Standard Content Usage Agreement

Standard Content Usage Agreement

Dear Embella Stock Purchaser
The following is a legal agreement (the “Agreement”) between you or the employer or other entity on whose behalf you are entering into this Agreement (“you”) and Embella, Inc. Please read this Agreement carefully before downloading any Embella images (“Image(s)”) or footage (“Footage”) (collectively, “Content”)By downloading any Content, you agree to be bound by this Agreement, the Embella Privacy Policy and Embella’s Terms of Service, all of which are incorporated herein and made a part hereof by this reference. Your failure to comply with the terms hereof could result in the immediate termination of your account and legal action.
Embella reserves the right to change this Agreement at any time, and you agree to be bound by such changes. Please make sure that you read and understand all changes. If you do not agree to this Agreement, as same may be amended from time to time, do not download or use any Content. If the use you are contemplating is not permitted by this Agreement, do not download or use any Content.

PART I GENERAL TERMS

1. All Content on the Embella website is protected by United States and international copyright laws and treaties. Embella and/or the various artists who provide Content to Embella (“Contributors”) own all rights, including the copyrights in and to the Content. Embella and/or its Contributors reserve all rights in and to the Content not expressly granted to you by the terms of this Agreement. Your rights to use any Content are subject to this Agreement and are conditioned upon your payment to Embella for your use of the applicable Content. If you fail to make any payment to Embella when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed to be delinquent. If your account becomes delinquent, your right to use any Content downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Embella’s costs of collection, bank charges and credit card processing fees are received by Embella no later than fifteen (15) days from the date that your account became delinquent. 

This Agreement grants you a single-user, single-seat license. This license may not be used simultaneously on multiple devices, or at any time by multiple persons.

PART II USAGE RIGHTS

2. By this Agreement, Embella grants you a personal, non-exclusive, non-transferable (except as herein provided), royalty-free right, throughout the world, in perpetuity, to use and reproduce Content in the following ways, subject to the limitations set forth herein and in Part II hereof.

PERMITTED WEB / ELECTRONIC USES

3. This Agreement grants you the right to:
a. Incorporate Content on web sites (including Social Media Platforms, as such term is defined herein), provided that no Content is: i) displayed at a resolution greater than the display resolution of the intended viewing device; or ii) displayed as part of gallery, collection, album, archive, scrapbook or other aggregation of individual images and/or footage.
b. Use Content in coordination with opt-in email marketing. However, Content cannot be used in connection with unsolicited email or linked to from unsolicited email.
c. Incorporate Content into software (including mobile “apps”) as background images or splash screens, provided that the primary purpose of the software is not the display of Content and further provided that Content or any digital files containing the Content cannot be unincorporated from the software.
d. Incorporate Content into film, video, multimedia presentations, or advertising for broadcast, public performance, or sale.
e. Use Content in eBooks, including multi seat license electronic textbooks.

PERMITTED PRINT USES

4.This Agreement grants you the right to:
f. Use Content as prints, posters, postcards (i.e. a hardcopy) and other reproductions for your own personal use and display, including display in commercial settings, provided such hardcopies are not resold or otherwise distributed;
g. Incorporate Images into advertising materials, posters and tradeshow signage for use in promoting the sale of other products or services (as opposed to promoting the sale of the prints, posters, etc. containing the Images), provided that the Image is an integrated, supportive part of your project or product and not the definitive part of such prints and/or posters and/or other reproductions and further provided that no Image is used for Out-of-Home advertising.
h. Use Images in magazines, newspapers, books, book covers and/or textbooks for editorial and/or advertising purposes.
i. Use Images in the artwork for the packaging of any product.
j. Incorporate Images on letterhead and business cards, pamphlets, brochures, and catalogs.
k. Incorporate Content into set design and dressing for public performance.
l. All other rights in the Content are expressly reserved by Embella for itself and its Contributors. If you wish to use Content in any manner not provided by this Standard Content Usage Agreement, you may contact Embella to discuss the use.

PART III RESTRICTIONS
YOU MAY NOT:

5. Use any Content other than as specified in PART II.
6. Use or display any Content on websites or in connection with any service designed to sell or induce sales of user-commissioned “print-on demand” products using or incorporating Image(s), including, by way of example only, postcards, mugs, tee shirts, posters, giclée prints, wallpaper, artwork and other items. For the purposes of this Agreement, the term “print on demand” means, a printing technology and business process in which copies of a product are not printed until an order for the product has been received.
7. Use Content in such a manner that it infringes upon any third party’s trademark or other intellectual property.
8. Use any Content in a way that places any person depicted in the Content in a way that a reasonable person would find offensive – this includes, but is not limited to the use of Content: a) in pornography, “adult videos” or the like; b) in ads for tobacco products or other addictive substances; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements and/or promotional materials for pharmaceutical, healthcare, herbal or medical products (including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products), f) if the use implies that the depicted person suffers from a physical or mental infirmity, ailment or condition or engages in any immoral or illegal activity, unless such depiction is expressly consistent with the portrayal of the model as represented in such Content in its original, unaltered form; or g) in any manner that is defamatory, or contains unlawful or offensive content.
9. Except as expressly provided in Part II hereof, nor may you produce or otherwise create for resale or distribution, printed reproductions of any Content on canvas, paper, plastic or any other medium unless expressly permitted by this agreement.
10. Share any Content by providing access to such Content on shared disk drives, computer networks, servers, cloud network or other intranets of any nature or otherwise.
11. Use any Content on any third party social media website or platform (a “Social Media Platform”), if such Social Media Platform claims to acquire rights contrary to this Agreement as a result of such use. In such event, you will promptly remove Content from the Social Media Platform upon Embella’s request.
12. Use Content in any manner that competes with Embella’s business. This includes, by way of illustration only and not by way of limitation, displaying Content in any format (including thumbnails) for download on a website, offering Content for sale, incorporating Content into templates of any nature, including templates for websites, social networking profiles, documents, projects or otherwise making Content available for distribution and/or sale to third parties.
13. Use Embella Content as the primary feature of any individual physical or digital product or any collection thereof which is offered for sale, trade or otherwise distributed in violation of the terms of this Agreement. Additionally, Content must be an integrated, inseparable part of any product and must constitute less than 50 percent of the overall product area, page layout, design, or running time.
14. Use still images captured from Footage other than for the in-context marketing, promotion, and advertising of your derivative works incorporating Footage
15. Use any Content marked “Editorial use only” for commercial purposes. If Content is marked, “Editorial use only”, additional permissions may be required for commercial use. Embella does not typically provide such permissions.
16. Use any Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
17. Use or display any Content in such a manner that gives the impression that the Content was created by you or a person other than the copyright holder of that Content. Additionally, you may not use or display any Content is such a manner that gives the impression that any person depicted in the Content is the author or creator of any product in which the Content is incorporated.
18. Use automated programs, applets, bots or the like to access the Embella.com website or any content thereon for any purpose, including, by way of example only, downloading Content, indexing, scraping or caching any content on the website.

PART IV MISCELLANEOUS

19. Embella shall be under no obligation to refund the cost of a purchase. However, in the event that Embella determines that you are entitled to a refund of all or part of your purchase price, such refund shall only be made to the credit card account originally used by you to make the subject purchase. If your payment was made by check, your refund will be made by check.
20. “Non-transferable” as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Content or the right to use Content. You may however, transfer Content to a third party for the sole purpose of causing such third party to produce and/or manufacture your goods incorporating Content subject to the terms and conditions herein.
21. The work you produce with Content must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Content. If you become aware of any unauthorized duplication of any Embella Content please notify us via email at support@embella.com.
22. You agree that you will not share your username and password combination. Your Embella username and password are to be used only by you. Each person that desires to access the Embella site must have his/her own username and password. You may access your account on multiple computers, but only one computer may be logged in using your account at any one time. If any two users on two separate computers are using the same username and password, we reserve the right to terminate that subscriber’s account without refund or prior notice. We reserve the right to monitor accounts and institute measures to stop users from sharing their login information.
23. You agree to indemnify and hold Embella, its officers, employees, shareholders, directors, managers, members and suppliers, and those of its affiliates including parent companies and subsidiaries, harmless against any damages or liability of any kind arising from any use of Content other than the uses expressly permitted by this Agreement. You further agree to indemnify Embella for all costs and expenses that Embella incurs in the event that you breach any of the terms of this or any other agreement with Embella.
24. You Warrant and Represent that:
a. All information, including personal information, that you provide to Embella is accurate, complete, and current at the time you provide it to Embella. You agree to correct and update such information to ensure its accuracy and completeness at all times. Falsification of such information, or failure to comply with this Agreement may result in the termination of your account with Embella.
b. You accept responsibility for any and all activities conducted through your Embella account. You agree to notify Embella immediately of any unauthorized use of your account, including the unauthorized use of your password or accounts, as well as of any other breach of security that may affect Embella.
c. You agree that you may not have more than one account without Embella’s prior written consent. You may not create additional accounts for the purpose of re-using promotional codes, affiliate program referrals or other bonus / special offers. You may not use more than one promotional code or offer without Embella’s consent. Promotional codes and offers may not be combined.
d. You will not in any way impersonate another person or act in a manner which may cause others to confuse you with another party.
e. You will not engage in any behavior towards Embella, Embella employees, Embella Contributors, or in connection with any Content which Embella, in its discretion, deems vulgar or otherwise offensive.
f. If Embella terminates your account, you will not access Embella in any manner or for any reason without the prior express written permission of Embella.
25. Embella warrants and represents that it has the right and authority to enter into this Agreement and to grant the rights in the Content set forth herein, subject to the limitations and exclusions set forth herein.
26. While Embella uses commercially reasonable efforts to ensure the accuracy of keywords and descriptions, as well as the integrity of our Editorial Content, Embella makes no warranties and/or representations regarding such keywords, descriptions or Editorial Content integrity.
27. The rights granted to you under this Agreement shall terminate immediately and without notice: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings, by or against you; (ii) upon you making an assignment for the benefit of creditors; or (iii) upon the dissolution of any entity on whose behalf you entered into this Agreement, or at the moment such entity ceases to do business. Embella shall not consent to any assumption or assignment of the rights granted hereunder in the event of any of the preceding.
28. You must be at least 18 years of age to use the Embella.com website and accept this Agreement. Embella may require any registrant to provide sufficient proof of age.
29. Any legal action or proceeding concerning the validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of Herkimer, or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this agreement. The validity, interpretation and enforcement of this agreement, matters arising out of or related to its making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). You agree that service of process in any actions, controversies and disputes arising from or relating to this Agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
30. If you are entering into this Agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Embella for any breaches of the terms of this Agreement.
31. Credit Attributions and Copyright Notices
a. You shall provide a link back to www.embella.com (where applicable) -OR- provide a credit to the Embella contributor and to Embella in connection with the use of any Content in an editorial context. Such credit shall be in substantially the following form: “Name of Artist/Embella.com”
b. In the event that any Content is used in connection with a film, television broadcast, documentary or other audio-video or multimedia project, you shall use reasonable commercial efforts to accord the Embella contributor and Embella a credit as provided above.
c. Notwithstanding the foregoing, unless any other provider of stock media is credited, credit attributions are not required in connection with the use of Images in advertising.
d. The unintentional omission of the aforesaid credit will not be a breach of the terms hereof provided that you cure such omission following email notice from Embella.
32. In the event that you breach any of the terms of this or any other agreement with Embella, Embella shall have the right to terminate your account without further notice. Such termination shall be in addition to Embella’s other rights at law and/or equity. Embella shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of any such breach or breaches.
33. Embella grants no rights and makes no representations or warranties with respect to the use of any names, trademarks, service mark, logotypes, copyrighted designs or works of art or architecture depicted in any Content. It is your responsibility to assure that all necessary rights, consents, or permissions that may be required for your use of any Content are obtained.
34. Embella does not warrant that the Content, Embella websites, or other materials, will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Content is solely with you.
35. You understand that you should seek counsel before using Content on or in connection with any goods or services or for any other commercial purposes.
36. In no event shall Embella’s total aggregate liability to you, or to any third party claiming through you, arising out of or in connection with your use of or inability to use the Embella website and/or Content contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by Embella from you for your use of the applicable Image(s). Neither Embella nor any of its officers, employees managers, members, shareholders, directors suppliers or those of its affiliates including parent companies and subsidiaries, shall be liable to you or to any other person or entity for any general, punitive, special, indirect, consequential or incidental damages, or lost profits or any other damages, costs or losses arising out of your use of the Image(s), Embella’s breach of this Agreement, or otherwise, unless expressly provided for herein, even if Embella has been advised of the possibility of such damages, costs or losses.
37. In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting Embella, Embella will promptly file a complaint with www.ic3.gov, the Internet Crime Complaint Center, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center.

Effective June 23, 2017