ImageRights Recovery Service Agreement

By accessing this Site and using the ImageRights Services as defined in the ImageRights Terms and Conditions of Service found at https://www.imagerights.com/terms (and incorporated herein by reference as if fully set forth at length), You (hereafter "Customer," "Subscriber" or "You") are accepting and agreeing to be bound by this ImageRights Recovery Service Agreement. If You do not agree to this ImageRights Recovery Service Agreement, You may not use this Site or any of our services.

Agreement made as of this day between You and ImageRights International, Inc., Ten Post Office Square, Suite 800 South, Boston, MA 02109 (“ImageRights" and/or "Us") (collectively You and ImageRights are the "Parties").

Customer is the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, or the authorized representative of the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, in and to certain images (hereafter “Content”). ImageRights is in the business of searching the Internet for unauthorized copies of images, providing reports to its Clients of any potentially unauthorized uses (a “Report”), and recovering settlement fees and/or arranging appropriate licensing of images (collectively, the “ImageRights Recovery Service”). The “ImageRights Services,” which are defined in and governed by the Terms and Conditions of Service found at https://www.imagerights.com/terms , may be modified at any time by ImageRights without prior notice to You when the change does not pertain to a matter of personal data. To the extent any modification is applied in relation to personal data, ImageRights will request your express approval.  Client and ImageRights have determined that it is in their respective best interests to enter into this Recovery Service Agreement (the “Recovery Service Agreement” or the “Agreement”) and the Terms and Conditions of Service for the ImageRights Services (“TOS”) found at https://www.imagerights.com/terms,

1. Grant of Authority:

   1. You hereby appoint ImageRights, and ImageRights hereby accepts such appointment, as Your exclusive agent with respect to the settlement of each Recovery Asset, which may include the right to grant licenses for both past and/or future uses of each Recovery Asset.
   2. Subject to Your prior approval of the general terms and conditions for each Recovery Asset, ImageRights shall have discretion, based thereon, to negotiate the specific terms and conditions of any settlement fee and/or license of each Recovery Asset.
   3. Subject to the terms and conditions herein, ImageRights shall have the full power and authority, directly and on Your behalf, to engage and discuss all related matters with one or more attorneys in connection with a given Recovery Asset, including but not limited to: (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; and (iii) any settlement, judgment or other resolution. ImageRights shall be free to select any such attorney in its discretion, in accordance with the terms and conditions herein.

2. Obligations of Client:

   1. You shall carefully review each Report provided by ImageRights to determine whether any of the uses of the Content identified therein are unauthorized or unlicensed by You. Such review includes, but is not be limited to, Your sales and/or license records related to the Content whether kept by You and/or any of Your authorized agents.
   2. In the event that there is a claim asserted that a Recovery Asset is, in fact, licensed by You, You agree to take all reasonable steps to investigate such claim. You further agree to respond to any request for additional license information, proof of ownership or further written assurances from ImageRights within five (5) business days of the date of such request.
   3. Upon request, You agree to provide ImageRights with copy of all Certificates of Copyright for each Recovery Asset, to the extent available, within ten (10) calendar days of such request.
   4. Should Your Content require release(s) for licensing, including but not limited to commercial licensing or sensitive subjects, You shall obtain and maintain all such releases necessary to permit You, and ImageRights on Your behalf, to license the Recovery Asset. You shall deliver a copy(ies) of such releases to ImageRights upon ImageRight’s request. 
   5. You agree to assume sole and full responsibility for all claims resulting from erroneous and/or inaccurate information supplied to ImageRights regarding ownership, copyright registration status, background facts to the dispute, or history and/or license history for all Recovery Assets.
   6. In the event that ImageRights and/or its attorneys, agents and/or foreign sub-agents must withdraw from an active claim resulting from erroneous and/or inaccurate information supplied to ImageRights by You regarding ownership, copyright registration status, BACKGROUND FACTS TO THE DISPUTE,  or history and/or license history for the Recovery Assets, OR ANY OTHER  ERRONEOUS AND/OR INACCURATE INFORMATION RELEVANT TO THE CLAIM, You agree to reimburse ImageRights and/or its attorneys, agents and/or foreign sub-agents any and all FEES AND costs incurred AND SOUGHT by ImageRights and/or its attorneys, agents and/or foreign sub-agents.
   7. In the event that You are involved in litigation or other legal action relative to a Recovery Asset, You agree to notify ImageRights immediately of any information material to ImageRights’ ability to perform its obligations herein, including but not limited to: (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; (iii) any settlement, judgment or other resolution in the litigation or other legal action; (iv) the Dollar amount of any settlement, judgment or other resolution, and (v) any other information reasonably requested by ImageRights.
   8. In the event that You are involved in litigation relative to a Recovery Asset, You agree to have Yourself and/or the rights holder that You are authorized to represent serve as claimant or co-claimants, and in some cases as co-claimants along with ImageRights.
   9. You agree to cooperate with and assist ImageRights, including complying with all reasonable requests by ImageRights in a timely fashion.
   10. During the term of this Agreement, Client shall not utilize, accept, retain, offer or perform, anywhere worldwide, services identical or similar to the ImageRights Recovery Service or ImageRights Services being provided by ImageRights hereunder, in whole or in part, whether digital, computerized or otherwise, without receiving the prior written consent of ImageRights.
   11. Failure to comply with the terms and conditions set forth in this paragraph shall be deemed a material breach of this Agreement.

3. Warranties and Representations of Client:

   You warrant and represent to ImageRights as follows:

   1. You have the right to enter into and be bound by this Recovery Service Agreement and that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent (and are, nevertheless, over the age of 16), and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with the terms of this Agreement.
   2. You are the single copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, or the authorized representative of the single copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, in and to any and all Content that is provided by You or on Your behalf;
   3. You are not, nor are you acting on behalf of, a collections agency, lawyer, law firm, or photo agency;
   4. You are not acting as an authorized representative or exclusive licensee of more than one copyright owner;
   5. You are solely responsible for the form, content and accuracy of any Content, and any information related thereof, that you have uploaded;
   6. You warrant and represent that the Client’s version of the Recovery Asset, any version of the Recovery Asset uploaded or otherwise provided to ImageRights, and Client’s Content do not: (i) violate, infringe or otherwise interfere with the proprietary, privacy or intellectual property rights of any third party, including without limitation any copyright, trademark, service mark, trade secret, trade dress, publicity rights; (ii) reveal any confidential or proprietary information or trade secret, unless You own the confidential or proprietary information or trade secret or have the owner's express written permission to post it; (iii) contain any material that is tortious, defamatory, slanderous, libelous, menacing, threatening, obscene, false or misleading, illegal in Your jurisdiction, or that promotes, endorses or in any way furthers illegal activities or bigotry, racism, hatred or harm against any individual or group, including without limitation Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; (iv) contain or is a virus, trojan horse, worm, time bomb or other computer programming code, routine or engine that damages, detrimentally interferes with, interrupts, destroys, limits the functionality of, surreptitiously intercepts or expropriates any computer software, hardware, telecommunications equipment, system, data or information; (v) violate any applicable local, state, national or international law or any regulations having the force of law; (vi) remain posted after You have been notified that it violates an of section (i) to (v) in this paragraph.
   7. You will not: (i) cover or obscure any ImageRights page via HTML/CSS, scripting, or any other means; (ii) interfere with, disrupt, or create an undue burden on the Site, ImageRights Services or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site, including but not limited to using any device, software or routine to bypass robot exclusion headers; or (iii) introduce software or automated agents to the Site so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Site.
   8. You warrant that all information and documentation that You provide to ImageRights is accurate and complete.
   9. You warrant that You have performed a reasonable search of all available records and each Recovery Asset is not under any license by You or Your licensees in any way that would adversely impact any activity conducted by ImageRights on Your behalf.

4. Obligations of ImageRights:

   1. Upon online acknowledgment or receipt of a fully executed copy of this Recovery Service Agreement, ImageRights shall seek a settlement and/or license for each Recovery Asset, including taking one or more of the following steps:
   1. investigating and assessing the viability of each Recovery Asset based on facts and scope of any individuals and/or entities involved in the unauthorized use of the Recovery Asset;
   2. sending out one or more emails and/or certified letters, including screenshots of the Recovery Asset, license terms, an invoice with payment instructions and requesting payment of a license fee for the unauthorized use of the Recovery Asset;
   3. making telephone calls to the individuals and entities involved in the unauthorized use of the Recovery Asset;
   4. notifying You and requiring further licensing investigation in the event that there is a claim by the apparently unauthorized user that the Recovery Asset is, in fact, under license by You or Your licensee;
   5. recommending that The Parties initiate litigation relative to the Recovery Asset.
   2. ImageRights shall use its best commercial efforts to conclude the action You requested for each Recovery Asset and to maximize any settlements and/or licenses in connection with the prices received for same.
   3. In the event that ImageRights recommends that Client and/or the Parties initiate litigation or other legal action relative to a Recovery Asset, ImageRights will engage with and manage the proceedings with the attorneys, agents and/or foreign sub-agents, whose role will be to assist in the receipt of settlements or judgments related to the Recovery Assets. The choice of legal representation and the terms under which it engages its legal representation is at ImageRights’ sole discretion. ImageRights will provide You with updates on the proceedings and, upon request, will provide You with copies of correspondence in ImageRights’ possession regarding the Recovery Asset.  From time to time, You may be requested to participate in one or more conference calls with ImageRights and/or related attorneys, agents and/or foreign sub-agents.
   4. ImageRights will not take legal action relative to a Recovery Asset through its legal partners, agents and/or foreign sub-agents unless it first receives approval, via acceptance of its recommendation to do so by clicking on an approval prompt on your online ImageRights account or otherwise, from You.
   5. All rights and obligations of ImageRights under this Agreement apply as well to all agents and foreign sub-agents.
   6. ImageRights shall maintain accurate records of all license fees collected and remit payment as described in the Commercial Terms and in Section 5.

5. Compensation:

   In consideration of the services furnished by ImageRights hereunder and the performance of its obligations hereunder,

   1. ImageRights shall be permitted to retain its ImageRights Commission on Net Recovery Revenue as set forth in the Commercial Terms herein in connection with the settlement and/or license of each Recovery Asset. “Net Recovery Revenue” shall be defined as the value as determined by generally recognized accounting and appraisal standards of any remuneration, consideration or revenue received, of whatever nature and from whatever source, including but not limited to payments to be made over a period of time, noncash equivalent property, releases of liability, crediting and/or promotional considerations or any other form of consideration, derived from the license and/or settlement of the Recovery Asset, and shall include, without limitation, holding fees and interest assessed by ImageRights, all net revenue derived from or as a result of litigation related to a given Recovery Asset (regardless of whether ImageRights recommended that the Parties commence litigation as set forth herein), less all related costs and fees incurred in connection with the given Recovery Asset, including, without limitation:
   1. attorneys’ fees and costs;
   2. agents’ and foreign sub-agents’ fees;
   3. service fees;
   4. bad debts and uncollectible sums actually incurred;
   5. reasonable currency conversion costs; and/or
   6. any other costs or expenses deemed necessary by ImageRights or its partners to incur to achieve license and/or settlement of a Recovery Asset, including but not limited to pro hac vice fees, court filing fees, deposition costs, expert fees and expenses, investigation costs, messenger service fees, outside photocopying expenses, on-line research fees, process server fees and any travel expenses.
   2. ImageRights shall hold all sums received as Net Recovery Revenue from the license and/or settlement of the Recovery Asset on account for You, subject only to retention by ImageRights of its ImageRights Commission and related fees and costs as set forth above.
   3. ImageRights shall remit payment to You of Your share of the Net Recovery Revenue derived from Your Recovery Assets within two calendar months of the end of the month in which ImageRights receives payment of the Net Recovery Revenue.
   4. Such statement, if provided as set forth above, shall include the following information:
   1. identity of Recovery Asset;
   2. the identity of the licensee;
   3. the scope of the right(s) granted;
   4. the amount of the Net Recovery Revenue;
   5. the date each payment was received;
   6. the amount of any deductions from Net Recovery Revenue; and
   7. the net amount due to You.
   5. In the event that You enter into a license or sale agreement relating to an unlicensed use of Content based on information identified by ImageRights to You in a Report and submitted as a Recovery Asset, ImageRights shall be entitled to its regular ImageRights Commission.

6. Mutual Use of Name:

   Client agrees to allow ImageRights, for marketing and publicity purposes including use on ImageRights’ website (www.imagerights.com, or “Site”), to name Client (including by means of Client's logo and/or other trademarks, servicemarks, trade dress or copyrighted imagery) as an ImageRights client and contributor of content to the ImageRights Services. Solely for the aforesaid purposes, Client hereby grants ImageRights a non-exclusive, non-transferable, royalty-free license to use, solely for the Term of the Agreement, Client's logo, servicemarks, trademarks, trade dress, Images and logo. ImageRights agrees to allow Client, and hereby grants Client, a non-exclusive, non-transferable, royalty-free revocable license to use on Client’s website and other promotional material of Client, solely for the Term of the Agreement, the IMAGERIGHTS and PROTECTED BY IMAGERIGHTS trademarks/servicemarks/logos as they appear on the Site and solely in accordance with the trademark guidelines that appear on the Site. Nothing herein shall be deemed as one Party granting the other Party ownership or other rights in the first Party’s logo, name trademarks, servicemarks, trade dress and/or other intellectual property, except in accordance with and to the extent of the licenses set out in this Section. ImageRights may issue a press release regarding the existence of this Agreement.  Not withstanding the provisions in this paragraph and in compliance with ImageRights’ privacy policy, ImageRights will not disclose any of the Client’s or Client’s representative’s or employee’s personal data.

7. Confidentiality:

   Unless expressly agreed to in writing or unless such disclosure is reasonably necessary to comply with legal process, enforce the Terms of Service and/or this Recovery Service Agreement, respond to claims that any Content violates the rights of third parties, or discuss with Your attorney(s) and/or any attorney(s) engaged directly by ImageRights on Your behalf any matters related to the Content or Claims, including but not limited to (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; (iii) any settlement, judgment or other resolution, or except to any third party advisor or representative, or except certain specific information disclosed by ImageRights to ImageRights affiliates, attorneys, agents or foreign sub-agents, neither Party shall disclose to any third party the terms of this Agreement.

8. Taxes:

   As between You and ImageRights, You shall be solely responsible for understanding, ascertaining, calculating and paying any and all taxes, including but not limited to those in the nature of a sales, income, capital gain, personal property, remittance, excise or other tax, which may become due and payable in connection with any license of a Recovery Asset pursuant to the terms of this Agreement.

9. Retrieval of Content:

   You have a right to request a copy of all of the Content in ImageRights’ possession and can make a request to get a complete copy of all of the Content by written correspondence including email.  ImageRights’ will provide you the data in PDF and Comma Separated Values (“CSV”) format in a Zip file.  Upon the expiration or termination of this Agreement, ImageRights shall use all reasonable efforts to promptly retrieve and return to You all of the Content then in ImageRights’ possession. You will have the right to download the Content within a given time period.  After the expiry of the time period, ImageRights will delete or otherwise remove the Content from its search and storage systems. Under no circumstances shall ImageRights be under any obligation to maintain copies of Your Content after the expiration or termination of this Agreement.  ImageRights, may, at its sole discretion, maintain a copy of the processing of any and all of the claims of the Client for the purposes of fulfilling its legal obligations, including its document preservation, anti-spoilation and evidentiary obligations related to actual or potential litigation and discovery obligations in prosecuting or defending any future claims arising from or relating to that work or any other.

10. Agents/Foreign Sub-Agents:

    In the event that ImageRights employs the services of any agents and/or foreign sub-agents in connection with the license of any Recovery Asset, ImageRights may do so without prior written approval or notice to You when the disclosure is related to Your non-personal Content.  ImageRights will request your prior approval for any disclosures of Your personal data to any agents and/or foreign sub-agents.  ImageRights requests all of its agents and/or foreign sub-agents to adhere to privacy policies that are compliant to the highest applicable law in a territory for a given Client including GDPR.  While it selects the appropriate agents and/or foreign sub-agents with reasonable diligence, ImageRights is not responsible for any subsequent violations of law or policies by any third parties including any selected agents and/or foreign sub-agents.

11. Inability to Locate Customer:

    In the event that, notwithstanding ImageRights’ reasonable efforts, Customer cannot be located, ImageRights shall deposit any portion of gross billings due to Customer in a separate interest-earning bank account (into which account ImageRights may deposit sums due to other customers whom ImageRights is unable to locate). Such sums shall remain on deposit for a period of five (5) years or such longer period of time as required by law. If ImageRights is not contacted by Customer or his/her personal representative before the expiration of such time period, ownership of the sums on deposit with ImageRights shall pass forever to ImageRights.

12. Disclaimers of Warranties:

    YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

    1. YOUR USE OF THE IMAGERIGHTS RECOVERY SERVICE DESCRIBED IN THIS AGREEMENT IS AT YOUR SOLE RISK. THE IMAGERIGHTS RECOVERY SERVICE IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. IMAGERIGHTS DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE IMAGERIGHTS RECOVERY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT YOUR USE OF THE IMAGERIGHTS SERVICES WILL RESULT IN YOUR ACTUALLY RECEIVING SETTLEMENT AND/OR LICENSE FEES FOR YOUR RECOVERY ASSETS. IMAGERIGHTS.  IMAGERIGHTS AND ITS DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTY THAT THE IMAGERIGHTS’ SOFTWARE SYSTEMS ARE ERROR-FREE OR WILL OPERATE IN AN UNINTERRUPTED, TIMELY OR SECURE BASIS.
    2. IMAGERIGHTS SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU AND/OR IN ITS POSSESSION, CUSTODY OR CONTROL IN CONNECTION WITH THE IMAGERIGHTS SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOU BEAR THE SOLE RISK OF LOSS OF ANY OF YOUR INFORMATION OR DOCUMENTS. IMAGERIGHTS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION AND DOCUMENTS IN ANY WAY.
    3. THE ACTUAL DETERMINATION OF WHETHER OR NOT TO RETAIN COUNSEL AND/OR TO INITIATE LITIGATION SHALL BE AT YOUR SOLE DISCRETION; ANY SUGGESTION BY IMAGERIGHTS IS STRICTLY FOR THE PURPOSE OF ASSISTING YOU AND CONTAINS NO RECOMMENDATION OR WARRANTY THAT THE COUNSEL IS COMPETENT, THAT JURISDICTION OR VENUE IS PROPERLY LAID OR THAT YOUR CLAIM(S) IS VALID, MERITORIOUS OR NOT SUBJECT TO ONE OR MORE DEFENSES INCLUDING, BUT NOT LIMITED TO, FAIR USE AND/OR A PRIOR LICENSE. IF YOU HAVE ANY QUESTIONS REGARDING YOUR RIGHTS, INCLUDING THE DECISION TO INITIATE LITIGATION, YOU SHOULD SEEK THE ADVICE OF AN INDEPENDENT ATTORNEY TO ASSIST YOU WITH ANSWERING ANY QUESTIONS THAT YOU MAY HAVE. IF YOU NEED HELP IN CONTACTING A LOCAL ATTORNEY, YOU SHOULD CONTACT YOUR LOCAL COUNTY OR STATE BAR ASSOCIATION.
    4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE IMAGERIGHTS WEBSITE OR FROM THE IMAGERIGHTS SERVICES OR THROUGH IMAGERIGHTS’ DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS OR LICENSORS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
    5. THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THIS AGREEMENT.

13. Limitation of Liability:

    1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS and its respective present, former or future parent companies, subsidiaries, divisions, units, and affiliates and their respective licensees, sub-licensees, insurers, distributors, suppliers, retailers, partners, principals, officers, directors, employees, shareholders, representatives, agents, attorneys, customers, subscribers, end-users, vendors, heirs, predecessors, successors and assigns, and all persons acting through, under or in concert with them or any of them SHALL NOT BE LIABLE TO YOU FOR ANY claims, actions, suits, causes of action, demands, fineS, AWARDS, losses, JUDGMENTS, SETTLEMENTS, damages (PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR CONTENT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGERIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingenT, RESULTING FROM:
    1. THE USE OF OR THE INABILITY TO USE THE IMAGERIGHTS RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT;
    2. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES;
    3. UNAUTHORIZED ACCESS TO, USE OF OR ALTERATION OF YOUR DATA AND/OR CONTENT; OR
    4. ANY OTHER MATTER RELATING TO THE IMAGERIGHTS RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT.
    2. YOU ASSUME FULL RESPONSIBILITY FOR ALL USES OF EACH RECOVERY ASSET AS SET FORTH HEREIN AND RELEASE AND INDEMNIFY IMAGERIGHTS FROM ANY AND ALL claims, actions, suits, causes of action, demands, fineS, AWARDS, losses, damages (PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR CONTENT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGERIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingenT INCURRED BY IMAGERIGHTS, YOU OR THIRD PARTIES IN CONNECTION WITH ANY SUCH USE.
    3. UNDER NO CIRCUMSTANCES SHALL IMAGERIGHTS BE RESPONSIBLE FOR ANY claims, actions, suits, causes of action, demands, fineS, AWARDS, losses, JUDGMENTS, SETTLEMENTS, damages (PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR CONTENT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGERIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingenT INCURRED BY YOU OR ANY THIRD-PARTY AS A RESULT OF:
    1. YOUR CHOICE OF COUNSEL;
    2. YOUR DECISION TO INITIATE OR NOT INITIATE LITIGATION;
    3. ANY COSTS INCURRED AS A RESULT OF LITIGATION; OR
    4. THE OUTCOME OF ANY LITIGATION.
    4. ImageRights shall not be responsible for any fineS, AWARDS, claims, actions, suits, causes of action, demands, losses, JUDGMENTS, SETTLEMENTS, damages, costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingent, THAT ARE ASSESSED OR PURSUED against YOU as a result of litigation proceedings or other actions carried out by YOU, or by ImageRights AND/OR ITS ATTORNEYS, AGENTS AND/OR FOREIGN SUB-AGENTS (whether or not engaged by ImageRights) on YOUR behalf with regard to ANY CLAIMS OR INFRINGEMENTS.
    5. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS and its respective present, former or future parent companies, subsidiaries, divisions, units, and affiliates and their respective licensees, sub-licensees, insurers, distributors, suppliers, retailers, partners, principals, officers, directors, employees, shareholders, representatives, agents, attorneys, customers, subscribers, end-users, vendors, heirs, predecessors, successors and assigns, and all persons acting through, under or in concert with them or any of them SHALL NOT BE LIABLE TO YOU FOR claims, actions, suits, causes of action, demands, fineS, AWARDS, losses, JUDGMENTS, SETTLEMENTS, damages (PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, YOUR CONTENT, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGERIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingenT OF ANY KIND IN EXCESS OF THE FEES RECEIVED BY IMAGERIGHTS FOR THE SERVICES PROVIDED TO YOU.
    6. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 HEREIN MAY NOT APPLY TO YOU.

14. No Legal Advice:

    IMAGERIGHTS IS NOT A LAW FIRM AND IS NOT AUTHORIZED TO, NOR DOES IT, PROVIDE LEGAL ADVICE OR SERVICES. NO ATTORNEY-CLIENT RELATIONSHIP IS FORMED OR SHOULD BE UNDERSTOOD TO BE FORMED BY THE SERVICES PROVIDED BY IMAGERIGHTS. NOTWITHSTANDING ANY LITIGATION- AND/OR SETTLEMENT-RELATED INFORMATION WHICH IMAGERIGHTS SHALL BE AUTHORIZED TO DISCUSS WITH YOUR ATTORNEY, ANY INFORMATION AND/OR INSTRUCTIONS PROVIDED AS PART OF THE IMAGERIGHTS RECOVERY SERVICE AS SET FORTH IN THIS AGREEMENT ARE PUBLICLY AVAILABLE, GENERAL INFORMATION AND DO NOT CONSTITUTE LEGAL ADVICE OR SERVICES. THE PROVISION OF PUBLICLY AVAILABLE, GENERAL INFORMATION AS PART OF THE IMAGERIGHTS RECOVERY SERVICES IS NOT AND SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR THE LEGAL ADVICE OF AN ATTORNEY.

15. Relationship:

    The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents, and neither you nor ImageRights shall be deemed to be a partner, employee, fiduciary, agent or representative of the other by your use of the Site.

16. Indemnity:

    1. Each of the Parties hereto agrees to defend, indemnify and hold harmless the other Party and their present, former or future parent companies, subsidiaries, divisions, units, and affiliates and their respective licensees, sub-licensees, insurers, distributors, suppliers, retailers, partners, principals, officers, directors, employees, shareholders, representatives, agents, attorneys, customers, subscribers, end-users, vendors, heirs, predecessors, successors and assigns, and all persons acting through, under or in concert with them or any of them from and against all claims, actions, suits, causes of action, demands, fines, awards, losses, judgements, settlements, damages (punitive, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, your Content, goodwill, use, data, or other intangible losses (even if ImageRights has been advised of the possibility of such damages)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingent, of any kind (collectively, for the purposes of this Section 16, “Claims”) which may arise as a result of a breach or alleged breach by the first mentioned Party of any representation, warranty or undertaking made by that first mentioned Party in this Agreement. Each Party shall promptly notify the other of any such Claim of which it becomes aware, and that other party shall thereupon have the right to undertake the defense of such Claim. The Party entitled to indemnification shall have the right, but not the obligation, to be represented by counsel of its choice and participate in such defense at its sole cost and expense. The Party entitled to be indemnified may not settle any Claim without prior written approval of the other Party.
    2. In addition to the above, You agree to defend, indemnify and hold harmless ImageRights and its present, former or future parent companies, subsidiaries, divisions, units, and affiliates and their respective licensees, sub-licensees, insurers, distributors, suppliers, retailers, partners, principals, officers, directors, employees, shareholders, representatives, agents, attorneys, customers, subscribers, end-users, vendors, heirs, predecessors, successors and assigns, and all persons acting through, under or in concert with them or any of them, from and against any and all claims, actions, suits, causes of action, demands, fines, awards, losses, judgements, settlements, damages (punitive, indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, your Content, goodwill, use, data, or other intangible losses (even if ImageRights has been advised of the possibility of such damages)), costs and expenses of any kind (including without limitation attorneys’ fees and expenses), debts, liens, contracts, obligations, agreements, promises and liabilities, known or unknown, fixed or contingent, of any kind arising from or related to any claim or threatened claim resulting from any erroneous and/or inaccurate information supplied to ImageRights of relevance regarding its pursuit of activity on Your behalf, including but not limited to ownership, copyright registration status, background facts to the dispute, license history for all Recovery Assets.
    3. ANYTHING TO THE CONTRARY CONTAINED HEREIN NOTWITHSTANDING, IN THE EVENT IMAGERIGHTS IS CALLED UPON TO INDEMNIFY YOU PURSUANT TO THE FOREGOING INDEMNIFICATION CLAUSE, IMAGERIGHTS SHALL NOT BE LIABLE FOR ANY MONETARY SUMS IN EXCESS OF THE SHARE OF NET RECOVERY REVENUE THERETOFORE RECEIVED BY IMAGERIGHTS PURSUANT TO THIS AGREEMENT.

17. Termination of Agreement and Survival of Terms:

    1. If either Party to this Agreement willfully or negligently fails to fulfill in a timely and proper manner or otherwise violates any of the warranties or obligations to this Agreement as set forth in Sections 2-4, each of which the Parties hereby agree are material terms, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have twenty (20) days after receipt of notice to cure the default. If the default is not resolved, then this agreement shall terminate.
    2. In the event that this Agreement terminates, and provided such termination is not due to a material breach of this Agreement by ImageRights, ImageRights shall nonetheless be entitled to receive its regular commission on all Recovery Assets, which were so designated by Customer up to, and including, the date of termination of this Agreement, as set forth in Section 5 of this Agreement, for a period of five (5) years from the date of termination of this Agreement. The terms of this Agreement, including the Disclaimer of Warranties, Limitation of Liability and all of Customer’s indemnifications of ImageRights set forth herein, shall apply with full force and survive termination and apply to any post-termination commissions as described in this Section 17.  Termination of the Agreement and limitations on access shall not relieve You of any obligations arising or accruing prior to such termination or limit any liability or obligation You otherwise may have to ImageRights, including all warranties, representations and indemnification obligations contained herein, which hereby expressly survive any termination.
    3. In the event of a material breach of this Agreement by Customer and regardless of whether ImageRights exercises its right to terminate, ImageRights may, at its sole discretion, and in addition to any other available rights or remedies, immediately suspend its performance and obligations under this Recovery Service Agreement and/or the Terms and Conditions of Service found at https://www.imagerights.com/terms,

18. Miscellaneous:

    1. You may not assign or sublicense this Agreement, or any of the rights or obligations herein, in whole or in part, without ImageRights’ prior written consent. Any assignment or sublicense in contravention of the foregoing prohibition shall be deemed null and void.
    2. Except as may otherwise be provided herein, this Agreement shall be binding upon and shall inure to the benefit of the respective heirs, executors, administrators, successors and assigns of the Parties.
    3. This Agreement incorporates the entire understanding of the Parties concerning the subject matter herein and neither this Agreement nor any provision herein may be waived, modified, amended or otherwise changed without a separate writing signed by both Parties.
    4. Any controversy, claim or dispute between the parties arising out of or relating to this Agreement, or any default hereof, that cannot be resolved through mutual negotiations shall be governed by, construed, interpreted and enforced in accordance with the laws of the state of California, without regard to the principles of conflicts of laws and finally determined by arbitration to be held in Orange County, California, before one neutral arbitrator, knowledgeable in the subject matter, except that, to the extent that You have violated or threatened to violate any of ImageRights’ intellectual property rights, ImageRights may seek injunctive or other appropriate relief in any state or federal court in the State of California or Massachusetts.  The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect (the "Rules").  The arbitration award shall be in writing and shall include a statement of findings of fact and conclusions of law for the award.  The arbitration award may not grant any relief that may not be granted under California law.  Judgment on the award may be entered in any court of competent jurisdiction.  The prevailing party in any arbitration, action, suit, or proceeding arising out of or relating to this Agreement shall be entitled to all costs incurred, including, but not limited to, all costs of the arbitration and other costs and expenses (including, but not limited to, attorneys’ fees and expenses).  Such arbitrator shall determine which party is the prevailing party, whether or not such dispute proceeds to final adjudication.  EACH PARTY HEREBY WAIVES ANY RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING RELATED TO THIS AGREEMENT OR TO THE ENGAGEMENT, PERFORMANCES OR APPEARANCES CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES ANY SUCH ACTION OR PROCEEDING.  Nothing in this paragraph or the Rules shall be deemed to limit the ImageRights’ right to obtain the injunctive relief.
    5. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
    6. This Agreement, together with the ImageRights Terms and Conditions of Service located at https://www.imagerights.com/terms,
    7. In entering into this Agreement, the Parties acknowledge that they have relied upon the legal advice of their respective attorneys, who are the attorneys of their own choosing, that such terms are fully understood and voluntarily accepted by them, and that, other than the consideration set forth herein, no promises or representations of any kind have been made to them by the other Party. The Parties represent and acknowledge that in executing this Agreement they did not rely, and have not relied, upon any representation or statement, whether oral or written, made by any other Party or by any other Party’s agents, representatives or attorneys with regard to the subject matter, basis or effect of this Agreement or otherwise.
    8. This Agreement may be executed by the Parties in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.