Background of Agreement
By purchasing and/or downloading products and/or services from The Site, you are signifying your acceptance of this Agreement and agree to be bound by its provisions.
In this Agreement: (1) “you” or the “Client” means you or, if you are accepting on behalf of your employer, then “you” means that employer or entity and its affiliates; (2) “MichaelsGraphics.net”, “MichaelsGraphics.com”, “The Site” or “we” means The Rejuvenation Station, LLC, owner and operator of The Site; (3) “Content” means any photographic or graphic image, illustration, animation, film or video footage generated electronically, digitally or by any other means or in any media or other material that you are purchasing and/or downloading from The Site; (4) “Custom Content” means any photographic or graphic image, illustration, animation, film or video footage generated electronically, digitally or by any other means or in any media or other material that you are purchasing and/or downloading from The Site which is an original creation of The Site that has been designed and created solely by The Site for exclusive use by you.
For non-Custom Content, we hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for Allowable Uses defined below. All other rights in and to the Content, including, but not limited to, all copyright and other intellectual property rights relating to the Content, are retained by The Site or the supplier of the Content, as the case may be.
Custom Content, once purchased from The Site, becomes the sole property of the Client and has no restrictions on its use or resale. The Site retains the right to display said Custom Content in its marketing materials and advertising.
You may only use the Content for those advertising, promotional and other specified purposes which are Allowable Uses (as defined below). Unless specifically authorized in writing from The Site, you may not use the Content in products for resale, license or other distribution, unless the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement). For example, you cannot superficially modify the Content, print it on a t-shirt, mug, poster, template or other item, and sell it to others for consumption, reproduction or re-sale. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should either obtain Custom Content or contact The Site for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.
Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, or ISP for the purpose of reproduction for Allowable Uses, provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Allowable Uses an unlimited number of times. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location, or accessible by more than one person, you must purchase a separate instance of the Content from the Site for each such use or obtain Custom Content from The Site. You may make one (1) copy of the Content strictly for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
Subject to the restrictions described under Prohibited Uses below, the following are “Allowable Uses” of Content:
(1) Advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogs, brochures, promotional greeting cards and promotional postcards (ie, not for resale or license),
(2) Entertainment applications such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations,
(3) On-line or electronic publications, including Web pages,
(4) Prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution, and
(5) any other uses approved in writing by The Site.
License Prohibitions and Prohibited Uses
You may not do anything with the Content that is not expressly permitted in the preceding section. “Prohibited Uses” include, but are not limited to:
(1) Use of the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates
(2) Use or display of the Content on websites or other venues designed to induce or involve the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items
(3) Use of the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit
(4) Use of any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo
(5) Incorporation of the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates, etc.) or is otherwise made available in a manner such that a person can extract, access or reproduce the Content as an electronic file
(6) Use of the Content in a fashion that is considered by The Site (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute
(7) Use or display of any Content that features a model or person in a manner that (a) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or (b) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content
(8) Removal of any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content
(9) Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement
(10) Installation and use of the Content in more than one location at a time
(11) Post a copy of the Content on a network server or Web server for use by other users
(12) Use or display of the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement
Term of Agreement
This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from The Site if at any time you fail to comply with any of its terms. Upon termination, you must immediately cease using the Content for any purpose, destroy or delete all copies and archives of the Content or accompanying materials and, if requested, confirm to The Site in writing that you have complied with these requirements.
The Site reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice sent to the address or contact information provided by you, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
Limited Representations and Warranties
THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE SITE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT THE SITE) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
Limitation of Warranties and Liability
The Site’s entire liability and your exclusive remedy, with respect to any claims arising out of your use of the Content, or out of your actions in downloading the Content, shall be as follows:
(1) You may, upon request to The Site, be permitted to download the Content again, at a location that The Site will provide for you.
(2) If you continue to be unable to download the Content, The Site will refund the fee actually paid by you for such Content, provided The Site determines in its sole and absolute discretion that you have been unable to download such Content successfully.
IN NO EVENT SHALL THE SITE OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF THE SITE UNDER THIS AGREEMENT, THE LICENSE PROVIDED HEREUNDER, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO MICHAELSGRAPHICS.NET UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE RELEVANT CONTENT.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold The Site, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, “The Site Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any of The Site Parties as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.
The Site’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is personal to you and is not assignable by you without The Site’s prior written consent. The Site may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
This Agreement will be governed under the laws of the State of North Carolina and the federal laws of the United States of America applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
If you have concerns relating to this Agreement, please contact The Site at [email protected].
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF THE SITE AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE SITE, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THE SITE RELATING TO THE SUBJECT OF THIS AGREEMENT.