TERMS OF SERVICE
HotFileIndex LICENSE AGREEMENT(S)
Dear HotFileIndex Customer:
The following Terms of Service (“TOS”) is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement (“you” or “Customer”) and HotFileIndex (as such term is defined in Section 22 below) and sets forth the rights and obligations with respect to any Content licensed by you. By entering into this TOS, you verify that your country of residence is the same as your billing address.
Please revisit these TOS when you purchase any Content licenses. HotFileIndex reserves the right to modify the TOS at any time in its sole discretion. Prior to such changes becoming effective, HotFileIndex will use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your HotFileIndex account, an announcement on this page, your login page, and/or by other means. Modifications to these TOS will only apply to prospective purchases (including any automated renewals). By licensing Content following any such modifications, you agree to be bound the TOS as modified.
“Content” means all content available for license from the HotFileIndex website, including Images, Footage, and Music (as defined herein.)
“Footage” means any moving images, animations, films, videos or other audio/visual representations, excluding still images, recorded in any format.
“Image(s)” means still photographs, vectors, drawings, graphics, and the like.
“Music” means any musical compositions, master recordings, and any other recordings containing sounds or a series of sounds, in all formats, now known and hereinafter developed.
“Visual Content” shall refer collectively to Images and Footage.
HotFileIndex hereby grants you a non-exclusive, non-transferable right to use, modify (except as expressly prohibited herein) and reproduce Visual Content worldwide, in perpetuity, as expressly permitted by the applicable license and subject to the limitations set forth herein:
A STANDARD IMAGE LICENSE grants you the right to use Images:
As a digital reproduction, including on websites, in online advertising, in social media, in mobile advertising, mobile “apps”, software, e-cards, e-publications (e-books, e-magazines, blogs, etc.), email marketing and in online media (including on video-sharing services such as YouTube, Dailymotion, Vimeo, etc., subject to the budget limitations set forth in sub-paragraph I.a.i.4 below);
Printed in physical form as part of product packaging and labeling, letterhead and business cards, point of sale advertising, billboards, CD and DVD cover art, or in the advertising and copy of tangible media, including magazines, newspapers, and books provided no Image is reproduced more than 500,000 times in the aggregate;
As part of an “Out-of-Home” advertising campaign, provided the intended audience for such campaign is less than 500,000 gross impressions.
Incorporated into film, video, television series, advertisement, or other audio-visual productions for distribution in any medium now known or hereafter devised, without regard to audience size, provided the budget for any such production does not exceed USD $10,000;
For your own personal, non-commercial use (not for resale, download, distribution, or any commercial use of any kind)
AN ENHANCED IMAGE LICENSE grants you the right to use Images (which rights are in addition to 1-5 above and exclusive to Enhanced Image Licenses):
In any manner permitted under a Standard Image License, without any limitation on the number of reproductions, impressions, or budget;
Incorporated into merchandise intended for sale or promotional distribution (collectively “Merchandise”), including, without limitation, textiles, artwork, magnets, wall-art, calendars, toys, stationery, greeting cards, and any other physical reproduction for resale or distribution, provided that such Merchandise incorporates material creative or functional elements apart from the Image(s).
In wall art (and without requiring further creative or functional elements) for decorative purposes in a commercial space owned by you or your client, and not for sale.
Incorporated as elements of digital templates for sale or distribution.
If the Standard or Enhanced Image licenses do not grant the rights you require please contact Customer Service. (Phone: Inside US 1-866-663-3954, Outside US 1-646-419-4452 Email: Customer Support)
A FOOTAGE USE LICENSE grants you the right to use Footage:
in a multi-media production displayed or distributed via the web, on social media, using so-called “Apps”, or as otherwise disseminated in accordance herewith (see restrictions for distribution limitations), provided the audience for such production does not exceed 500,000;
in connection with a live performance, provided the audience for all such performances does not exceed 500,000 people;
If the Footage Use License does not grant the rights you require, please contact Customer Service. (Phone: Inside US 1-866-663-3954, Outside US 1-646-419-4452 Email: Customer Support)
A FOOTAGE COMP LICENSE grants you the right to use watermarked, low resolution Footage as a comp (the “Comp Footage”) solely in test, sample, comp, or rough cut evaluation materials. Footage Comp Licenses do not permit you to display or distribute to the public or incorporated into any final materials any such Footage. Comp Footage can be edited, but you may not remove or alter the HotFileIndex watermark. Comp Footage is available to license under the Footage Use License at the time it is downloaded as Comp Footage, but HotFileIndex makes no guarantees and shall have no obligation to ensure that Comp Footage will be available for license at any time thereafter.
RESTRICTIONS ON USE OF VISUAL CONTENT
YOU MAY NOT:
Use Visual Content other than as expressly provided by the license you purchased with respect to such Visual Content.
Portray any person depicted in Visual Content (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
Use any Visual Content in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.
Modify Visual Content designated “Editorial Use Only” in a manner that changes the context of what is depicted.
Use Visual Content designated “Editorial Use Only” for commercial purposes.
Resell, redistribute, provide access to, share or transfer any Visual Content except as specifically provided herein. For example and not by way of limitation, the foregoing prohibits displaying Content as, or as part of, a “gallery” of content through which third parties may search and select from such content.
Use Visual Content in a manner that infringes upon any third party’s trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition.
Use any Visual Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof.
Falsely represent, expressly or by way of reasonable implication, that any Visual Content was created by you or a person other than the copyright holder(s) of that Visual Content.
RESTRICTIONS SPECIFIC TO FOOTAGE
Use any Footage in a multi-media production distributed via broadcast, cable network, OTT video service (e.g. Netflix, Hulu, Amazon), or in theaters.
Use “stills” derived from Footage except solely in connection with the in-context marketing, promotion, and advertising of your derivative works incorporating Footage.
CREDIT AND COPYRIGHT NOTICES
The use of Visual Content in connection with news reporting, commentary, publishing, or any other “editorial” context, shall be accompanied by an adjacent credit to the HotFileIndex contributor and to HotFileIndex in substantially the following form:
“Name of Artist/HotFileIndex.com”
If and where commercially reasonable, the use of Visual Content in Merchandise or an audio-visual production shall be accompanied by a credit to HotFileIndex in substantially the following form:
“Image(s) or Footage (as applicable), used under license from HotFileIndex.com”
Credit attributions are not required in connection with any other use of Images unless another stock content provided is afforded credit in connection with the same use.
In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
“Production” means all versions of a single audio-visual project or all versions of a single audio-only project in which Music is synchronized to narration in the context of a podcast episode, radio documentary, radio advertisement, or other similar audio-only production.
HotFileIndex grants you a non-exclusive, non-transferable right to synchronize Music in a Production pursuant to the license you purchase (from among the two license types set forth below), and subject to the restrictions set forth in Part II.3 hereof:
STANDARD MUSIC LICENSE: A Standard Music License grants you the non-exclusive right to synchronize Music in a Production (and in in-context trailers and promotional materials), distributed via web based-viewing platforms or used in non-web based “industrial” contexts, which include trade shows, conferences, corporate Events, internal corporate Use, and point of sale.
ENHANCED MUSIC LICENSE: An Enhanced Music License grants you the non-exclusive right to synchronize Music in a Production (and in-context trailers and promotions therefor), solely subject to the restrictions set forth in Section II.3 hereof.
COMP MUSIC LICENSE: A Comp Music License grants you the right to synchronize watermarked Music solely in test, sample, comp, or rough cut evaluation materials related to a Production. The Comp Music License expressly prohibits distributing Music to the public in any form or incorporating Music into any final materials. You may not remove or alter the HotFileIndex watermark from Music under any circumstances
RESTRICTIONS ON THE USE OF MUSIC.
YOU MAY NOT:
Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute to any third-party the Music or the right to use the Music separate and apart from the Production in which (pursuant to your license) it is embodied;
Resell, redistribute, provide access to, share or transfer any Music except as specifically provided herein;
Manufacture, distribute, sell or otherwise exploit “records”, CDs, mp3s or any other audio product embodying sound alone which incorporates Music, other than an audio-only Production expressly described in the definition of “Production” above. For the purpose of this subparagraph the term “records” means all forms of reproductions, whether now known or hereafter devised, manufacture or distributed primary for home use, school use, or juke box use, embodying sound alone (excluding synchronized material);
Use the Music in connection with other material that is pornographic, defamatory, libelous, obscene, immoral, illegal or that otherwise violates any right(s) of any third party(ies);
Violate export laws, restrictions or regulations, by shipping, transferring or exporting Music into any country in violation of any export laws, restrictions or regulation;
Use, sell, sublicense, reproduce, distribute, display, incorporate into or otherwise make Music, in whole or in part, available as, or as part of, production library content, or downloadable files or include the Music or any derivative work incorporating the Music in any other stock product, library, or collection;
Remix, mashup, or otherwise alter the Music, except that you may engage in basic editing of the Music (e.g., setting start/stop points, determining fade-in/fade-out points, etc.) in connection with the exercise of the license granted under this agreement;
Use Music in an audio-only Production in which music is the primary content.
Except for that Music designated “PRO-free,” in the event any public performance licenses are required in connection with your use of the Music authorized under this TOS, you shall be responsible for obtaining such licenses at your sole expense. Notwithstanding anything to the contrary contained in this TOS: (a) in the event the laws of any jurisdiction require that, in order to avoid infringement or the violation of any third party rights, licenses be obtained from collection societies or similar entities for or in connection with activities otherwise authorized under this TOS, you shall be responsible for obtaining and paying for such licenses at your sole expense; and (b) this agreement does not include any so-called “moral rights” or like rights. You will file complete and accurate “cue sheets” with the appropriate Performing Rights Organization(s) and furnish a copy of each such cue sheet to HotFileIndex via email to [email protected]. This obligation shall apply to all Music except that Music designated “PRO-free.”
You may publish Productions incorporating Music on third party “user-generated” content distribution platforms (e.g., YouTube) (each a “UGC Platform”). You may not claim ownership of the Music or otherwise register any Music with any UGC Platform even as synchronized with your own Production. If you become aware that any third party claims any ownership interests in any Music, you agree to promptly notify HotFileIndex of each such claim.
When incorporating the Music in the type of Production in which copyright attribution is customary, you shall provide credit in substantially the following form:
“‘[Music Title]’ performed by [Artist], used under license from HotFileIndex”
HotFileIndex warrants and represents that:
HotFileIndex’s contributors have granted HotFileIndex all necessary rights in and to the Content to grant the rights set forth in Part I or Part II as applicable.
Visual Content in its original unaltered form and used in full compliance with these TOS and applicable law, will not: i) infringe any copyright, trademark or other intellectual property right; ii) violate any third parties’ rights of privacy or publicity; iii) violate any US law, statute, ordinance, or regulation; or iv) be defamatory, libelous, pornographic or obscene.
While HotFileIndex makes commercially reasonable efforts to ensure the accuracy of keywords and descriptions, as well as the integrity of Visual Content designated “Editorial Use Only”, HotFileIndex MAKES NO WARRANTIES AND/OR REPRESENTATIONS REGARDING ANY: I) KEYWORD, TITLES OR DESCRIPTIONS; II) AUDIO IN FOOTAGE; OR III) VISUAL CONTENT DESIGNATED “EDITORIAL USE ONLY”. For the sake of clarity, HotFileIndex will not indemnify or have any liability in respect of any claims arising from inaccurate keyword, titles or descriptions, any audio in Footage, or the use of Visual Content designated Editorial Use Only.
HotFileIndex MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS “WARRANTIES AND REPRESENTATIONS” SECTION.
Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with HotFileIndex, HotFileIndex will defend, indemnify, and hold you harmless up to the applicable “Limit of Liability” set forth below. Such indemnification is solely limited to Customer’s direct damages arising from a third-party claim directly attributable to HotFileIndex’s breach of the express warranties and representations made in Part III hereof, together with associated expenses (including reasonable attorneys’ fees). Indemnification is conditioned upon you notifying HotFileIndex, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., the use of Content at issue, the name and contact information of the person and/or entity making the claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed to HotFileIndex at [email protected], with a hard copy to HotFileIndex, 350 5th Avenue, 21st Floor, New York, New York, 10118, Attention: General Counsel, via certified mail, return receipt requested; or ii) overnight courier, recipient’s signature required. HotFileIndex shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with HotFileIndex in the defense of any such claim and shall have the right to participate in any litigation at your own expense. You agree that HotFileIndex is not liable for any legal fees and/or other costs incurred by you or on your behalf prior to HotFileIndex having a reasonable opportunity to analyze such claim’s validity.
HotFileIndex shall not be liable for any damages, costs or losses arising as a result of modifications made to the Content or due to the context in which you use the Content.
Limits of Liability: HotFileIndex’s total maximum aggregate obligation and liability (the “Limit of Liability”) arising out of each of Customer’s:
Standard Image Licenses shall be USD $10,000.
Enhanced Image Licenses shall be USD $250,000.
Footage Use Licenses shall be USD $10,000.
Music Licenses shall be USD $10,000.
If you have questions about the foregoing, please contact Customer Service. (Phone: Inside US 1-866-663-3954, Outside US 1-646-419-4452 Email: Customer Support)
You will indemnify and hold HotFileIndex, its officers, employees, shareholders, directors, managers, members and suppliers, harmless against any damages or liability of any kind arising from any use of the Visual Content other than the uses expressly permitted by these TOS. You further agree to indemnify HotFileIndex for all costs and expenses that HotFileIndex incurs in the event that you breach any of the terms of this or any other agreement with HotFileIndex.
Except when required by law, HotFileIndex shall be under no obligation to issue refunds under any circumstances. All fees are non-refundable, even if your subscription is terminated before its expiration. You authorize HotFileIndex to charge you all subscription fees for the duration of the term agreed to at the time of purchase. In the event that HotFileIndex determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase. If you reside in the European Union and you cancel your account within fourteen (14) days of making payment to HotFileIndex Netherlands, B.V., provided that you have not yet downloaded or licensed any Visual Content, HotFileIndex Netherlands, B.V., will refund the payment made by you in connection with such cancelled account. To cancel your account, please contact Customer Service. (Phone: Inside US 1-866-663-3954, Outside US 1-646-419-4452 Email: Customer Support).
Following the expiration of your subscription plan, such plan will automatically renew on the same terms as your original plan purchase. You can disable automatic renewal at any time prior to renewal using your account settings. You expressly grant HotFileIndex the right to charge you for each automatic renewal until you timely disable automatic renewal.
If HotFileIndex is required to collect indirect taxes (such as sales tax, value-added tax, goods and services tax, et al) under the laws of your state or country of residence, you shall be liable for payment of any such indirect tax. Where HotFileIndex or you are required to collect or remit direct or indirect taxes, you may be required to self-assess said tax under the applicable laws of your country of residence.
“Non-transferable” as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Content or the right to use Content. You may however, make a one-time transfer of Content to a third party for the sole purpose of causing such third party to print and/or manufacture your goods incorporating Content subject to the terms and conditions herein. If you become aware that any social media website uses any Content in a manner that exceeds your license hereunder, you agree to remove all derivative works incorporating Content from such Social Media Site, and to promptly notify HotFileIndex of each such social media website’s use. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Content. If you become aware of any unauthorized duplication of any Content please notify us via email at [email protected].
Upon notice from HotFileIndex or if you learn that any Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which HotFileIndex may be liable, or if HotFileIndex removes any Content for any reason and gives you notice of such removal, you will remove the Content from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Content at your own expense. HotFileIndex shall provide you with comparable Content (which comparability will be determined by HotFileIndex in its reasonable commercial judgment) free of charge, but subject to the terms and conditions of these TOS.
If you use any Content as part of work product created for or delivered to a client or customer, you will disclose the identities of such clients or customers to HotFileIndex, upon HotFileIndex’s reasonable request.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding 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 the state and county of New York. The language of the arbitration shall be English. There shall be one arbitrator. Each party shall bear its own costs in the arbitration. HotFileIndex shall also have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of HotFileIndex, such action is necessary or desirable.
These TOS shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. These TOS are governed by and shall be construed in accordance with the laws of the State of New York, without respect to its conflict of laws principles.
If you are entering into these TOS on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to HotFileIndex for any breaches of the terms of these TOS. You hereby grant HotFileIndex a worldwide, non-exclusive, limited license to use your trademarks in HotFileIndex’s promotional materials, including a public customer list. HotFileIndex’s use of your trademarks shall at all times conform to your then-current trademark use policies as made available to HotFileIndex and shall at all times inure to your benefit. HotFileIndex further agrees that it will use commercially reasonable efforts to terminate any particular use of your trademark no later than thirty (30) days from the date of receipt by HotFileIndex of your email request to [email protected].
The number of Content downloads available to you is determined by the product you purchase. For the purposes of these TOS, a day is defined as the twenty four (24) hour period beginning at the time your product is purchased. A month is defined as a calendar month beginning on and including the date that you purchase your product and ending on that date which is the earlier of (i) the same date as your purchase in the following month or (ii) the last day of the following month. By way of example, if you purchase a monthly subscription on March 5, it will renew on April 5. If you purchase a monthly subscription on August 31, your subscription will renew on September 30.
Unless otherwise specified in the coupon, any coupon or discount code applied to a purchase hereunder shall apply only to the first payment made in connection with such purchase.
If any individual term of these TOS is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of these TOS, so that these TOS shall otherwise remain in full force and effect.
It is expressly understood and agreed that this TOS is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended by this TOS as to third parties.
In the event that you breach any of the terms of this or any other agreement with HotFileIndex, HotFileIndex shall have the right to terminate your account without further notice, in addition to HotFileIndex’s other rights at law and/or equity. HotFileIndex shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of a breach.
Except as expressly set forth herein, HotFileIndex grants no rights and makes no warranties, with regard to the use of personally identifiable information that may be contained in the Content, music or other audio in Footage, trademarks, trade dress or copyrighted designs or works of art or architecture depicted in any Visual Content. HotFileIndex only has model or property releases where expressly indicated on the HotFileIndex website.
HotFileIndex’s liability under any individual license purchased hereunder shall not exceed the “Limit of Liability” applicable to the license in effect at the time customer knows or should have known of the claim, and is without regard to the number of times the subject Content is licensed or used by you.
Except as specifically provided in Part IV hereof, in no event, will HotFileIndex’s total aggregate liability to you or any third party claiming through you, arising out of or in connection with your use of or inability to use the HotFileIndex websites and/or Content contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by HotFileIndex from you for the applicable Content license.
Neither HotFileIndex nor any of its officers, employees, managers, members, shareholders, directors or suppliers shall be liable to you or to any other person or entity for any general, punitive, special, indirect, consequential or incidental damages, or lost profits or any other damages, costs or losses arising out of your use of the Content, HotFileIndex’s breach of this agreement, or otherwise, unless expressly provided for herein, even if HotFileIndex has been advised of the possibility of such damages, costs or losses.
Except as expressly set forth in Part III, all Content 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. Some Content may contain elements that require additional clearance if the Content is modified or used in a particular context. If you make such modification or use Content in such context, you are solely responsible for obtaining any additional clearances thereby required.
HotFileIndex does not warrant that the Content, HotFileIndex websites, or other materials will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Content is solely with you.
In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting HotFileIndex, HotFileIndex will promptly file a complaint with www.ic3.gov, the internet crime complaint center, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center.
HotFileIndex contracting party:
if you are located in the United States or Canada, or if you created your account before August 3, 2015, “HotFileIndex” means HotFileIndex, Inc., a Delaware corporation with its office at HotFileIndex, Inc., 350 Fifth Avenue, 21st Floor, New York, NY 10118, United States.
if you are not located in the United States or Canada, and created your account on or after August 3, 2015, “HotFileIndex” means HotFileIndex Netherlands, B.V., incorporated under the laws of the Netherlands, having its principal place of business at Herengracht 495, 1017 BT Amsterdam, the Netherlands.
Music. If you are licensing Music, “HotFileIndex” means HotFileIndex Music Canada ULC, with an address at 4398 St-Laurent, Suite 103, Montreal, QC H2W 1Z5, Canada
EFFECTIVE DATE: January 23, 2018