Last Updated: January 20th 2020
This FOAM Stock Footage License Agreement (“License”) is made by Freedom Of All Media (“FOAM”) in favour of Licensee with respect to the Licensed Work “purchased” by Licensee through the FOAM Stock service upon payment of the License Fee. After making a purchase, please print or save this document and your receipt for your records.
“Composite” a watermarked, low-resolution version of a Licensed Work.
“License Fee” means the fee displayed at the point of purchase. Licensee must pay the License Fee, and any applicable taxes, upon purchase. All purchases are final and non-refundable.
“Licensed Work” means the stock video footage clip(s) that Licensee selects and “purchases” from FOAM. If the Licensed Work is offered in different resolutions at different prices, the Licensed Work shall be limited to the specific version purchased.
“Licensee” means the owner of the FOAM account that purchases the Licensed Work. If the FOAM account owner is an organisational entity, the organization shall designate a single employee who will have the sole right to use the Licensed Work as permitted hereunder.
“*Licensee Project” means an existing or future audiovisual work created or owned by Licensee.
“Permitted Distribution” means distribution by (a) online means in a manner that is not monetised; and (b) limited theatrical or online release within the context of a film festival, whether monetised or not. For clarity, Permitted Distribution does not include linear television (e.g., broadcast, cablecast, or satellite television), pay-per-view television, monetised online means (e.g., subscription video on demand (SVOD), advertising-supported video on demand (AVOD), transactional video on demand (TVOD), or electronic sell-through (EST)), physical media (e.g., DVDs or Blu-Ray discs), or commercial theatrical release.
Licensed Work. Subject to Licensee’s compliance with the terms hereof, FOAM grants Licensee a limited, non-exclusive, worldwide, perpetual, fully paid-up and royalty-free, non-transferrable, non-assignable, non-sub licensable right and license to incorporate the Licensed Work (or a part thereof) within one or more Licensee Project(s) for Permitted Distribution. The foregoing license includes the right to make copies of the Licensed Work for internal purposes and the right to stream, distribute, transmit, publicly perform, adapt, and sublicense the Licensed Work as part of each Licensee Project for Permitted Distribution, but not as a standalone work.
Delivery of Video Files. Upon purchase, the Licensed Work will be made available for download through the FOAM Stock service.
Evaluation Rights. Subject to their compliance with this License and FOAM’s Terms of Service, https://FOAM20.com/terms, registered FOAM users may download a Composite on a gratis basis for evaluation purposes only. This evaluation license will last 30 days from download and may be revoked by FOAM at any time. No Composite may be used in any final or publicly available video or other work. No watermark may be removed or altered.
Prohibited Uses. Licensee shall not use or otherwise exploit the Licensed Work in any work that:
depicts sexual activity; is pornographic or obscene; contains defamatory statements; contains hateful or discriminatory speech; contains excessive violence; infringes upon any third party’s rights; or violates any applicable law;
advertises or promotes any of the following: online gambling; alcohol; tobacco (including e-cigarettes); pharmaceutical products; illegal or recreational drugs; firearms; or any sex industry products or services;
is connected to political campaigning (including the endorsement of any party, candidate, or platform or any negative political advertisement); or
presents any recognisable person from the Licensed Work in a manner that would be considered unflattering or unduly controversial by a reasonable person.
No Use of Stills. Licensee may not, without FOAM’s prior written consent, use stills (i.e., single frames) from the Licensed Work in any advertisement or physical or digital poster for a Licensee Project, any cover for any physical media concerning a Licensee Project, or as a “thumbnail” to represent a Licensee Project, regardless of whether other content is added.
No Standalone Use. Licensee may not sell, distribute, sublicense, or otherwise exploit the Licensed Work separately from the Licensee Project. The Licensee Project must not consist substantially of the Licensed Work alone and may not be used as a means for reselling stock footage.
Attribution. Licensee is not required to provide attribution with respect to the authorised use of the Licensed Work, provided that if Licensee provides attribution to other stock content providers, then it shall provide similar attribution with respect to the Licensed Work. To the extent Licensee provides attribution (whether voluntarily or as required), Licensee shall, at a minimum, list FOAM, Inc. and the name of the original licensor (i.e., the creator who developed the Licensed Work).
Audit. Within 30 days of receiving written notice from FOAM, Licensee must provide FOAM with free access to copies of the final Licensee Project(s) containing the Licensed Work for the purpose of determining compliance with the terms hereof.
Termination. This License shall automatically terminate upon Licensee’s breach of Section 3.1 or failure to pay the License Fee. FOAM may terminate this License for any other breach by Licensee if, after providing 30 days’ notice of the breach, the breach remains uncured. In the event of termination, Licensee must cease using the Licensed Work in any way, delete or destroy all copies of the Licensed Work (to the extent practicable and legally permissible), and confirm to FOAM in writing that it has done so.
Intellectual Property. As between FOAM and Licensee, all right, title, and interest in and to the Licensed Work and any Composite shall remain the property of FOAM and/or the original licensor. All rights not expressly granted are reserved. Licensee may not represent or suggest that it (a) is endorsed by or affiliated with FOAM, the original licensor, or any person featured in the Licensed Work; or (b) is the owner or original creator of the Licensed Work or any work that is comprised mostly of the Licensed Work.
Representations and Warranties. (a) Each party represents and warrants that it has the right and authority to enter into this License. (b) FOAM represents and warrants that (i) it has the right to grant the licenses set forth herein; and (ii) to the best of FOAM’s knowledge, the Licensed Work, in its original, unaltered form, does not infringe upon any third-party intellectual property right. (c) Licensee represents and warrants that each Licensee Project (except for the Licensed Work) does not and will not violate any third-party rights, including intellectual property rights.
Limitations on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOAM SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES; OR (B) ANY AMOUNT EXCEEDING TEN THOUSAND DOLLARS (USD $10,000) PER LICENSED WORK.
Disclaimers. FOAM provides the Licensed Work on an “as is” basis. FOAM makes no promises that the Licensed Work will be suitable for Licensee’s needs or that the digital files relating to the Licensed Work will be available in perpetuity. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FOAM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED.
FOAM Obligations. Subject to the terms hereof, FOAM will defend, indemnify, and hold Licensee harmless from any and all losses (including reasonable outside attorneys’ fees) (“Losses”) arising out of any third-party claim (a “Claim”) that the Licensed Work or its authorised use by Licensee infringes upon any third-party right (including any intellectual property right).
Procedure. Licensee must, within 10 business days of becoming aware of a Claim or threat of a Claim, provide written notice to FOAM at legal@FOAM20.com with a physical copy delivered by courier to FOAM at the address below. Licensee agrees that this notice is a condition precedent to any right to indemnification and defence and that time is of the essence. FOAM shall have the right to defend or settle any Claim, provided that FOAM may not make admissions on Licensee’s behalf or impose obligations upon Licensee without Licensee’s prior written consent, not to be unreasonably withheld. Licensee must reasonably cooperate with FOAM’s defence of any Claim.
Make-Goods. In the event of a third-party claim, FOAM may, in its sole discretion, provide a reasonable replacement for the Licensed Work. Should FOAM do so, Licensee shall cease using the previous version. The replacement work will be licensed pursuant to the terms hereof as if originally licensed by Licensee.
Limitations. FOAM shall have no indemnification or defence obligations for claims or losses (a) that exceed the monetary cap set forth in Section 7(b); (b) arising from the use of the Licensed Work in violation of this License; (c) arising from other content used in conjunction with the Licensed Work; or (d) arising from continued use of the original Licensed Work after FOAM provides a replacement in accordance with Section 9.3.
Licensee Obligations. Licensee will indemnify, defend, and hold harmless FOAM and its subsidiaries, parents, affiliates, directors, officers, employees, agents, and original licensors from all Losses arising from any Claim arising from: (a) the use of the Licensed Work in violation of this License; (b) Licensee’s breach of any term hereof; or (c) any Licensee Project (except for the Licensed Work) or any materials used in conjunction with the Licensed Work.
General. This License (a) shall be governed by the laws of the State of New York, without reference to conflict of laws principles; (b) sets forth the entire understanding of the parties regarding the Licensed Work; and (c) may not be modified except in a writing that is physically signed by an authorised representative of FOAM. Any dispute arising out of or relating to this License shall be commenced in the state or federal courts located in New York County, New York. IN ANY SUCH ACTION, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
Notices. Additional rights or waivers, including additional seats or higher caps on liability, may be available for additional fees. To inquire, please contact us here. Notices shall be sent to FOAM at the address below: