This agreement (this "Agreement") shall be binding upon Sparrow Enterprises, Inc. ("Sparrow") and any member (the "Member") who downloads a photograph, illustration, audio, template, interaction, image or other pictorial, programming or graphic work (the "Work") from the eLearningStock.com website. The Member acknowledges and agrees that he or she shall be bound by the terms and conditions of this Agreement and that this Agreement applies to each Work that the Member downloads.
1. No Sale
The Member acknowledges and agrees that this Agreement does not effectuate any sale of the Work. Except for the rights specifically sublicensed under this Agreement, the Member shall not have any right, title or interest in or to, and in any event shall have no ownership of, the Work, including any copyright and other intellectual property rights.
Subject to the terms and conditions of this Agreement, Sparrow hereby grants to the Member a non-exclusive, perpetual, worldwide, non-transferable sublicense to use, reproduce or display the Work an unlimited number of times in the authorized media solely for (a) personal or educational purposes and (b) in connection with the operation of a business. However, the Member shall have no right to sell or otherwise distribute the Work or any reproductions thereof to any third parties, whether alone or incorporated or together with or onto any item of merchandise or other work of authorship, in any media or format now or hereafter known. Notwithstanding the above, the Member shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-Sparrow image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship. Furthermore, the Member shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the primary value of the item being sold or distributed does not lie with the Work(s) themselves. For greater clarity, it is noted that reproducing the unmodified Work on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Work itself. The Work may also be distributed free of charge in the form of advertising and promotional material, such as brochures, flyers, and the like. The Member shall have no right to grant further sublicenses. The Member shall have the right to transfer files containing the Work or permitted derivative works to employees, or have the Work reproduced by subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this agreement. In the normal course of workflow, the Member may also convey to a third party (such as a printer) temporary copies of the Work that are integral to the work product and without which the work product could not be completed. Third parties, employees and subcontractors shall have no further or additional rights to use the Work and cannot access or extract it from any other file provided. The Non-Eclusive Downloading Member may create a digital library, network configuration or similar arrangement to allow the Work to be viewed by their employees, partners and clients. The Member shall pay to Sparrow a sublicense fee in accordance with Sparrow"s Standard pricing and payment policies . Notwithstanding anything to the contrary contained in this Agreement, with respect to electronic formats, the Member"s reproduction, distribution or display of the Work shall be limited to a resolution of 1,000 x 1,000 pixels in website uses (regardless of the resolution of the Work available for downloading from the eLearningStock.com website), and shall be limited to the resolution available for downloading from the eLearningStock.com website in other electronic uses. For clarification purposes but subject to the foregoing restrictions, it is intended that this sublicense shall permit use, reproduction and display of the Work in or for a business or commercial setting or circumstances, display in an office or other place of business, on advertising and promotion materials, and the like.
Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the restriction in subsection 3(a) below), the Member may utilize all the rights under this Agreement for itself, and additionally, on behalf of one (1) of its clients. As such, the Member may sublicense its rights and obligations hereunder to one (1) such client, and such client shall have all the rights, restrictions and obligations under this Agreement, but without the right to further sublicense these rights to additional parties. If the Member desires to use the Work on behalf of more than one (1) client, then the Member will have to download and pay for additional license(s) to the same Work.
Notwithstanding the above, if a Work is in violation of Sparrow’s Terms and Conditions of Use, Sparrow reserves the right to instruct the Member to cease all use, distribution and possession of such Work, and the Member must promptly comply with such instructions.
Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, the Member acknowledges, agrees and warrants that he or she shall not:
(a) sublicense, sell, assign, convey or transfer any of it's rights under this agreement. Sell, license or distribute the Work or any modified Work as stand-alone files or as part of an online database or any other database, or any derivative product containing the Work in such way that would allow a third party to download, extract or access the Image as a stand-alone file;
(b) share the Work with any other person or entity except as expressly permitted under this Agreement;
(c) post the Work online in downloadable format, post the Work on an electronic bulletin board, or enable the Work to be distributed via mobile telephone devices. Include the Work in any electronic template or application, including those that are web based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to website design, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter;
(d) download or store the Work on more than one computer at the same time, except that the Member may make a single backup copy to be stored on media separate from the single permitted computer;
(e) use, reproduce, distribute or display the Work in connection with design template applications intended for resale;
(f) use, reproduce, distribute or display the Work in connection with any goods or services intended for resale or distribution which primary value lies in the work itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
(g) use, reproduce, distribute or display the Work (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libelous or slanderous or otherwise defamatory, obscene or indecent;
(h) remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form, it being understood that the Member shall reproduce any and all such notices in any backup copy of the file comprising the Work that the Downloading Member makes;
(i) incorporate the Work into a trademark or service mark;
(j) take any action in connection with the Work that violates any law, regulation or statute in an applicable jurisdiction;
(l) take any action in connection with the Work that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Work and the rights of any person who, or any person whose property, appears in the Work; or
(m) take any action in connection with the Work that would reasonably imply that the creator of the Work, or the persons or property appearing in the Work (if any), endorse any political, economic or other opinion-based movements or parties.
(n) use the Work in a way that places any person in the photo in a bad light or depicts them in a way that they may find offensive - this includes, but is not limited to:
(1) the use of Images in pornography;
(2) tobacco ads;
(3) ads for adult entertainment clubs or similar venues, or for escort or similar services;
(4) political endorsements;
(5) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content.
The Member acknowledges and agrees that Sparrow and/or its licensor retains all rights, title and interest in and to the Work (except for the rights granted pursuant to this Agreement), and that neither title nor any ownership interest in or to the Work is transferred to the Member by virtue of this Agreement. Sparrow and/or its licensor (as applicable) shall also retain the right to use, reproduce or display the Work solely to demonstrate the Work as part of his or her professional portfolio. Without any limitation to any other rights that Sparrow may retain, Sparrow shall continue to have the right to use the Work for internal archival and reference purposes.
6. Representations and Warranties
In addition to the representations and warranties made by the Member above, each of Sparrow and the Member hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
The Member agrees to indemnify, defend and hold harmless Sparrow and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, "Indemnitees") from and against all claims, expenses (including attorney fees) or other liability arising from the Member"s breach of any of his or her representations, warranties or obligations under this Agreement, and from any and all uses of the Work, including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or "false light", right of publicity or blurring or distortion or alteration whether or not intentional. Sparrow shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by the Member with counsel of its own choosing. The Member shall fully cooperate with Sparrow in the defense of any such claim, action or matter.
8.A Limitations and Disclaimer
This Section 8A is subject to the limited warranty provided in Section 8B below, and shall not derogate from any of the provisions contained in such Section 8B.
The Member agrees that neither Sparrow nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than the Downloading Member), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use or non-use of the Work, even if such parties have been advised, or advised of the possibility, of such damages.
The Member acknowledges that Sparrow generally does not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Works. The procuring of such releases is the responsibility of the Member.
The Member acknowledges that Sparrow generally does not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Works. It is generally not possible for any stock image library or artist to get blanket releases for such products, but they can often be obtained on a case-by-case basis. The procuring of such releases is the responsibility of the Member.
THE WORK IS PROVIDED "AS IS" AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.B Limited Warranty
(a) Subject to the terms and conditions contained in this Agreement, including without limitation the provisions relating to limitation of liability in this Section 8B, Sparrow hereby represents and warrants that, notwithstanding anything to the contrary in Section 8A above, the utilization by the Member of an unaltered Paid-for Work (as defined below) pursuant to the terms of this Agreement shall not infringe or violate the intellectual property rights, publicity rights or privacy rights of any third party, and that all necessary model and property releases have been properly obtained in respect of such unaltered Paid-for Work. “Paid-for Work” means any Work downloaded from Sparrow’s website, apart from any Work which (i) is a part of Sparrow’s collection of free Works, and/or (ii) otherwise can be downloaded without payment of credits or monetary compensation.
(b) Subject to subsections (c), (d) and (e) below, Sparrow agrees to indemnify, defend and hold harmless the Member from and against all damages, liabilities and expenses (including reasonable attorney fees) arising directly from any actual or threatened lawsuit, claim or legal proceeding (collectively, a “Claim”) commenced by a third party against the Member, where such Claim alleges that the Member’s utilization of the unaltered Paid-for Work pursuant to the terms of this Agreement is in breach of the representations and warranties set forth in subsection (a) above; conditioned upon and provided that the Member gives Sparrow (i) prompt written notice of any threatened Claim known to the Member or any suit or proceeding actually initiated against the Member, (ii) full information, assistance and cooperation for the defense or settlement thereof, and (iii) at Sparrow’s option, sole control of any defense, settlement or action related thereto; and further provided that the use and/or distribution by the Member of the unaltered Paid-for Work has been at all times in accordance with the terms and conditions of this Agreement and that the Member is not otherwise in breach of this Agreement.
(c) Sparrow shall have no liability for, and Sparrow’s obligations under subsection (b) above shall not apply to: (i) any damages, liabilities or expenses incurred by the Member prior to its notification of the Claim to Sparrow; and/or (ii) any Claim based on or arising out of: (1) the modification by the Member of the Paid-for Work; (2) the combination of the Paid-for Work with any other work(s); and/or (3) the context in which the Paid-for Work has been used by the Member.
(d) Notwithstanding anything to the contrary contained in this Agreement or in any other agreement between Sparrow and the Member, the total maximum aggregate liability of Sparrow with respect to any Paid-for Work downloaded or licensed by the Member shall in no event exceed US$10,000 (ten thousand US dollars) per Paid-for Work, irrespective of the number of times the Paid-for Work is downloaded or licensed. Sparrow shall not be liable under this Section 8B in respect of any Work which is not a Paid-for Work.
(e) The foregoing states the entire liability and obligation of Sparrow, and the sole and exclusive remedy of the Member, with respect to any breach of the representations and warranties contained in subsection (a) above.
9. Term and Termination
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 9. Sparrow may at any time terminate this Agreement with respect to any Work in the event of any breach by the Member of any of his or her representations, warranties or obligations under this Agreement. The Member may at any time terminate this Agreement. Each of Sparrow and the Member shall notify the other in the event it, he or she terminates this Agreement. Sparrow shall also have the right, in its sole discretion, to deny the downloading of any Work from the eLearningStock.com website. Upon termination of a license for any particular Work, the Member shall immediately cease using such Work, destroy, or upon the request of Sparrow return the Work to Sparrow, delete or remove the Work from its permises, computer systems and storage (electronic and physical), and shall ensure that its clients and customers do likewise.
10. Effect of Termination
Upon the termination of this Agreement, the Member shall cease using the Work and destroy all copies of the Work, and all derivative works and related materials (if any), in his or her possession or control. At Sparrow"s request, the Member shall certify in writing to such destruction of the Work, derivative works and/or related materials. Termination of this Agreement shall not relieve the Member from any payment obligations that may have arisen prior to such termination. The provisions of Sections 1, 4, 5, 6, 7, 8, 10 and 11 shall survive the termination of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and the Member and Sparrow each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The relationship between Sparrow and the Member under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
The Member agrees that he or she shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to him or her under this Agreement.
No waiver on the part of Sparrow to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Sparrow to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
Except with respect to any trademark rights, all rights and licenses granted by Sparrow under or pursuant to this Agreement are for all purposes of Section 365(n) of Title 11 of the United States Code ("Title 11"), licenses of rights to "intellectual property" as defined in Title 11. Sparrow agrees that, in the event of commencement of bankruptcy proceedings by or against Sparrow under Title 11, the Member, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights under this Agreement (including the license granted under this Agreement) and all of its rights and elections under Title 11.
Sparrow shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. The Member shall have no right to assign any of his or her rights or obligations under this Agreement.
Without limitation of Sparrow’s indemnity obligations herein, Sparrow is relying on the representations and warranties made by Sparrow’s Uploading Members regarding the Works and their compliance with Sparrow's Terms and Conditions of Use, including the non-infringement of Works, and Sparrow does not have the right or ability to control the Works for purposes of the Digital Millennium Copyright Act or any claim of liability made by any third party against Sparrow.
This Agreement shall be inure to the benefit of, and be binding upon, Sparrow and the Member, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Sparrow and the Member, and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other.
If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect.
The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement