FlashStock Technology Inc.

Shutterstock Custom Master License Agreement - Updated December 7, 2017

1.         THIS IS A BINDING AGREEMENT

This agreement (the “Agreement”) is by and between Shutterstock Custom Platform ULC, a Canadian corporation located at 360 Adelaide St W, Suite 400, Toronto, ON M5V 1R7 Canada (“we”, “us” or “Shutterstock”) and the entity on behalf of which you are entering into this Agreement (“you” or “Customer”). This Agreement governs your use of the Platform and Content (as defined herein) delivered to you pursuant to our services, and expressly sets forth the rights, obligations, and limitations as between the parties arising from Shutterstock’s custom content services and technology (collectively the “Services”).

2.         DEFINITIONS

As used in this Agreement, the following terms shall have the meanings specified below.

Affiliate” means a party that is bound to the terms hereof by Customer’s signature hereto.

Available Brief” shall mean those unused Briefs remaining pursuant to a currently effective License Order Form.

Available Content” shall mean, with respect to each Available Brief, the total amount of Content that Customer is entitled to license. The amount of Available Content is set and definite for each Available Brief.

Brief” shall mean a request by Customer for Shutterstock to provide new content featuring specific themes, products, individuals or other visual elements.

Confidential Information” shall mean technical, business and financial data, information, documents and materials relating to either party (the “Disclosing Party”) and its affiliates, contractors, suppliers and licensees disclosed to the other party (the “Receiving Party”) that is confidential to the Disclosing Party and which shall include all information relating to the Service and the terms and conditions of this Agreement (which information shall be deemed to be Shutterstock's Confidential Information) and all information which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential.

Content” shall collectively mean Images, Footage (as same are defined hereunder) and any other content incorporated into the output delivered pursuant to a Brief (graphics, synchronized audio content, etc.).

Effective Date” is the earlier of: (i) the date of the first License Order Form entered into hereunder; or (ii) the date on which you accept these terms and conditions.

Footage” shall mean moving images licensed to Customer hereunder by way of the Platform.

Images” shall mean still images licensed to Customer hereunder by way of the Platform.

License Term” shall be the term of the license granted for Content licensed to Customer hereunder which shall commence upon the date Shutterstock publishes the Content to the Platform in furtherance of fulfilling the applicable Brief and expire 2 years following the expiration of the License Order Form pursuant to which it was created.

License Order Form” means a license order form entered into by Customer subject to and deemed to be part of this Agreement and incorporated herein by reference.

Licensee” means Customer, or if Customer enters a License Order Form on behalf of a client, the client expressly set forth in the applicable License Order Form.

Optional Services” shall have the meaning attributed to such term in Section 4.5 below.

Platform” shall mean the password protected software-as-a-service platform by which the Service is provided by Shutterstock, along with any update, fix, alteration or other improvement.

3.         LICENSE TO USE THE PLATFORM

3.1       For so long as Customer has a currently-effective License Order Term, Shutterstock grants to Customer a non-exclusive, non-transferable, worldwide, revocable license to access and use the Platform. For clarity, upon the expiration of Customer’s most recent License Order Term, Customer’s license to access and use the Platform shall expire.

3.2       Customer shall limit access to the Platform solely to Customer’s internal users and outside contractors rendering services on Customer’s behalf (e.g. advertising agencies) (each, and “Authorized User”). For clarity, neither Customer nor its Authorized Users shall be entitled to use the Platform as part of any resale, time- sharing or service bureauing arrangement, or to grant any sublicense to use the Platform. 

3.3       Customer may not, directly or indirectly, including through any person or entity under its control or direction, in any form or manner, copy, distribute, reproduce, modify or prepare derivative works of the Platform, or decompile, reverse engineer, disassemble or otherwise attempt to derive the source code for the Platform.

3.4       Customer shall take all reasonable security measures required to ensure that access to the Platform is restricted to those personnel who need access to the Platform in order to perform their duties to Customer, and Customer shall ensure that all such users are informed of and comply with the restrictions set out in this Agreement. Customer shall be fully responsible for all of its authorized users' access to, and use of, the Platform.

4.         LICENSE ORDER FORMS; BRIEF REQUESTS

4.1       For any image, footage, text, audio, or any other content that you upload or post to the Platform (“Your Content”), you represent and warrant that: (i) you have all necessary rights to submit Your Content to the Platform and grant the licenses set forth herein; (ii) Shutterstock will not need to obtain licenses from any third party or pay royalties to any third party with respect to Your Content; (iii) Your Content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) Your Content complies with Agreement and all applicable laws.         

4.2       By uploading Your Content, you grant Shutterstock a limited, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from Your Content solely for the purpose of allowing you to edit, display, share, and distribute Your Content using the Platform. Shutterstock’s license to Your Content will expire upon your removal of Your Content from the Platform except, Shutterstock may retain a copy of Your Content for legal archival/preservation purposes.

4.3       You may not upload, post, or transmit any video, image, text, audio recording, or other content that:

(i)         Infringes any third party's copyrights or other intellectual property rights or any right of publicity or privacy;

(ii)        Contains any pornographic, defamatory, or otherwise unlawful or immoral content.

(iii)       Violates any law, statute, or regulation.

5.         LICENSE ORDER FORMS; BRIEF REQUESTS

5.1       During the term of each License Order Form, Customer may request fulfillment of unused Available Briefs. Each request will include, at a minimum, a name, the brand to which such Brief applies and a description that will give Shutterstock sufficient detail with respect to the type of Content Customer wishes to receive.

5.2       If a Brief request is deficient in any manner in Shutterstock’s reasonable discretion (e.g. if it is unclear or provides incomplete information), Shutterstock will notify Customer by email to the Authorized User who requested the Brief.  Shutterstock will not commence work on a Brief until such time as Shutterstock feels it has sufficient information to fulfil the Brief request.

5.3       Customer acknowledges Shutterstock will enter into other contractual commitments with third parties to render services to Shutterstock pursuant to Customer’s Brief requests. Customer agrees that if Customer seeks to postpone or materially modify any scheduled services less than 48 hours prior to such services being rendered by the applicable third party, Customer will be deemed to have forfeited the applicable Available Brief. For clarity, if Customer seeks to postpone or modify any services more than 48 hours prior to any services being rendered (with e-mail being sufficient for such purposes), Customer will not have forfeit such Available Brief, and Shutterstock will reschedule the applicable services to a mutually agreed date and time and will otherwise continue with the applicable Brief as scheduled. For clarity, once submitted Customer has no right to cancel a Brief without Shutterstock’s prior written consent.

5.4       Available Briefs expire at the end of the applicable License Order Form. Unused Available Briefs will not “carry forward” to subsequent License Order Forms.

5.5       Without Shutterstock’s prior written consent, for any License Order Form of equal to or greater than 6 months, Customer may not submit more 50% of the Briefs purchased pursuant to such License Order Form in final 60 days of the applicable License Order Form term.

5.6       Each License Order Form will entitle Customer to the following basic services for up to the number of Available Briefs set out therein: (i) a License Term (as defined below); (ii) access to a shared Shutterstock client service representative via e-mail or telephone; and (iii) location specific Content, as further described in each Brief.

5.7       Each License Order Form will commence on the order start date set out therein and will remain in force until the order end date set out therein, provided that each License Order Form will automatically renew on identical terms at Shutterstock’s then- current fees, unless either party provides written notice of its intention to terminate no later than 60 days before the end of the then-current term for such License Order Form. Shutterstock will provide notice to Customer of any fee increase applicable to a License Order Form (with e-mail being sufficient for such purposes) no later than 90 days before the end of the then-current term for such License Order Form.

6.         LICENSE TO USE CONTENT

6.1       Shutterstock hereby grants Licensee an exclusive, non-transferable worldwide license to use, reproduce, modify, distribute, and electronically or via other means transmit Content, License Term applicable to such Content, solely for use in advertising, public relations, promotional or other marketing materials in any and all media now known or hereinafter created relating to Customer, the applicable Customer client, and/or their respective products and services and not, for clarity, any third party or its products or services. 

6.2       Notwithstanding any expiration of the License Term, Licensee will be entitled to continue to use Content for non-commercial corporate archival, historical or other internal purposes as well as for presentations and advertising industry awards and publicity related thereto. In addition, posts or Tweets made during the License Term that include Content may remain on social media sites, provided that neither Customer, Licensee nor any party authorized by Customer or Licensee may re-Tweet or repost such Content after expiration of the License Term. Shutterstock acknowledges that third parties may re-Tweet or repost Content to the extent permitted by social media platforms, and accordingly, any such re-Tweeting or reposting after the License Term by third parties that are not related to or authorized by Customer will not be deemed to be a breach of this Agreement.

6.3       Notwithstanding the licenses granted pursuant to Section 6.1 and Section 6.2 above, Customer acknowledges and agrees that the following additional terms and conditions shall apply with respect to Customer’s use of any Content:

(i)         Customer will be solely responsible for any text or other additional material not provided by Shutterstock and used in connection with any Content, and Customer will defend, indemnify and hold Shutterstock harmless from and against any damages, losses, liabilities, expenses and costs arising from Customer’s use of any such text or additional material;

(ii)        Customer will not use or permit the use of any Content in a defamatory, libelous, pornographic, or unlawful context or any other manner that is contrary to ethical business practices; and

(iii)       if any Content depicting a person is to be used in a sensitive context (including, without limitation, a context relating to sexual conduct, criminal activity, substance abuse, mental condition, financial distress, or religious, political or racial bias), then the existence of a model release may not be sufficient to protect Customer from legal action by the person(s) depicted in the Content, and notwithstanding the foregoing, if Customer elects to use any Content in such a context, Customer agrees to: (a) review the applicable model release with Customer’s legal counsel to confirm that use in such a context is permitted by such model release; and (b) print a statement adjacent to the reproduction indicating that the person appearing in the Content is a model and is used for illustrative purposes only.

7.         OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

Customer acknowledges and agrees that Shutterstock and its suppliers own all right, title and interest in the Platform and the Content, and in all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets or other intellectual property rights relating to the Platform, Content or the marketing thereof. The use by Customer of the Platform and Content is authorized only for the purposes herein set forth. There are no implied licenses granted under this Agreement, and all rights not expressly granted to Customer in this Agreement are reserved. Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) in no event will ownership of any of the Content be transferred to Customer; and (ii) after expiration of the License Term, Shutterstock may use, reuse, distribute, make available, license, electronically transmit, create derivative works from, or otherwise exploit the Content, in whole or in part (including any modified version of any Content) in its sole discretion and without any obligation to notify, obtain the consent of, or make payments to, Customer.

8.         FEES AND PAYMENTS

8.1       Customer shall pay to Shutterstock the fees and charges set out in each License Order Form in accordance with the payment terms set out therein.

8.2       All fees are nonrefundable. For clarity and avoidance of doubt, Shutterstock shall have no obligation to issue refunds or credits for any unused Available Briefs or Available Content, partial months or in connection with any downgrade, cancellation, termination or otherwise. If Shutterstock provides discounts, incentives or any other special pricing terms in a License Order Form, in no event will such discounts, incentives or other special pricing terms affect any previously agreed upon License Order Form or be deemed a precedent for future License Order Forms. The pricing terms in each License Order Form relate to that specific License Order Form only. 

8.3       The fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties (“Taxes”). Customer is responsible for paying Taxes. 

8.4       Except as set out in Section 4.5(iii), any additional expenses that are incurred by Shutterstock in providing the Service on behalf of Customer, and for which Shutterstock seeks reimbursement, will be pre-approved by Customer.

9.         CONFIDENTIALITY / NON-SOLICITATION

9.1      The Receiving Party shall not at any time during the Service Term or for a period of 5 years after any termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement, nor shall the Receiving Party use any such Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall take all reasonable measures to maintain the confidential nature, and protect the secrecy, of all Confidential Information of the Disclosing Party, which measures shall include the highest degree of care that the Receiving Party utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information of the Disclosing Party which may or should come to the Receiving Party’s attention. The foregoing restrictions shall not apply to information that (i) is known to the Receiving Party without any confidentiality restrictions at the time of disclosure to the Receiving Party, (ii) has become publicly known through no wrongful act of the Receiving Party, (iii) has been rightfully received by the Receiving Party from a third party authorized to make such disclosure without restriction, or (iv) has been approved for release by written authorization of the Disclosing Party. In addition, nothing in this Agreement shall prohibit the Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding; provided that the Receiving Party shall 

(i)         give the Disclosing Party prompt notice of such required disclosure prior to disclosure,

(ii)        cooperate with the Disclosing Party to contest such disclosure or seek a protective order with respect thereto, and

(iii)       in any event only disclose the exact Confidential Information, or portion thereof, specifically required to be disclosed.

9.2       Upon termination or expiration of this Agreement, and upon the request by the Disclosing Party, the Receiving Party shall immediately stop using and shall return to the Disclosing Party all Confidential Information of the Disclosing Party, all copies, notes, diagrams, computer memory media and other materials that contain any portion of such Confidential Information, and, in the case of Customer, all specifications, data sheets, drawings and designs relating to the Platform, and reproductions thereof, and any and all similar materials in any way, in whole or in part, based thereon, as well as any and all similar materials which in any way contain, reflect or relate to the Platform.

9.3       Notwithstanding the foregoing, it is understood that the Receiving Party’s computer systems may automatically back-up the Confidential Information of the Disclosing Party. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Receiving Party may retain such copies in its regular archival or backup computer storage system(s) for the period that such archives or backups are normally kept by the Receiving Party. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality and non-use restrictions under this Agreement. 

9.4       Pursuant to the services rendered hereunder by Shutterstock Custom, Customer will have access the identity of certain third-parties used by Shutterstock Custom to fulfill such services. Customer understands and acknowledges that soliciting for services any such third-party will cause significant and irreparable harm to Shutterstock Custom. Customer agrees and covenants that Customer will not directly or indirectly solicit services from any third party identified to Customer pursuant to services rendered hereunder for 2 years following the expiration of Customer’s last License Order Form entered into with Shutterstock Custom.

10.       REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNITY

10.1     Shutterstock represents, warrants and covenants that to its knowledge: (i) the Platform, any Content provided to Customer, and the use thereof, when used for the purposes for which they were designed and in the manner authorized herein, do not infringe or misappropriate any valid and enforceable intellectual property right or confidential information of any third party, or violate any third party right of privacy or publicity; (ii) the Platform will operate substantially in accordance with its specifications; (iii) the Platform does not contain any viruses, worms, time bombs, logic bombs, trap doors, Trojan horses, or similar malicious instructions, techniques, or devices capable of disrupting, erasing, disabling, damaging or shutting down a computer system or software or hardware components thereof; and (iv) Shutterstock will take reasonable security measures in providing the Service and the Platform in order to protect any data, personal information or intellectual property provided by Customer.

10.2     Subject to Section 10, Shutterstock will defend Customer against, and pay any resulting final judgments (or settlements that Shutterstock consents to) for, any claims made by an unaffiliated third party that the Platform or any Content provided to Customer infringes its valid and enforceable intellectual property right, or any third party right of privacy or publicity. Shutterstock’s obligations under this Section 10.2 are subject to all of the following conditions: (i) Customer must notify Shutterstock, in a timely manner and in writing of the claim; (ii) Customer must give Shutterstock sole control over defense and settlement of the claim; and (iii) Customer must provide Shutterstock with reasonable assistance in defending the claim (Shutterstock will reimburse Customer for reasonable prior approved out-of-pocket expenses that Customer incurs in providing that assistance). You have the right to participate in any litigation at your own expense. Shutterstock is not liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided in this Agreement.

10.3     Except as expressly set out herein, the Service, the Platform and the Content are provided to Customer on an “as-is”, “as available” and “with all faults” basis, and Shutterstock expressly disclaims any and all representations, warranties and conditions concerning the Service, the Platform and the Content, including any and all representations, warranties or conditions of design, merchantability or fitness for any particular purpose, and any and all representations, warranties or conditions that might otherwise arise during the course of dealing, usage or trade and those which may be implied by law.

11.       LIMITATION OF LIABILITY

In no event will Shutterstock or its suppliers be liable to Customer or any of its authorized users for any consequential, indirect, exemplary, special, or incidental damages, or damages for any lost data or lost profits, arising from or relating to this Agreement, even if Shutterstock has been advised of the possibility of such damages. Shutterstock’s total cumulative liability in connection with this Agreement, the Service, the Platform, fulfillment of Brief request, and the Content, whether in contract or tort or otherwise, will not exceed: (i) in the case of liability arising from Shutterstock’s indemnification obligations under Section 10.2 above, $4 million; and (ii) in the case of any other liability, the amount paid to Shutterstock under this Agreement in the 12 month period immediately preceding the final event giving rise to such liability. Customer acknowledges that the fees payable to Shutterstock under this Agreement reflect the allocation of risk set forth in this Agreement and that Shutterstock would not enter into this Agreement without these limitations on its liability.

12.       TERM AND TERMINATION

12.1     This Agreement shall commence on the Effective Date and continue until terminated as set forth herein.

12.2     Either party may terminate this Agreement (or one or more License Order Forms), by written notice to the other party, upon the occurrence of either of the following events: (i) the other party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors; or (ii) the other party materially breaches any term, provision, representation or warranty of this Agreement, including non-payment, and such breach or default is not cured to the terminating party's reasonable satisfaction within 15 days of written notice to the other party.  In addition, the parties may terminate this Agreement, or one or more License Order Forms, by mutual written agreement.  

12.3     In the event that Shutterstock terminates this Agreement pursuant to Section 12.2(i) or Section 12.2(ii) above: (a) Customer shall pay Shutterstock for all fees and charges applicable for the then-current License Order Forms within 10 days after any such termination; and (b) the Service Term and all License Terms will immediately terminate and Customer’s right to use the Platform or to use or reproduce the Content will immediately cease, subject to the limited rights set out in Section 6.2 above.

12.4   In the event of any termination of this Agreement by mutual agreement or by Customer pursuant to Section 12.2(i) or Section 12.2(ii) above, or any expiration of this Agreement: (a) the agreement and all currently effective License Order Forms will immediately terminate and Customer’s right to use the Platform will immediately cease; and (b) Customer’s right to use and reproduce the Content will continue for the duration of the applicable License Terms then in effect.

12.5    The applicable provisions set out in Sections 12.3 and 12.4 above will apply, mutatis mutandis, to any termination of one or more License Order Forms.

12.6    Upon termination or expiration of this Agreement for any reason, the following provisions shall survive and remain effective: Section 6, Section 7, Section 8, Section 9.3, Section 10, Section 11 and Section 12.

12.7    Any termination or expiration of this Agreement will be without prejudice to any obligation of either party to the other accruing prior to or at such termination or expiration, and any remedies available to one party due to the other party's breach of this Agreement will survive termination of this Agreement. 

13.       GENERAL

13.1     This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, shall be governed by the laws (excluding any conflicts of laws principles), and in the courts, of the Province of Ontario. The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement.

13.2     Customer shall not make or purport to make any assignment, transfer or conveyance, in whole or in part, of its rights or obligations under this Agreement without the prior written consent of Shutterstock. Subject to the foregoing, the rights and benefits of the parties under this Agreement shall accrue to, and run in favor of, each party’s successors and assigns. The obligations of the parties under this Agreement shall be binding upon their respective successors and assigns. Nothing in this Agreement shall be construed to grant any person or entity not a party hereto any rights or powers whatsoever, and no person or entity shall be a third party beneficiary of this Agreement.

13.3     The provisions of this Agreement are severable. If any provision or part of this Agreement shall be held by any court or other official body of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions or parts hereof shall continue to be given effect and shall bind the parties hereto.

13.4     All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand, (ii) sent by electronic means if confirmed and promptly followed by written confirmation, or (iii) sent by overnight delivery services prepaid and shall be addressed to each party’s respective address as indicated on Shutterstock’s website and as provided by Customer during the account registration process.

13.5     In the event that either party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control, including, but not limited to, acts of God, accidents, fire, natural disaster, accident, act of government, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, strike, labor dispute or walkout, Internet backbone outage, or any other cause beyond the reasonable control of the affected party, then the performance of the obligations of the affected party shall be excused during the continuance of any inability so caused provided that the party whose performance is delayed or prevented promptly notifies the other party of the nature and anticipated duration of the force majeure event.

13.6     The headings of the Sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine; (ii) the words “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all attachments, exhibits and schedules as the same may be from time to time amended or supplemented and not to any subdivision of this Agreement; (iii) the words “party” and “parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” is not intended to be exclusive and means “including without limitation”; and (v) unless specified otherwise, the word “days” refers to calendar days. The terms “will” and “shall” are used interchangeably and indicate that the specified action or forbearance is mandatory. The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.

13.7      It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Section 9 by Customer will cause Shutterstock irreparable damage for which recovery of money damages would be inadequate, and that Shutterstock shall therefore be entitled to obtain timely injunctive relief to protect Shutterstock’s rights under this Agreement in addition to any and all remedies available at law.

13.8      This Agreement contains the entire agreement between the parties with respect to the transactions referred to herein and supersedes all prior and contemporaneous arrangements or understandings, whether oral or written, with respect to the subject matter hereof. Except as expressly set out herein, no supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. The failure of either party to insist in any one or more instances upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance. The obligations of either party with respect to such term, covenant or condition shall continue unchanged and in full force and effect. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

14.         HOW TO CONTACT US

14.1       If you have any questions or concerns about the Platform, you may contact us via e-mail at the following address:

              custom@shutterstock.com

14.2       For clarity, without limiting the generality of Section 12 above, in no event will any information or advice provided by Shutterstock or its representatives via telephone, e-mail or in person serve as an amendment, supplement or waiver of any portion of this Agreement.