Outrigger Kaanapali Beach Resort

IMAGES LICENSE AGREEMENT

BY ENTERING THIS WEBSITE AND OBTAINING AN IMAGE THROUGH THIS WEBSITE, LICENSEE (DEFINED BELOW) AGREES WITH OUTRIGGER HOTELS HAWAII AND ITS AFFILIATES (COLLECTIVELY, "OUTRIGGER"), AS FOLLOWS:

1. Definitions. In this Agreement (this "Agreement") the following definitions apply:

1.1 "Agent" means any person or entity entering this website and obtaining an image through this website for the benefit of another person or entity.

1.2 "Licensed Material" means, individually and collectively, any image, motion picture, sound recording, software or other content available through this website, whether by downloading, ordering a physical copy or otherwise (including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof), and any other products protected by copyright, trademark, patent or other intellectual property rights, that are licensed to Licensee by Outrigger under this Agreement. The items included in "Licensed Material" may be changed by Outrigger, in its sole discretion, from time to time, without prior notice.

1.3 "Licensee" means the person or entity entering this website and obtaining an image through this website, including an Agent, in which event the other person or entity on whose behalf such Agent is entering this website shall also be a "Licensee."

1.4 "Reproduction" and "Reproduce" mean (i) any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, (ii) the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material and (iii) the creation of any derivative work from the Licensed Material.

1.5 "Rights and Restrictions" means: (i) the information accompanying the Licensed Material on this website (including information provided during the process of obtaining the Licensed Materials); (ii) the information in any written communication sent by Outrigger to Licensee relating to the Licensed Material or accompanying the Licensed Material, and (iii) the terms and conditions of this Agreement, all of which are incorporated into this Agreement and made a part hereof. "Rights and Restrictions" may include, without limitation, the permitted scope of use, the duration of use and any territory or other use restrictions applicable to the Licensed Material selected. The Rights and Restrictions may be changed by Outrigger in its sole discretion, from time to time, without prior notice, by posting such changes on this website next to the affected item(s) of Licensed Material.

2. Grant of License Subject to Rights and Restrictions.

2.1 Grant of License. Subject to the Rights and Restrictions, Outrigger hereby grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to use and Reproduce the Licensed Material solely for the purposes of (a) advertising and promoting Outrigger’s goods and services or (b) creating products for Outrigger, all pursuant to Outrigger’s instructions. This grant may be exercised by subcontractors of Licensee for preparation of products for Licensee for the ultimate benefit of Outrigger; provided, however, that such subcontractors agree to abide by the terms of this Agreement.

2.2 Restrictions on Use. Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of Licensed Material, territory and any other restrictions specified in the Rights and Restrictions.

2.3 Prohibitions on Use. Pornographic, defamatory, unlawful or objectionable (in Outrigger’s sole discretion) use of the Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with other matter.

2.4 No Incorporation of Licensed Material. None of the Licensed Material shall be incorporated into a logo, trademark, service mark, or trade dress of anyone except Outrigger.

2.5 No Downloading or Extraction. Licensee may not make the Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract the Licensed Material, or any portion thereof.

2.6 No Reproduction. Unless otherwise authorized by applicable law or specified in the Rights and Restrictions, Licensee may not, directly or indirectly, further Reproduce the Licensed Material in any second generation Reproductions, such as compilations or screen shots. Such second generation Reproductions require an additional license from Outrigger and may be subject to payment of license fees.

2.7 Agent’s Authority. Where an Agent has accepted the license of the Licensed Material on behalf of a third party person or entity, Agent hereby represents and warrants that: (i) Agent is authorized to act as an agent on behalf of such third party person or entity and has full power and authority to bind such third party person or entity to this Agreement; and (ii) if a third party person or entity disputes Agent’s power and authority to bind such third party person or entity to this Agreement as Licensee, or to act on behalf of such third party person or entity, Agent shall be bound by and shall be liable for any failure of such third party person or entity to comply with the terms of this Agreement.

2.8 Employees of Licensee. If the user of this website is an employee of a company, such user warrants and represents that he or she is authorized to act on behalf of and to bind such company.

3. Photo Credit and Intellectual Property.

3.1 Copyright. No ownership, copyright or other rights in any Licensed Material shall pass to Licensee by the grant of the license under this Agreement. Except as expressly stated in this Agreement, Outrigger grants to Licensee no right or license, express or implied, to the Licensed Material.

3.2 Trademarks. In connection with the use of "Outrigger" or any other of Outrigger’s trade names, trademarks, logos or service marks (individually and collectively, "Outrigger’s Marks"), Licensee acknowledges and agrees that (i) Outrigger’s Marks are and shall remain the sole property of Outrigger; (ii) nothing in this Agreement shall confer upon Licensee any right of ownership in Outrigger’s Marks; (iii) Licensee shall use all trademark notices that may be required by Outrigger from time to time; and (iv) Licensee shall not now or in the future infringe on, dilute, or contest the validity, ownership, distinctiveness, fame, or enforceability of Outrigger’s Marks, or assist or encourage others to do so.

3.3 Photo Credit. Each photograph in the Licensed Material must include the following credit line adjacent thereto: "Licensed by Outrigger Hotels Hawaii," unless otherwise instructed by Outrigger.

3.4 Notice of Violations. Licensee will immediately notify Outrigger if Licensee becomes aware of or suspects that any third party that has gained access to the website or the Licensed Material through Licensee is wrongfully using the Licensed Material or is violating any of Outrigger’s intellectual property rights, including, but not limited to, trademarks and copyrights.

4. Warranty and Limitation of Liability.

4.1 Warranty. Outrigger warrants that: (i) it has the authority to enter into and perform this Agreement; and (ii) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material). Outrigger does not make any warranties as to whether any model releases or property releases have been obtained for the Licensed Material, except as may be set forth in the Rights and Restrictions.

4.2 Limitation of Liability. OUTRIGGER DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS SYSTEMS FOR MAKING THE LICENSED MATERIAL AVAILABLE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OUTRIGGER SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF OUTRIGGER 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. WHILE EFFORTS HAVE BEEN MADE TO CORRECTLY CAPTION THE SUBJECT MATTER OF THE LICENSED MATERIAL, OUTRIGGER DOES NOT WARRANT THAT SUCH INFORMATION IS ACCURATE.

5. Indemnification. Licensee shall defend, indemnify and hold Outrigger and its affiliates and their respective partners, stockholders, officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys’ and experts’ fees and costs) arising out of or as a result of claims by third parties relating to: (i) Licensee’s use of any Licensed Material outside the scope of this Agreement; and (ii) any other actual or alleged breach by Licensee of this Agreement.

6. Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Outrigger 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 Material or its caption or in any way from its Reproduction.

7. Miscellaneous Terms.

7.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes willful copyright infringement, entitling Outrigger to exercise all rights and remedies available to it under all applicable copyright laws of all countries in the world. Licensee shall be responsible for any damages resulting from any such copyright infringement.

7.2 Audit/Certificate of Compliance. Within fifteen (15) days after receipt of a request from Outrigger, Licensee shall provide samples of all Reproductions containing the Licensed Material to Outrigger. Outrigger may, in its sole discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this Agreement and use of the Licensed Material in order to verify compliance with the terms of this Agreement. Where Outrigger reasonably believes that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at Outrigger’s request, provide a sworn certificate of compliance signed and acknowledged by an executive officer of Licensee, in a form to be approved by Outrigger.

7.3 Electronic Storage. For all Licensed Material for which Licensee takes delivery in electronic form, Licensee must retain the copyright symbol, the name of Outrigger, the image number or other identifier associated with the Licensed Material, and any Rights and Restrictions, as may be included in such delivery or required by Outrigger, as part of the electronic file containing the Licensed Material that is stored on Licensee’s computers. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material (in an electronic file that complies with the foregoing requirements) for security purposes only. Licensee shall adopt and follow procedures sufficient to enable Licensee to immediately locate, inventory, recover and remove all copies of the Licensed Materials, or any portion thereof, from Licensee’s and its subcontractors’ computer systems and storage (electronic, optical, physical and otherwise). Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete and remove the Licensed Material from Licensee’s premises, computer systems and storage (electronic or physical) and shall cause and ensure that its subcontractors do likewise.

7.4 Withdrawal. Upon notice from Outrigger, or upon Licensee’s knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Outrigger may be liable herein, or if Outrigger withdraws any Licensed Material, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, to the greatest extent possible, cease any and all future use at its own expense and shall cause and ensure that its subcontractors do likewise.

7.5 Governing Law. This Agreement will be governed in all respects by the laws of the State of Hawaii, without reference to its laws relating to conflicts of law. The courts of the State of Hawaii and the United States District Court for the District of Hawaii, and no other courts, shall have exclusive original jurisdiction over any dispute relating to this Agreement and the Licensed Material.

7.6 Severability. If one or more of the provisions contained in this 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.

7.7 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 any 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, the same or any other rights or remedies on any other occasion.

7.8 Entire Agreement. This Agreement contains all the terms of the agreement between Licensee and Outrigger concerning the matter contained herein and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties.