Portugal from the Air

Grant of Non-Exclusive License Rights on Sale of Specific Photograph

On purchase of a License, Photographer grants to Buyer the specific license to Buyer’s copy of Photograph, as that license is defined by this Agreement.  

1. The Parties and the subject of the Agreement

1.1. This agreement (“the Agreement”) is applicable to the contractual relations between Thomas Byron Film & Photography (“Photographer”) and the Buyer.

1.2 The Photograph is a digital Photograph which has been taken by the Seller with a camera phone, camera or similar device designed for taking photos and/or video.

1.2. By this Agreement, Photographer grants Buyer a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, nontransferable copyright license to use their copy of the Photograph as viewed on or downloaded from Photographer’s website or online marketplace.  This nontransferable, nonexclusive copyright license includes the right to broadcast, copy, display, distribute, modify, perform, publish, reproduce, transmit, and to create derivative works of their copy of the Photograph in both print and electronic formats provided that any such usage is in accord with any relevant legislation and the terms of this Agreement.

1.3 Photographer retains all other rights regarding the Photograph.

1.4 Except as expressly set forth in this license, Photographer makes no representations, grants no rights, and makes no warranties. Photographer makes no warranties with regard to Photograph and does not warrant any aspect of Photograph. Photograph is provided "as is" without warranty of any kind, either express or implied, including, but not limited to the implied warranties of non-infringement, merchantability, or fitness for a particular purpose.  

2. Copyright. Buyer agrees to protect all uses of the Photograph as copyright of Photographer or copyright of Buyer’s work when such work incorporates the Photograph in part or in whole.

3. Limitation of Liability.  Photographer total maximum aggregate obligation and liability (the "Limit of Liability") arising from this Agreement is the total of moneys paid to Photographer for this license. 

Photographer is not and shall not be liable for Buyer’s use of Photograph or any use by other parties to whom Buyer directly or indirectly provides access to the Photograph.  Photographer is not and shall not be liable for any damages, costs or losses arising as a result of the activities related to Buyer’s use of the Photograph, including, but not limited to modifications made to the Photograph or due to the context in which Buyer uses the Photograph.

4. Indemnification. Buyer agrees to and will hold harmless and indemnify the Photographer against any and all claims and actions arising out of the activities related to their use of the Photograph, including, but not limited to any and all claims and actions arising from this Agreement.  Buyer agrees to and will hold harmless and indemnify Photographer against Buyer’s use of the photograph including any use by other parties to whom Buyer has directly or indirectly provided access.  

5. Non-refundable.  Except when required by law, Photographer shall be under no obligation to issue refunds under any circumstances.

6. Arbitration. Any controversy or claim arising out of or relating to this TOS, or the breach thereof, shall be settled by binding individual (not class) arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association or of the International Centre for Dispute Resolution in effect on the date of the commencement of arbitration, rather than in court, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The place of arbitration shall be Boston located in the state of Massachusetts within the United States. The language of the arbitration shall be English. There shall be one arbitrator to be mutually agreed by the parties. Each party shall bear its own costs in the arbitration. Both parties agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime).  Photographer and Buyer agree that each may bring claims against the other only in their individual capacity and not as a plaintiff or class member in any purported class or representative action.  Unless both Buyer and Photographer agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Photographer and Buyer acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable disputes under this Agreement. 

7. Severability. If any provision of this Agreement shall be held or made invalid by arbitration or a court decision, statute or rule, or shall be otherwise rendered invalid, the remainder of this Agreement shall not be affected thereby.