BY OBTAINING, USING OR PAYING FOR ANY MATERIAL (AS DETAILED IN THE ORDER DETAILS) THE CUSTOMER AGREES TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT. IF THE CUSTOMER DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT IT SHOULD NOT OBTAIN, USE OR PAY FOR THE MATERIAL.
WHERE THE CUSTOMER PURCHASES MATERIAL ON-LINE, AND TICKS THE BOX INDICATING ITS AGREEMENT TO THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT, IT AGREES TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT.
ITN SOURCE STANDARD CONDITIONS
1. Interpretation
In this Licence Agreement:
“Advertising Use” means the right to incorporate the Material in the Production and exploit the same by an advertising campaign;
“Advertising Use – New Media” means the right to incorporate the Material in the Production and exploit the same by an advertising campaign only appearing on New Media Platform(s);
“All Media Use” means (i) where the Customer selects the single channel/brand option in Section 7(b) of the Special Terms, the right to incorporate the Material in the Production and exploit the same by unlimited transmissions in all media (excluding Theatrical Use and Advertising Use) whether now known or hereinafter invented but only under the umbrella of the single channel/brand specified in Section 7(b) of the Special Terms, however that single channel/brand is distributed and (ii) where the Customer selects the multiple channel/brand option in Section 7(b) of the Special Terms, the right to incorporate the Material in the Production and exploit the same by unlimited transmissions in all media (excluding Theatrical Use and Advertising Use) whether now known or hereinafter invented;
“Broadcast Use” means (i) where the Customer selects the single channel option in Section 7(b) of the Special Terms, the right to incorporate the Material in the Production and exploit the same on the television channel specified in Section 7(b) of the Special Terms by way of an unlimited number of transmissions on such channel whether by terrestrial, cable or satellite means (but excluding any time-shifted version or simulcast of such channel by any means, including without limitation by television, internet or mobile) and (ii) where the Customer selects the “any channel” option in Section 7(b) of the Special Terms the right to incorporate the Material in the Production and exploit the same on any television channel (including any time-shifted versions or terrestrial, cable or satellite simulcast thereof). For the avoidance of doubt distribution of the Production by any other means including by the internet or any mobile platform requires additional clearances;
“Corporate Use - External” means the right to incorporate the Material in the Production and exploit the same (free of charge to the general public) on behalf of a company by including the Production in a corporate website, showreel or promotional video (excluding any use in VNRs);
“Corporate Use - Internal” means the right to incorporate the Material in the Production and exploit the same (free of charge) on behalf of a company for distribution or display to staff, invited customers or contacts (but not to the general public), by way of a company presentation, internal training video, internal showreel or intranet site;
“Customer” means the person stated in Section 2 of the Special Terms to whom the Material has been or will be supplied. Where the person stated in Section 2 of the Special Terms is acting as agent on behalf of a principal the principal shall be deemed to be the Customer;
“Dispatch Note” means a description of the Material being supplied by ITN, as detailed in Schedule 4;
“Display Use” means the right to incorporate the Material in the Production and exploit the same (i) in a closed network (such as ambient media in public environments, display screens at trade events or captive audience networks) (ii) in special interest or low volume (i.e less than 5000 copies pressed) DVD releases (iii) DVD releases which are not for retail sale or part of a retail offer (but this does not include magazine and newspaper DVD cover mounts or other offers for which Retail Use must be cleared) (iv) exhibiting the Production by theatrical release where the Production is exhibited at less than 250 screens on initial release and (v) exhibiting the Production at festival screenings;
“Education Use” means the right to incorporate the Material in the Production and exploit the same by (i) selling the Production to schools, colleges and universities (ii) using the Production in internal Government communications (iii) exhibiting the Production in museums, galleries or zoos;
“Facility Charges” means all delivery, handling, research, copying, retrieval and stock charges incurred by ITN in supplying the Material;
“ITN’s Licensors” means third parties which own the copyright in Material and which have appointed ITN to licence such Material on their behalf;
“ITN’s Ratecard” means ITN’s price list from time to time;
“Licence Fee” means the total fees payable by the Customer to ITN for the Material (other than the Third Party Material) as specified in Section 10 of the Special Terms, whether by way of a fixed upfront fee or by way of per minute fees based on the usage declared in the Royalty Declaration (subject to any specified Minimum Fee);
“Licence Period” means the period specified in Section 5 of the Licence Agreement;
“Material” means the audio-visual recordings on film, tape or any other medium (whether analogue or digital) which are supplied by ITN, as described in the Dispatch Notes and in the format specified therein. Such Material includes audio-visual recordings in which the copyright is owned by ITN’s Licensors and subsequently licensed to ITN;
“Minimum Fee” means the minimum fee payable for the supply of master copies of the Material (other than the Third Party Material), as specified in the Licence Agreement or, if not specified, as stated in ITN's Ratecard prevailing at the date of the Licence Agreement;
“New Media Use” means (i) where the Customer selects the single platform/brand option in Section 7(b) of the Special Terms, the right to incorporate the Material in the Production and exploit the same on the new media platform/brand specified in Section 7(b) of the Special Terms and (ii) where the Customer selects the multiple platform/brand option in Section 7(b) of the Special Terms, the right to incorporate the Material in the Production and exploit the same by any number of New Media Platforms;
“New Media Platforms” means internet (including any catch-up/VOD service made available via the internet where no individual charge is being made), intranet, IPTV, mobile (including DVBH) or PowerPoint presentation;
“One Country” means one geographical territory which has its own government, administration and laws. The United Kingdom and its overseas territories, and the United States of America and its overseas territories, shall each fall within the definition of One Country;
“One Region” means any oneof the following:- Europe, The Middle East, Africa, North America (U.S.A, Canada and Mexico), Central and South America, Asia, and Australasia, all as further defined on ITN’s website www.itnsource.com;
“Production” means the production of the Customer specified in Section 3 of the Special Terms;
“Retail Use” means the right to incorporate the Material in the Production and exploit the same in a commercially available product (such as a retail DVD, paid for VOD, commercial download or catch-up service or electronic game) or a newspaper or magazine DVD cover mount or other offer ;
“Royalty Declaration” means the Royalty Declaration contained in Schedule 3;
“Sales Invoice” means a sales invoice sent by ITN to the Customer relating to the Material;
“Special Terms” means those terms contained in Schedule 1;
“Territory” means the territory specified in Section 6 of the Special Terms;
“Theatrical Use” means the right to incorporate the Material in the Production and exploit the same by general theatrical film release together with the right to exploit the Production on the New Media Platforms;
“Third Party Consents” means all licences, permissions and consents in writing which may be required for the use and exploitation of the Material by the Customer in the Production from third parties (which includes the owners of rights in Third Party Material and any individuals appearing recognisably in the Material and the holders of rights in any still photographs, trade marks or any other proprietary rights in the Material);
“Third Party Material” means any material contained within the Material in which the rights are not owned or controlled by ITN. This includes without limitation (i) all materials expressly stated to be owned or controlled by any third party (ii) all literary, artistic, dramatic and musical works, sound recordings, films, broadcasts and cable programmes, and performances contained in the Material and (iii) those rights controlled by collecting societies, unions or guilds, in each case where the relevant rights are not (or may not be) owned or controlled by ITN;
“Web Order” means an order for Material which is placed and paid for by the Customer via ITN’s website www.itnsource.com.
2. Grant of Rights
2.1 Subject to payment of all sums specified in Clause 3.1, ITN grants to the Customer a non-exclusive, non-transferable (other than as permitted in Clause 10.1) licence to incorporate the Material (which shall include part of the Material but shall expressly exclude any Third Party Material) in the Production and to exploit the Material as incorporated in the Production in accordance with the rights specified in Sections 5, 6, 7(a) and where applicable 7(b) of the Special Terms. The Material may only be exploited as part of the Production and no other use of the Material shall be made or authorised by the Customer. Without limitation to the generality of the foregoing the Customer shall not authorize or allow any person to frame or link to the Material in such a way that the Material appears as part of another website or service.
2.2 The Customer agrees and acknowledges that all copyright and other rights in the Material (excluding only the Third Party Material) are and shall be the property of ITN and ITN’s Licensors.
2.3 ITN confirms, and the Customer acknowledges, that ITN enters into this Licence Agreement as principal and not as agent for ITN’s Licensors or any other third party.
3. Payment
The Customer undertakes and agrees with ITN:
3.1 to pay to ITN the following non-refundable sums: (a) the Minimum Fee (if applicable); (b) the Licence Fee; and (c) all Facility Charges, in each case within 30 days of the date of the Sales Invoices relating thereto;
3.2 where the Customer’s Licence Fee is based on per minute usage pursuant to option 2 in Section 10 of the Special Terms then it shall immediately following completion of the Production, and in any event before first transmission/ release of the Production, return the Royalty Declaration completed from information supplied with the Material, and signed by or on behalf of the Customer. The Royalty Declaration shall state the exact duration and description of Material included in the Production (even if less than the value of any Minimum Fee or if none of the Material is used). If the Customer fails to submit a Royalty Declaration within 7 days of the Production’s first transmission/ release ITN shall have the right to charge a Licence Fee calculated at the per minute usage rate specified in Section 10 of the Special Terms (or if not so specified, in ITN's Ratecard) for the total amount of Material supplied (without prejudice to ITN's other rights or remedies); and
3.3 if payment is not made in accordance with this Clause 3 then to pay to ITN interest calculated on a daily basis at the rate of 2% above the United Kingdom base rate of Barclays Bank from time to time from the due date until the date payment is made (before as well as after judgment).
4. Clearances and Third Party Material
4.1 The Customer undertakes at the Customer's expense before using the Material, and as a condition precedent to the grant of the licence under Clause 2.1, to obtain and pay for all Third Party Consents and any other consents which may be required for the use of the Material in the Production. The Customer agrees that it is its sole responsibility to determine whether any Third Party Consents are required and the Customer shall not be entitled to rely on any information provided by any ITN personnel.
4.2 The Customer acknowledges and agrees that ITN does not purport to grant any rights in respect of Third Party Material.
5. Customer’s Warranties
The Customer warrants and undertakes with ITN:-
Use of Material by the Customer
5.1 to ensure that the Material is not used or edited in any way which will or is likely to tarnish ITN's or ITN’s Licensors reputations or bring ITN or ITN’s Licensors into disrepute or which may be detrimental to or disparaging of ITN or ITN’s Licensors. It shall be the sole responsibility of the Customer to ensure that, in its use of the Material, it does not (i) defame, libel or slander any person; (ii) infringe any moral rights or rights of privacy, confidentiality or publicity of any person (or any similar, analogous or related personal rights); (iii) infringe any copyrights, trade marks or other rights of any person; or (iv) breach any relevant laws, rules, codes or guidelines. The Customer accordingly accepts that ITN shall have no responsibility or liability of any nature whatsoever with respect to the foregoing matters and the Customer’s indemnity in Clause 8.1 applies;
5.2 not without ITN's prior written consent to:-
No use of news reporters and presenters
5.2.1 use any part of the Material in which any news reporter or presenter is visible or audible;
No use in advertising or promotional material
5.2.2 use in advertising or promotional material (whether for the Production or otherwise) any part of the Material or any stills contained in, or still extracts or “grabs” from, the Material except to the extent that such rights have been obtained as an Advertising Use;
Press releases
5.2.3 issue any press release referring to ITN or ITN’s Licensors or to refer to ITN or ITN’s Licensors in any advertising or promotional material (whether for the Production or otherwise);
Use of Material in video news releases (VNRs)
5.3 that if the Customer is using the Material in a VNR, any physical or electronic copy of such VNR is clearly labelled “This VNR contains ITN copyright material and no re-use of any material outside of this VNR is permitted”;
Legal proceedings affecting the Material
5.4 that in the event ITN notifies the Customer that the Customer, ITN or ITN’s Licensors are subject to a threatened or actual claim in connection with the Material, or the Customer’s use may expose ITN or ITN’s Licensors to any liability, the Customer will, on ITN’s request, promptly remove all affected Material from all physical and electronic storage media and take all reasonable steps to cease use of the affected Material and, where applicable, ensure its customers do the same. As the Customer’s sole remedy, ITN shall in its discretion either refund the Licence Fee (or part thereof applicable to the affected Material) or supply the Customer, free of charge, with comparable replacement material;
Credit
5.5 that the credits required by Section 8 of the Special Terms shall appear in an appropriate and prominent place in the Production. ITN may also from time to time by written notice to the Customer require a similar credit to be provided to others of ITN’s Licensors. Apart from such credits, the Customer shall not make any reference to ITN or ITN’s Licensors in or in relation to the Production and its exploitation. The Customer shall not be liable for any casual or inadvertent failure to provide credits, provided that the Customer shall use its best endeavours to remedy such failure once it is notified of the same;
Supply of copies of the Production/digitised Material
5.6 to provide ITN, promptly on request, with a viewing copy of the final version of the Production following final editing (or, where applicable to notify ITN when the Production is available for viewing by other means (for example on line));
5.7 to provide ITN with a copy in digitised form of all Material which the Customer digitises promptly following final editing, which ITN shall be entitled to retain and use in perpetuity free of charge;
Change of title
5.8 to inform ITN immediately of any change in the title of the Production;
Return of Material
5.9 promptly on completion of the Production to return all master materials and copies of the Material not physically incorporated into the Production and (if requested by ITN) to certify that it has complied with this Clause 5.9;
Deletion of Material
5.10 immediately upon expiry of the Licence Period, or on termination of this Licence Agreement, to delete all copies of all Material from all servers and other databases and electronic storage media under the control of the Customer and to procure that the Customer’s permitted licensees promptly do the same;
No fair dealing or public domain use
5.11 not to use any Material for any purpose other than as expressly authorised by this Licence Agreement even if Material may not be protected by copyright laws and even if the Customer’s use may fall within the so-called “fair dealing” exceptions contained within the Copyright Designs and Patents Act 1988 (as amended from time to time) or within analogous exceptions in other jurisdictions. Accordingly the Customer expressly waives any entitlement it may have to rely on any defence of “fair dealing” in relation to any Material it has received pursuant to this Licence Agreement, or to claim that the Material supplied is out of copyright, or analogous claims or defences in other jurisdictions, in respect of any of its use of the Material;
Non-commercial personal use
5.12 to ensure, where the Customer is granting end-user access to the Production by any means which allows the end-user to store a copy that such grant is expressly limited to non-commercial personal use, with any redistribution or other exploitation in whole or in part by any means being excluded from such grant;
Copyright theft
5.13 to maintain in place effective copy protection security and file sharing deterrents in accordance with current industry standards as long as any Material is made accessible by the Customer via media which allows the end-user to store a copy (for example internet and mobile devices). The Customer will consult and agree specific security arrangements with ITN on a case-by-case basis;
No exclusion of third party rights
5.14 not to exclude the provisions of the Contracts (Rights of Third Parties) Act 1999 from any agreements relating to the Material nor to include in any agreements relating to the Material any equivalent term which has the effect of preventing a third party from enforcing any right that it holds in respect of such Material;
Obligations if Customer acting as an agent
5.15 that if the person named in Section 2 of the Special Terms is acting as an agent on behalf of a principal then such person:-
5.15.1 shall inform ITN in writing of the identity of the principal prior to entering into this Licence Agreement;
5.15.2 represents and warrants that the principal has authorised them to enter into this Licence Agreement, that the principal has agreed to be bound by this Licence Agreement, and that such person has express authority to act on behalf of and bind such principal;
5.15.3 will comply with all of the terms and conditions of this Licence Agreement and shall be jointly and severally liable for any breach of this Licence Agreement by the principal; and
Customer not acting as a consumer
5.16 that the Customer is not dealing as a consumer (as defined in Section 12 of the Unfair Contract Terms Act 1977 or as defined in any other piece of consumer legislation).
6. ITN's Warranties
ITN warrants to the Customer that it owns and/or controls the film footage comprised in the Material other than the Third Party Material. No warranties of any kind are given nor representations made in respect of any Third Party Material or Third Party Consents that may be required by the Customer to enable it to exploit the Material as part of the Production.
7. Termination
7.1 This Licence Agreement shall terminate, upon notice by and without penalty to ITN, if there is a breach by the Customer of any of its material obligations under this Licence Agreement which (if the breach is capable of remedy) the Customer has failed to remedy within 14 days after receipt of notice in writing from ITN giving particulars of the breach and requiring the Customer to remedy it.
7.2 ITN may terminate this Licence Agreement with immediate effect by written notice to the Customer if (i) ITN is or reasonably believes that it will become subject to any material costs (including legal costs), damages, loss or liability howsoever arising as a result of or in connection with the use by the Customer of the Material or (ii) the Customer goes into receivership or liquidation (other than for the purposes of solvent amalgamation or reconstruction) or becomes insolvent or makes any composition or arrangement with its creditors (other than as part of a solvent reorganisation) or anything analogous to any of the foregoing occurs to the Customer anywhere in the world.
7.3 Save where otherwise provided herein or where the context otherwise requires, all rights and obligations of the parties shall cease to have effect immediately upon termination of this Licence Agreement except that termination shall not affect the accrued rights, liabilities and obligations of the parties at the date of termination.
7.4 Upon termination of this Licence Agreement:-
7.4.1 the Customer shall if requested by ITN promptly return to ITN all copies of the Material which the Customer may have in its possession or under its control;
7.4.2 without prejudice to any of ITN’s other remedies, the Customer shall immediately pay to ITN all sums owing, and which will become due, under this Licence Agreement in respect of the Material;
7.4.3 the Customer shall cease all use of the Material.
8. Indemnity
8.1 The Customer hereby indemnifies ITN, and shall keep ITN fully and effectively indemnified, against all costs (including without limitation legal costs), damages, losses and liabilities incurred by ITN by reason of (i) any breach by the Customer of its obligations under this Licence Agreement; and (ii) any claim made against ITN in respect of or arising out of any use or exploitation of the Material by the Customer (save only where such claim arises out of a breach of warranty by ITN). ITN shall notify the Customer in writing of any such claim, reasonably consult with the Customer on the defence of such claim and shall agree to any reasonable settlement thereof, in each case at the Customer's cost.
8.2 If any claim is made against the Customer in respect of or arising out of any use or exploitation of the Material by the Customer, the Customer shall immediately notify ITN in writing of such claim. ITN shall have the right to elect to have the conduct of, and the Customer shall give all reasonable assistance to ITN in, the defence of such claim at the Customer’s expense (save only where such claim arises out of a breach of warranty by ITN). The Customer shall not settle such claim without ITN’s written consent.
9. Limitation of ITN’s Liability
9.1 Subject to Clause 9.8, ITN shall not be liable (whether in contract, tort or otherwise) for any consequential, indirect, incidental, economic or financial losses or loss of profits, goodwill, savings, business, wasted management, operation or other time, or damage to reputation, in connection with the supply or use of the Material even if such losses are foreseeable and/or ITN has been advised of or is aware (or should have been aware) of the possibility of the Customer incurring or suffering such losses.
9.2 Without prejudice to Clause 9.1 (but subject to Clause 9.8) the aggregate liability of ITN howsoever arising from or in connection with this Licence Agreement and/or the supply or use of the Material (whether for breach of contract, negligence, misrepresentation (except fraudulent misrepresentation) or otherwise) shall not in any circumstances exceed an amount equal to 125% of the Licence Fee.
9.3 The Customer acknowledges that the Material may contain or be accompanied or have been identified by information (for example “shot lists” and programme information) which is incorrect. Neither ITN nor ITN’s Licensors make any warranty or representation as to the accuracy of such information and accept no liability (subject to Clause 9.8) in the event of any such information being incorrect.
9.4 The Customer acknowledges, without prejudice to Clauses 9.1 and 9.2, that in relation to any delivery of Material by ITN to the Customer, time is not of the essence, and that ITN shall not be liable for any losses of any nature arising from late delivery of Material to the Customer.
9.5 The Customer acknowledges that it is more practical for it, rather than ITN, to obtain insurance (for example Errors and Omissions) against any liabilities which may arise from its use of the Material pursuant to this Licence Agreement including, without limitation, as a result of a breach of warranty by ITN. The Customer agrees that it is responsible for taking out any insurance and further agrees that if it does take out such insurance it shall cause its insurers to waive any right of subrogation they may have against ITN or ITN’s Licensors.
9.6 The Customer acknowledges that licence fees charged by ITN are set at a level which takes into account the allocation of risk and liabilities (and in particular the exclusions and limitations of liability contained in this Clause 9) as between ITN and the Customer.
9.7 Except as expressly set out in Clause 6.1, all terms, conditions, warranties, representations or guarantees whether express or implied by statute, common law or otherwise relating to delivery, description, performance, quality or fitness for purpose are hereby excluded.
9.8 Nothing in this Licence Agreement purports to exclude or limit ITN’s liability for fraud, death or personal injury caused by negligence, breach of terms regarding title implied by Section 12 Sale of Goods Act 1979 and/or Section 2 Supply of Goods and Services Act 1982, or any other liability which may not be excluded or limited as a matter of law.
9.9 If any part of this Clause 9, or any other part of this Licence Agreement, is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that part will, to the extent required, be severed and will be ineffective without, as far as possible, modifying any other part of this Licence Agreement and this will not affect any other part of this Clause 9 or any other provisions of this Licence Agreement which will remain in full force and effect.
9.10 On termination of this Licence Agreement howsoever arising, this Clause 9 will remain in effect.
10. General
10.1 This Licence Agreement and the rights under it may not be assigned or sub-licensed (other than as provided under this Licence Agreement) by the Customer without ITN's prior written consent. The Customer shall be entitled to assign this Licence Agreement to its commissioning broadcaster, distributor or financier provided always that the Customer remains primarily liable for its obligations.
10.2 No variation of this Licence Agreement shall be valid unless it is agreed by or on behalf of each of the parties. Where the parties subsequently agree in writing that the Customer shall be entitled to purchase rights beyond those granted in this Licence Agreement, the terms and conditions of this Licence Agreement shall apply to any such extension of rights.
10.3 Any notice under or in connection with this Licence Agreement shall be in writing in the English language.
10.4 This Licence Agreement constitutes the entire agreement, and supersedes any previous agreement, between the parties relating to the Material. The Customer acknowledges and agrees that in entering into this Licence Agreement, it has not relied on any representation that is not set out in this Licence Agreement and subject to Clause 9.8, the Customer will have no remedy in equity, contract, tort or under the Misrepresentation Act 1967 in respect of any representation that is not set out in this Licence Agreement.
10.5 In the event of any conflict between the provisions of the Schedules to this Licence Agreement, the provisions of Schedule 1 shall prevail.
10.6 The Customer shall make all payments under this Licence Agreement without any set-off, deduction, withholding or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise.
10.7 The parties to this Licence Agreement are not in partnership with each other.
10.8 The failure of ITN to enforce any term of this Licence Agreement does not constitute, and shall not be construed as, a waiver of such term and shall in no way affect ITN’s right to enforce it.
10.9 Excluding payment obligations neither party shall be liable for any failure to perform its obligations where such failure is caused by an act of God, act of government or state, terrorism, war, strike, fire, flood, breakdown of communications systems or any other event, circumstances or occurrence beyond either party’s reasonable control.
10.10 ITN’s Licensors shall be beneficiaries under this Licence Agreement with the intention and effect that they shall be entitled to enforce the terms of this Licence Agreement. The Contracts (Rights of Third Parties) Act 1999 shall accordingly apply to this Licence Agreement.
10.11 This Licence Agreement shall be governed by, and shall be construed in accordance with, English law and the parties hereby submit to the non-exclusive jurisdiction of the Courts of England and Wales.
Back to top