section 3, Section 5, Section 6 or Section 8 by Customer will cause FlashStock irreparable damage for which recovery of money damages would be inadequate, and that FlashStock shall therefore be entitled to obtain timely injunctive relief to protect FlashStock’s rights under this Agreement in addition to any and all remedies available at law. 

12.8     This Agreement contains the entire agreement between the parties with respect to the transactions referred to herein and supersedes all prior and contemporaneous arrangements or understandings, whether oral or written, with respect to the subject matter hereof.  Except as expressly set out herein, no supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced.  The failure of either party to insist in any one or more instances upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance.  The obligations of either party with respect to such term, covenant or condition shall continue unchanged and in full force and effect.  No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the party making the waiver. 

13.       HOW TO CONTACT US

13.1     If you have any questions or concerns about the Platform, you may contact us via e-mail at the following address:

support@flashstock.com

13.2     For clarity, without limiting the generality of Section 12 above, in no event will any information or advice provided by FlashStock or its representatives via telephone, e-mail or in person serve as an amendment, supplement or waiver of any portion of this Agreement.