Early Morning Media, LLC License Agreement

The following is a legal agreement (the “Agreement”) between you or the employer or other entity on whose behalf you are entering into this Agreement (“you” or “Licensee”) and Early Morning Media, LLC (“EMM”). Please read this Agreement carefully before downloading any EMM posters, drawings, or images (collectively, “Content”). By downloading any Content, you agree to be bound by this Agreement. Your failure to comply with the terms of this Agreement could subject you to legal liability.

The parties agree as follows:

1. Definitions. The following definitions apply to this Agreement:

1. “Invoice” means the computer-generated or pre-printed standard form invoice provided by EMM that shall include, without limitation, a description of the Licensed Content selected and the corresponding price for the license of such Licensed Content (“License Fee”). The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.

2. “Licensed Content” means any poster, drawing, artwork, image, file, or other visual representation generated optically, electronically, digitally or by any other means, including any prints, original digital files, or any copies thereof, or any other product protected by copyright, trademark, patent, or other intellectual property right, which is licensed to Licensee by EMM under the terms of this Agreement. Any reference in this Agreement to the Licensed Content shall be to each individual item within the Licensed Content and also to the Licensed Content as a whole.

3. “Licensee” means the entity purchasing a license hereunder or, if there is a separate Purchaser, the entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.

4. “Purchaser” means the entity purchasing the license hereunder on behalf of a third-party Licensee.

5. “Reproduction” and “Reproduce” mean any form of copying or publication of the whole or a part of any Licensed Content, via any medium and by whatever means, as well as the distortion, alteration, cropping, or manipulation of the whole or any part of the Licensed Content, and the creation of any derivative work from, or that incorporates, the Licensed Content.

6. “User” means Licensee or any of its employees or subcontractors who: (i) views, downloads, manipulates, edits, modifies, or saves the digital file containing the Licensed Content; (ii) is otherwise directly involved in the creative process utilizing the Licensed Content; or (iii) incorporates the Licensed Content into any derivative work.

2. Grant of Rights. Subject to the terms of this Agreement:

1. EMM grants to Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable, worldwide license (the “License”) to reproduce the Licensed Content identified in the Invoice solely as follows:
   (i) 20 print reproductions on 8.5×11 size paper; and (ii) downloading the digital file for personal use an unlimited number of times in any and all media for all purposes other than those uses prohibited under Section 3 of this Agreement.

2. Licensee may store the Licensed Content in a digital library, network configuration, or similar arrangement to allow the Licensed Content to be viewed by employees, partners, or clients of Licensee, so long as it is accessible to 10 or fewer total viewers. Licensee must purchase additional licenses if the Licensed Content is posted on any electronic media or digital library accessible to more than 10 total viewers.

3. Restrictions.

1. Licensee may not do any of the following under the License: (i) make the Licensed Content available in any medium accessible by persons other than its authorized Users; or (ii) make the Licensed Content available in a manner intended to allow or invite a third party to download, extract, redistribute, or access the Licensed Content as a standalone file.

2. Licensee may not, without obtaining the prior written consent of EMM and the payment of additional License Fees: (i) Reproduce the Licensed Content for profit, in any form on any medium; (ii) distribute the Licensed Content to any third party knowing such third party intends to Reproduce the Licensed Content; or (iii) include the Licensed Content in an electronic template or digital file intended to be Reproduced by third parties on electronic or printed products.

3. Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of the Licensed Content.

4. Licensed Content, or any portion thereof, shall not be incorporated into a logo, corporate ID, trademark, or service mark, without obtaining the prior written consent of EMM.

5. Where Purchaser is licensing Licensed Content on behalf of a Licensee, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. Nothing in this Section shall excuse Purchaser’s obligation to make payment to EMM of the License Fee.

6. If the Licensed Content is Reproduced on a website under such circumstances as may be permissible under this Agreement, Licensee shall post terms and conditions on the website that prohibit downloading, republication, retransmission, reproduction, and other use of the Licensed Content.

7. If the Licensed Content is Reproduced on a social media platform or other third party website: (i) the rights granted herein shall automatically be revoked in the event that the platform or website seeks to exploit purported rights to the Licensed Content contrary to the terms of this Agreement, such as through the platform or website’s End User License Agreement; and (ii) in such event, upon EMM’s request, Licensee shall remove any Licensed Content from such platform or website.

4. Credit and Intellectual Property.

1. Copyright. No ownership or copyright in any Licensed Content shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, EMM grants Licensee no right or license, express or implied, to the Licensed Content.

2. Trademarks. In connection with the use of “Early Morning Media” or any other of its partners’ trade names, trademarks, logos, or service marks, including the names or titles of all Licensed Content (“Marks”), Licensee acknowledges and agrees: (i) such Marks are and shall remain the sole property of EMM or its partners, as applicable; (ii) except as expressly required in order to satisfy the credit obligations under this Agreement, nothing shall confer upon Licensee any right of use in or to the Marks; and (iii) Licensee shall not now or in the future contest the validity of EMM’s Marks.

3. Credit. All Licensed Content Reproduced by Licensee under this Agreement must include the following credit line adjacent to the Licensed Content: “Created by Early Morning Media. All rights reserved.”

4. Notice of Violations. Licensee will immediately notify EMM if it becomes aware or suspects that any third party that has gained access to the Licensed Content through Licensee is wrongfully using the Licensed Content, in whole or in part, or is violating any of EMM’s intellectual property rights, including, but not limited to, Marks and copyrights.

5. Warranty; Limitation of Liability.

1. EMM warrants that: (i) the Licensed Content will be free from defects in material and workmanship for 15 days from delivery (with Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Content); (ii) it has all necessary rights and authority to enter into and perform this Agreement; and (iii) Licensee’s use of the Licensed Content in accordance with this Agreement and in the form delivered by EMM (i.e., excluding any modifications by Licensee) will not infringe on any copyright, moral right, trademark, or other intellectual property right, and will not violate any right of privacy or right of publicity, of any third party.

2. Licensee should examine all Licensed Content for possible defects (whether digital or otherwise) before sending any Licensed Content for Reproduction. Without prejudice to Section 5(a) above, EMM shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Content or in any way relating to Licensee’s or a third party’s Reproduction of Licensed Content.

3. EMM DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED CONTENT OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EMM SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER SIMILAR DAMAGES, COSTS, OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF EMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. EMM SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS, OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED CONTENT BY LICENSEE OR THE CONTEXT IN WHICH LICENSED CONTENT IS USED BY LICENSEE. IN NO EVENT SHALL EMM BE LIABLE TO LICENSEE FOR ANY AMOUNTS EXCEEDING THE LICENSEE FEE PAID TO EMM UNDER THIS AGREEMENT.

6. Indemnification.

1. Provided Licensed Content is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement and as Licensee’s sole and exclusive remedy for any breach of the representations and warranties set forth in Section 5(a) above, EMM shall, subject to the terms herein, defend, indemnify, and hold harmless Licensee from all damages, liabilities, and expenses (including reasonable attorneys’ fees), arising out of claims by third parties for an actual or alleged breach by EMM of its warranties set forth in Section 5(a) above (“Claims”). EMM shall have no obligation under this Section for any Claims that arise out of or are a result of, in whole or in part: (i) Licensee’s modification of the Licensed Content, where the Claim would not have arisen but for the modification made by Licensee; (ii) the context in which Licensed Content is used by Licensee, where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee’s continued use of Licensed Content following notice from EMM, or upon Licensee’s knowledge, that Licensed Content is subject to a claim of infringement of another’s right. The foregoing states EMM’s entire indemnification obligation under this Agreement.

2. Licensee shall, subject to the terms herein, defend, indemnify, and hold harmless EMM and its parent, subsidiaries, creators, content providers and their respective officers, directors, and employees from all damages, liabilities, and expenses (including reasonable attorneys’ fees), arising out of or as a result of claims by third parties relating to Licensee’s use of any Licensed Content outside the scope of the License granted in this Agreement or any other actual or alleged breach by Licensee of this Agreement.

3. The party seeking indemnification pursuant to this Agreement shall promptly notify the other party in writing of such claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement, or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

7. Unauthorized Use; Termination.

1. Any use of Licensed Content in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling EMM to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.

2. EMM reserves the right to terminate this Agreement in the event Licensee: (i) enters the Agreement after having received notice of unauthorized use from EMM relating to the Licensed Content; (ii) fails to pay the License Fee in full within the time specified in the Invoice; or (iii) otherwise breaches the terms of this Agreement.

3. Upon termination of this Agreement, Licensee must immediately: (i) stop using the Licensed Content; and (ii) destroy or, upon the request of EMM, return to EMM the Licensed Content.

8. Miscellaneous Terms.

1. Audit/Certificate of Compliance. Upon reasonable notice, Licensee shall provide sample copies of Reproductions containing Licensed Content to EMM, including by providing EMM with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Content is Reproduced. In addition, upon reasonable notice, EMM may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Content in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Licensee to EMM of five percent or more of the amount Licensee should have paid for the time period that is the subject of the audit, in addition to paying EMM the amount of such underpayment, Licensee shall also reimburse EMM for the costs of conducting such audit. Where EMM reasonably believes that Licensed Content is being used outside of the scope of the license granted under this Agreement, Licensee shall, at EMM’s request, provide a certificate of compliance signed by an officer of Licensee, in a form to be approved by EMM.

2. Electronic Storage. For all Licensed Content that is delivered to Licensee in electronic form, Licensee must retain the copyright symbol, the name of EMM, and any other information as may be embedded in the electronic file containing the Licensed Content.

3. Withdrawal. Upon notice from EMM, or upon Licensee’s knowledge that any Licensed Content may be subject to a claim of infringement of another’s right for which EMM may be liable, EMM, in its sole discretion, may require Licensee to immediately and at Licensee’s own expense: (i) stop using the Licensed Content; (ii) delete or remove the Licensed Content from its premises, computer systems, and storage (electronic or physical); (iii) take down or otherwise cease display of any print Reproduction of Licensed Content; and (iv) ensure that its clients do likewise.

4. Governing Law/Arbitration. This Agreement will be governed in all respects by the laws of the State of Arizona, without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association (“AAA”) or of the International Centre for Dispute Resolution (“ICDR”) in effect on the date of the commencement of arbitration (the applicable rules to be at Licensee’s discretion) to be held in Flagstaff, Arizona or Phoenix, Arizona, whichever is closer to Licensee. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, EMM shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the sole discretion of EMM, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within one year of the acts, events, or occurrences giving rise to the claim.

5. Jurisdiction and Venue. The parties: (i) agree any suit or other legal proceeding arising out of or relating to this Agreement must be brought only in the state or federal courts, as applicable, located in Coconino County, Arizona; (ii) consent to the jurisdiction of each such court in any such suit or proceeding; and (iii) waive any objection regarding venue or forum non conveniens.

6. Attorneys’ Fees and Costs. The prevailing party in any dispute between the parties litigated through final judgment shall be entitled to reimbursement by the other party for all attorneys’ fees and costs, including court costs, costs of expert witnesses, and other litigation-related fees and costs.

7. Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.

8. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

9. Entire Agreement. This Agreement is intended for customers of EMM and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by EMM and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.

10. Taxes. All License Fees are exclusive of any applicable sales, use, withholding, or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).

11. Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit, or construe the scope of any term or provision of this Agreement.