SMAGPIE EXTENDED IMAGE USAGE AGREEMENT
Dear Smagpie Customer:
- All Images on the Smagpie website are protected by United States and international copyright laws and treaties. Smagpie and/or the various artists who provide Images to Smagpie ("Contributors") own all rights, including the copyrights in and to the Images. Smagpie and/or its Contributors reserve all rights in and to the Images not expressly granted to you by the terms of this Agreement. Your rights to use any Image are subject to this Agreement and are conditioned upon your payment to Smagpie for your use of the Images. If you fail to make any payment to Smagpie when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. If your account becomes delinquent, your right to use any Images downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Smagpie costs of collection, bank charges and credit card processing fees are received by Smagpie no later than fifteen (15) days from the date that your account became delinquent. Image credits expire on the one year anniversary of the date of purchase and are nonrefundable.
- This Agreement grants you a single-user, single-seat license. This license shall not be used simultaneously on multiple devices, or at any time by multiple persons.
By this Agreement, Smagpie grants you a personal, non-exclusive, non-transferable (except as herein provided) right, throughout the world, in perpetuity, to use and reproduce Images, subject to the limitations set forth herein and in Part II hereof. You may however transfer Images to a third party for the sole purpose of causing such third party to produce and/or manufacture your goods incorporating Images.
This Agreement grants you the right to:
- Incorporate Images on tangible products for resale, including shirts, hats, mugs, calendars, stationery items, cards and other small items;
- Print, paint or otherwise render a licensed Image on canvas, paper or other mediums for distribution, provided that the print, painting or rendering combines the Image with words and/or other graphics or images and/or credit to the Bigstock contributor;
- Incorporate Images within an offline, distributed software program;
- Incorporate images into online software and electronic templates such as electronic greeting cards, content management software, presentation templates, web page builders, at a resolution no greater than the display resolution of the intended viewing device(s).
- Incorporate Images into advertising materials, posters and tradeshow signage for use in promoting the sale of other products or services (as opposed to promoting the sale of the prints, posters, etc. containing the Images), including Out-of-Home advertising, provided that the Image is an integrated, supportive part of your project or product and not the definitive part of such prints and/or posters and/or other reproductions.
- Use Images in magazines, newspapers, books, book covers and/or textbooks, for editorial and/or advertising purposes;
- Use Images in the artwork for the packaging of any product;
- Incorporate Images on letterhead and business cards, pamphlets, brochures, and catalogs provided that Images are not used as a logo or trademark;
- Incorporate Images into set design and dressing for public performance;
- Use Images for a purpose not described by any of the above but pertaining to the manufacture, resale and distribution of a product so long as such product does not violate any other clause hereunder, in particular those clauses under Part III. All other rights in the Images are expressly reserved by Smagpie for itself and its Contributors.
YOU MAY NOT:
- Use an Image other than as specified in PART I.
- Use an Image for multiple uses. Each separate use of an Image downloaded hereunder requires a separate payment. For example, if an Image is used as part of a website design and in a business card, each of those uses requires its own Image license which must be paid for each use. This is accomplished by downloading and paying for the Image as many times as necessary. Using an Image in multiple products without purchasing separate licenses for such uses is a violation of this Agreement and might expose you to liability for copyright infringement.
- Use an Image in such a manner that it infringes upon any third party's trademark or other intellectual property.
- Use an Image in a way that places any person depicted in the Image in a way that a reasonable person would find offensive - this includes, but is not limited to the use of Images: a) in pornography, "adult videos" or the like; b) in ads for tobacco products or other addictive substances; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements and/or promotional materials for pharmaceutical, healthcare, herbal or medical products (including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products), if the use implies that the depicted person suffers from a physical or mental infirmity, ailment or condition or engages in any immoral or illegal activity; f) in any manner that suggests the model personally uses or endorses any product or service; and g) in any manner that is defamatory, or contains unlawful or offensive content.
- Share an Image by providing access to such Image on shared disk drives, computer networks, servers, cloud network or other intranets of any nature or otherwise.
- Use any Image(s) on any third party social media website or platform (a “Social Media Platform”), if such Social Media Platform claims to acquire rights contrary to this Agreement as a result of such use. In such event, you will promptly remove the Image(s) from the Social Media Platform upon Smagpie's request.
- Use Images in a manner that competes with Smagpie's business. This includes, by way of illustration only and not by way of limitation, displaying Images in any format (including thumbnails) for download on a website, offering Images for sale, or otherwise distributing or making Images available for distribution to third parties.
- Use an Image marked "Editorial Use Only" for commercial purposes. If an Image is marked, "Editorial Use Only", additional permissions may be required for commercial use. Smagpie does not provide such permissions.
- Use any Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
- Use or display an Image in such a manner that gives the impression that the Image was created by you or a person other than the copyright holder of that Image. Additionally, you may not use or display any Image in such a manner that gives the impression that any person depicted in the Image is the author or creator of any product in which the Image is incorporated.
- Use automated programs, applets, bots or the like to access the Smagpie.com website or any content thereon for any purpose, including, by way of example only, downloading Images, indexing or caching any content on the website.
- Smagpie shall be under no obligation to refund the cost of a purchase. However, in the event that Smagpie determines that you are entitled to a refund of all or part of your purchase price, such refund shall only be made to the credit card account originally used by you to make the subject purchase. If your payment was made by check, your refund will be made by check.
- You agree to take all commercially reasonable steps to prevent third parties from duplicating any Image. If you become aware of any unauthorized duplication of any Smagpie Image(s) please notify us via email at email@example.com.
- You agree that you will not share your username and password combination. Your Smagpie username and password are to be used only by you. Each person that desires to access the Smagpie site must have his/her own username and password. You may access your account on multiple computers, but only one computer may be logged in using your account at any one time. If any two users on two separate computers are using the same username and password, we reserve the right to terminate that subscriber's account without refund or prior notice. We reserve the right to monitor accounts and institute measures to stop users from sharing their login information.
- You agree to indemnify and hold Smagpie, its officers, employees, shareholders, directors, managers, members and suppliers, and those of its affiliates including parent companies and subsidiaries, harmless against any damages or liability of any kind arising from any use of Images other than the uses expressly permitted by this Agreement. You further agree to indemnify Smagpie for all costs and expenses that Smagpie incurs in the event that you breach any of the terms of this or any other agreement with Smagpie.
- You Warrant and Represent that:
- All information, including personal information, that you provide to Smagpie is accurate, complete, and current at the time you provide it to Smagpie . You agree to correct and update such information to ensure its accuracy and completeness at all times. Falsification of such information, or failure to comply with this Agreement may result in the termination of your account with Smagpie .
- You accept responsibility for any and all activities conducted through your Smagpie account. You agree to notify Smagpie immediately of any unauthorized use of your account, including the unauthorized use of your password or accounts, as well as of any other breach of security that may affect Smagpie .
- You agree that you may not have more than one account without Smagpie's prior written consent. You may not create additional accounts for the purpose of re-using promotional codes, affiliate program referrals or other bonus / special offers. You may not use more than one promotional code or offer without Smagpie's consent. Promotional codes and offers may not be combined.
- You will not in any way impersonate another person or act in a manner which may cause others to confuse you with another party. You will not engage in any behavior towards Smagpie , Smagpie employees, Smagpie Contributors, or in connection with any Image(s), which Smagpie , in its discretion, deems vulgar or otherwise offensive.
- If Smagpie terminates your account, you will not access Smagpie in any manner or for any reason without the prior express written permission of Bigstock.
- Smagpie warrants and represents that it has the right and authority to enter into this Agreement and to grant the rights in the Images set forth herein, subject to the limitations and exclusions set forth herein.
- While Smagpie uses commercially reasonable efforts to ensure the accuracy of Image keywords and descriptions, as well as the integrity of our Editorial Images, Smagpie makes no warranties and/or representations regarding such keywords, Image descriptions or integrity.
- The rights granted to you under this Agreement shall terminate immediately and without notice: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings, by or against you; (ii) upon you making an assignment for the benefit of creditors; or (iii) upon the dissolution of any entity on whose behalf you entered into this Agreement, or at the moment such entity ceases to do business. Smagpie shall not consent to any assumption or assignment of the rights granted hereunder in the event of any of the preceding.
- You must be at least 18 years of age to use the Smagpie.com website and accept this Agreement. Smagpie may require any registrant to provide sufficient proof of age.
- Any legal action or proceeding concerning the validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York, or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this agreement. The validity, interpretation and enforcement of this agreement, matters arising out of or related to its making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). You agree that service of process in any actions, controversies and disputes arising from or relating to this Agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
- If you are entering into this Agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Smagpie for any breaches of the terms of this Agreement.
- Credit Attributions and Copyright Notices undefinedundefinedundefined
- In the event that you breach any of the terms of this or any other agreement with Smagpie, Smagpie shall have the right to terminate your account without further notice. Such termination shall be in addition to Smagpie's other rights at law and/or equity. Smagpie shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of any such breach or breaches.
- Smagpie grants no rights and makes no representations or warranties with respect to the use of any names, trademarks, service mark, logotypes, copyrighted designs or works of art or architecture depicted in any image. It is your responsibility to assure that all necessary rights, consents, or permissions that may be required for your use of any Images are obtained.
- Smagpie does not warrant that the Image(s), Smagpie websites, or other materials, will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Image(s) is solely with you.
- You understand that you should seek competent counsel before using Images on or in connection with any goods or services or for any other commercial purposes.
- In no event shall Smagpie's total aggregate liability to you, or to any third party claiming through you, arising out of or in connection with your use of or inability to use the Smagpie website and/or image(s) contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by Smagpie from you for your use of the applicable image(s). Neither Smagpie nor any of its officers, employees managers, members, shareholders, directors suppliers or those of its affiliates including parent companies and subsidiaries, shall be liable to you or to any other person or entity for any general, punitive, special, indirect, consequential or incidental damages, or lost profits or any other damages, costs or losses arising out of your use of the image(s), Smagpie's breach of this Agreement, or otherwise, unless expressly provided for herein, even if Smagpie has been advised of the possibility of such damages, costs or losses.
- In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting Smagpie, Smagpie will promptly file a complaint with www.ic3.gov, the Internet Crime Complaint Center, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center. Effective November 1, 2020