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HomeMy WebLinkAboutGemological Institute of America Inc; 2023-06-21; Page 1 of 7 City Attorney Approved Version 5/12/2023 CITY OF CARLSBAD AGREEMENT FOR PHOTO AND VIDEO LICENSING GEMOLOGICAL INSTITUTE OF AMERICA, INC. THIS AGREEMENT is made and entered into as of the _____________ day of ________________, 2023, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and the Gemological Institute of America, Inc., a nonprofit institution, ("Licensee") collectively referred to herein as “Parties” and each individually as a “Party” hereto, who mutually agree to the terms and conditions of this Agreement. The City owns several photographic images and video footage, including the copyrights therein (collectively referred to as the “City Images”). Licensee wishes to obtain limited rights to use the City Images for the purposes indicated below. It is mutually agreed by and between City and Licensee as follows: 1. DEFINITIONS 1.1 “Licensed Material” means the City Images consisting of those still photographic images or video footage identified in Exhibit A. Any reference in this Agreement to the Licensed Material is to each image or video within the Licensed Material and the Licensed Material as a whole. 1.2 “Licensed Use” means the use described in Exhibit B, including limitations to the enumerated and described instances of use. 2. GRANT OF RIGHTS 2.1 The City grants Licensee a non-exclusive, non-transferable, and non-sub- licensable license right to use the Licensed Material, solely for the Licensed Use, and subject to all restrictions specified in this Agreement. 2.2 The rights granted to Licensee by City obtained by Licensee as a result of or in connection with this Agreement are limited use license rights only, and nothing in this Agreement assigns any or all of the City’s ownership rights in the Licensed Material. 3. USE OF THE LICENSED MATERIAL 3.1 The rights granted under this Agreement are limited to the Licensed Use. Licensee represents any actual or ultimate product incorporating the Licensed Material will be a faithful rendition of use approved by the City. 3.2 Licensee may not, under any circumstances, rotate, alter, change, or tamper with Licensed Material without the City’s express written permission. 3.3 To the extent the Licensed Material includes any caption, description, or other textual information, the City does not warrant any such information is accurate. 3.4 The City’s trademarks, logos, and service marks, are and will remain the sole property of the City. Nothing in this Agreement confers upon Licensee any right of ownership in the City’s trademarks, logos, or service marks. DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 June 21st Page 2 of 7 City Attorney Approved Version 5/12/2023 3.5 In partial consideration for the license conveyed hereby, Licensee agrees not to, directly or indirectly, challenge, contest, impair, or invalidate the City’s rights in any of the City Images as they relate to the Licensed Use. 3.6 Licensee agrees to include the following credit line adjacent to the Licensed Material: “© [Year of first publication, The City of Carlsbad].” 3.7 Licensee must immediately notify the City if it becomes aware or suspects any third party has gained access to the Licensed Material through the Licensee or is wrongfully using the Licensed Material, in whole or in part, or is violating any of the City’s intellectual property rights. 4. PROHIBITED USES 4.1 Licensee may not at any time: (a) Use Licensed Material for any commercial, promotional, advertising, or merchandising use, unless the City has granted additional rights as specifically set out in Exhibit B; (b) Use any colorable imitation of any Licensed Material, or any variant form of any Licensed Material not specifically approved; (c) Incorporate Licensed Material into a logo, trademark, or service mark; (d) Make Licensed Material available in any medium in a manner intended to allow or invite persons to download or extract Licensed Material; (e) Take any action that would bring Licensed Material into public disrepute including the use of Licensed Material for any pornographic, defamatory, or otherwise unlawful use, whether directly or in context or juxtaposition with specific subject matter; or (f) Make any claim or indication City endorses Licensee’s products or services or portrays itself as an agent, servant, or employee of the City. 4.2 The Licensed Uses may not depict or imply endorsement of: (a) Partisan political activity; (b) Alcohol; (c) Illegal drugs; (d) Gambling products; (e) Tobacco products; (f) Firearms or other weapons; (g) Racist, sexist, hateful, demeaning, or degrading language or statements; (h) Profanity; (i) Sexual acts; or (j) Statements impugning other municipalities. 5. COMPENSATION 5.1 The license and other rights granted by the City of Carlsbad to Licensee hereunder are granted free of charge; provided, however, that in consideration for such rights DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 Page 3 of 7 City Attorney Approved Version 5/12/2023 Licensee agrees to include the following credit line adjacent to the Licensed Material: "© [Year of first publication], courtesy City of Carlsbad]. 5.2 If the Licensed Material is incorporated into another work, Licensee must provide the City with one copy, best edition (hi-res .mov), of the work containing Licensed Material at no charge upon completion of that work for archival purposes. 6. DISCLAIMERS, LIMITATION OF LIABILITY, AND INDEMNIFICATION 6.1 The City represents that it, according to its information and belief, has all necessary rights and authority to enter and perform this Agreement. Except as to the City’s own copyrights or trademarks, the City has not obtained any permissions, licenses, or releases for the use of any names, likenesses, trademarks, service marks, logos, or works of authorship depicted in the Licensed Material and Licensee is solely responsible for determining what other, if any, permissions, licenses, or releases are necessary for the Licensed Use. 6.2 The City makes no other representations or warranties, express or implied, as to the Licensed Material, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. The City will not be liable for any punitive, special, indirect, consequential, or incidental damages, or any other damages, costs, or losses arising out of this Agreement, even if the City has been advised of the possibility of such damages, costs, or losses. 6.3 Licensee must defend, indemnify, and hold the City and their respective agents, officers, and employees harmless from all damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or as a result of claims by third parties relating to: (a) Licensee’s use of any Licensed Material outside the scope of this Agreement; (b) Any other actual or alleged breach by Licensee of this Agreement; or (c) Licensee’s failure to obtain any required permission, license, or release. 7. TERM AND TERMINATION 7.1 The term of this Agreement is set out in Exhibit B, unless terminated earlier under this Article 7. 7.2 This Agreement and all rights granted under this Agreement will automatically terminate without notice from the City if Licensee: (a) Breaches any term of this Agreement and fails to remedy the breach within 30 days of receiving written notice of the breach from the City; (b) Attempts to assign, sublicense, transfer, or otherwise convey rights under this Agreement, without first obtaining the City’s written consent, any of the rights granted to Licensee under this Agreement; (c) Uses the Licensed Material in a manner in violation of, or otherwise inconsistent with, the restrictions imposed by or in connection with Article 4 of this Agreement; or DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 Page 4 of 7 City Attorney Approved Version 5/12/2023 (d) Uses the Licensed Material in a manner not expressly permitted by this Agreement. 7.3 All rights granted by this Agreement, including, without limitation, Licensee’s right to use the Licensed Material, will expire upon termination of this Agreement, and upon termination Licensee must immediately cease and desist from all use of the Licensed Material. 8. GENERAL PROVISIONS 8.1 Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either Party except those expressly granted herein. 8.2 Notices. Notices or other communications required by this Agreement will be sufficiently made or given if mailed by certified First Class United States mail, postage prepaid, or by commercial carrier (e.g., FedEx, UPS, etc.) when the carrier maintains receipt or record of delivery, addressed to the address stated below, or to the last address specified in writing by the intended recipient. If to the City: Name: Kristina Ray Title: Communication & Engagement Director Address: 1200 Carlsbad Village Drive, Carlsbad, CA 92008 Telephone: 442-339-2957 Email: Kristina.ray@carlsbadca.gov If to Licensee: Gemological Institute of America, Inc. Name: AJ Anderson Title: Senior Manager, Admissions and Recruitment Address: 5345 Armada Drive, Carlsbad, CA 92008 Telephone: 760-603-4000 ext. 7301 Email: alanders@gia.edu 8.3 Assignment. This Agreement, with the rights and privileges it creates, is assignable only with the written consent of both Parties. 8.4 Governing Law. This Agreement shall be construed in accordance with, and all disputes hereunder, shall be governed by the laws of the State of California. 8.5 Jurisdictions and Venue. The California state courts of San Diego County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the jurisdiction of such courts. DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 Page 5 of 7 City Attorney Approved Version 5/12/2023 8.6 Headings. Headings are solely for convenience of reference and are not part of, and may not be used to construe, this Agreement. 8.7 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. A waiver of any breach of this Agreement does not waive any other breach of the same or other provision of this Agreement. A waiver is not effective unless made in writing. 8.8 Entire Agreement. This Agreement contains the entire understanding of the Parties as to the Licensed Material and supersedes all other written and oral agreements between the Parties as to the Licensed Material. This Agreement may be modified only by a written amendment signed by the Parties. 8.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 9.0 AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Licensee each represent and warrant that they have the legal power, right and actual authority to bind Licensee to the terms and conditions of this Agreement. Licensee CITY OF CARLSBAD, a municipal corporation of the State of California By: By: SCOTT CHADWICK City Manager VICKI GEE HORIYE Director, Product Marketing vhoriye@gia.edu APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy / Assistant City Attorney DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 Page 6 of 7 City Attorney Approved Version 5/12/2023 Exhibit A Licensed Material Video footage from the 2022 State of the City video, published Aug. 17, 2022: Beach drone shot: 3 seconds Trial drone shot: 2 seconds Carlsbad downtown sign drone shot: 2 seconds Alga Norte Community Pool drone shot: 2 seconds Children at Superhero Race: 8 seconds TGIF concert: 6 seconds EGGstravaganza hunt: 6 seconds Aloha Plunge: 7 seconds Neighborhood drone shot: 2 seconds Children playing park: 2 seconds Cyclists on trail: 2 seconds Surfer drone shot: 2 seconds Beach drone shot: 2 seconds Trail runner: 2 seconds Beach boardwalk runner: 2 seconds beach drone shot: 2 seconds Surfer sunset: 2 seconds Downtown fountain: 2 seconds Lagoon drone shot: 2 seconds Birds in nature: 6 seconds Lagoon drone shot: 3 seconds Coastal highway drone shot: 6 seconds Community garden: 2 seconds Family on beach boardwalk: 2 seconds Downtown village shopping: 2 seconds Cyclist in village: 2 seconds Farmers Market: 2 seconds Lifeguards on beach: 2 seconds DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913 Page 7 of 7 City Attorney Approved Version 5/12/2023 Exhibit B Licensed Use 1. Type of Use: Promotion of nonprofit educational institute in the City of Carlsbad 2. Medium: Website, social media and/or television 3. Work: Promotion of economic development in the City of Carlsbad 4. Description of work and intended Use: Images and video will be used in materials designed to promote Licensee, Licensee's corporate purposes, and economic development in the City of Carlsbad 5. Duration: 25 years 6. Specific Restrictions: [any restrictions on the use other than those in the body of the agreement and below] Video footage may not be sold DocuSign Envelope ID: 0BB1D1F6-151F-406F-9B8D-D72EFF44A913