Terms of Use and License Agreement

Terms of Use and License Agreement

This is a legal agreement between you (“Licensee”) and Vizutil, and by purchasing Vizutil’s Licensed Products from this website, you hereby agree to its terms.

1. Definitions:

(a) “Licensed Product” means any image, video, or other visual representation furnished to Licensee by Vizutil, whether captured, generated, delivered, or stored in photographic, magnetic, optical, electronic, digital or any other media, any Reproductions thereof, or any other item protected by copyright, trademark or other intellectual property right, which is licensed to Licensee by Vizutil under the terms of this Agreement.
(b) “Reproduce” or “Reproduction” means use of the Licensed Product, in whole or in part, including any alteration, manipulation or distortion of the Licensed Product or any derivative work created by Licensee from the Licensed Product, whereby the Licensed Product is incorporated or integrated entirely and inseparably within the Licensee’s own work product.

2. Copyright:

All copyright, ownership and intellectual property rights in the Licensed Product remain the sole and exclusive property of Vizutil. No right or license, express or implied, to the Licensed Product is transferred to Licensee except as expressly stated in this Agreement.

3. Grant of Rights:

No rights are transferred to Licensee unless and until Vizutil has received payment in full. Upon full payment the Licensee is granted a non-exclusive, perpetual, worldwide, non-transferable and non-sublicensable right to Reproduce the Licensed Product an unlimited number of times, subject to the restrictions described in paragraph 4 (the “License”).

4. Restrictions:

Except as expressly permitted in section 3 above:
(a) The Licensed Product must not, under any circumstances, ever be installed or utilized on more than 10 workstations.
(b) The License described in this Agreement only extends to use of the Licensed Product where Licensee incorporates or integrates the Licensed Product as an element of Licensee’s project or endeavor. Licensee is not receiving a License to use the Licensed Product on their own or as images separate from a larger project.
(c) Licensee may not sublicense, sell, assign, convey or transfer any of its rights under this Agreement, but Licensee may sell or license derivative works in which the Licensed Product is Reproduced under the terms defined in Section
(d) Licensee may not sell, license or distribute the Licensed Product or any derivative work containing the Licensed Product in a way that would allow a third party to download, extract or access the Licensed Product as a standalone file(s).
(e) Licensee may not upload, post or otherwise enable distribution of Licensed Product online in a downloadable format or via mobile telephone networks.
(f) Licensee may not incorporate the Licensed Product into a logo, trademark or service mark.
(g) Licensee may not falsely represent that it is the original creator of work that is made up largely of Licensed Product.
(h) If Licensed Product which features models or property is used in connection with (i) a subject that would be unflattering or unduly controversial to a reasonable person, or (ii) in such a manner as to lead a reasonable person to believe the model endorses or uses a product or service, Licensee must indicate that (1) the Licensed Product is being used for illustrative purposes only, and (2) any person depicted in the Licensed Product is a model.
(i) Use of Licensed Product in a pornographic, defamatory or any unlawful manner, whether directly or in context or juxtaposition with other materials, is prohibited.

5. Unauthorized Use:

Any usage of any Licensed Product not expressly authorized by this Agreement or in breach of any term of this Agreement constitutes copyright infringement, entitling Vizutil to exercise all rights and remedies available to it under copyright laws worldwide. Licensee is responsible for all damages resulting from any such copyright infringement, including those claimed by any third party. Vizutil reserves the right to charge and Licensee agrees to pay a fee equal to three times the customary Vizutil license fee, which is in addition and without prejudice to other remedies available to Vizutil as stated in this Agreement. Digital files may contain copyright and other information imbedded in the header of the image file or elsewhere; removing and/or altering such information is strictly prohibited.

6. Indemnification/Limitation of Liability:

(a) Licensee will indemnify and defend Vizutil against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of any use of any Licensed Product. Unless delivered to Licensee by Vizutil, no model or property release for the Licensed Product exists. Vizutil’s liability for all claims shall not exceed in any event the total amount paid for the Licensed Product.
(b) Vizutil makes no warranties, express or implied, regarding the Licensed Product, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Vizutil will not be liable to Licensee or any other person or entity for any punitive, special, indirect, consequential, incidental or other similar damages, costs or losses arising out of this Agreement, even if Vizutil has been advised of the possibility of such damages, costs or losses.

7. Termination:

If Licensee fails to abide by any provision in this Agreement, the license contained in this Agreement will terminate immediately and without notice from Vizutil. Upon termination, the Licensee must immediately: cease using the Licensed Product; delete or destroy the Licensed Product from the Licensee’s premises, computer systems and storage (electronic and physical); and, if requested, provide Vizutil with written confirmation that Licensee has complied with these requirements.

8. General Terms:

(a) Transfer and Assignment. Licensee may not assign or transfer this Agreement or any rights granted under it. This Agreement binds Licensee and inures to the benefit of Vizutil, as well as their respective principals, employees, agents and affiliates, heirs, legal representatives, successors, and assigns. Licensee and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. This Agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this Agreement; to the extent that any provision of this Agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this Agreement shall prevail.
(b) Disputes. Except as provided in section 8(c) below, any dispute regarding this Agreement shall, at Vizutil’s sole discretion, either: (1) be arbitrated in Portland, Maine under rules of the American Arbitration Association and the laws of Maine; provided, however, that the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules, irrespective of any provision of those rules. Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute involving $10,000 or less may be submitted without arbitration to any court having jurisdiction thereof, to which jurisdiction Licensee hereby submits. OR (2) be adjudicated in Portland, Maine under the laws of the United States and/or of Maine. (3) In the event of a dispute, Licensee shall pay all court costs, Vizutil’s reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Vizutil. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
(c) Federal Jurisdiction. Licensee hereby expressly consents to the jurisdiction of the federal courts with respect to claims by Vizutil under the Copyright Act of 1976, as amended, including subsidiary and related claims.
(d) Severability. If one or more of the provisions contained 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.
(e) Waiver. No action of Vizutil, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Vizutil in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by Vizutil of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy by Vizutil on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
(f) Entire Agreement. This Agreement 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 the parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.
Please note, all images and content on this website is protected by United States copyright and the Berne Convention. Tampering or removing the identifying copyright information, or the usage of any material on this website without prior and explicit written permission, is a violation of the Copyright Act. Copyright infringement carries significant penalties, including $150,000 per image, plus payment of usage and legal fees.