Grant of Digital Marketing License and Additional Restrictions On Digital Marketing License Only:
If you have purchased a Digital Marketing License We hereby grant you a non-exclusive, worldwide, perpetual right and license (the “Digital Marketing License“) on the terms and subject to the conditions and limitations set out in this Agreement, to:
- Use, copy, edit, modify, manipulate, couple and synchronize the Content in a purely digital Production which incorporates or combines the Content together with other substantial independently created works, and is created by or for you or on your behalf or for one of your clients (a “Digital Production“);
- Publicly display and perform (“Distribute“) the Content within such Digital Production(s) by means of – and only by means of – digital streaming through the internet; and
- Use the Content Information internally to facilitate the foregoing with regard to the Content.
Restrictions: In addition to the other restrictions contained in this Agreement, use of Content under the Digital Marketing License is subject to the following:
- Single Project: You may only use the Content in a Single Project. If you have multiple projects you must purchase multiple licenses.
- Print, Film and Physical Media Excluded: You may not use the Content in or on any printed media or work, film or physical media (e.g., CD or DVD) or merchandise.
- Only Digital Streaming Permitted: For avoidance of doubt, theatrical, broadcast, telecast or cable or satellite distribution, performance or display of the Digital Production or Content is prohibited.
- Permitted Distribution Channels: Distribution of the Content within or with a Digital Production(s) is permitted only by means of digital streaming through one of the following digital channels:
- Over-The-Top (OTT) Video On Demand apps;
- Pinterest, and/or
- Your website or mobile app.
Grant of All Media License:
- The License: Unless you have purchased a Digital Marketing License (as defined above), we hereby grant you a non-exclusive, worldwide, perpetual right and license on the terms and subject to the conditions and limitations set out in this Agreement, to:
(a) Use, copy, edit, modify, manipulate, couple and synchronize the Content in any independently authored derivative or other work in any media now known or hereafter devised (including in-context works for advertising and promotion), which incorporates Content together with other substantial independently created works, and is created by or for you or on your behalf as permitted by the terms of this Agreement (a “Production“). For avoidance of doubt “Productions” include books, periodicals and the public display and performance of Content as part of a public event (including performances of the same that are broadcast and/or streamed);
(b) Directly or indirectly copy, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Content within such Production(s) world-wide and by any means now known or hereafter devised and allow others to do so.
- Number of Productions: The license authorizes a limited number of Productions on the terms and subject to conditions and restrictions of this Agreement. It is for use in one (1) Single Project only. If you have multiple projects, you must purchase multiple licenses.
If you purchased a “Team License“, a “Business License” or a “Premium License” for the specified Content from Steve Dillon Designs, the License granted to you for such Content will be on the terms and conditions of this Agreement with the variations and additions that this Agreement states apply to such License. Otherwise, the License will be an “Individual License“. For information about Business Licenses or Premium Licenses, please contact me.
Number of Seats:
- If you have purchased an Individual License, you may allow access to or use of raw Content on your behalf to no more than 1 individual. The individual who Downloaded the Content through the Website will be deemed to be that person unless at the time of Download another individual was designated by the User on the checkout page of the Website or otherwise in writing to me.
- If you have purchased a Team License or Business License for the Content, you may allow access to or use of raw Content on your behalf to no more than a total of 5 natural persons over time.
- If you have purchased a Premium License for the Content, you may allow access to or use of raw Content on your behalf to an unlimited number of natural persons.
- Print Runs for Printed Productions: For a license granted under Section 2 (All Media License):
- If you have purchased an Individual License or Team License, for visual Content, the License is limited to a Print Run of 100,000.
- If you have purchased a Business License for visual Content, the License is limited to a Print Run of 500,000.
- If you have purchased a Premium License for visual Content, the License includes the right to an unlimited number of such copies.
- The “Print Run” is the number of physical printed copies of the Content as part of a Production or packaging of or printed material accompanying a Production, counted by the lesser of the number of physical analog printed (non-digital) copies or the circulation total for any individual edition containing the Content. Electronic copies are not counted, even if in a physical medium (e.g., a DVD).
- Use in Templates:If you have purchased a Premium License under Section 2 (All Media License), you may incorporate the Content as an element of a digital template for sale or distribution, except as provided in Section 8 regarding Audio Content.
- Use of Stills from Video: For video Content, unless we have granted you a Premium License under Section 2 (All Media License), you may not use “stills” derived from the Content, except in connection with the in-context marketing, promotion, and advertising of your Production that incorporates the Content.
- If you have purchased an Individual License or Team License for the Content or a Digital Marketing License, the License does not include a right to use the Content in Merchandise.
- What is included in “Merchandise”: Items of physical products sold or distributed by or for you, including toys, games, physical electronic products, and paper goods, such as greeting or post cards, business cards, product packaging, product tags, calendars, posters, stationary, novelty goods, trading cards, tickets, payment cards, bank checks, or apparel. For the avoidance of doubt, using Content in Merchandise includes the right to install the Content on a computer, cell phone or other electronic device located in a retail establishment where the Content is included for the purpose of demonstrating the capabilities of the device if the device does not permit transmission or storage of the Content or Productions containing the Content outside the device.
- What is not included in “Merchandise”: (i) books or periodicals, or (ii) music, video or audiovisual Productions that are in physical media (e.g., in a CD, DVD), or (iii) packaging or informational or promotional collateral that accompanies such a Production containing the Content where the Content is not sold separately from the Production – all of which are deemed to be included in the term “Production” described in and covered by the license in Section 2 (All Media License), rather than “Merchandise”.
- if we have granted you our Business License or Premium License for the Content under Section 2 (All Media License), the License includes the right to use the Content in an unlimited number of items of Merchandise.
License Terms and Restrictions:
- Item Page: In addition to the terms and conditions of this Agreement, the License to the Content is subject to any special terms that are contained or linked to in the Item Page for that particular Content, if any, including restrictions on the number or type of Productions or Merchandise in which the Content may be used.
- You must Limit Access to and Distribution of Raw Content: You may not allow access to raw Content, except for the purpose of creation, reproduction or distribution of Productions or Merchandise made by or for the Licensee as permitted by this Agreement. If you become aware of any unauthorized access to or duplication of any Content, you should promptly notify us via the Website. Except as expressly permitted by Section 2, you may not (i) distribute, transmit or publicly display Content as a template, a standalone file or to others for consumption, reproduction or re-sale, or (ii) superficially modify any raw Content and sell or license it to others.
- No reverse Engineering: For 3D models or After Effects or Photoshop PSD templates, you may not reverse engineer, decompile, or disassemble any part of any source code contained within the Content or avoid, bypass, remove or impair any technological measure that limits access to the Content.
- No Use in Trademarks or Logos: You may not incorporate any Content into a logo, trademark or service mark.
- Sensitive Use: Unless we have granted you a Premium License for the Content, you may not use any Content in any context that would be unflattering or unduly controversial to a reasonable person, including use related to the promotion, advertisement or endorsement of any political party, candidate, or elected official, or in connection with any political policy or viewpoint, or as suffering from, or medicating for, a physical or mental ailment (each of the foregoing, “Sensitive Use“). For avoidance of doubt, use of Content that is not Editorial Content in an obviously satirical Production or use of Editorial Content in accordance with Section 8 would not be prohibited by this section.
- No Unlawful Use: You may not use any Content in, a pornographic, unlawful or defamatory context or manner, including use (i) in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like; (ii) in connection with the advertisement or promotion of tobacco products; or (iii) depicting a person in the Content as engaging in acts of moral turpitude or criminal activity.
- Retention of Rights to the Content: You will not acquire, and Steve Dillon will retain, all right, title, and interest in and to all of the copyrights, trademarks, trade secrets and other proprietary rights in the Content or Content Information that are not expressly granted to you by the terms of this Agreement. The License does not include the right to record a new performance of the composition reflected by the Content.
- License Conditioned on Compliance: The License is conditioned upon material compliance by you and your personnel and contractors (each a “Representative“) with this Agreement and our receipt of full payment of the applicable price for the License and Content.
- Contact Me If You Need Rights for Use Not Permitted By this Agreement: If you need to use any Content in a manner that is not permitted by this Agreement, please contact me.
Content Showing Depicted IP and Placeholders:
- Depicted IP: Notwithstanding anything else in this Agreement, the License does not include, and except for locations for which the Item Page states that we have a property release, we make no warranties with regard to, any building, house, trademark, trade dress, logo, copyrighted design, art, architecture or other works that may be depicted in the Content (collectively, “Depicted IP“).
- Audio in Video Clips: For Content that is film, video footage or any other audiovisual work, any music, dialogue or other ambient audio contained therein is incidental only; accordingly, our warranties do not apply to, and you are solely responsible for obtaining any additional clearances relating to, any of the audio that may be required.
- Placeholders in After Effects and PSD Templates: After Effects and Photoshop PSD templates may contain placeholder music, dialogue, other audio, text, video and/or images. Such placeholders are intended only for demonstration purposes, so our warranties do not apply to such placeholders and you are solely responsible for obtaining your own cleared versions of the same.
For Content which the Item Page states is editorial or for editorial use only (collectively, “Editorial Content“), in addition to the other limitations and restrictions in this Agreement, the following terms apply:
- Intended for Editorial Use: This type of Content is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
- No Commercial or Merchandizing Use: Absent Steve Dillon’s express and specific written (could be by email) consent, Editorial Content may not be used in any Merchandise, advertisement, endorsement, promotion, advertorial, or any other commercial Production.
- Need for Clearances: The License does not include any clearances that may be necessary for any personally identifiable information of any person, nor any privacy or publicity rights from any person whose name, portrait, image or performance appears in the Content. Accordingly, neither we nor our Editorial Content contributor make any warranties with regard to such Editorial Content.
- No Compromise of Editorial Integrity: Modification of this Content shall be limited to cropping or resizing still photographs and editing video footage for length or combining it with other content, provided that the editorial meaning of the Editorial Content is not altered or distorted.
For Editorial Content, you will accompany the Production with a credit line that attributes the Content to Steve Dillon Designs, and if the Production is posted online, you will use your commercially reasonable efforts to make the credit line include a hyperlink to https://stevedillondesigns.com/.
For all other Content, where crediting is customary or where other such credits are provided, you will use your reasonable commercial efforts to accompany the Production with a credit line that reads “Stock media provided by Steve Dillon Designs” or substantively similar language.
The unintentional omission of credit attribution provided for above will not be considered to be a breach of this Agreement, and the omission of credit attribution will not be considered to be a material breach of this Agreement.
Representations, Warranties and Disclaimers:
Our Warranties: We warrant that:
- We have the right and authority to enter into and grant the rights in the Content granted to you in this Agreement, subject to all applicable limitations and exclusions in this Agreement.
- Subject to Sections 6, 7 and 8 above, unaltered Content when Downloaded and used in compliance with this Agreement and applicable law and with respect to which you have fulfilled your responsibilities and obligations under this Agreement, including your payment of all applicable fees,
- will not infringe any copyright, trademark or other intellectual property right, and
- will not violate any third parties’ rights of privacy or publicity rights.
- Notwithstanding the foregoing, the representations and warranties in this Section do not apply to any After Effects or Photoshop PSD templates, 3D models or Audio Content that are not designated in the Item Page as “Select” (collectively, “Excluded Content“).
- Limited Warranty: We warrant that there are no material defects in the Content which would prevent it from being downloaded from the Website and used as permitted herein. If there are material defects in the Content, your exclusive remedy will be as follows: (i) upon request to us within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Website or used as permitted herein successfully, we will refund the fee actually paid by you for such Content.
- Warranty Disclaimer: OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 10(a), THE WEBSITE, OUR SERVICES, THE CONTENT AND THE CONTENT INFORMATION ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. STEVE DILLON DESIGN PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OR THE CONTENT INFORMATION WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. We only have model or property releases where expressly indicated on the Item Page.
- Content Information Disclaimer: While we have made reasonable efforts to correctly categorize, keyword, caption, description and title the Content, we do not warrant the accuracy of such information.
- Representation about You: If you are an individual, you represent and warrant that you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement.
- Representation About Your Information: You represent that all information provided to me by you is accurate and true, including all information relating to the Steve Dillon Designs User and the Licensee and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
- Representation of Individual Steve Dillon Designs User: If you are the individual who is Downloading the Content, you represent that you are the Content User. If the individual who is entering into this Agreement is doing so on behalf of his/her employer, the Licensee and/or any other Person, such individual represents and warrants that (i) he/she has the full right and authority to execute, deliver and perform this Agreement on behalf such Person, and (ii) this Agreement is a binding Agreement of such Person, enforceable against such Person in accordance with its terms. In the event that such individual does not have such right, power and authority, such individual agrees that in addition to all rights and remedies available against such Person or anyone else relating to violation or infringement of intellectual rights, he/she will be personally liable to us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Content by such individual, such Person and its Representatives.
Limitations of Liability:
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11(a), STEVE DILLON DESIGNS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING THE COST OF COVER, ARISING UNDER THIS AGREEMENT OR OUT OF OR RELATED TO THE LICENSE, YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OR EXPLOITATION OF CONTENT, THE WEBSITE OR THE CONTENT INFORMATION, ANY SERVICES PROVIDED BY US OR THE RESULTS FROM THE USE THEREOF OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
Term and Termination:
- Material Breach by You: The License will terminate automatically without notice from us if you fail to cure a material breach or other material failure to comply with any provision of this Agreement within 14 days of written notice from us of the same. Upon termination, to the extent reasonably practical, you must yourself and must cause your Representatives to immediately: (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) where applicable, ensure your Representatives and licensees do the same.
- Survival: The terms and provisions of Sections 1, 4 through 16 shall survive termination or expiration of this Agreement.
Payments & Taxes:
- Sale of License Final: All sales of Licenses are final, and we are under no obligation to refund any fees paid by you for Content under any circumstances, except upon a material breach of one of our express representations and warranties set forth herein. However, if you request a refund, and we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.
- Taxes: You are responsible for promptly paying any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License or any use of the Content.
- No Set-Off, Withholdings or Deductions: You must pay all amounts due to us in a payment currency approved on the Website without any set off, deduction or withholding of any kind, including tax withholdings or amounts charged for currency conversion. To the extent that you determine that you are required under law (e.g., under a tax law) to withhold any amount from payments due to us or a financial institution or other intermediary deducts any amount for currency conversion or other services from your payment to us, the price for the applicable License is hereby increased by the amount that would cause the net amount actually received by us to equal the price that would otherwise apply for the sale of the License.
- You: As used in this Agreement, the term, the “Licensee“, “you” and “your” refer to the person designated as “Licensee” when the Content is downloaded from the Website or otherwise first Downloaded. A Person may not Download Content unless he or she is the Licensee or has authority to and does in fact bind the designated Licensee to this Agreement.
- Us: If Licensee is located in the United States, then the party with which you are contracting is, and as used herein the terms “Steve Dillon Designs”, “we“, “us” and “our” refer to Steve Dillon Designs. If Licensee is located outside the United States, then the party with which you are contracting and which is granting you the License is, and as used herein the terms “Steve Dillon Designs”, “we“, “us” mean, Steve Dillon Designs, and “our” means the possessive of whichever of the foregoing is applicable.
- Consent to Electronic Communications: You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- You Consent to Us Processing Your Data in Different Countries: You consent to your personal information being shared with and processed in the course of our business by Steve Dillon Designs.
- Unless the context requires otherwise, in any part of this Agreement: (i) “including” (and any of its derivative forms, e.g. “includes“), “e.g.” and “for example” means “including but not limited to”; (ii) “must not“, “should not“, “shall not” and “may not” are expressions of prohibition, and “will“, “must“, “should” and “shall” are expressions of command, and not merely expressions of future intent or expectation; (iii) use of the singular imports the plural and vice versa; (iv) references to one or no gender include the other or no gender; “(v) when applied to a company, “Affiliate(s)” means any/all companies that from time to time directly or indirectly are owned or controlled by such company, under common ownership or control with such company or own or control such company; (vi) “Person” means an individual or legal entity, including a company or a governmental agency or instrumentality; and (vi) the headings in this Agreement are for ease of reference only and shall not affect its interpretation.
- Notwithstanding anything else in this or any other agreement, (i) we reserve the right to make changes to this Agreement at any time and without notice to you, and (ii) you will be subject to the terms of the same in force at the time that the Content was first Downloaded for or by you. For avoidance of doubt, a change to any of the same will not apply to Content that was first Downloaded for or by you prior to the change. No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
- If you learn that any Content is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim. If we learn of such a claim from you, the third party or otherwise and we, in our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Content from your computer systems and storage devices (electronic or physical), and (ii) cease any future use of the Content at your own expense if possible. If you do remove and cease use of the Content, we will either refund your license fees for the applicable Content or without charge provide you with other content that we determine with your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.
- The parties to this Agreement are independent contractors, and nothing in this Agreement or the License shall create a joint venture, partnership or franchise or fiduciary relationship between the parties.
- If any provision, or portion thereof, of this Agreement, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, or such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
- If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement. Your obligations, the limitations and our rights and remedies set out in this Agreement are cumulative and are in addition to your obligations and the copyright owner’s rights and remedies at law or in equity.
- This Agreement and the License are non-transferable without Steve Dillon Designs’ prior written consent. However, if we have granted you a Premium License for the Content, you may one-time assign the License on the condition that the assignee agrees to the terms of this Agreement and you provide us with prompt written notice of the assignment. This means that except as permitted herein, you may not resell, sublicense, rent, loan, assign or transfer the Content to any third Person, provided that no restriction on transferability in this Agreement applies to your Productions or Merchandise that incorporate Content pursuant to the License. Steve Dillon Designs may assign this Agreement without your consent to an Affiliate as part of a corporate reorganization or any other Person as part of a merger or asset or business sale so long as such Person agrees to be bound by its terms.