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., 51 Melcher Street, 1 st Floor, Boston, MA 02210 (“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 Customers 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 governed by the Terms and Conditions of Service found at https://www.imagerights.com/terms and incorporated herein as Exhibit A, which may be modified at any time by ImageRights without prior notice to You). Customer 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”). Customer has identified or will identify one or more unauthorized uses of the Content either in a Report provided by ImageRights, or submitted by Customer, which Customer hereby authorizes ImageRights to attempt to settle and/or license (each a “Recovery Asset”) upon the terms and conditions set forth herein.

1. Grant of Authority:

  1. You hereby appoint ImageRights, and ImageRights hereby accepts such appointment, as Your 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 terms and conditions for each Recovery Asset, ImageRights shall have discretion regarding the 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. Term:

This Agreement shall commence as of the date first set forth above and shall continue for a period of one (1) year thereafter (the “Initial Period”). Subject to early termination, this Agreement shall renew itself automatically for a period of one (1) year (the “Renewal Period”) unless terminated in writing by either Party thirty (30) days before the expiration date. The Initial period and Renewal Period are collectively referred to herein as the “Term.”

3. Obligations of Customer:

  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 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 or history and/or license history for the Recovery Assets or per Your direction, You agree to reimburse ImageRights any and all 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. You agree to the pricing schedule and terms of the ImageRights Service Plan for which you have registered on the Site.
  11. Failure to comply with the terms and conditions set forth in this paragraph shall be deemed a material breach of this Agreement.

4. Warranties of Customer:

You warrant and represent to ImageRights as follows:

  1. You have the right to enter into and be bound by this Recovery Service Agreement.
  2. You warrant that You are the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106 in and to the Content or that the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106 has granted You the rights permitted for You to accept and be bound by this Recovery Agreement.
  3. You warrant that the Recovery Asset does not: (i) infringe or violate the intellectual property rights of any third party, including without limitation any copyright, trademark, service mark, trade secret, trade dress, publicity or privacy right; (ii) contain any material that, is tortious, defamatory, slanderous, libelous, or promotes bigotry, racism, hatred or harm against any individual or group; or (iii) contain material that is otherwise illegal in Your jurisdiction.
  4. You warrant that all information and documentation that You provide to ImageRights is accurate and complete.
  5. You warrant that You have performed a reasonable search of all available records and each Recovery Asset is not under license by You or Your licensees.

5. 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 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.
  1. 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.
  2. In the event that ImageRights recommends that Customer 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. 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.
  3. All rights and obligations of ImageRights under this Agreement apply as well to all agents and foreign sub-agents.
  4. ImageRights shall maintain accurate records of all license fees collected and remit payment as described below in Section 6.

6. Compensation:

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

  1. ImageRights shall be permitted to retain a commission on Net Recovery Revenue as set forth in the ImageRights Service Plan for which you have registered on the Site, in connection with the settlement and/or license of each Recovery Asset. “Net Recovery Revenue” shall be defined as revenue received, of whatever nature and from whatever source, 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, including but not limited to ImageRights case administration fees;
    4. bad debts and uncollectible sums actually incurred; and/or
    5. reasonable currency conversion costs.
  1. 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 commission and related fees and costs as set forth above.
  2. 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.
  3. 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.
  4. If, during any reporting period, Net Recovery Revenue derived from Your Recovery Assets do not exceed One Hundred Dollars ($100), payment of such sums to You may be deferred until the next reporting period where Net Recovery Revenue exceeds One Hundred Dollars ($100) in the aggregate.
  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 commission as set forth in Section 6(a) herein.
  6. ImageRights may, from time to time at its discretion, offer promotional sales or packages, which vary the terms herein, including the Compensation set forth in 6(a). In the event that ImageRights offers You such a promotional sale or package and You accept, in writing, then the terms of the promotional sale or package shall apply instead where they are inconsistent with the terms of this Agreement. All other terms in this Agreement, however, shall apply to any such promotional sale or package.

7. Taxes:

As between You and ImageRights, You shall be solely responsible for payment of any and all taxes, whether in the nature of a sales, 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.

8. Retrieval of Content:

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. In the alternative, ImageRights may, at its sole discretion, 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.

9. 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.

10. Death or Disability of Customer:

In the event Customer shall die during the term hereof, or shall become disabled or incompetent, Customer or, in the case of death or incompetency, Customer’s personal representative, shall have the right, exercisable by sixty (60) days prior written notice to ImageRights, to cause this agreement and ImageRights’ authorization hereunder to terminate.

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" BASIS. IMAGERIGHTS DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE IMAGERIGHTS RECOVERY SERVICE WILL RESULT IN YOUR ACTUALLY RECEIVING SETTLEMENT AND/OR LICENSE FEES FOR YOUR RECOVERY ASSETS. IMAGERIGHTS AND ITS OFFICERS, EMPLOYEES, AGENTS, 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 AND FITNESS FOR A PARTICULAR PURPOSE, 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 AND DOCUMENTS IN ITS POSSESSION, 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 THROUGH IMAGERIGHTS’ OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS OR LICENSORS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  5. THESE DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL CONDITION OF THE AGREEMENT.

13. Limitation of Liability:

  1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY 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), RESULTING FROM:
    1. THE USE OF 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 DAMAGES INCURRED BY IMAGERIGHTS, YOU OR THIRD PARTIES IN CONNECTION WITH ANY SUCH USE.
  3. UNDER NO CIRCUMSTANCES SHALL IMAGERIGHTS BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES INCURRED BY YOU OR ANY THIRD-PARTY AS A RESULT OF:
    1. YOUR CHOICE OF COUNSEL;
    2. YOUR DECISION TO INITIATE LITIGATION;
    3. ANY COSTS INCURRED AS A RESULT OF LITIGATION; OR
    4. THE OUTCOME OF ANY LITIGATION.
  4. YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND IN EXCESS OF THE FEES RECEIVED BY IMAGERIGHTS FOR THE SERVICES PROVIDED TO YOU.
  5. 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.

16. Indemnity:

  1. Each of the Parties hereto agrees to defend, indemnify and hold harmless the other Party and their respective officers, directors, shareholders and agents, from and against all final judgments, and settlements with the other Party’s consent (hereafter “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 officers, directors, shareholders and agents, from and against any and all losses, costs and expenses (including without limitation reasonable outside attorneys’ fees and costs) arising from or related to any claim or threatened claim resulting from any erroneous and/or inaccurate information supplied to ImageRights regarding ownership, copyright registration status or history and/or 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 3 - 5, 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 6 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 to any post-termination commissions as described in this Section 17(b).
  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 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 may not be modified, amended or otherwise changed except by a separate writing signed by the Party to be charged therewith.
  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 finally determined by arbitration to be held in Orange County, California, before one neutral arbitrator, knowledgeable in the subject matter. 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,