Terms of Use
The following Terms of Use (“TOU”) is a legal agreement between you and Nick Colombini (“we,” “us” and “our”), and governs your use of the Content (as defined below) licensed by you and any customer support or services provided by us in connection with such Content. Your use of the Content is subject to these TOU and all applicable laws, rules and regulations. Please read these TOU carefully and contact us with any questions.
“Content” means the particular media (e.g. image files, video files, audio files, templates, project files, data files, etc.) that you license through any Websites, along with any related materials, modifications and updates, if any, provided to you by us.
“End Product” means a work created by you into which the Content is to be incorporated pursuant to the license granted in these TOU. Examples of End Products include websites, games, presentations, online videos, corporate videos, films, television shows and advertisements.
“Website” means nickcolombini.com or our other websites.
Subject to your compliance with the TOU, we grant you a nonexclusive, perpetual, worldwide, non-transferable license to use, reproduce, modify (except as expressly prohibited herein), distribute and display the Content solely as incorporated into End Products, subject to the limitations set forth herein. Subject to these TOU, including but not limited to the restrictions set forth in Section 5 hereto, the license granted hereunder shall apply on an unlimited basis and shall convey the right to distribute, display or otherwise embody the Content in multiple End Products with no further payment to us.
As between you and us, we retain all rights, title and interest in and to the Content and any derivatives or modifications thereof, in whole or in part. You do not acquire any right, title or interest in any Content by virtue of the permitted uses allowed under these TOU, and you shall not claim ownership of the Content as incorporated in the End Product through content identification systems (e.g., through applying “ContentID” or similar systems to the Content). Any unauthorized reproduction or other use of the Content may infringe our or third parties’ copyrights, trademarks, privacy or other rights.
End Product. You retain all rights, title and interest in and to the End Product other than the Content incorporated therein.
Employer or Client Use. You may purchase a license to the Content pursuant to these TOU on behalf of your employer or clients, provided that you represent and warrant that you have the authority to bind your employer or clients to the TOU. With respect to a client, you must transfer your license to your client via an enforceable written agreement that includes terms no less restrictive than the TOU. You are solely responsible and liable for use of the Content by your employer or clients. The TOU grant you the right to use the same Content for the benefit of other clients in other End Products, subject to the restrictions set forth in Section 5.
You may not:
Use, transfer or otherwise distribute the Content in any way that allows a third party to use, download, extract or access the Content as a stand-alone file, either alone or bundled with other content, regardless of any modification you make to the Content (for example, you may not modify Content and distribute as part of a Lens Flare Pack, or stylize or recolor Content and present as your own product);
Take any action in connection with the Content that infringes the intellectual property or other rights of any person or entity;
Incorporate the Content into a trademark, logo or service mark or otherwise claim trademark or service mark rights in the Content, either alone or as incorporated in the End Product;
Use the Content in a pornographic, obscene, defamatory or unlawful manner;
Use the Content in an application allowing an end user to customize a digital or physical product to their specific needs, such as an “on demand,” “made to order” or “build it yourself” application (for example, online video or animation rendering services, slideshow apps and e-card generals) unless you purchase a separate license for each final product incorporating the Content that is created using the application;
Use the Content or any portion thereof for merchandising (for example, screensavers, t-shirts or calendars); or
Otherwise use or grant rights to the Content in a way that frustrates the intent hereof.
Your Warranties and Representations. You warrant and represent that (a) you have the right and authority to enter into the TOU, either individually or on behalf of your employer or client, as applicable, and (b) neither the End Product nor your use of the Content shall violate any law or infringe upon any common law or statutory rights of any third-party, including without limitation contractual rights, copyrights, intellectual property rights and privacy rights.
Your Indemnification Obligations. You shall indemnify, defend and hold us and our subsidiaries, affiliates, officers, agents, employees, partners, or licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your violation of the TOU, the End Product or your use of the Content (except as indemnified by us), including without limitation your violation of any common law or statutory rights of any third-party, including without limitation contractual rights, copyrights, intellectual property rights and privacy rights.
Our Indemnification Obligations. Provided that the Content is used in accordance with the TOU, we will defend any third-party claim, action or legal proceeding made against a person or entity during the term of the TOU arising from an alleged infringement by the Content of the third-party’s copyright or trademark rights. Notwithstanding the foregoing, we will have no liability to you for any claim that arises from (a) any modification of the Content, (b) any combination of the Content with any other content, or (c) the context in which you have used the Content.
Disclaimer of Warranties. The Content is provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the Content. We further disclaim any warranty that (a) the Content will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results obtained from the use of the Content will be effective, accurate, or reliable; (c) the quality of the Content will meet your expectations; or (d) any errors or defects in the Content will be corrected. We specifically disclaim all liability for any actions resulting from your use of the Content. You may use and access the Content at your own discretion and risk.
Limitation of Liability.
We are not liable to you or anyone else for any loss of use, data, goodwill, or profits, whatsoever, and any special, incidental, indirect, consequential, or punitive damages whatsoever, regardless of cause (even if we have been advised of the possibility of the loss or damages), including losses and damages (a) resulting from loss of use, data, or profits, whether or not foreseeable; (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action; or (c) arising from any other claim arising out of or in connection with your use of or access to the Content.
Our total liability in any matter arising out of or related to the TOU is limited to US $100 or the aggregate amount that you paid for use of the Content, whichever is larger. This limitation will apply regardless of the form or source of claim or loss, whether the claim or loss was foreseeable, and whether a party has been advised of the possibility of the claim or loss.
The foregoing states our entire liability and obligation, and your sole and exclusive remedy, with respect to the Content.
The limitations and exclusions in this section apply to the maximum extent permitted by law.
If we reasonably believe that the Content may be subject to a third-party claim or if the Content is otherwise in violation of the TOU, then we may instruct you to cease all use, reproduction, modification, display, distribution and possession of the Content, and you must promptly comply with such instructions. We may, at any time, (a) discontinue the licensing of the Content; and (b) deny the downloading of the Content. We reserve all rights not expressly granted in these TOU.
We may terminate the TOU or your right to use the Content upon notice to you in the event of your breach of the TOU, in which case you must cease all use, reproduction, modification, display, distribution and possession of the Content, including the End Product incorporating the Content.
Governing Law and Dispute Resolution. The TOU, and your relationship with us under the TOU, shall be governed by the laws of the State of California without regard to its conflict or choice of laws provisions. Any dispute with us, or our parents, subsidiaries, affiliates, officers, directors, employees, agents or affiliates, arising under or in relation to the TOU shall be resolved exclusively through non-appealable arbitration with one arbitrator in accordance with the rules of the American Arbitration Association in San Diego, California. If traveling to California is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in such case we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees).
Trade Control Laws. The Content is subject to U.S. and international laws, restrictions and regulations that may govern the import, export and use of the Content. You agree to comply with all such laws, restrictions and regulations.
You may send notices to us at the following address: 1330 Calabazas Drive Windsor, CA 95492. We may notify you by email, postal mail or other legally accepted means.
If any provision in the TOU is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of the TOU shall remain in effect.
Except as otherwise set forth herein, you may not assign, sublicense, or transfer the TOU or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate the TOU. We may transfer our rights under the TOU to a third party.
Entire Agreement. The TOU sets forth the entire understanding and agreement between the parties relating to its subject matter. Any waiver of or promise not to enforce any right under the TOU shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.
For questions regarding the TOU or to inquire about licensing partnerships, you may contact us at Nick@gumviewcreative.com.