THIS IS A BINDING LEGAL AGREEMENT (“AGREEMENT”) BY AND BETWEEN LICENSEE, PUCHARSER (IF ANY) AND REMOTE CONTROLLED CHAOS, LLC – DBA GAMETEXTURES.COM (“LICENSOR”). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE INTERNET AND IS APPLICABLE TO ONLINE DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENSE, LICENSEE AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
The following definitions apply in this Agreement:
“Invoice” means the computer-generated standard form provided by Licensor setting out the terms agreed upon with the Licensee. The Invoice is incorporated herein and all references to the Agreement include the Invoice.
“Licensed Material” means any image or product protected by copyright, trademark, patent or any other intellectual property rights, which is licensed to Licensee by Licensor under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall encompass each individual item within the Licensed Material and the Licensed Material as a whole.
“Licensee” means the party purchasing a license hereunder or, if there is a separate Purchaser, the party specifically designated as Licensee during the purchase process and set forth as such in the Invoice.
“Licensee Work” means a product or service created by or on behalf of Licensee using independent skill and effort that incorporates a Reproduction of the Licensed Material.
“Purchaser” means a party purchasing the license hereunder on behalf of a third-party Licensee.
“Reproduction” and “Reproduce” means any form of copying or publication of any Licensed Material in whole or in part via any medium and by whatever means, the alteration in whole or in part of any Licensed Material, and the creation of any derivative work that incorporates any Licensed Materials.
“Subscription Fee” means the annual fee set out in the Invoice and available at the purchase screen of http://gametextures.com/pricing/ payable by Licensee to Licensor for the license to use the Licensed Materials which includes the items listed in each package. This fee is paid annually and is subject to change.
Grant of Rights and Restrictions
Subject to the terms and conditions of this Agreement:
Licensor grants to Licensee a non-exclusive, nontransferable, and non-sublicenseable right to use and to Reproduce the Licensed Material identified in the Invoice, solely for the term and to the extent set forth in this Agreement. This right may not be exercised by subcontractors of Licensee, including Purchaser. This license may not be used for monetary or commercial gain exceeding $2,000.00 per year. Licensor reserves the right to request proof of sales and deny further use under this license if proof is not shown within fifteen (15) days of request.
Any Purchaser licensing Licensed Material on behalf of a Licensee hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Licensee and has full power and authority to bind Licensee to this Agreement; and (ii) if Licensee subsequently disputes such power or authority, Purchaser shall be liable for any failure of Licensee to comply with the terms of this Agreement. This shall not excuse Purchaser’s obligation to pay the Subscription Fee.
You may distribute, publicly display, publicly perform, or publicly digitally perform the Licensee Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of a recipient of the Work to exercise the rights granted to that recipient under the terms of the License. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. When You distribute, publicly display, publicly perform, or publicly digitally perform the Work, You may not impose any technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section applies to the Work as incorporated in a Licensee Work, but this does not require the Licensee Work apart from the Work itself to be made subject to the terms of this License. If You create a Licensee Work, upon notice from any Licensor, You must to the extent practicable remove from the Licensee Work any credit required by this Agreement as requested.
You may not exercise any of the rights granted to You above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation over the total of $2,000.00 in gross sales per calendar year. Licensor reserves the right to demand evidence of Licensee’s gross sales and reserves the right to terminate the license if evidence is not produced or the amount exceeds $2,000.00 per calendar year. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.
If You distribute, publicly display, publicly perform, or publicly digitally perform the Work or Licensee Works, You must keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or (ii) if the Original Author and/or Licensor designate another party or parties (e.g. a sponsor institute, publishing entity, journal) for attribution (“Attribution Parties”) in Licensor’s copyright notice, terms of service or by other reasonable means, the name of such party or parties; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work. The credit required by this Section may be implemented in any reasonable manner; provided, however, that in the case of a Licensee Work, if a credit for all contributing authors of the Licensee Work appears, then at a minimum such credit will appear as part of these credits and in a manner at least as prominent as the credits for the other contributing authors. For the avoidance of doubt, You may only use the credit required by this clause for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.
Webcasting Rights and Statutory Royalties. For the avoidance of doubt, where the Work is a sound recording, Licensor reserves the exclusive right to collect, whether individually or via a performance-rights society, royalties for the public digital performance (e.g. webcast) of the Work, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions), if Your public digital performance is primarily intended for or directed toward commercial advantage or private monetary compensation.
If Licensee created a Reproduction of the Licensee Work on a website, Licensee shall post terms and conditions on any such website that prohibit republication, retransmission, reproduction, or other use of the Licensed Material in whole or in part; or (ii) any social media or other third party website; (a) the Licensed Material may only be Reproduced thereon as part of a Licensee Work and not in stand-alone form and (b) the rights granted hereunder shall be automatically revoked if the third-party website seeks to exploit the Licensed Material in a manner contrary to this Agreement.
Electronic Invoicing; Interest on Overdue Invoices
Licensee and Purchaser agree to receive invoices from Licensor electronically via the email address associated with Licensee’s and/or Purchaser’s Licensor account. If Licensee fails to pay Licensor’s Invoice in full within the time specified in the Invoice, Licensor may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
Credit and Intellectual Property
No Implied Licenses.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Licensor (and its licensors) shall retain all rights, title and interests (including all patent rights, copyright rights, trademark rights, trade secret rights and all other intellectual property and proprietary rights) in and to the Licensed Material. Licensee agrees not to take any action inconsistent with such ownership.
Audio/Visual Production Credit
If Licensed Material is used in an audio/visual production where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit(s), substantially in the following form: “[Video] [Imagery] supplied by [Collection Name]/Licensor”.
Warranty and Disclaimer
EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE LICENSED MATERIALS, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE LICENSED MATERIAL WILL BE COMPATIBLE WITH ANY LICENSEE APPLICATION OR ENVIRONMENT OR OTHERWISE MEET LICENSEE’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITSELF AND ITS LICENSORS, LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
Except as provided below, Licensor agrees to defend Licensee against any claim by a third party that the Licensed Material infringes a valid US patent (issued as of the Effective Date), or any copyright or trade secret, of such third party, and to indemnify Licensee for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim; provided, that (a) Licensee promptly gives Licensor written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) Licensor shall have sole control and authority to defend, settle or compromise such claim. If any Licensed Material becomes or, in Licensor’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Licensor may, at its option (1) obtain for Licensee the right to continue using such Licensed Material or (2) replace or modify such Licensed Material so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Licensor, then it may (3) terminate this Agreement upon written notice and, after return of the Licensed Material, refund to Licensee pre-paid fees, pro-rated for the remainder of the period for which such fees have been pre-paid.
Licensor shall have no liability or obligation to Licensee hereunder with respect to any Licensed Material to any claim based upon (a) any use of the Licensed Material not strictly in accordance with this Agreement, (b) any use of Licensed Material in an application or environment or on a platform or with devices for which it was not designed or contemplated, (c) alterations, combinations or enhancements of the Licensed Material not created by Licensor, (d) Licensee’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Licensed Material after being provided modifications that would have avoided the alleged infringement or (e) any intellectual property right in which Licensee or any of its affiliates has an interest.
The foregoing states Licensor’s entire liability, and Licensee’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Licensed Materials or any part thereof or by its use or operation.
Condition of Licensed Material
Licensee shall examine all Licensed Material for possible defects before using any Licensed Material in a Reproduction. Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material, its caption, or its Reproduction.
Limitation of Liability
LICENSOR (AND ITS LICENSORS) SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE INDEMNIFICATION), REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE SUBSCRIPTION FEES PAID BY LICENSEE TO LICENSOR FOR THE LICENSED MATERIALS GIVING RISE TO SUCH DAMAGES DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
This Agreement shall commence on the Effective Date and continue in effect for one year with the perpetual option to renew for an additional year by paying an additional Subscription Fee found at http://gametextures.com/pricing/.
Unauthorized Use and Termination
Any use of Licensed Material in an unauthorized manner constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition to and without prejudice to Licensor’s other remedies under this Agreement, Licensor reserves the right to charge and Licensee agrees to pay a fee equal to up to Five (5) times Licensor’s standard commercial license fee for unauthorized use of the Licensed Material. Licensor reserves the right to terminate this Agreement in the event that Licensee: (i) enters the Agreement after having received notice of unauthorized use from Licensor pertaining to the Licensed Material; (ii) provides inaccurate information regarding its proposed use of the Licensed Material at the point of purchase; (iii) fails to pay the Subscription Fee; or (iv) otherwise breaches this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; and (ii) destroy or, upon Licensor’s request, return to Licensor the Licensed Material.
Licensee must retain the copyright symbol, the name of Licensor, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material.
Upon notice from Licensor, or upon Licensee’s knowledge that any Licensed Material may be subject to an infringement claim for which Licensor may be liable, Licensor may require Licensee to immediately and at its own expense: (i) cease using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage, both electronic and physical; and (iii) ensure that its agents or clients do the same. Licensor shall provide Licensee with free Licensed Material deemed comparable by Licensor in its reasonable commercial judgment, subject to the terms and conditions of this Agreement.
This Agreement will be governed in all respects by the laws of the State of Colorado, without reference to its laws relating to conflicts of law.
If any of the provisions in this 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 revised only to the extent necessary to make them enforceable.
No action of either party, other than by a duly-authorized written waiver, may be construed as a waiver of any provision of this Agreement. Delay on the part of either party in the exercise of any rights or remedies arising hereunder shall not operate as a waiver of such rights or remedies.
This Agreement is intended for customers of Licensor and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and accepted in writing by an authorized representative of both parties or issued electronically by Licensor and accepted in writing by an authorized representative of Licensee. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.
All License Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Licensee or Purchaser (if any).