1. Ownership of Images.
Except in the “blog” section of 4ascal.com where exceptions can be found, all Images on the 4ascal.com Website are protected by international copyright treaties. 4ascal.com own or control all rights, including the copyrights in and to the Images. 4ascal.com reserve all rights in and to the Images not expressly granted to You in this Agreement.
2. License Terms.
2.1 Royalty-Free License Grant.
Subject to the terms of this License Agreement, 4ascal.com grants Licensee a perpetual, worldwide, non-transferable, non-exclusive right to reproduce, transmit and display, in whole or in part, and right to create derivative works with respect to the Images identified on 4ascal.com Invoice, an unlimited number of times, in any and all media, for all uses other than the restricted uses in Section 3 described below. An unlimited number of seats or users may use the Images within your organization, provided all such users are either employees or agree in writing to be bound by this Agreement, and that you remain liable for all use by such additional users. Images may not be used for more than one client or customer at a time. You must purchase a separate license for each individual client or customer for whom or which You acquire or use Images.
Licensee may alter, crop, modify or adapt the Images. Licensee may make a back-up copy of the content for internal back-up purposes provided 4ascal.com’s copyright and any Image identifying information embedded with the digital file is retained with the file. Limited, temporary transfers of the Images are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement.
2.2 Exclusive Use Licenses.
You may request an exclusive use license for a period of time for additional license fees by contacting us 4ascal.com using the contact form of the website. Exclusive use licenses may not be available for all Images.
2.3 Online Platform Only License Grant (“Web / Social License”).
Subject to the terms of this License Agreement, 4ascal.com grants Licensee a worldwide, non-transferable, non-exclusive right to reproduce, transmit and display, in whole or in part, and right to create derivative works with respect to the Images identified on 4ascal.com’s Invoice, an unlimited number of times, on a public website, including a social media site (“Online Platform”), for a one-time use other than the restricted uses in Section 3 described below. For the avoidance of doubt, a one-time use on an Online Platform is defined as an unlimited number of impressions of an Image on a single website, advertising network, or social network website. This display of an Image could
include advertising, social media or blog posts, or editorial usage. You must purchase a separate license for each additional use, individual client or customer for whom or which You acquire or use Images. Licensee may alter, crop, modify or adapt the Images. Licensee may make a back-up copy of the content for internal back-up purposes provided 4ascal.com’s copyright and any Image identifying information embedded with the digital file is retained with the file. Limited, temporary transfers of the Images are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement.
2.4 Enhanced License Grant (“Products for Resale License”).
Subject to the terms of this License Agreement, 4ascal.com grants You a non-exclusive, non-transferable, worldwide, perpetual, right to modify and reproduce the Images in the following ways, subject to the applicable limitations in Section 3 of the Commercial License Agreement and excluding specifically Section 3(ii). Incorporate the Image into print or electronic products for resale or distribution, (including templates and on demand products) without regard to the size of the print run, manufacturing units, or impressions of such products (including individual downloads), including, without limitation, screen-savers or wallpaper for mobile devices, website designs, presentation templates, electronic greeting cards, print greeting cards, business cards, t-shirts or other clothing or accessories, tote bags, mugs, magnets, calendars, posters or any other electronic or printed matter, provided that such product: a) combines the Image with words and/or other graphics or images; or b) the Image is not the primary factor driving the sale of such product.
In the event that You create a derivative work based on or incorporating one or more Images, all rights in and to such Images shall continue to be owned by 4ascal.com, subject to your rights to use such Image(s) pursuant to the terms and limitations set forth herein.
2.5 Marketing and Promotion.
By using any Images, You grant 4ascal.com the right to display or reference your name or the employer’s name and logo or other entity’s name and logo on whose behalf you are entering into this Agreement as an example of customer reference. By using any Images, You also grant 4ascal.com the right to display or reference your derivative work using or incorporating such Images, in any marketing, educational, and/or promotional purpose as an example of customer usage.
3. Restrictions on Image Use.
Licensee may not without obtaining specific written consent (which may not be available):
i. Sublicense, sell, assign, convey or transfer any of its rights under this Agreement, but Licensee may sell or license derivative works incorporating the Images.
ii. Without obtaining the prior written consent of 4ascal.com and the payment of an additional license fee, include the Images in an electronic template intended to be used by third parties on electronic or printed products, or where the purpose is to create “on-demand” products, including but not limited to website designs, presentation templates, electronic greeting cards, business cards, t-shirts, mugs, calendars, posters, screen-savers or wallpaper for mobile devices or any other electronic or printed matter without obtaining a license for such purpose. For the avoidance of doubt, Images may be incorporated into product packaging, merchandise for resale, or distribution where the Image has been modified, incorporated in a design, or in a derivative form and is not used as a stand-alone work for resale.
iii. Sell, license or distribute its final product in such a way that permits Licensee’s end users to extract or access the Images as a stand-alone unmodified file where the file size is in excess of 800×600 pixels.
iv. Incorporate the Images into a logo, trademark or service mark.
v. Distribute, post or upload the Image(s) online in a downloadable format if the file size is in excess of 800×600 pixels, or enable it to be distributed via mobile devices.
vi. Use any Image in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other subject matter and materials.
vii. Use any of the Images in any manner prohibited by any export laws, restrictions or regulations.
viii. Falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Images.
ix. Without obtaining the prior written consent of 4ascal.com and the payment of an additional license fee, upload an Image as a unmodified standalone file to file-sharing websites or social networking websites such as YouTube, Facebook, Twitter, or other third party website that claims to acquire rights in the Images contrary to the term of this Agreement. Upon 4ascal.com’s request, Licensee shall immediately remove any Images from such platform or website.
x. Use content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For the avoidance of doubt, “Editorial Use Only” means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor).
xi. Use the Images for editorial purposes without including the following credit adjacent to the Image or included in audio/visual production credits “© 4ascal”
4. Product Endorsement or Sensitive Use Disclaimer.
If any Image featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person is a model and the Image is being used for illustrative purposes only.
Model releases are available on Images containing models upon request. Names are removed to protect the privacy of the model. Other than model releases for recognizable persons on Images identified as released, 4ascal.com grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image, and Licensee must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
6.1 4ascal.com Indemnity.
Provided Licensee is not otherwise in breach of this Agreement and subject to Section 8, as Licensee’s sole and exclusive remedy for any breach of the representations and warranties, 4ascal.com shall defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney’s fees), arising out of or connected with any actual lawsuit
or legal proceeding alleging that 4ascal.com is in breach of its warranties set forth below. No other indemnification is offered by 4ascal.com under this Agreement.
6.2 Licensee Indemnity.
Licensee agrees to defend, indemnify and hold 4ascal.com and its officers and representatives harmless from
all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or as a result of claims by third parties relating to Licensee’s use of any Image(s) outside the scope of this Agreement; modification of any Images or combination of any Images, with any text or other content; or any other breach by Licensee of this Agreement.
6.3 Indemnification Conditions.
The parties’ indemnity obligations contained in this Agreement are conditioned upon the indemnified party:
(i) promptly providing the other party with written notice of any claim;
(ii) giving the other party control of such defense and settlement, provided that the indemnifying party shall not make any settlement which imposes any material obligations on the indemnified party without the prior written consent of the indemnified party; and
(iii) providing the indemnifying party with all reasonable information necessary to defend such claim.
7. Warranties and Limitation of Liability.
(a) it has all necessary rights and authority to enter into and perform its obligations under this Agreement and grant the rights provided herein;
(b) the authorized use of the unaltered Images will not violate any third party copyrights to the underlying Images; and
(c) the digital copy of the Images shall be free from defects in material and workmanship for 30 days from the date of the Invoice. If during such thirty (30) day period Licensee advises 4ascal.com that the Image(s) breaches the warranty, 4ascal.com will, as Licensee’s sole and exclusive remedy for Licensee’s inability to use any Images as
the result of such material and workmanship defects, provide a replacement of the digital copy of such Images or, in 4ascal.com’s sole discretion, terminate the License and refund any fee actually paid by Licensee to 4ascal.com, provided Licensee has not made any use of the Images.
4ASCAL.COM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 4ASCAL.COM SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE’S USE OF THE IMAGES, OR OTHERWISE, EVEN IF 4ASCAL.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF 4ASCAL.COM OR ANY OF ITS SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, AFFILIATES, OR CONTENT CONTRIBUTORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR LICENSORS OWED TO LICENSEE OR ANY THIRD PARTY CLAIMING THROUGH LICENSEE ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE’S USE OF ANY CONTENT PROVIDED BY 4ASCAL.COM, EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY 4ASCAL.COM FOR THE USE OF THE APPLICABLE CONTENT.
8. Payment Terms.
No licenses are granted until full payment of 4ascal.com’s invoice is received. Unless credit terms have specifically been agreed directly between 4ascal.com and the Licensee, payment of 4ascal.com’s invoices must be received within thirty (30) days of its date net, without any discounts. The Licensee agrees to pay 4ascal.com a service charge of 1.5% percent per month on any unpaid balance after this time period for the use of the Image. Any disputes concerning the invoice must be submitted in writing, within thirty (30) days of the invoice date, or the Licensee shall be deemed to have accepted the invoice as issued.
9. Cancellation Policy.
All licenses are final; no refunds or credits will be allowed.
10. Copyright Infringement and Liquidated Damages.
In the event that the Licensee utilizes any Image without or prior to the granting of a license, 4ascal.com reserves the right to seek damages through legal means unless the Licensee agrees to reimburse 4ascal.com, as liquidated damages, a sum equal to ten (10) times the market value price charged for such use of an Image. If the Licensee fails to make the payment as outlined above, within thirty (30) days of 4ascal.com’s invoicing such fee, this liquidated damage provision shall be void and 4ascal.com reserves the right to sue for copyright infringement, including attorneys’ fees and all associated costs.
The license contained in this Agreement will terminate automatically without notice from 4ascal.com if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately
(i) stop using the Images;
(ii) destroy or, upon the request of 4ascal.com, return the Images to 4ascal.com; and
(iii) delete or remove the Images from Licensee’s premises, computer systems and storage (electronic
4ascal.com reserves the right to revoke the license to use any Images for good cause and elect to replace such Image with an alternative Image. Upon notice of any revocation of a license for any Image, Licensee shall immediately cease using such Images, shall take all reasonable steps to discontinue use of the replaced Images in products that already exist and shall inform all end-users and clients of same. If the Image(s) is used on a social media or other third party website; the Images may only be used as part of another work and not as a stand-alone file; and any rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Images contrary to the terms of this Agreement.
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it enforceable.
14. Choice of Law/Attorney’s Fees.
This Agreement will be governed in all respects by the laws of Geneva, Switzerland, without reference to its laws relating to conflicts of law. Licensee agrees that the Court of
Geneva is 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. The United Nations
Convention on Contracts for the International Sale of Goods does not govern this Agreement. If 4ascal.com is obligated to go to court to enforce any of its rights, the Licensee agrees to reimburse 4ascal.com for its legal fees and disbursements if 4ascal.com is successful.
No action of 4ascal.com, other than express written waiver, may be construed as a waiver of any
provision of this Agreement.
16. Entire Contract.
This contract contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.