COMSTOCK IMAGES ROYALTY- FREE LICENSE AGREEMENT
1. ESSENTIAL INFORMATION
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS. YOUR ACCEPTANCE OF THESE TERMS IS AN ABSOLUTE CONDITION OF YOUR USE OF ANY IMAGE AND FORMS A LEGAL AGREEMENT BETWEEN YOU AND COMSTOCK IMAGES, a division of JupiterImages Corporation (hereafter “COMSTOCK IMAGES”) . By downloading an image from Comstock you agree to be bound by the terms of this agreement. COMSTOCK IMAGES reserves the right to change these terms at any time, and you agree to be bound by such changes.
a) Geographic limits:
This License Agreement governs your use of Comstock Royalty Free Image(s) ("the Image(s)"), provided by COMSTOCK IMAGES, a division of JupiterImages Corporation (hereafter “COMSTOCK IMAGES”). COMSTOCK IMAGES grants you a non-exclusive and non-transferable license for the use of the Image(s) only as provided below. All other rights to the Image(s), CD-ROM and accompanying materials (if applicable), including without limitation, copyright and all other rights, are retained by Comstock.
b) Number of Users:
THIS IS A TEN (10) PERSON MULTI-LICENSE AGREEMENT. You and nine (9) other designated people are permitted to use the Image(s). THIS IS NOT A SIMULTANEOUS USE LICENSE. You may not allow more than ten designated people, whether employees or contractors, access to or use of the Image(s), even if only ten people are using the Image(s) at the same time. You may not use the Image(s) on a server or create any other image library that permits access to more than ten designated people.
Additional Seat Licenses are available for more than the ten permitted users. Quantity discounts are available. To obtain additional seat licenses please call Comstock at 1-800-225-2722.
c) Permitted Uses. You may:
(i) Back up, copy, or archive the Image(s) as necessary for internal use, and only as necessary for that use. Any copy or archive you make must include the Image's copyright information.
(ii) Use the Image(s) in any electronic or print media, including advertising and editorial use, and consumer merchandise.
(iii) Use the Image(s) for any items for resale, including book covers and consumer merchandise, provided these products are not intended to allow the re-distribution or re-use of the Image(s).
(iv) Modify or alter the Image(s) as necessary for your use, as allowed for elsewhere in these terms and conditions, provided that the rights to any derivative work shall belong to COMSTOCK IMAGES. You may use such derivative work only as permitted in accordance with these terms and conditions. All copyrights with respect to such derivative work are assigned to COMSTOCK IMAGES, which assignment the parties hereby agree is valid under the U.S. Copyright Law. If requested by COMSTOCK IMAGES, you agree to execute a written assignment of any such copyrights with respect to such derivative work.
(v) In the normal course of workflow, convey to a third party (such as a printer) temporary copies of the Image(s) that are integral to your work product and without which the product could not be completed.
(d) Prohibited Uses: You may not:
(i) Transfer the rights to the Image(s), CD-ROM or accompanying materials (if applicable), except as specifically provided for elsewhere in this Agreement. All other rights are reserved by COMSTOCK IMAGES.
(ii) Reverse engineer, decompile, or disassemble any part of the Image(s), CD-ROM or accompanying materials (if applicable), subject to applicable law.
(iii) Copy or reproduce the Image(s), CD-ROM or accompanying materials (if applicable), except as specifically provided for in paragraph 2(c).
(iv) Remove any copyright or trademark from any place where it appears on the Image(s) or its accompanying materials.
(v) Display the Image(s) in any digital format or for any digital use at a resolution greater than 640x480 pixels, except in editorial or preliminary design work. Doing so will be viewed as an attempt to distribute the Image(s) in violation of this Agreement. We are specifying this so that no one can steal the Image(s) from you, even if that was not your intention.
(vi) Use the Image(s) or any part of it as part of a trademark, service mark, or logo. COMSTOCK IMAGES retains the full rights to the Image(s), and therefore you cannot establish your own rights over any part of it.
(vii) Re-sell, distribute or sub-license the Image(s), CD-ROM (if applicable), or the rights to use the Image(s) to anyone for any purpose, except as specifically provided for elsewhere in this agreement. COMSTOCK IMAGES is in the business of licensing images to its customers. It is the specific intent of this provision to prohibit a purchaser or licensee of Comstock’s images from using the Image(s) to enter, either directly or indirectly, a similar or competing business. It is also prohibited to use the Image(s) in a product whereby the purchaser or licensee of that product can then use the Image(s) for its own purposes.
(viii) You agree not to use the image(s) in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, either by making physical changes to it, or in the juxtaposition to accompanying text. You agree not to use COMSTOCK IMAGES as part of any use involving sensitive subject matter, as determined by COMSTOCK IMAGES, including but not limited to the following sensitive subjects: all sexual issues, sexually transmitted diseases, substance abuse, alcohol, tobacco, AIDS, cancer, mental ailments, Homosexual or alternative lifestyles issues, and physical or mental abuse, without advance written consent from COMSTOCK IMAGES and any model in such Image. Sensitive subject usage pertains to both commercial and editorial uses. Contact COMSTOCK IMAGES for verification of model releases.
Availability of model releases does not grant the right to use an image in any sensitive issues mentioned.
e) Rights of Agents
Agents are granted the rights listed in this agreement provided that these rights are used solely in a final product published by a single client as the final end user.
3. PAYMENT TERMS
No rights are granted until the invoice is paid in full. A service charge of two percent (2%) per month, or such lesser amount allowed by law, will be charged thereafter on any unpaid balance. And claims for adjustment of terms must be made to COMSTOCK IMAGES within five (5) days of the receipt of the invoice. Prices can be found on COMSTOCK IMAGES’ website or by calling COMSTOCK IMAGES.
This License is effective until it is terminated. You can terminate this License by destroying the Image(s), along with any copies or archives of it, and any CD-ROM or accompanying materials (if applicable), and ceasing to use the Image(s) for any purpose.
The License also terminates if at any time you fail to comply with the terms of this Agreement. If this happens, you hereby agree to destroy all copies and archives of the Image(s), to cease using the Image(s) for any purpose, and to confirm to COMSTOCK IMAGES in writing that you have complied with these requirements.
5. LIMITED WARRANTY
Comstock represents that it has the right to enter into this Agreement and has the right to grant this License under these terms.
Comstock warrants that the Image(s) and/or CD-ROM (if applicable) will be free from defects in materials and workmanship under normal use for a period of 30 days from the date you download or receive it.
EXCEPT AS PROVIDED ABOVE, THE IMAGE(S), CD-ROM AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMSTOCK DOES NOT WARRANT THAT THE IMAGE(S) 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 IMAGE(S) IS WITH YOU. SHOULD THE IMAGE(S) PROVE DEFECTIVE, YOU (AND NOT COMSTOCK OR AN AUTHORIZED PERSONNEL OR OTHER COMPUTER DEALER) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
Certain states 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 state to state.
6. LIMITATION OF REMEDIES
a) Replacement or Refund:
Comstock’s entire liability and your exclusive remedy, with respect to any claims arising out of your use of the Image(s) or CD-ROMs (if applicable), or out of your actions in downloading the Image(s), shall be as follows:
Downloaded Images: You may be permitted to download the Image(s) again, at a location COMSTOCK IMAGES will provide for you. If you continue to be unable to download the Image(s), COMSTOCK IMAGES will refund your money, provided Comstock determines in its sole and absolute discretion that you have been unable to download the Image(s) successfully.
b) No Money Damages:
Under no circumstances whatsoever will COMSTOCK IMAGES be liable to you for any damages, including any lost profits, lost savings, or other incidental or consequential damages arising out of the use or inability to use the Image(s) even if COMSTOCK IMAGES or a distributor authorized by COMSTOCK IMAGES has been advised of the possibility of such damages, or for any claim by any other party. Some states do not allow the limitations or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You agree to indemnify and hold COMSTOCK IMAGES harmless against all claims or liability asserted against COMSTOCK IMAGES arising out of or in connection with any breach of any of the terms of this Agreement.
a) Restricted Rights to the US Government:
If the Image(s) is purchased by or provided to the United States Government then it is provided with restricted rights. Such restricted rights are defined in the Defense Department Supplement to the Federal Acquisitions Regulations (“FAR”) in paragraph S2.227.19(c)(2) of the FAR. Your use of the Image(s) must be in compliance with all laws and regulations including those pertaining to currency, trademarks, and moral rights.
b) Additional Rights:
If you would like to discuss the acquisition of further rights than are provided for under this Agreement, please call COMSTOCK IMAGES at 1-800-225-2722 concerning a separate license.
c) Uniform Commercial Code:
You agree that this Agreement is subject to Article 2 of the Uniform Commercial Code and agree to be bound by same.
d) Governing Law:
You agree that the Image(s) will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. You, the user, shall at your own expense promptly obtain and arrange for the maintenance of all non-USA government approvals, if any, and comply with all laws and regulations as may be necessary, for company’s performance under this Agreement. 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.
If any provision of this Agreement is held to be not enforceable, such provision shall be reformed only to the extent to make it enforceable.
f) Taxes and other:
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 license granted to you, or of your use of the Image(s), pursuant to this Agreement.
COMSTOCK IMAGES reserved the right to elect at a later date to replace the Image(s) with an alternative for any reason. Upon notice of such replacement, the license for the replaced Image(s) terminates for any products that do not already exist, and this license automatically applies to the replacement Image(s). You agree not to use the replaced Image(s) for future products and to take all reasonable steps to discontinue use of the replaced Image(s) in products that already exist.
This Agreement, its validity and effect, shall be solely interpreted under, and solely governed by, the laws of the State of New Jersey. Any claims shall be brought solely in the Federal District Court of the District of New Jersey and you expressly consent to the exclusive jurisdiction of the courts of the State of New Jersey. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery.
10. LEGAL FEES AND JURISDICTION
If COMSTOCK IMAGES is obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, you agree to reimburse COMSTOCK IMAGES for its legal fees, costs and disbursements if COMSTOCK IMAGES k is successful. You agree that the Superior Court of New Jersey, Union County and the United States District Court for the District of New Jersey are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery.
You may not assign or transfer to anyone else the rights granted to you in this Agreement, without our prior written consent.
12. ENTIRE CONTRACT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND COMSTOCK, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND COMSTOCK RELATING TO THE SUBJECT OF THIS AGREEMENT. THE EXPLANATIONS TO FAQ'S AND OTHER EXPLANATIONS AND CONTENT PROVIDED IN COMSTOCK'S WEBSITE ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT.