Photo/Video Agreement

LAST UPDATED: May 8, 2021

This is a license agreement between you and Altos Pacific LLC, dba Pacific Open Water Swim Co. (hereafter “PacSwimCo”), that explains how you can use photo and video clips (individually and collectively, “Photograph”, “Photographs” or “content”) that you license from PacSwimCo. By purchasing a license and electronically transferring PacSwimCo content, you accept the terms of this agreement.

Licensed Content Use. You may use PacSwimCo Photographs for any personal, non-commercial purposes including display on personal websites, personal video projects, printed copies for family, guests, and friends, if, when customary, credit is given as defined in the section below titled “Attribution”.

For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.

1. Restricted Use.
   • No Unlawful Use. You may not use content in a defamatory or other unlawful manner, or in violation of any applicable regulations.
   • No Commercial Use. Unless additional ‘commercial use’ rights are specified on the PacSwimCo invoice or sales order, or granted pursuant to a separate license agreement, you may not use Photographs for any commercial, promotional, advertorial, endorsement, advertising, or merchandising purpose.
   • No Alteration of Content. CONTENT THAT CONTAINS A VISIBLE PACSWIMCO WATERMARK MAY NOT BE CROPPED OR OTHERWISE EDITED OR ALTERED IN ANY MANNER.
   • No Standalone File Use. You may not use content in any way that allows others to download, extract or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
   • No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
   • No “On Demand” Products. Unless you purchase a customized license, you may not use content in connection with “on-demand” products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom-designed websites, as well as sites such as zazzle.com and cafepress.com).
   • No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
   • No Use in Trademark or Logo. Unless you purchase a customized license, you may not use content (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, tradename, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such content (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third-party use of the content or any similar content (including by us, our customers, or the copyright owner of such content).
   • No Metadata Exploitation. Unless expressly authorized by PacSwimCo, you may not use the caption information, keywords, accompanying text, or other metadata associated with content separate and apart from the content, or allow any third parties to access or use any such information associated with the content.
2. Who, besides me, can use the licensed content? The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else, except for immediate family members. If you are purchasing on behalf of an immediate family member, then your immediate family member can use the licensed Photograph(s). In such cases, you represent and warrant that you have the full legal authority to bind family members to the terms of this agreement. If you do not have that authority, then your family member may not use the content. The rights purchased may only belong to you or your family member, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase a license, only one of you (and not both) may reuse that image.
3. Rights. The copyrights to the content remain the exclusive property of PacSwimCo. No rights to the Licensed Use listed above are transferred to you until PacSwimCo has received the License Fee in full. you and its principals, employees, agents, and affiliates are jointly and severally liable for paying the License Fee to PacSwimCo and for other obligations of this License. The only rights for use of the content granted to you are those specifically set forth in this License. All other rights are reserved by PacSwimCo.
4. Metadata. The content may contain copyright management information embedded in their file. Removing and/or altering this information is prohibited and violates copyright law.
5. Releases. Unless otherwise specifically stated, no model or property release exists for the content. you assume sole responsibility to determine whether the model and/or property releases are required by law and whether any releases provided by PacSwimCo are appropriate for your use of the content. 
6. Alterations. You may not make or permit others to make any alterations to the content that contains a PacSwimCo watermark. If you licensed content without watermarks, it may be edited and altered as desired.
7. Indemnification. You will indemnify, hold harmless, and defend PacSwimCo against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising from any use of the content by you.
8. Intellectual Property Rights.
   • Who owns the content? All the licensed content is owned by either PacSwimCo or its content suppliers. All rights not expressly granted in this agreement are reserved by PacSwimCo and the content suppliers. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the licensed content.
   • Attribution.
     • Do I need to include a photo credit? Yes. You need to include a photo credit for uses. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the PacSwimCo website: “© Pacific Open Water Swim Co.” (“Photo Credit”)
     • Do I need to include a video credit?  Yes. If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit in comparable size and placement. The credit should be in the following form: “[Video] [Imagery] supplied by Pacific Open Water Swim Co.” (“Video Credit”)
     • What if I don’t include a photo credit? If the Photo Credit does not accompany your published use of a Photograph, you agree to pay to PacSwimCo a five-times multiple of the standard License Fee as reasonable compensation for the lost value of the Photo Credit or US$500, whichever is greater.
9. Transfer and Assignment. You may not assign, transfer, or sublicense this License or any rights granted under it, in whole or in part, whether voluntary or by operation of law, without the express written consent of PacSwimCo.
10. Termination/Cancellation/Withdrawal.
    • Termination. PacSwimCo may terminate this agreement at any time if you breach any of the terms of this or any other agreement with PacSwimCo, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to PacSwimCo in writing that you have complied with these requirements.
    • Social Media Termination. If you use the content on a social media platform or other third-party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, upon PacSwimCo’ request, you agree to remove any content from such platform or website.
    • Refunds/Cancellation. All requests for refunds/cancellations must be made in writing or using the Contact Us function on the PacSwimCo’ website. Provided that the request is made within 10 days and the licensed content has not been used, PacSwimCo may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 10 days from your receipt of content, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
    • Content Withdrawal. PacSwimCo may discontinue licensing any item of content at any time in its sole discretion. On notice from PacSwimCo, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which PacSwimCo may be liable, PacSwimCo may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. PacSwimCo will provide you with replacement content (determined by PacSwimCo in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
11. Waiver. No amendment or waiver of any terms of this License is binding unless set forth in writing and signed by the PacSwimCo.
12. Severability. If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
13. Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by PacSwimCo and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
14. Warranty and Liability. PacSwimCo represents and warrants that the PacSwimCo is the copyright owner of the content and that the PacSwimCo has not granted any rights in the content that would permit a third party to raise a claim against you for the Licensed Use. PacSwimCo’s liability for all claims by you shall not exceed the License Fee. PacSwimCo shall not be liable for any general, special, direct, indirect, consequential, incidental, or other damages arising out of your use of the content. 
15. Disputes. Any dispute regarding this License shall, in PacSwimCo’s sole discretion, either:
    1. be arbitrated in California under rules of the American Arbitration Association and the laws of California; or be adjudicated in Marin County, California under the laws of the United States and/or of California. Judgment on any arbitration award may be entered in any court having jurisdiction.
16. PacSwimCo Contact Information:
    1. Telephone: +1-415-737-9870
    2. Website: https://www.pacificswim.co/
    3. Mailing Address: PO BOX 566 Mill Valley, CA 94942