User Generated Content License Agreement
This User Generated Content License Agreement (“Agreement”) is by and between Los Cabos Tourism Board (collectively, “Los Cabos” or “we”, “our”, or “us”) and you or the organization you represent (“you” or “USER”).
USERs agree, represent and warrant to the following:
I. LICENSE OF CONTENT, NAME, AND LIKENESS
A. Licensed Parties. USERs retain ownership of USER's UGC (but excluding any Services Content as defined below) but agrees to grant a non-exclusive, worldwide license (as detailed below) to Los Cabos and its executives, employees, related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, third-party service providers and their respective retail partners, marketing or public relations agencies and other affiliates, and all other users of the Services (the “Licensed Parties”).
B. License of UGC. As consideration for participation in the User Generated Content Program and use of any Los Cabos content, activities or the Services (“Services Content”), upon USER's submission of UGC, USER irrevocably grants to the Licensed Parties the non-exclusive, assignable, sub-licensable, worldwide, perpetual, royalty-free, no-cost license and right to use and otherwise exploit USER's User Generated Content, in whole or in part, and all USER social profile information, code, content, content descriptions, and other materials depicted therein, in whole or in part, in any manner or medium now or hereafter known or devised, including on the Internet, in any commercial manner, and in advertising and promotion of the Services and of Los Cabos and its products and services, throughout the world and in any and all languages without the requirement to make payment to you or to any third party or the need to seek any third party permission. The Licensed Parties will have the right to make unlimited derivative works therefrom, to assign or transfer any or all such rights and to grant unlimited, multiple-level sublicenses with no obligations to you, whether financial, credit, approval of changes or otherwise. USER hereby forever waives and relinquishs all so-called "moral rights" now or hereafter recognized. The Licensed Parties may, at no cost or expense to you, process your UGC for playback over the Internet, in print or on television or direct playback on prepared files. The Licensed Parties shall have and retain all right, title and interest in and to the data resulting from such processing, including without limitation, encoding, compressing, formatting, and processing of audio and video data.
C. License of Name and Likeness. USER also irrevocably grants the Licensed Parties the perpetual, royalty-free and worldwide right to use their name, voice, likeness, image, photograph, biographical material, logos, marks or trade names, or other information provided or obtained (“Name and Likeness”), including without limitation, the right to publicly display, publicly perform, distribute, and reproduce the UGC, name, voice, likeness, social profile information and biographical material, in connection with the Services, the User Generated Content Program, in derivative works thereof, and in any advertising, publicity and exploitational material for purposes of advertising or promoting Los Cabos, its products and/or services.
D. No fees or obligations to return. USER agrees that no money will be owing to any party as a result of the posting of the UGC or its use as contemplated by the Services and this Agreement or for any use, distribution, or other exploitation of the UGC or any rights therein, whether as part of the Services or otherwise. USER also agrees that the Licensed Parties shall not be responsible for the return or preservation of UGC submitted or any elements thereof. This permission is given to the Licensed Parties with the knowledge that it will be relied thereon at substantial cost to the Licensed Parties, and USER agrees not to assert any claim against the Licensed Parties of any nature whatsoever arising by reason of its use of such UGC.
II. PROHIBITED UGC CONTENT
A. Prohibited Content. USER represents and agrees that USER shall not submit any UGC that (“a” through “j” as stated below collectively referred to as the “Prohibited UGC Content”):
a. is known by you to be false, inaccurate or misleading;
b. that infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
c. that violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
d. that is, or may reasonably be considered to be abusive, illegal, defamatory, libelous, indecent, hateful, racially or religiously biased or offensive, slanderous, indecent, obscene, pornographic, sexually explicit, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation in any way; or that encourages anyone to break any local, state, national or international law;
e. that is or contains advertising, promotional material or promotes a product, service or other commercial activity;
f. that impersonates or attempts to impersonate Los Cabos or any of its employees, another user, or person or entity (including, without limitation, the use of email addresses associated with any of the foregoing);
g. that includes any information that references other websites or personally identifiable information (e.g., first and last name, addresses, email addresses, contact information or phone numbers);
h. that contains any computer viruses, worms, Trojan horses, spyware or other potentially damaging technologies, computer programs or files or malicious code that could impact the operation of our Services or any computer or other device;
i. that contains any persons whom have not consented or are unable to consent (whether due to being below the age of majority or otherwise incapable) to the Licensed Parties’ use of their Name and Likeness under Section I, Subsection C of this Agreement; or
j. that contains the image or likeness of any person under the age of 13.
III. REPRESENTATIONS, WARRANITES, AND INDEMNITY
A. READ AND AGREE. BY SUBMITTING YOUR UGC TO LOS CABOS, YOU REPRESENT AND WARRANT THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, UNDERSTAND ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU AGREE TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. OTHERWISE, YOU AGREE NOT TO SUBMIT YOUR UGC TO LOS CABOS.
B. Age of Majority. By submitting your UGC to Los Cabos, you represent and warrant that you are at least the age of majority in your state of residence (which is eighteen (18) in most states but is nineteen (19) in Alabama and Nebraska and twenty-one (21) in Mississippi).
C. No Prohibited UGC Content. By submitting your UGC to Los Cabos, you represent and warrant that the UGC does not contain any Prohibited UGC Content.
D. Name and Likeness of Others. By submitting your UGC to Los Cabos, you represent and warrant that you have obtained permission for you to use and for the Licensed Parties to use the Name and Likeness of any individuals contained in the UGC, in the same manner as to which you agreed in Section I, Subsection C of this Agreement.
E. Original Work. USER hereby represents and warrants that his or her contribution to UGC are wholly original with USER and are not a copy or imitation of any other material; will not infringe or violate any right whatsoever, including, without limitation, any personal rights (e.g., defamation, publicity, privacy, false light, moral right, etc.) or any property rights (e.g., copyright, trademark, right to ideas, etc.) of any person or entity; and are not the subject of any threatened or pending litigation, claim or dispute that might give rise to litigation, which adversely affects or in any way prejudices, impairs or diminishes the rights granted hereunder or the value thereof.
F. USER has Authority. USER further represents and warrants that he or she has the right to execute and fully perform this Agreement and that USER is of the age of majority in his or her state of residence. USER will defend, indemnify and hold Los Cabos and its parents, and each of their respective successors, assigns and licensees, harmless from and against: (a) any claims, costs, injuries, losses and damages related to any unauthorized use of the UGC, Services Content (if any) or any breach by USER of this Agreement; and (b) any third party claims, to the extent relating to any breach of any representation, warranty or covenant made by USER in this Agreement. USER further represents and warrants that there are no third party rights organizations that have jurisdiction over any UGC.
G. Indemnity. USER agrees to indemnify, hold harmless, and defend the Licensed Parties from any claim or liability related in any way to this Agreement, your use of the Services, or the Licensed Parties’ use of your UGC.
IV. ADDITIONAL USER RESPONSIBILITIES AND AGREEMENTS
A. Los Cabos’s Sole discretion. USERs agree that Los Cabos shall have the sole discretion in determining the extent and manner of the use of the UGC, and all elements thereof, in whole or in part, and that Los Cabos is not obligated in any way to use or exploit same or anything else granted herein or any portion thereof in any medium or any manner.
B. Intellectual Property. You agree that all goodwill that arises in connection with your use of Los Cabos's trademarks inures exclusively to Los Cabos and agree not to challenge Los Cabos's ownership or control of any Los Cabos trademarks, nor use or adopt any trademarks that might be confusingly similar to such Los Cabos trademarks. You acknowledge and agree that you do not acquire any ownership or other rights in property information and materials of Los Cabos by authorizing use of your UGC or otherwise using or accessing the Services.
C. Non-Confidentiality of UGC. You agree that (a) your UGC will be treated as non-confidential – regardless of whether you mark them "confidential," "proprietary," or the like – and will not be returned, and (b) the Licensed Parties do not assume any obligation of any kind to you or any third party with respect to your UGC. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of UGC may not be secure, and you will consider this before submitting any UGC and do so at your own risk.
D. User will Maintain Rights. With respect to all UGC that you seek to post, you represent and warrant that the material is either fully original to you or that you have all the necessary rights, licenses, clearances and consents needed from third parties in order for you to submit your UGC (including but not limited to all copyright and right of publicity and privacy rights) for you to comply with the terms of this Agreement. Your UGC should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any UGC that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet or other source. If anyone contributes to your UGC or has any rights to your UGC, or if anyone appears in the UGC, then you must also have their permission to submit such UGC to Los Cabos. (For example, if someone has taken a video of you and your friend, and you submit that video to Los Cabos as your UGC, then you must obtain your friend's and the photographer's permission to do so.) We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, such UGC being removed from the Services. You must maintain all such rights and obligations under this sub-section and this Agreement in perpetuity. If you ever have reason to believe that you have not maintained any of these rights or obligations, you must provide immediate notice to Los Cabos in accordance with this Agreement.
B. Governing Law and Arbitration. This Agreement shall be subject to and governed by the laws of the State of Missouri, excluding its conflicts of law rules. You agree that any controversy or claim arising out of or relating to this Agreement or your UGC shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgmenet on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You agree to comply with all applicable laws, rules and regulations.
C. Right to Modify. Los Cabos reserves the right to modify this Agreement, at any time without prior notice ("Updated Agreement"). You agree that we may notify you of the Updated Agreement by posting it on the Services so that it is accessible via a link on the Services, and that your use of the Services after we post the Updated Agreement (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement on a regular and frequent basis. The Updated Agreement will be effective as of the time that Los Cabos posts it on the Services, or such later date as may be specified in it.
D. Non-assignability. You acknowledge and agree that the terms of this Agreement are personal to you and may not be assigned or transferred by you for any reason whatsoever without Los Cabos’s prior written consent; and any action or conduct in violation of the foregoing shall be void and without effect.
E. No Waiver. You acknowledge and agree that if Los Cabos does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Los Cabos has the benefit of under any applicable law), this will not be taken to be a formal waiver of Los Cabos’s rights and that those rights or remedies will still be available to Los Cabos.
F. Separability. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
G. No Affiliation. Use of the UGC by the Licensed Parties does not imply endorsement or affiliation with you.
H. Notice. You must send any notice related to this agreement to Los Cabos by Carretera Transpeninsular Km. 4.3 Plaza Providencia L-209, El Tezal, Cabo San Lucas, B.C.S, C.P 23454, México