This licence agreement is a legal agreement between you (the "Licensee") and Wailing Banshee Limited (t/a FilmHERO) of Fleming Court, Leigh Road, Eastleigh, Hampshire, SO50 9PD (the "Licensor") governing your use of the video clips, music clips and graphics available on www.FilmHERO.com (the "Website").

By clicking the "I Agree" button at the bottom of this page, you agree to the terms of this licence agreement.

The definitions and rules of interpretation which apply to this agreement can be found at the end.

  • 1. LICENSE
  • 1.1 The Licensor hereby grants to the Licensee a non-exclusive, worldwide licence under the Copyright to do the following acts for the Term of this agreement, subject to, and in accordance with, the terms of this agreement:
  • 1.1.1 reproduce the Content for the purposes of creating Products (including in any advertising or promotional material relating to said Products); and
  • 1.1.2 sell or license the Products to independent arm's length customers; provided the acts are Permitted Acts in accordance with clause 2.
  • 2. PERMITTED ACTS
  • A Permitted Act is any other use not identified as a Prohibited Act.
  • 3. PROHIBITED ACTS
  • 3.1 The Licensee is prohibited from doing any of the following acts(the "Prohibited Acts"):
  • 3.1.1 using the Content in an unlawful manner or in violation of any applicable regulations or industry codes;
  • 3.1.2 using the Content in pornography;
  • 3.1.3 using the Content in any way which could reasonably be considered to be unnecessarily controversial or is likely to cause offence to the reasonable person;
  • 3.1.4 using the Content in a manner which is likely to cause harm to the Licensor or any model or actor appearing in the Content, such as use which would induce the public to lose respect for the Licensor or any actor or model;
  • 3.1.5 where a Product consists of mainly Content, representing that the Licensee is the sole owner of the copyright subsisting in the Product;
  • 3.1.6 using of the Content to create a digital template to be used outside of the Licensee's business; and
  • 3.1.7 downloading a number of pieces of Content which is, in the reasonable opinion of the Licensor, abusive or incompatible with purposes of the licence as granted in clause 1.1. By way of example, and without limitation to the generality of the aforesaid, the following acts may be, in the reasonable opinion of the Licensor, abusive:
  • 3.1.7.1 using automation to scrape large volumes of Content;
  • 3.1.7.2 manually downloading Content for the purposes of creating a stockpile of large portions of the Licensor's Content;
  • 3.1.7.3 downloading more than 250 pieces of Content in either the Initial Subscription Term or in each successive Renewal Period without any demonstrable intention to use said Content for the purposes of creating Products; or
  • 4. ONE-OFF LICENCE
  • 4.1 If the licence is a One-Off Licence, on the Effective Date the Licensee shall pay to the Licensor the One-Off Licence Fee in full and final consideration of the grant of the licence to the number of clips of Content identified in the Licensor's confirmation email.
  • 5. SUBSCRIPTION LICENCE
  • 5.1 If the licence is a Subscription Licence, on the Effective Date the Licensee shall provide the Licensor with valid, up-to-date and complete credit card details (the "Credit Card").
  • 5.2 The Licensee hereby authorises the Licensor to charge the Credit Card:
  • 5.2.1 on the Effective Date the Subscription Fee payable in respect of the Initial Subscription Term; and
  • 5.3 on the day after the expiry of the Initial Subscription Term or each successive Renewal Period, the Subscription Fee in respect of each successive Renewal Period, subject to clause 12. If the Licensor has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of the Licensor:
  • 5.3.1 the Licensor may, without liability to the Licensee, disable the Licensee's account and password and the Licensee's access to all or part of the Website;
  • 5.3.2 the Licensee's licence to use any of the Content shall cease forthwith; and
  • 5.3.3 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Royal Bank of Scotland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  • 6. INTELLECTUAL PROPERTY
  • 6.1 The Licensor warrants that the Licensor's use of the Copyright as permitted by the terms of this agreement will not infringe on any copyright or moral rights of the content's owner/creator.
  • 6.2 Save as expressly set out in this agreement, the Licensor does not assign or licence any rights to the Licensee in respect of the Content, whether express or implied.
  • 6.3 The Licensor does not make any warranty in respect of the Licensee's use of trade marks, trade dress, unregistered or registered designs, incidental copyright, names and people contained within the Content. It is the Licensee's responsibility to take appropriate measures to obtain releases for the use of additional rights contained within the Content belonging to a person other than the Licensor.
  • 6.4 Except as provided in section 6.1, the Licensor makes no representation or warranty, either express or implied, in relation to the Content. Without limitation, the Licensor makes no implied representations or warranties as to the Content's quality, value or fitness for a particular purpose.
  • 6.5 The Licensee is not obliged to credit the Licensor in its use of the Content. If the Licensee would like to credit the Licensor, it is permitted to use the Licensor's trade marks only to the extent necessary to give attribution. No further use of the Licensor's name, trade marks or logos is permitted without express written permission.
  • 7. PROTECTION OF THE COPYRIGHT
  • 7.1 The Licensee shall immediately notify the Licensor in writing giving full particulars if any of the following matters come to its attention:
  • 7.1.1 any actual, suspected or threatened infringement of the Copyright;
  • 7.1.2 any claim made or threatened that the Content infringes the rights of any third party; or
  • 7.1.3 any other form of attack, charge or claim to which the Copyright may be subject.
  • 7.2 In respect of any of the matters listed in clause 7.1;
  • 7.2.1 the Licensor shall, at his absolute discretion, decide what action to take, if any;
  • 7.2.2 the Licensor shall have exclusive control over, and conduct of, all claims and proceedings;
  • 7.2.3 the Licensee shall not make any admissions other than to the Licensor and shall provide the Licensor with all assistance that she/he may reasonably require in the conduct of any claims or proceedings; and
  • 7.2.4 the Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for his/her own account.
  • 7.3 The Licensee shall, upon becoming aware that any part of the Content may be the subject of a claim by a third party, immediately stop using the relevant part of the Content.
  • 7.4 The provisions of sections 101 and 101A of the Copyright, Designs and Patents Act 1988 (or equivalent legislation in any jurisdiction) are expressly excluded.
  • 8. LIABILITY AND INDEMNITY
  • 8.1 To the fullest extent permitted by law, the Licensor shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or other) arising from the Licensee's exercise of the rights granted to it under this agreement.
  • 8.2 Provided the Licensee is not in breach of any term of this agreement, the Licensor shall indemnify the Licensee against any and all liabilities, costs, expenses, damages and losses arising as a result of a claim by a third party that the Content infringes the intellectual property rights of said third party, subject to the limitations in this clause 8.
  • 8.3 The Licensee shall indemnify the Licensor and each of its officers, directors and employees against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Licensor arising out of or in connection with:
  • 8.3.1 the Licensee's exercise of its rights granted under this agreement;
  • 8.3.2 the Licensee's use of the Content outside the scope of this agreement;
  • 8.3.3 the Licensee's failure to obtain the necessary releases for the use of the Content;
  • 8.3.4 the Licensee's breach or negligent performance or non-performance of this agreement; and/or
  • 8.3.5 the enforcement of this agreement.
  • 8.4 This indemnity shall not cover the Licensor to the extent that a claim under it results from the Licensor's gross negligence or wilful misconduct.
  • 8.5 Nothing in this agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence.
  • 8.6 If a payment due under this clause 8 from the Licensee is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from the Licensee such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
  • 9. SUB-LICENSING
  • 9.1 If the Licensee is entering into this agreement on behalf of an employer or client, the Licensee shall have the right to grant his/her employer or client a sub-licence of any of its rights under this agreement, subject to the conditions in clause 9.3.
  • 9.2 The Licensee shall have the right to grant a sub-licence of its rights arising by virtue of clause 1.1.1 under this agreement, provided such sub-licence be
  • 9.2.1 limited in scope to the reproduction of the Content for the purposes of creating a Work Product (including in any advertising or promotional material relating to the said Work Product); and
  • 9.2.2 subject to the conditions in clause 9.3
  • 9.3 Any sub-licence granted under clause 9.1 and 9.2 must
  • 9.3.1 be in writing and be substantially the same as the terms of this agreement (except that the sub-licensee shall not have the right to sub-licence its rights); and
  • 9.3.2 terminate automatically on termination of this agreement.
  • 9.4 The Licensee shall be liable for all acts and omissions of any sub-licensee and shall indemnify the Licensor against all costs, expenses, claims, loss or damage incurred or suffered by the Licensor, or for which the Licensor may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of any sub-licensee, including but not limited to any claim resulting from the sub-licensee's failure to comply with the Permitted Acts.
  • 10. USER SUBSCRIPTIONS
  • 10.1 Subject to the Licensee purchasing the User Subscriptions in accordance with clause 5 the restrictions set out in this clause 10 and the other terms and conditions of this agreement, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Content during the Subscription Term solely for the Licensee's internal business operations.
  • 11. ASSIGNMENT AND OTHER DEALINGS
  • 11.1 Subject to clause 9, the Licensee shall not assign, transfer, mortgage, charge, sub-license, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Licensor.
  • 11.2 The Licensor may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and/or obligations under this agreement provided its successor agrees to be bound by these terms.
  • 11.3 The Licensor may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.
  • 11.4 The Licensee shall, at the Licensor's request, execute any agreements or other instruments (including any supplement or amendment to this agreement) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 11.2.
  • 12. DURATION AND TERMINATION
  • 12.1 For One-Off Licences, this agreement shall commence on the Effective Date and shall continue until terminated in accordance with this clause 12.
  • 12.2 For Subscription Licences, this agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed after each Renewal Period, unless:
  • 12.2.1 for Annual Subscription Licences, either party notifies the other party of termination, in writing via the Website, at least 10 working days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period;
  • 12.2.2 for Monthly Subscription Licences, either party notifies the other party of termination, in writing via the Website, at any time during the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate immediately upon the receipt by the Licensor of the written notification; or
  • 12.2.3 otherwise terminated in accordance with the provisions of this agreement.
  • 12.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
  • 12.3.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
  • 12.3.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  • 12.3.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
  • 12.3.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
  • 13. CONSEQUENCES OF TERMINATION
  • 13.1 On termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
  • 13.1.1 all outstanding sums payable by the Licensee to the Licensor shall immediately become due and payable.
  • 13.1.2 for Subscription Licences:
  • 13.1.2.1 all rights and licences granted pursuant to this agreement shall cease;
  • 13.1.2.2 the Licensee shall be granted a new non-exclusive, worldwide licence under the Copyright to do the following acts in perpetuity: (a) reproduce Content downloaded during the Subscription Term for the purposes of creating Products (including in any advertising or promotional material relating to said Products); and (b) sell or license Products created during the Subscription Term and Products created under the licence granted to the Licensee by virtue of clause 13.1.2.2(a) to independent arm's length customers; provided the acts are Permitted Acts in accordance with clause 2; and
  • 13.1.2.3 The Licensee shall cease to make any use of the Copyright save as set out in this clause.
  • 13.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
  • 13.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
  • 14. AUDITS
  • 14.1 Upon receipt of reasonable notice from the Licensor, the Licensee agrees to provide the Licensor with:
  • 14.1.1 samples of Products containing Content;
  • 14.1.2 access to any document management system hosting Products containing Content; and
  • 14.1.3 access to any records detailing the use of the Content, free of charge for the purposes of verifying compliance with this agreement.
  • 14.2 If an audit conducted in compliance with this section 14 reveals a breach of this agreement by the Licensor, the Licensee must pay to the Licensor the reasonable costs of the audit.
  • 15. WAIVER
  • No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  • 16. MISCELLANEOUS
  • 16.1 Entire Agreement. This agreement, together with the Licensor's confirmation email, the purchase confirmation page and the website terms and conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • 16.2 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • 16.3 Severability. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
  • 16.4 Third Parties. Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
  • 16.5 No Partnership or Agency. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
  • 16.6 Force Majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.
  • 17. NOTICES
  • 17.1 The Licensor agrees to contact the Licensee only at the email address related to the User Account from time to time.
  • 17.2 The Licensee agrees to contact the Licensee only at Wailing Banshee Ltd, Langdowns DFK, Fleming Court, Leigh Road, Eastleigh, Southampton, Hants, SO50 9PD
  • 18. GOVERNING LAW
  • This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
  • 19. JURISDICTION
  • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
  • 20. DEFINITIONS AND INTERPRETATION
  • 20.1 Definitions:
  • "Annual Subscription Licence" means a licence granted in accordance with clause 1.1 in respect of the Subscription Content for the Term;
  • "Authorised Users" means those employees, agents and independent contractors of the Licensee who are authorised by the Licensee to use the Content, as further described in clause 10;
  • "Content" means
  • (1) for licences identified in the Licensor's confirmation email as Subscription Licences, the Subscription Content; and
  • (2) for licences identified in the Licensor's confirmation email as One-Off Licences, the One-Off Content;
  • "Copyright" means all copyright and rights in the nature of copyright subsisting in the Content in any part of the world to which the Licensor is, or may become, entitled;
  • "Effective Date" means the date on which the Licensee indicates his/her agreement to be bound by these terms by clicking the "I Agree" button at the bottom of this page;
  • "Initial Subscription Term" means, as appropriate:
  • (1) for licenses identified in the Licensor's confirmation email as Monthly Subscription Licences, the period of 1 month from the Effective Date; and
  • (2) For licences identified in the Licensor's confirmation email as Annual Subscription Licences, the period of 1 year from the Effective Date;
  • "Licensee Account" means the Licensee's account on the Website;
  • "Monthly Subscription Licence" means a licence granted in accordance with clause 1.1 in respect of the Subscription Content for the Term;
  • "One-Off Content" means the video clips, music clips, graphics and motion graphics templates (.mogrt files) owned by the Licensor and identified in the Licensor's confirmation email;
  • "One-Off Licence" means a licence granted in accordance with clause 1.1 in respect of the One-Off Content for the Term;
  • "One-Off Licence Fee" means the sum of USD 99 per Pack being licensed as confirmed in the Licensor's confirmation email;
  • "Pack" means a package of Content;
  • "Permitted Act" is defined in clause 2;
  • "Products" means the products in which the Licensee has has reproduced the Content pursuant to clause 1.1.1;
  • "Prohibited Act" is defined in clause 3.1;
  • "Renewal Period" means, as appropriate:
  • (1) for licenses identified in the Licensor's confirmation email as Monthly Subscription Licences, a successive period of 1 month commencing on the day following the expiry of the Initial Subscription Term; and
  • (2) For licences identified in the Licensor's confirmation email as Annual Subscription Licences, a successive period of 1 year commencing on the day following the expiry of the Initial Subscription Term;
  • "Subscription Content" means all video clips, music clips, graphics and motion graphics templates (.mogrt files) owned by the Licensor and available from time to time on the Website;
  • "Subscription Fee" means the subscription fees payable by the Licensee to the Licensor for the User Subscriptions, as confirmed in Licensor's confirmation email;
  • "Subscription Licence" means a licence granted in accordance with clause 1.1 in respect of the Subscription Content for the Term, for the avoidance of doubt both Annual Subscription Licences and Monthly Subscription Licences are Subscription Licences;
  • "Subscription Term" means the Initial Subscription Term together with any subsequent Renewal Periods;
  • "Term" means, as appropriate:
  • (1) for licenses identified in the Licensor's confirmation email as Subscription Licences, until this agreement is terminated by the Licensee in accordance with clause12; and (2) for licenses identified in the Licensor's confirmation email as One-Off Licences, in perpetuity; and
  • "User Subscriptions" means the user subscriptions purchased by the Licensee pursuant to clause 10 which entitle Authorised Users to access and use the Content in accordance with this agreement.
  • "Work Product" means a Product resulting from one specific project undertaken by the Licensee for one specific client.
  • 20.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
  • 20.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • 20.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • 20.5 References to clauses and Schedules are to the clauses and Schedules of this agreement.
  • 20.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • 20.7 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives and successors and references to any party shall include that party's personal representatives and successors.
  • 20.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
  • 20.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
  • 20.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  • 20.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.