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L'Oreal Professionnel Image Licence Agreement
THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE AND L’OREAL AUSTRALIA PTY LTD ("L’Oréal"). THIS AGREEMENT APPLIES TO LICENCES ISSUED VIA THIS WEBSITE, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE "AGREEMENT").
1. Definitions
In this Agreement the following definitions apply:
1.1 "Image Request Form" means the computer-generated or pre-printed standard form provided by L’Oreal or their authorised agency that may include, without limitation, the Licensed Material selected and any limitations on the licence in addition to those specified herein. The Image Request Form shall be incorporated into this Agreement and all references to the Agreement shall include the Image Request Form.
1.2 "Licensed Material" means any still image or visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, prints, original digital files or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by L’Oreal under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.
1.3 "Licensee" means the person or entity being provided a licence hereunder and who is specifically designated as Licensee during the ordering process and is set forth as such in the Image Request Form.
1.4 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or part of any Licensed Material, via any medium by whatever means, and the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
1.5 "User" means any employee or subcontractor of Licensee who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Licensed Material; (ii) is otherwise directly involved in the creative process utilizing the Licensed Material; or (iii) incorporates the Licensed Material within any derivative work.
2. Grant of Rights
Subject to the terms of this Agreement:
2.1 L’Oreal grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to Reproduce within Australia only the Licensed Material identified on the Image Request Form for the express use in the media specified on the Image Request Form for a period of twelve months from the date of the Image Request Form, unless prohibited by those uses described under Section 3 of this Agreement.
2.2 Licensee may have the Licensed Material Reproduced by subcontractors of Licensee for preparation of a final product, provided that such subcontractors agree to abide by the provisions of this Agreement.
2.3 Licensee may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of Licensee, so long as there are no more than ten (10) Users.
3. Restrictions
3.1 Licensee may not sublicence, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement.
3.2 Licensee may not: (i) make the Licensed Material available in any medium accessible by persons other than authorised Users; (ii) sell, licence or distribute any product, other than L’Oréal product, containing the Licensed Material; or (iii) use or display the Licensed Material in any medium designed to promote or involving the sale, licence or other distribution of products other than L’Oréal products.
3.3 Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a work that is a stand-alone pictorial or graphic work that derives a substantial part of its artistic components from the Licensed Material.
3.4 Licensed Material shall not be incorporated into a logo, trademark or service mark.
3.5 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter.
3.6 Licensed Material shall not be used contrary to any restriction on use provided to Licensee, including, without limitation, any restriction provided to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Any restriction on use provided to Licensee may be included either in the information provided with the Licensed Material on L’Oréal’s website or in any other written communication from L’Oréal. Any such restriction provided to Licensee shall be incorporated into this Agreement.
3.7 If the Licensed Material is Reproduced in an editorial manner, Licensee must include the following credit adjacent to the Licensed Material: “© L’Oréal Professionnel 2007" or as otherwise notified by L’Oréal.
4. Copyright and Trademarks
4.1 No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the licence contained in this Agreement. Except as expressly stated in this Agreement, L’Oréal grants Licensee no right or licence, express or implied, to the Licensed Material.
4.2 In connection with the use of "L’Oréal" or any other of L’Oréal trade names, trademarks, logos or service marks ("Marks"), Licensee acknowledges and agrees that: (i) L’Oréal Marks are and shall remain the sole property of L’Oréal; (ii) nothing in this Agreement shall confer upon Licensee any right of ownership in L’Oréal Marks; and (iii) Licensee shall not now, or in the future, contest the validity of L’Oréal Marks.
5. Warranty and Limitation of Liability
5.1 L’Oréal warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (iii) Licensee's use of the Licensed Material in its original form and when used in accordance with this Agreement, will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iv) all necessary model and/or property releases for use of the Licensed Material authorised under this Agreement have been obtained.
5.2 L’Oréal (and its agents) exclude all express and implied terms, conditions and warranties which otherwise might apply to the Licensed Material or its delivery systems, or that may arise out of this Agreement, other than:
(i) as provided expressly in this Agreement; and
(ii) terms, conditions and warranties which by law cannot lawfully be excluded or modified by agreement including those under Part V of the Trade Practices Act 1974 (Cth) (other than implied by section 69 of that Act) and corresponding provisions of state legislation.
5.3 If L’Oréal is liable for a breach of a term, condition or warranty described in this Agreement, L’Oréal’s liability is, to the fullest extent permitted by law, limited to any one or more of the following as L’Oréal determines in its absolute discretion:
(i) in relation to goods, replacing or repairing the goods or supplying an equivalent item, or paying the costs or replacing, repairing or hiring an equivalent item; or
(ii) in relation to services, the re-supply of the services or payment of the cost of having the services re-supplied.
5.4 Notwithstanding any other clause of this Agreement, L’Oréal and its officers, employees, agents and contractors will under no circumstances be liable to the Licensee for:
(i) damages for loss of profits or savings (actual or anticipated), loss of goodwill, loss of market or loss of use;
(ii) losses suffered by the Licensee due to claims by third parties; or
(iii) any indirect, incidental, special or consequential damages,
whether or not L’Oréal knew of the possibility of such damage or loss or such damage or loss was otherwise foreseeable.
6. Indemnification
6.1 Licensee shall defend, indemnify and hold L’Oréal (and its agents) and its officers, directors and employees harmless from all damages (excluding punitive damages not directly attributable to acts of Licensee), liabilities and expenses (including reasonable legal fees and permitted and authorised costs), arising out of or as a result of claims by third parties relating to Licensee's use of any Licensed Material outside the scope of this Agreement or any other actual or alleged breach by Licensee of this Agreement.
6.2 L’Oréal shall promptly notify the Licensee of any claim by a third party against L’Oréal for which it seeks indemnification. With the written consent of L’Oréal (and subject to any reasonable terms determined by the parties), the Licensee may assume the handling, settlement or defence of any claim or litigation, in which event L’Oréal shall cooperate in the defence of any such claim or litigation.
7. Condition of Licensed Material
Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to Section 5.1(ii), L’Oréal and its agents shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or in any way from its Reproduction.
8. Termination and Revocation
8.1 The licence contained in this Agreement will terminate automatically, without notice from L’Oréal, if the Licensee fails to comply with any provision of this Agreement.
8.2 Upon termination, Licensee must immediately: (i) cease all use of the Licensed Material; (ii) destroy or, upon the request of L’Oréal, return the Licensed Material to L’Oréal; and (iii) delete and remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical).
9. Unauthorised Use
9.1 Any use of Licensed Material in a manner not expressly authorised by this Agreement or in breach of a term of this Agreement (including, without limitation, use of Licensed Material by more than ten (10) Users) constitutes copyright infringement, entitling L’Oréal to exercise all rights and remedies available to it under copyright laws.
9.2 Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
10. Audit/Letter of Compliance
Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Material to L’Oréal. Upon reasonable notice, L’Oréal may, at its discretion, either through its own employees or through a third party, audit Licensee's records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where L’Oréal reasonably believes that Licensed Material is being used by more than the authorised number of Users, or that Licensed Material is being used outside of the scope of the licence granted under this Agreement, Licensee shall, at L’Oréal’s request, provide a letter certifying compliance signed by an officer of Licensee, in a form to be approved by L’Oréal.
11. Electronic Storage
For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of L’Oréal, the Licensed Material's identification number and any other information as may be embedded in the electronic file containing the original Licensed Material that is stored on Licensee's computers. Licensee shall maintain a robust firewall to safeguard against unauthorised third-party access to the Licensed Material.
12. Withdrawal
If L’Oréal withdraws any Licensed Material for any good reason, upon notice from L’Oréal, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. L’Oréal shall provide Licensee with comparable Licensed Material (which comparability will be determined by L’Oréal in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
13. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of Victoria, irrespective of where the application for licence has been completed by Licensee or submitted to L’Oréal. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria (including the Federal Court of Australia) and waives any right to object to proceedings being brought in those courts.
14. Severability
14.1 If a provision in this document is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
14.2 If it is not possible to read down a provision as required in this clause, such provisions shall be revised only to the extent necessary to make them enforceable.
15. 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 on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
16. Entire Agreement
This Agreement contains all the terms of the licence agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorised representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any order or other communication sent by Licensee, the terms of this Agreement shall prevail.
