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Content License Agreement

This document is a content license agreement ("Agreement") concerning the licensing of rights in photographic and other types of visual works. In this Agreement, all capitalized terms shall be interpreted as defined either in Section 2, below, or at first usage. This Agreement establishes the standard terms and conditions that govern the licensing of Content among Members of the ImageSpan, Inc. ("ImageSpan") website at www.licensestream.com (the "Site") hosting the LicenseStream™ Services, owned and operated by ImageSpan. The parties to this Agreement shall include:

    1. the Member that owns and wishes to grant certain rights in the Content ("Licensor" or "Provider"),
    2. the Member that wishes to license said rights in the Content ("Licensee" or "End User", both as defined below), and
    3. ImageSpan that provides the Site designed to facilitate the licensing of Content between Licensor and Licensee.

BY OBTAINING, USING, OR PAYING FOR ANY LICENSOR-OWNED CONTENT EXCLUSIVELY USING THE AUTOMATED FEATURES OF THE SITE, LICENSEE AGREES TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT.

  1. Scope of Agreement
    1. 1.1.Licensor and Licensee each expressly acknowledge and agree that this Agreement shall only apply to licensing transactions that are brokered and executed exclusively using the online automated capabilities of the Site and the LicenseStream™ Services.
    2. 1.2.Licensor and Licensee each expressly acknowledge and agree that this Agreement shall not apply to license grant transactions that they may establish between themselves by direct personal negotiation, postal mail communications or any other means that operate outside the exclusive use of the Site and the automated LicenseStream™ Services.
    3. 1.3.In addition to the Site T&Cs, this Agreement shall incorporate by reference as though fully set forth herein any additional terms, conditions and/or restrictions specified in:
      1. 1.3.1.any invoice issued by Licensor and generated by the LicenseStream™ Services on behalf of Licensor upon Licensee's request to license Content via the Site ("Invoice"), and
      2. 1.3.2.any online page(s) provided on the Site that contain specific information applicable to the Content to be licensed hereunder ("Content Restrictions").
  2. Definitions
    1. 2.1."Comps" means Content licensed without a fee solely for Licensee's internal evaluation to assist Licensee in deciding whether it wishes to license the Content as either Rights Managed Content or Royalty-Free Content.
    2. 2.2."Content" shall be as defined in the Site T&Cs.
    3. 2.3."End Use" means the final work product created by Licensee using the Content as authorized herein and excluding Comp uses.
    4. 2.4."End User" shall be as defined in the Site T&Cs.
    5. 2.5."Images" and "Video" mean all still images and moving images, respectively, and related informational materials in any medium obtained from or furnished by Licensor hereunder, including, without limitation, related metadata, text, captions, or information.
    6. 2.6."License" or "Licenses" when used as a noun herein shall mean the specific set of rights in the Content as granted by Licensor to Licensee hereunder subject to the term and conditions of this Agreement (including the Site T&Cs, Invoice and Content Restrictions).
    7. 2.7."Licensee" shall mean an End User where such End User is either:
      1. 2.7.1.the individual listed as the registrant of the Membership account through which this Agreement and the License(s) granted hereunder are entered ("Member"), and
      2. 2.7.2.any employer of Member ("Employer") and/or other entity ("Principal") for which Member is an authorized agent, for the benefit of whom Member is executing this Agreement and the Licenses granted hereunder.
    8. 2.8."Licensor" shall mean the Provider that owns rights in the Content, and that intends to grant License(s) in the Content to Licensee hereunder. The term "Licensor" shall be interpreted to include any Employer or Principal for which Member is an authorized agent, for the benefit of whom Member is executing this Agreement and the Licenses granted hereunder.
    9. 2.9."LicenseStream™ Services" shall mean the online automated service provided by ImageSpan to Members of the Site for the purpose of facilitating licensing transactions under which Providers grant specific rights in Content to End Users.
    10. 2.10."Members or Membership" shall be as defined in the Site T&Cs.
    11. 2.11."Provider" shall be as defined in the Site T&Cs.
    12. 2.12."Rights Managed Content" means Content licensed for a fee on a per-use basis and expressly designated as "Rights Managed" or "RM" by Licensor.
    13. 2.13."Royalty-Free Content" means Content licensed for an unlimited number of uses for a one-time flat fee and expressly designated as "Royalty-Free" or "RF" by Licensor.
    14. 2.14."Term" means
      1. 2.4.1.with respect to each License granted hereunder, the time duration of such License as specified herein or in the applicable Invoice and/or Content Restrictions, unless earlier terminated as provided herein, and
      2. 2.4.2.with respect to this Agreement, the period which ends on the earlier of the
        1. 2.4.2.1.termination or cancellation of this Agreement as provided herein, or
        2. 2.4.2.2.the expiration of all Licenses issued under this Agreement.
  3. License Grant
    1. 3.1.Rights Managed Content. To the extent that Rights Managed Content is specified within the scope of a valid Invoice issued by Licensor hereunder, Licensor grants Licensee a limited, non-exclusive License during the Term to use the Rights Managed Content licensed hereunder to create and exploit the End Use solely as specified in the Invoice, and expressly as limited in the Content Restrictions. Licensor reserves all rights not specifically granted in this Agreement.
    2. 3.2.Royalty-Free Content. To the extent that Royalty-Free Content is specified within the scope of a valid Invoice issued by Licensor hereunder, Licensor grants Licensee a limited, non-exclusive, perpetual and worldwide License to use the Royalty-Free Content to create and exploit the End Use solely as specified in the Invoice, and expressly as limited in the Content Restrictions. Licensor reserves all rights not specifically granted in this Agreement.
    3. 3.3.Comps. To the extent that Comps are specified within the scope of a valid Invoice issued by Licensor hereunder, Licensor grants Licensee a limited, non-exclusive License to use such Comps solely for internal evaluation to assist Licensee in deciding whether Licensee wishes to license the applicable Content as Rights Managed Content or Royalty-Free Content. Unless otherwise stated in the applicable Invoice, the Term of the Comps License is sixty (60) days from the date of download or receipt by Licensee (the "Evaluation Period"). Licensee may not copy, distribute, publish, display or otherwise use in any way the Comps without obtaining an appropriate Rights Managed Content License or Royalty-Free Content License for the applicable Content. If Licensee has not obtained such License upon expiration of the Evaluation Period, Licensee must immediately destroy all copies of the Comps.
    4. 3.4.Restrictions
      1. 3.4.1.The Licenses granted under this Section 3 are limited and are non-transferable and non-sublicensable, unless otherwise specified on the applicable Invoice.
        1. 3.4.1.1.Any License rights granted hereunder pertaining to the Content are personal to Licensee, and the End Use must be solely for Licensee's own benefit.
        2. 3.4.1.2.Licensee's employees and contractors (if any) may use the Content only as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that Licensee remains jointly and severally liable for any breach of the terms of this Agreement by such employee(s) and/or contractor(s).
        3. 3.4.1.3.Except as may otherwise be specifically stated herein, and except insofar as it has been incorporated by Licensee into the permitted End Use, Licensee may not sell, rent, loan, give, sublicense or otherwise transfer to anyone the Content or any right to reproduce the Content.
      2. 3.4.2.Any and all Licenses granted by Licensor are conditioned upon:
        1. 3.4.2.1.Licensee's strict and continued compliance with all provisions of this Agreement, and
        2. 3.4.2.2.Licensor's receipt of full payment by Licensee as identified in the applicable Invoice.
      3. 3.4.3.Any and all License(s) granted to Licensee hereunder and Licensee's right to use the Content shall immediately terminate upon Licensee's failure to comply with any material provision of this Agreement or to make full payment when due, in which case Licensor shall be entitled to pursue all other remedies available under copyright and other laws.
  4. Ownership and Intellectual Property.
    1. 4.1.Licensor shall retain all right, title, and interest in and to all of the copyrights, patent rights, trademarks, trade secrets, and all other proprietary rights in the Content.
    2. 4.2.No rights in any Content are granted except the limited Licenses specified in this Agreement.
    3. 4.3.Any right, title or interest arising in any compilation or derivative work created by Licensee using any Content shall not entitle Licensee to use any Content except as permitted hereunder.
    4. 4.4.Licensee does not acquire any copyright ownership or equivalent rights in or to any Content or any other property of Licensor as a result of any License granted hereunder.
    5. 4.5.Licensee hereby grants permission to Licensor and ImageSpan to use without charge Licensee's End Use in displays and presentations for Licensor's marketing purposes, solely to demonstrate how Licensee has used the Content.
  5. Member Warranties and Disclaimer
    1. 5.1.If either a Provider or End User Member is entering into this Agreement and the Licenses granted hereunder for the benefit of, and/or as an agent on behalf of an Employer and/or Principal, then Member represents and warrants that:
      1. 5.1.1.such Employer and/or Principal has authorized Member to enter into this Agreement on its behalf;
      2. 5.1.2.the Licenses granted hereunder are on that Employer's and/or Principal's behalf;
      3. 5.1.3.such Employer and/or Principal has agreed to be bound hereby;
      4. 5.1.4.Member has actual and express authority to act on behalf of and bind such Employer and/or Principal to the terms of this Agreement;
      5. 5.1.5.if Member is acting as agent for an Employer and/or Principal Licensee, the Content License and/or the End Use is solely for the benefit of such Employer and/or Principal, and Member will not use or provide the Content on behalf of, and/or use the End Use for the benefit of any other person or entity without entering into a separate License; and
      6. 5.1.6.Member will comply with all of the terms hereof and shall be jointly and severally liable for any breach of the terms of this Agreement by Employer and/or Principal.
    2. 5.2.If Member requests any ImageSpan employee or contractor to facilitate Member entering into any License hereunder on behalf of Member and through use of Member's account, Member agrees that such ImageSpan employee or contractor shall be acting under such request as Member's authorized agent for such License, and Member shall be bound by and liable for such License as though personally entered into by Member.
  6. Licensor Warranties and Disclaimer
    1. 6.1.Licensor warrants that it has sufficient rights to enter into this Agreement.
    2. 6.2.Licensor warrants that it is the owner of the Content and that it has the right to grant the License(s) hereunder, EXCEPT THAT Licensor does not make any warranty whatsoever concerning any graphical, trademark, pictorial or other subelements contained within any Image or Video Content licensed hereunder, and Licensee assumes all risk and responsibilities to obtain any releases, clearances and/or other intellectual property rights as required for the End Use (see Section 10, below).
    3. 6.3.Licensor will, as Licensee's exclusive remedy for Licensee's inability to use any Content as the result of material and workmanship defects (but not visual artifacts inherent in the original Content), provide Licensee with a replacement of the digital copy of such Content or, in Licensor's sole discretion, refund any fee actually paid by Licensee to Licensor, provided Licensee has not made any use the Content.
    4. 6.4.Licensor expressly does not warrant the accuracy of any informational materials associated with the Content in any medium obtained from or furnished by Licensor or ImageSpan hereunder, including, without limitation, related metadata, text, captions, or like information.
    5. 6.5.Licensor makes no warranties, nor shall Licensor be liable, for any claims related to or arising from Licensee's use of Content which:
      1. 6.5.1.has been modified by Licensee,
      2. 6.5.2.has been combined by Licensee with other Content, products, text, content or materials, or
      3. 6.5.3.Licensor has otherwise notified Licensee not to use prior to the beginning of the Term of the License for the applicable Content.
    6. 6.6.EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
  7. ImageSpan Disclaimer
    1. AS TO IMAGESPAN, ALL CONTENT AND THE LICENSESTREAM™ SERVICES PROVIDED ON OR ACCESSED FROM THE SITE ARE PROVIDED "AS IS" AND IMAGESPAN MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT, OR THE LICENSESTREAM™ SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
  8. Limitation of Liability
    1. 8.1.EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER IMAGESPAN NOR LICENSOR (NOR ANY OR THEIR RESPECTIVE SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, JOINT VENTURES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, CONTENT SOURCES, LICENSORS, OR LICENSEES) SHALL BE LIABLE TO ANY PARTY HEREUNDER OR ANY THIRD PARTY FOR ANY CLAIMS FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR LICENSEE'S USE OR INABILITY TO USE THE CONTENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE.
    2. 8.2.IN NO EVENT SHALL EITHER IMAGESPAN OR LICENSOR (OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, JOINT VENTURES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, CONTENT SOURCES, LICENSORS, OR LICENSEES) INCUR A TOTAL AGGREGATE LIABILITY TO ANY PARTY OR ANY THIRD PARTY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE'S USE OF ANY CONTENT PROVIDED HEREUNDER, THAT EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY LICENSOR FOR THE USE OF THE APPLICABLE CONTENT. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE.
  9. Indemnification
    1. 9.1.Licensee's Indemnification. Licensee agrees to indemnify and hold harmless Licensor and/or ImageSpan (and their respective officers, directors, employees, contractors, subsidiaries, joint ventures, licensors and licensees) against all claims (including, without limitation, claims by third parties), liabilities, damages (including without limitation punitive damages), judgments, settlements, costs and expenses, including reasonable legal and professional fees and expenses, arising out of or related to:
      1. 9.1.1.Licensee's breach of any terms, conditions or restrictions of this Agreement,
      2. 9.1.2.Licensee's use or modification of any Content, or combination of any Content with any other content,
      3. 9.1.3.Licensee's failure to obtain from third parties all permissions necessary to use the Content,
      4. 9.1.4.Content which Licensor has otherwise notified Licensee not to license or otherwise use prior to the beginning of the Term of the License for such Content; and
      5. 9.1.5.any act or failure to act by Licensee or any of Licensee's employees, contractors, Employers, agents, clients, Principals, or users.
    2. 9.2.Licensor's Indemnification. Licensor agrees to indemnify and hold harmless Licensee and/or ImageSpan (and their respective officers, directors, employees, contractors, subsidiaries, joint ventures, licensors and licensees) against all liabilities, damages (including without limitation punitive damages), costs and expenses (including without limitation) reasonable legal and professional fees and expenses), to the extent attributable to any third-party claim or action that the Content when used as authorized in this Agreement, infringes upon or misappropriates the copyright.
    3. 9.3.Indemnification Notice and Control. Any party claiming indemnification under this Agreement will each provide the indemnifying party with
      1. 9.3.1.prompt written notice of any claim for which indemnification is sought hereunder,
      2. 9.3.2.reasonable authority to control the defense and/or settlement of any such claim, and
      3. 9.3.3.all reasonable assistance in connection with the defense and/or settlement of any such claim.
  10. Releases and Clearances
    1. 10.1.Licensee expressly understands and agrees that Content may contain listed restrictions (on the Invoice and/or Content Restrictions), including, without limitation, restrictions as to time, manner, industry and territory of use, and required pre-approval by a depicted person or their representative.
    2. 10.2.Licensee's ability to access Content does not of itself entitle Licensee to use that Content.
    3. 10.3.Except as may be specifically stated in the Invoice or the Content Restrictions applicable to the licensed Content, the rights Licensor grants to Licensee do not include a license with respect to, and neither Licensor nor ImageSpan make any representations or warranties of ownership or license in any rights related to or in: any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. License expressly acknowledges and agrees that:
      1. 10.3.1.All Content and any use thereof may be subject to the restrictions of copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to third parties.
      2. 10.3.2.Licensee is solely responsible for determining whether Licensee's use of any Content requires the consent of any third party or the grant of any additional rights by any third party, and Licensee agrees that it may not rely solely on the information provided by Licensor or ImageSpan as authorization for the End Use.
      3. 10.3.3.Licensee is solely responsible for obtaining any and all releases and clearances as may be required, including without limitation:
        1. 10.3.3.1.rights from any representative guild, union, professional organization, or other authorized representative; and
        2. 10.3.3.2.if any music is included in the Content, reproduction, distribution, master use, synchronization and performance licenses from the copyright proprietors of the applicable master recording(s) and composition(s) and such other persons, firms or associations, societies or corporations as may own or control the performing rights thereto.
      4. 10.3.4.If Licensee is unsure whether additional grants of rights are needed for Licensee's use, Licensee is responsible for consulting with competent legal counsel. No employee or representative of Licensor or ImageSpan may make, and Licensee shall not rely upon, any representations or warranties other than those stated herein.
  11. Unauthorized Uses
    1. 11.1.WITHOUT LIMITATION, LICENSEE MAY NOT USE CONTENT AS A TRADEMARK, OR FOR ANY PORNOGRAPHIC USE, UNLAWFUL PURPOSE OR USE, OR TO DEFAME ANY PERSON, OR TO VIOLATE ANY PERSON'S RIGHT OF PRIVACY, PUBLICITY OR MORAL RIGHTS, OR TO INFRINGE UPON ANY COPYRIGHT, TRADE NAME OR TRADEMARK OF ANY PERSON OR ENTITY.
    2. 11.2.Licensee does not acquire, and shall not claim, any rights (trademark, copyright or otherwise) in the Content itself apart from the right to incorporate the Content in the End Use.
    3. 11.3.Licensee's unauthorized use of Content may constitute infringement of copyright and other applicable rights and shall entitle Licensor to exercise all rights and receive all remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the unauthorized use of such Content.
    4. 11.4.Licensor in its sole discretion reserves the right to bill Licensee (and Licensee hereby agrees to pay) five (5) times the License fee for any unauthorized use, in addition to any other fees, damages and penalties Licensor may be entitled to under this Agreement and applicable law. The foregoing is not a limiting statement of Licensor's rights or remedies in connection with any unauthorized use of the Content or breach of the Agreement.
  12. Payment/Reporting
    1. 12.1.Licensee hereby agrees to and is required to pay Licensor for all Content that Licensee obtains under the terms of this Agreement, regardless of whether Licensee in fact uses the Content (except as may be provided in Section 14.2 below entitled "Termination").
    2. 12.2.If specified on the applicable Invoice or Content Restriction, payment may include an obligation to pay Licensor a use-based royalty and to submit an accounting or other records verifying Licensee's use of the Content.
    3. 12.3.In the event payment upon account is permitted, or royalty payments are specified, payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first.
    4. 12.4.A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days. The maximum amount permitted by state law shall be imposed on each returned check.
  13. Video-Specific Content
    1. 13.1.Unless specifically noted, all Video is licensed as an individual segment showing one continuous scene from camera start to camera stop, regardless of segment length.
    2. 13.2.If the Video is licensed by the time displayed rather than as licensed under Section 13.1, Licensee shall pay for the actual running time of the Video, and any duplicate usage of the Video, freeze frames, or slow motion shall be calculated at the actual on-screen running time of the Video. All Video licensed by the time displayed may be subject to minimums based upon the agreed per second rate.
  14. General
    1. 14.1.Taxes. Licensee is responsible for the payment of all sales and use taxes, when applicable. Licensor does not accept resale certificates without prior written approval and at Licensor's sole discretion.
    2. 14.2.Termination. Licensor or ImageSpan may, without further obligation or any liability to Licensee or any other person or entity, terminate this Agreement and/or Licensee's license to use any particular Content by written notice in the event Licensee fails to comply with any provision of this Agreement. Upon any termination, cancellation or expiration of this Agreement, neither Licensee nor any other person or entity covered by the License granted to Licensee under this Agreement shall have any further right to make any use of the Content including without limitation the End Use.
    3. 14.3.Copies. At Licensor's reasonable request, Licensee shall provide to Licensor free of charge one (1) copy of any use made of the Content as authorized hereunder.
    4. 14.4.Storage of Content.
      1. 14.4.1.In producing the End Use authorized hereunder, Licensee shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized End Use.
      2. 14.4.2.Upon termination and/or expiration of the Term of this Agreement, Licensee agrees to cease use of all Content and shall promptly delete or destroy any digital copies, except that Licensee may retain one copy of the permitted End Use work Licensee creates incorporating the Content solely as necessary for archival purposes.
    5. 14.5.Protection of Content. If use of Content is permitted on the Internet, or any other online or interactive media, Licensee shall use Licensee's best efforts to protect the Content to ensure that it cannot be copied, and in the case of Video, ensure that it remains in the linear production for which it was licensed and cannot be searched by shot and downloaded in broadcast or substantially comparable quality.
    6. 14.6.Credit Line and Copyright Notice.
      1. 14.6.1.In the case of Images, for editorial uses, Licensee shall include a copyright notice and credit adjacent to each Image (in the format: "© [Licensor's name]", or as specified on the Content Restrictions) with each publicly distributed Image.
        1. 14.6.1.1.Receiving credit is a material aspect of the Agreement for Licensor and ImageSpan, and in editorial uses of Images, Licensee agrees to pay triple the Invoice amount if Licensee does not provide such proper credit and copyright notice for each such use.
        2. 14.6.1.2.For commercial uses, Licensee agrees to pay double the Invoice amount for each such use if Licensee fails to include the credit described above when such crediting is customary and appropriate.
      2. 14.6.2.In the case of Video, Licensee shall provide copyright attributions to Licensor in the production, and on-screen credits as specified in the Invoice, equal in all respects to any credit accorded to any other provider of comparable services.
    7. 14.7.Licensor Trademarks. Except for credits as required above, Licensee may not use the trademarks or service marks of Licensor or ImageSpan without Licensor's or ImageSpan's prior written consent, respectively.
    8. 14.8.Choice of Law / Jurisdiction / Attorneys' Fees.
      1. 14.8.1.Any dispute regarding this Agreement shall be governed by the laws of the State of California, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in the county of San Francisco, CA, regardless of conflicts of laws.
      2. 14.8.2.This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed.
      3. 14.8.3.The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language.
      4. 14.8.4.In any dispute between the parties for breach of this Agreement where Licensor or ImageSpan prevails, Licensor or ImageSpan as applicable shall be entitled to recover its reasonable attorneys' fees, expert and other professionals' fees, court costs, and other legal expenses.
    9. 14.9.Confidentiality.
      1. 14.9.1."Confidential information" includes any information that is either designated as confidential by Licensor or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by Licensee to include without limitation certain pricing, technical, marketing information.
      2. 14.9.2.Licensee acknowledges that such Confidential Information encompasses valuable trade secrets and is proprietary to Licensor.
      3. 14.9.3.Licensee agrees that Licensee will maintain the confidentiality of any Confidential Information that Licensor may provide to Licensee, and Licensee shall not use or disclose the same without the prior written consent of Licensor.
      4. 14.9.4.In the case of a breach of the confidentiality provisions of this Section 14.9 the parties hereby agree that their respective remedies at law are inadequate, and consent to equitable enforcement of their obligations under said sections, by a court of appropriate equity jurisdiction hereunder.
    10. 14.10.Survival. Sections 1, 2, 3.4, 4, 5, 8, 9, 10, 11, 12, and 14 shall survive termination or expiration of the Agreement.
    11. 14.11.Entire Agreement. This Agreement and any listed restrictions constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous communications.
    12. 14.12.Modification. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Licensor, provided that no purchase order or similar document issued by Licensee shall modify this Agreement even if signed by Licensor.
    13. 14.13.Force Majeure. If Licensor's or ImageSpan's performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within Licensor's or ImageSpan's reasonable control, then the date for performance shall be extended by the time of such delay.
    14. 14.14.Severability. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible.
    15. 14.15.Assignment. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that Licensee may not assign or transfer this Agreement without Licensor's prior written consent.
    16. 14.16.No Construction Against Drafter. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
    17. 14.17.Paragraph Headings. The section headings in this Agreement are to be given no legal effect.