ImageProtect Recovery Service Agreement
By accessing this Site and using the ImageProtect Services as defined in the ImageProtect Terms and Conditions of Service found at https://www.ImageProtect.com/terms (and incorporated herein by reference as if fully set forth at length), You (hereafter “Customer,” “Subscriber” or “You”) are accepting and agreeing to be bound by this ImageProtect Recovery Service Agreement. If You do not agree to this ImageProtect Recovery Service Agreement, You may not use this Site or any of our services.
Agreement made as of this day between You and Clear Arts, Inc. (dba ImageProtect), 1401 N El Camino Real, Ste 203, San Clemente, CA 92672 (“ImageProtect” and/or “Us”) (collectively You and ImageProtect are the “Parties”)
Customer is the rights holder or the authorized representative of the rights holder in certain images (hereafter “Content”). ImageProtect is in the business of searching the Internet for unauthorized copies of images (the “ImageProtect Services,” which are governed by the Terms and Conditions of Service found at https://www.ImageProtect.com/terms and incorporated herein by reference as if fully set forth at length), providing reports to its Customers of any potentially unauthorized uses (a “Report”), and recovering settlement fees and/or arranging appropriate licensing of images (the “ImageProtect Recovery Service”). Customer and ImageProtect have determined that it is in their best interests to enter into this Recovery Service Agreement (the “Recovery Service Agreement” or the “Agreement”). Customer has identified or will identify one or more unauthorized uses of the Content either in a Report provided by ImageProtect, or submitted by Customer which Customer hereby authorizes ImageProtect to attempt to settle and/or license (each a “Recovery Asset”) upon the terms and conditions set forth herein.
1. Grant of Authority:
- You hereby appoint ImageProtect, and ImageProtect hereby accepts such appointment, as your agent with respect to the settlement of each Recovery Asset, which may include the right to grant licenses for both past and/or future uses of each Recovery Asset.
- Subject to your prior approval of the terms and conditions for each Recovery Asset, ImageProtect shall have discretion regarding the terms and conditions of any settlement fee and/or license of each Recovery Asset. Notwithstanding the foregoing, any license of rights in and to a Recovery Asset on an “exclusive” basis, shall require Your prior written approval.
This Agreement shall commence as of the date first set forth above and shall continue for a period of one (1) year thereafter (the “Initial Period”). Subject to early termination, this Agreement shall renew itself automatically for a period of one (1) year (the “Renewal Period”) unless terminated in writing by either Party thirty (30) days before the expiration date. The Initial period and Renewal Period are collectively referred to herein as the “Term.”
3. Obligations of Customer:
- You shall carefully review each Report provided by ImageProtect to determine whether any of the uses of the Content identified therein are unlicensed by You. Such review includes, but is not be limited to, Your sales and/or license records related to the Content whether kept by You and/or any of your authorized agents.
- In the event that there is a claim asserted that a Recovery Asset is, in fact, licensed by You, You agree to take all reasonable steps to investigate such claim. You further agree to respond to any request for additional license information or further written assurances from ImageProtect within five (5) business days of the date of such request.
- Upon request, You agree to provide ImageProtect with copy of all Certificates of Copyright for each Recovery Asset, to the extent available within ten (10) calendar days of such request.
- Should your Content require release(s) for licensing, including but not limited to commercial licensing or sensitive subjects, You shall obtain and maintain all such releases necessary to permit You, and ImageProtect on Your behalf, to license the Recovery Asset. You shall deliver a copy(ies) of such releases to You agree to assume full responsibility for all claims resulting from erroneous and inaccurate information supplied to ImageProtect regarding ownership and/or license history for all Recovery Assets.ImageProtect upon request.
- You agree to assume full responsibility for all claims resulting from erroneous and inaccurate information supplied to ImageProtect regarding ownership and/or license history for all Recovery Assets.
- In the event that You are involved in litigation relative to a Recovery Asset, You agree to notify ImageProtect of any information material to ImageProtect’ ability to perform its obligations herein, including but not limited to: (i) the initiation of such litigation; (ii) the identity of the Recovery Asset(s) involved in litigation; (iii) any settlement, judgment or other resolution in the litigation; and (iv) the Dollar amount of any settlement, judgment or other resolution.
- In the event that You are involved in litigation relative to a Recovery Asset, You agree to have Yourself and/or the rights holder you are authorized to represent serve as claimant or co-claimants, and in some cases as co-claimants along with ImageProtect.
- You agree to cooperate with and assist ImageProtect, including complying with all reasonable requests by ImageProtect in a timely fashion.
- You agree to the pricing schedule and terms of the ImageProtect Service Plans as set forth in Schedule A of this Agreement.
4. Warranties of Customer:
You warrant and represent to ImageProtect as follows:
- You have the right to enter into and be bound by this Recovery Service Agreement.
- You warrant that you are the owner of the Content or that the Content owner has granted you the rights permitted for you to accept and be bound by this Recovery Agreement.
- You warrant that the Recovery Asset does not: (i) infringe or violate the intellectual property rights of any third party, including without limitation any copyright, trademark, service mark, trade secret, trade dress, publicity or privacy right; and to the best of Your knowledge the Recovery Asset does not: (ii) contain any material that, is tortuous, defamatory, slanderous, libelous, or promotes bigotry, racism, hatred or harm against any individual or group; or (iii) contain material that is otherwise illegal in your jurisdiction.
- You warrant that that all information and documentation that You provide to ImageProtect is accurate and complete.
- You warrant that You have performed a thorough search of all available records and each Recovery Asset is not under license by You or Your licensees.
5. Obligations of ImageProtect:
- Upon online acknowledgment or receipt of a fully executed copy of this Recovery Service Agreement, ImageProtect shall seek a settlement and/or license for each Recovery Asset, including taking one or more of the following steps:
- investigating and assessing the viability of each Recovery Asset based on facts and scope of any individuals and/or entities involved in the unauthorized use of the Recovery Asset;
- sending out one or more emails and/or Certified letters, including screenshots of the Recovery Asset, license terms, an invoice with payment instructions and requesting payment of a license fee for the unauthorized use of the Recovery Asset;
- making telephone calls to the individuals and entities involved in the unauthorized use of the Recovery Asset;
- notifying You and requiring further licensing investigation in the event that there is a claim that the Recovery Asset is, in fact, under license by You or Your licensee;or
- recommending that The Parties initiate litigation relative to the Recovery Asset.
- ImageProtect shall use its best efforts to conclude the action You requested for each Recovery Asset and to maximize any settlements and/or licenses in connection with the prices received for same.
- In the event that ImageProtect recommends that The Parties initiate litigation relative to a Recovery Asset, ImageProtect will engage with and manage the proceedings with the attorneys, agents and/or foreign sub-agents. The choice of legal representation and the terms under which it engages its legal representation is at ImageProtect’ sole discretion. ImageProtect will provide You with updates on the proceedings and upon request, will provide You with copies of correspondence in ImageProtect’ possession regarding the Recovery Asset.
- All obligations of ImageProtect under this Agreement apply as well to all agents and foreign sub-agents.
- ImageProtect shall maintain accurate records of all license fees collected and remit payment as described below in Section 6.
In consideration of the services furnished by ImageProtect hereunder and the performance of its obligations hereunder,
- ImageProtect shall be permitted to retain a commission on Net Receipts as set forth in Schedule A (ImageProtect Service Plans and Pricing Schedule) of this Agreement in connection with the settlement and/or license of each Recovery Asset. “Net Receipts” shall be defined as revenue received, of whatever nature and from whatever source, derived from the license and/or settlement of the Recovery Asset, and shall include, without limitation, holding fees and interest assessed by ImageProtect, but shall not be deemed to include
- attorney’s fees
- agents and foreign sub-agents fees,
- service fees, including but not limited to ImageProtect Recovery Service fee for BASIC account customers
- bad debts and uncollectible sums actually incurred; or
- reasonable currency conversion costs. Net Receipts shall include all revenue derived from litigation, after any attorney’s fees or other costs are subtracted, relative to a Recovery Asset regardless of whether ImageProtect recommended The Parties commence litigation pursuant to Section 5(a)(v).
- ImageProtect shall hold all sums received as Net Receipts from the license and/or settlement of the Recovery Asset in trust for You, subject only to retention by ImageProtect of its commission as set forth above.
- ImageProtect shall remit payment and provide You a detailed statement setting forth the licensing by ImageProtect of the Recovery Asset every ninety (90) days on or before fifteen (15) days after the close of each calendar quarter.
- Such statement shall include the following information:
- identity of Recovery Asset;
- customer code;
- the identity of the licensee;
- the scope of the right(s) granted;
- the amount of the Net Receipts;
- the date each payment was received;
- the amount of any deductions from Net Receipts; and
- the net amount due to You.
- If, during any reporting period, Net Receipts derived from Your Recovery Assets do not exceed One Hundred Dollars ($100), payment of such sums to You may be deferred until the next reporting period. In no event, however, shall royalties be paid any less frequently than annually, and notwithstanding any deferral or payment, regular statements shall continue to be sent to You.
- In the event that You enter into a license or sale agreement relating to an unlicensed use of Content based on information identified by ImageProtect to You in a Report and submitted as a Recovery Asset, ImageProtect shall be entitled to its regular commission as set forth in Section 6(a) herein.
- ImageProtect may, from time to time at its discretion, offer promotional sales or packages, which vary the terms herein, including the Compensation set forth in 6(a). In the event that ImageProtect offers You such a promotional sale or package and You accept, in writing, then the terms of the promotional sale or package shall apply instead where they are inconsistent with the terms of this Agreement. All other terms in this Agreement, however, shall apply to any such promotional sale or package.
As between You and ImageProtect, You shall be solely responsible for payment of any and all taxes, whether in the nature of a sales, personal property, remittance, excise or other tax, which may become due and payable in connection with any license of a Recovery Asset pursuant to the terms of this Agreement.
8. Retrieval of Content:
Upon the expiration or termination of this Agreement, ImageProtect shall use all reasonable efforts to promptly retrieve and return to You all of the Content then in ImageProtect’ possession. In the alternative, ImageProtect may, at its sole discretion, delete or otherwise remove the Content from its search and storage systems. Under no circumstances shall ImageProtect be under any obligation to maintain copies of Your Content after the expiration or termination of this Agreement.
9. Agents/Foreign Sub-Agents:
In the event that ImageProtect employs the services of any agents and/or foreign sub-agents in connection with the license of any Recovery Asset, ImageProtect may do so without prior written approval or notice to You.
10. Death or Disability of Customer:
In the event Customer shall die during the term hereof, or shall become disabled or incompetent, Customer or, in the case of death or incompetency, Customer’s personal representative, shall have the right, exercisable by sixty (60) days prior written notice to ImageProtect, to cause this agreement and ImageProtect’ authorization hereunder to terminate.
11. Inability to Locate Customer:
- ImageProtect shall use all reasonable efforts (including inquiries with appropriate trade associations) to locate Customer in the event statements are returned unclaimed. To assist ImageProtect in this endeavor, Customer shall provide ImageProtect with an alternative address for notice purposes on the signature page of this Agreement.
- In the event that notwithstanding ImageProtect’ efforts, Customer cannot be located, ImageProtect shall deposit any portion of gross billings due to Customer in a separate interest-earning bank account (into which account ImageProtect may deposit sums due to other Car Culture, Inc. whom ImageProtect is unable to locate). Such sums shall remain on deposit for a period of five (5) years or such longer period of time as required by law. Six (6) months prior to the expiration of such time period, ImageProtect shall provide the Alliance of Visual Artists, 229 Peachtree Street, NE Suite 2200, Atlanta, GA 30303, or its successor in interest organization with written notice of the name and last known address of Customer. Such notice shall be sent to the Executive Director by certified mail. If ImageProtect is not contacted by Customer or his personal representative before the expiration of such time period, ownership of the sums on deposit with ImageProtect shall pass forever to ImageProtect.
12. Disclaimers of Warranties:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE IMAGEPROTECT RECOVERY SERVICE DESCRIBED IN THIS AGREEMENT IS AT YOUR SOLE RISK. THE IMAGEPROTECT RECOVERY SERVICE IS PROVIDED ON AN “AS IS” BASIS. IMAGEPROTECT DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE IMAGEPROTECT RECOVERY SERVICE WILL RESULT IN YOUR ACTUALLY RECEIVING SETTLEMENT AND/OR LICENSE FEES FOR YOUR RECOVERY ASSETS. IMAGEPROTECT AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- IMAGEPROTECT SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION AND DOCUMENTS IN ITS POSSESSION, BUT YOU ACKNOWLEDGE AND AGREE THAT YOU BEAR THE SOLE RISK OF LOSS OF ANY OF YOUR INFORMATION OR DOCUMENTS. IMAGEPROTECT HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION AND DOCUMENTS IN ANY WAY.
- THE ACTUAL DETERMINATION OF WHETHER OR NOT TO RETAIN COUNSEL AND/OR TO INITIATE LITIGATION SHALL BE AT YOUR SOLE DISCRETION; ANY SUGGESTION BY IMAGEPROTECT IS STRICTLY FOR THE PURPOSE OF ASSISTING YOU AND CONTAINS NO RECOMMENDATION OR WARRANTY THAT THE COUNSEL IS COMPETENT, THAT JURISDICTION OR VENUE IS PROPERLY LAID OR THAT YOUR CLAIM(S) IS VALID, MERITORIOUS OR NOT SUBJECT TO ONE OR MORE DEFENSES INCLUDING, BUT NOT LIMITED TO, FAIR USE AND/OR A PRIOR LICENSE. IF YOU HAVE ANY QUESTIONS REGARDING YOUR RIGHTS, INCLUDING THE DECISION TO INITIATE LITIGATION, YOU SHOULD SEEK THE ADVICE OF A LOCAL ATTORNEY TO ASSIST YOU WITH ANSWERING ANY QUESTIONS THAT YOU MAY HAVE. IF YOU NEED HELP IN CONTACTING A LOCAL ATTORNEY, YOU SHOULD CONTACT YOUR LOCAL COUNTY OR STATE BAR ASSOCIATION.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE IMAGEPROTECT WEBSITE OR THROUGH IMAGEPROTECT’ OFFICERS, EMPLOYEES, AGENTS, PARTNERS OR LICENSORS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.
13. Limitation of Liability:
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGEPROTECT AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR CONTENT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGEPROTECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
- THE USE OF THE IMAGEPROTECT RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES;
- UNAUTHORIZED ACCESS TO, USE OF OR ALTERATION OF YOUR DATA AND/OR CONTENT; OR
- ANY OTHER MATTER RELATING TO THE IMAGEPROTECT RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT.
- YOU ASSUME FULL RESPONSIBILITY FOR ALL USES OF EACH RECOVERY ASSET AS SET FORTH HEREIN AND RELEASE AND INDEMNIFY IMAGEPROTECT FROM ANY AND ALL DAMAGES INCURRED BY IMAGEPROTECT, YOU OR THIRD PARTIES IN CONNECTION WITH ANY SUCH USE.
- UNDER NO CIRCUMSTANCES SHALL IMAGEPROTECT BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES INCURRED BY YOU OR ANY THIRD-PARTY AS A RESULT OF:
- YOUR CHOICE OF COUNSEL;
- YOUR DECISION TO INITIATE LITIGATION;
- ANY COSTS INCURRED AS A RESULT OF LITIGATION; OR
- THE OUTCOME OF ANY LITIGATION.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGEPROTECT AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND IN EXCESS OF THE FEES RECEIVED BY IMAGEPROTECT FOR THE SERVICES PROVIDED TO YOU.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 HEREIN MAY NOT APPLY TO YOU.
14. No Legal Advice:
IMAGEPROTECT IS NOT A LAW FIRM AND IS NOT AUTHORIZED TO, NOR DOES IT, PROVIDE LEGAL ADVICE OR SERVICES. NO ATTORNEY-CLIENT RELATIONSHIP IS FORMED OR SHOULD BE UNDERSTOOD TO BE FORMED BY THE SERVICES PROVIDED BY IMAGEPROTECT. ANY INFORMATION AND/OR INSTRUCTIONS PROVIDED AS PART OF THE IMAGEPROTECT RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT ARE PUBLICLY AVAILABLE, GENERAL INFORMATION AND DO NOT CONSTITUTE LEGAL ADVICE OR SERVICES. THE PROVISION OF PUBLICLY AVAILABLE, GENERAL INFORMATION AS PART OF THE IMAGEPROTECT RECOVERY SERVICES IS NOT AND SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR THE LEGAL ADVICE OF AN ATTORNEY.
15. Independent Contractor:
The Parties hereto acknowledge that this Agreement is one of agency only, and does not constitute an employment agreement, and that ImageProtect is acting in the limited capacity of an independently retained agency on Your behalf. ImageProtect may not bind You contrary to the terms hereof.
- Each of the Parties hereto agrees to indemnify and hold harmless the other Party from and against all final judgments, and settlements with the other Party’s consent (hereafter “claims”) which may arise as a result of a breach or alleged breach by that First Party of any representation, warranty or undertaking made by that First Party in this Agreement. Each Party shall promptly notify the other of any such claim of which it becomes aware, and that other party shall thereupon have the right to undertake the defense of such claim. The Party entitled to indemnification shall have the right, but not the obligation, to be represented by counsel of its choice and participate in such defense at its sole cost and expense. The Party entitled to be indemnified may not settle any claim without prior written approval of the other Party.
- ANYTHING TO THE CONTRARY CONTAINED HEREIN NOTWITHSTANDING, IN THE EVENT IMAGEPROTECT IS CALLED UPON TO INDEMNIFY YOU PURSUANT TO THE FOREGOING INDEMNIFICATION CLAUSE, IMAGEPROTECT SHALL NOT BE LIABLE FOR ANY MONETARY SUMS IN EXCESS OF THE SHARE OF NET RECEIPTS THERETOFORE RECEIVED BY IMAGEPROTECT PURSUANT TO THIS AGREEMENT.
17. Termination of Agreement and Survival of Terms:
- If either Party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner to otherwise violate any of the warranties or obligations to this Agreement as set forth in Sections 3 – 5, each of which the Parties hereby agree are material terms, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have twenty (20) days after receipt of notice to cure the default. If the default is not resolved, then this agreement shall terminate.
- In the event that this Agreement terminates, either pursuant to Section 2 or Section 17(a) herein, ImageProtect shall nonetheless be entitled to receive its regular commission on all Recovery Assets, which were so designated by Customer up to, and including, the date of termination of this Agreement, as set forth in Section 6 of this Agreement for a period of 2 years from the date of termination of this Agreement. The terms of this Agreement, including the Disclaimer of Warranties and Limitation of Liability set forth herein, shall apply with full force to any post-termination commissions as described in this Section 17(b).
- In the event of a material breach of this Agreement by Customer and regardless of whether ImageProtect exercises its right to terminate, ImageProtect may, at its sole discretion, immediately suspend its performance and obligations under this Recovery Service Agreement and/or the Terms and Conditions of Service found at https://www.ImageProtect.com/terms, including, but not limited to, the obligations set forth in Section 6, for so long as such material breach persists.
- Neither of the Parties may assign this Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld. Any assignment in contravention of the foregoing prohibition shall be deemed null and void.
- Except as may otherwise be provided herein, this Agreement shall be binding upon and shall inure to the benefit of the respective heirs, executors, administrators, successors and assigns of the Parties.
- This Agreement incorporates the entire understanding of the Parties concerning the subject matter herein and may not be modified, amended or otherwise changed except by a separate writing signed by the Party to be charged therewith.
- This Agreement shall be governed in accordance with the laws of the state of New York and its validity, construction and effect shall be governed by and enforced pursuant to the substantive laws of the State of New York, without reference to its conflicts of laws principles. The Parties agree that all legal proceedings in connection with the enforcement, construction, interpretation, breach or violation of this Agreement shall be settled by an arbitration conducted by representatives of Volunteer Lawyers for the Arts in New York or, in the event of unavailability, the American Arbitration Association. A judgment incorporating the arbitrator’s decision may be entered in any court having competent jurisdiction. You hereby submit to the jurisdiction of the Volunteer Lawyers for the Arts in New York, the American Arbitration Association in the County of New York, New York as well as any state or federal court located in the County of New York, New York.
- If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
- This Agreement, together with the ImageProtect Terms and Conditions of Service located at https://www.ImageProtect.com/terms, which are incorporated herein by reference, constitute the whole legal agreement between You and ImageProtect and governs Your use of the ImageProtect Recovery Service, and completely replace any prior agreements between you and ImageProtect.