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BASIC END USER CONTENT LICENSE AGREEMENT

This Basic End User Content License Agreement (the “Agreement”) is between you and Wildstock Inc., and explains how you may use photographs, videos, audio files, illustrations, vectors and other content (collectively, the “Content”) that you acquire, obtain or download (“Download”) from Wildstock.

By Downloading any Content from Wildstock, you accept the terms of this Agreement, as well as Wildstock’s Terms of Use and Privacy Policy. If you download the Content on behalf of an entity, then this Agreement applies to such entity. In such case, you represent and warrant that you have the authority to bind such entity to this Agreement.

1. OWNERSHIP

You agree that you do not acquire any right, ownership, title and interest in any of the copyrights, trademarks, trade secrets, and any other proprietary rights in the Content that are not expressly granted to you by the terms of this Agreement. Such rights will remain solely vested in Wildstock and/or the artist(s) who supplied the Content (the “Content Suppliers”).

2. LICENSE

Subject to your compliance with the terms of this Agreement and your payment of all applicable license fees, Wildstock hereby grants perpetual, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license (the “License”) to display, use, reproduce, modify, edit, perform, display, synchronize, broadcast, or publish Content subject to the restrictions in Section 3 and any other applicable terms in this Agreement.

3. RESTRICTIONS

Notwithstanding the License or any other provision of this Agreement, you may not:

  1. 3.1

    Sublicense, sell, assign, convey, give, rent, load, or transfer or attempt to transfer any Content or any of your rights under this Agreement;

  2. 3.2

    Use or incorporate Content for the purpose of designing a trademark, service mark, design mark, business name, design mark, logo or other visual branding device;

  3. 3.3

    Take any action in connection with the Content 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 Content and the rights of any person who, or any person whose property, appears in the Content;

  4. 3.4

    Share the Content with any other person or entity or post the Content online in a downloadable format, or post the Content on online forums, commons, bulletin boards or any other publicly available electronic discussion media;

  5. 3.5

    Download or store the Content on any device that is not owned or controlled by you;

  6. 3.6

    Download or store the Content on more than three (3) devices that you own or control simultaneously, except you may make one additional backup copy to be stored on media separate from the three (3) permitted devices;

  7. 3.7

    Allow anyone else in your organization to use the Content for any purpose. Any additional users will require their own licenses;

  8. 3.8

    Represent in a manner which is false and/or misleading, that you are the original creator of Content that is made entirely or mostly of licensed Content (including licensed Content that has been modified or edited);

  9. 3.9

    Sell, license or distribute the Content or any modified Content as stand-alone or as part of an online database or any other database, or any derivative product containing the Content in such way that would allow a third party to use, download, extract or access the Image as a stand-alone file;

  10. 3.10

    Remove any copyright or proprietary notice or other information that may appear on, embedded in, or in connection with the Content in its original downloaded form, it being understood that you must include any and all such notices in any permitted backup copy of the Content;

  11. 3.11

    Use the Content in an editorial manner, without affixing the accompanying copyright notice; provided however that the copyright notice is not necessary if such Copyright Notice is not required under applicable law for use in a particular situation AND if it would not be customary to include such copyright notice in such particular situation;

  12. 3.12

    Use "stills" derived from Content that is in video (“Footage”) except solely in connection with the in-context marketing, promotion, and advertising of your derivative works incorporating Footage;

  13. 3.13

    If the Content contains source code, you may not reverse engineer, decompile, or disassemble any part of such source code;

  14. 3.14

    Remove, bypass, or impair any technological measure that limits access to the Content;

  15. 3.15

    Take any action in connection with the Content that violates any applicable law;

  16. 3.16

    Use, reproduce, distribute, perform, modify, or display the Content (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;

  17. 3.17

    Take any action in connection with the Content that would reasonably imply that the creator of the Content, or the persons or property appearing in the Content (if any), endorse any political, economic or other opinion-based movements or parties;

  18. 3.18

    Use the Content 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. a.

      the use of Contents in pornography;

    2. b.

      tobacco ads;

    3. c.

      ads for adult entertainment clubs or similar venues, including escort or similar services;

    4. d.

      political endorsements;

    5. e.

      uses that are defamatory, or otherwise contain unlawful, offensive or immoral content.

  19. 3.19.

    Use the Content for any project in which the primary value is lies in the Content itself. By way of example, but not limitation, you may not use Content to create and sell cards, stationery items, paper products, calendars, apparel items (t-shirts, hats, or any other apparel), posters (printed on paper, canvas, or any other media), DVDs, mobile applications or other items for resale, license or other distribution for profit. This includes "on demand" products (meaning products in which content is selected by a third party for customization on such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, posters and other items (this includes the sale of products through custom designed websites;

  20. 3.20.

    Use the Content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, brochure design templates); and

  21. 3.21.

    Reproduce the Content more than 500,000 times in physical print form. This restriction does not apply to electronic reproduction.

4. INTELLECTUAL PROPERTY; CREDITS

All Content on Wildstock is owned either by Wildstock or by the Content Suppliers. All rights not expressly granted in this agreement are reserved by Wildstock and the Content Suppliers.

If you are using Content for editorial purposes, you must include a credit that states “Wildstock/(Member name)”.Examples include newspapers, magazines, journals, blogs, online media, and any publicly published article, column, or copyrightable works of authorship.

5. ACCOUNT SECURITY

As stated in the Terms of Use, you are responsible for the security of your account. If you discover or suspect that your account has been breached, you must immediately notify Wildstock. You acknowledge and agree that Wildstock shall not be liable for any breach of your account which occurs due to your own actions or negligence.

Wildstock reserves the right to monitor your activity to ensure that you are in compliance with this Agreement. Wildstock further reserves the right to suspend your account and/or take other action (including, without limitation, legal action) if it discovers that you have breached this Agreement.

6. TERM; TERMINATION

This Agreement shall remain in effect until terminated by either you or Wildstock. Wildstock reserves the right to terminate this Agreement at any time, on a finding that you have breached this Agreement. If Wildstock terminates the Agreement, you agree to immediately stop using any Content and delete and/or destroy any copies of Content. Additionally, upon requests by Wildstock, you agree to confirm in writing that you have complied with these requirements.

You also agree that Wildstock may stop licensing any Content at any point in its sole discretion. If you discover, or if you are notified by Wildstock, that any piece of Content is subject to a claim of infringement by a third party, Wildstock may require you to immediately cease using such Content, delete and/or destroy any copies, and direct employees, clients, or other associates to do the same. You must do this at your own expense.

7. REFUNDS

Wildstock does not offer refunds or re-credits for downloaded files, except when there are technical issues with the file such as corrupted files, as determined at the sole discretion of Wildstock. All requests for refunds/cancellations must be made in writing. If the request is approved, Wildstock will issue a credit to your account or credit card.

8. Wildstock’s Representations

Wildstock makes the following representations and warranties with respect to Content:

  1. 8.1.

    Wildstock's contributors have granted Wildstock all necessary rights or releases in and to the Content to grant the rights set forth under this Agreement, as applicable.

  2. 8.2.

    Content in its original unaltered form and used in full compliance with this Agreement and applicable law, will not: i) infringe any copyright, trademark or other intellectual property right of any third party; or ii) violate any third parties' rights of privacy or publicity.

  3. 8.3.

    We have attempted to accurately categorize and caption the Content on our Service, but we do not warranty or guarantee the accuracy of such information.

  4. 8.4.

    Except as provided otherwise in this Section 8, you agree that all Content is provided “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

Except as otherwise provided in this Agreement or required by law, you assume full responsibility for the use of the Content or any services provided by us.

UNDER NO CIRCUMSTANCES WILL WILDSTOCK BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISE INCLUDING THOSE (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 SERVICES OR CONTENTS. NOTHING IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY FOR GROSS NEGLIGENCE OR FOR OUR (OR OUR EMPLOYEES’) INTENTIONAL MISCONDUCT.

YOU ACKNOWLEDGE AND AGREE THAT WILDSTOCK’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT WE RECEIVED FROM YOU FOR THE CONTENT GIVING RISE TO THE LIABILITY. THIS LIMIT APPLIES REGARDLESS OF THE NUMBER OF TIMES YOU LICENSE THE SAME PIECE OF CONTENT FROM WILDSTOCK.

10. Our indemnification to you

  1. 10.1.

    Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 9, we will defend any third-party claim, action, legal proceeding made against you (collectively, "Claim") during the term of this Agreement to the extent the Claim alleges that your use of the Indemnified Content pursuant to these terms directly infringes the third party’s copyright, trademark, publicity rights or privacy rights ("Infringement Claim"). "Indemnified Content" means any Content that you have purchased and downloaded from the Website that has not been altered. We will pay you the damages, losses, costs, expenses, or liabilities (collectively, “Losses”) directly attributable to an Infringement Claim and are either finally awarded by a court of competent jurisdiction against you or agreed to in a written settlement agreement signed by us.

  2. 10.2.

    Wildstock will have no liability for any Infringement Claim:

    1. a)

      that arises from (i) any modification of the Indemnified Content; (ii) any combination of the Indemnified Content with any other works; (iii) any use of the Indemnified Content after we have removed the Indemnified Content from our Services or have instructed you to stop using the Indemnified Content; (iv) any breach of this Agreement or our Terms of Use; or (iv) the context in which you have used the Indemnified Content; or

    2. b)

      if you fail to (i) notify us in writing of the Infringement Claim promptly upon the earlier of learning of or receiving a notice of it, to the extent we are prejudiced by this failure; (ii) provide us with reasonable assistance requested by us for the defense or settlement of the Infringement Claim; (iii) provide us with the exclusive right to control and the authority to settle the Infringement Claim; or (iv) refrain from making admissions about the Infringement Claim without our prior written consent.

  3. 10.3.

    LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR IN ANY OTHER AGREEMENT BETWEEN YOU AND US, OUR TOTAL MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO ANY INDEMNIFIED CONTENT WILL IN NO EVENT EXCEED US[$2,500] PER INDEMNIFIED CONTENT, IRRESPECTIVE OF THE NUMBER OF TIMES THE INDEMNIFIED CONTENT IS DOWNLOADED OR LICENSED.

  4. 10.4.

    Sole and Exclusive Remedy.  The foregoing states our entire liability and obligation, and your sole and exclusive remedy, with respect to any Indemnified Content or Infringement Claim.

11. INDEMNIFICATION by you

You agree to defend, indemnify and hold harmless Wildstock, and each of its respective officers, directors and employees, from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this Agreement.

12. MISCELLANEOUS PROVISIONS

  1. 12.1. ASSIGNMENT

    This Agreement may not be assigned without Wildstock's prior written consent. Wildstock may assign this agreement, without notice or consent, to any corporate affiliate or to any successor-in-interest to its business or assets.

  2. 12.2. Audit/Certificate of Compliance. 

    Upon reasonable notice, you agree to provide to Wildstock sample copies of projects or end uses that contain licensed Content, including by providing Wildstock with free of charge access to any pay-walled or otherwise restricted access website or platform where Content is reproduced.

    Where Wildstock reasonably believes that Content is being used outside of the scope of the license granted under this agreement, you agree, at Wildstock's request, to provide a certificate of compliance signed by an officer of your company, in a form to be approved by Wildstock.

  3. 12.3. Jurisdiction And Choice Of Law; Dispute Resolution

    If there is any dispute arising out of the Wildstock Service, you expressly agree that any such dispute shall be governed by the laws of the State of California, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of California, for the resolution of any such dispute. Acceptance of the terms and conditions of this Agreement constitutes your consent to be sued in such courts and to accept service of process outside the State of California with the same force and effect as if such service had been made within the State of California. You hereby agree to accept service of process for any action hereunder by certified mail return receipt requested which service shall have the same force and effect as though service had been effected by personal service in the applicable jurisdiction. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.

  4. 12.4. Dispute Resolution/Arbitration Provision

    Except where prohibited by law, as a condition of using the Service, you agree that any and all disputes, claims and causes of action (collectively, "Claim") arising out of or connected with the Service, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. The parties shall split the arbitration and/or mediator costs. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of California, County of Los Angeles, or the United States District Court for the Central District of California. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of California, County of Los Angeles, or the United States District Court for the Central District of California.

  5. 12.5. No Class Actions

    You agree to only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.

  6. 12.6. Severability

    If one or more 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 should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.

  7. 12.7. Waiver

    No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement. Our failure to enforce or exercise any of these terms is not a waiver of that section.

  8. 12.8. Entire Agreement

    This License Agreement, along with the Wildstock Terms of Use and Wildstock Privacy Policy, constitute the entire agreement of the parties and supersede any and all preceding and contemporaneous agreements between you and Wildstock. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by an authorized officer of Wildstock.

  9. 12.9. Notice. 

    All notices required to be sent to Wildstock under this agreement should be sent via email to admin@wildstock.com. All notices to you will be sent via email to the email set out in your account.

  10. 12.10. Taxes. 

    You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed Content.

  11. 12.11. No Agency. 

    The relationship between you and us 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.

  12. 12.11. Modification. 

    Wildstock may modify this Agreement at any time; provided, any modification to the scope of the License shall apply only to Licenses entered into after the effective date of the License. We will post notice of modifications to these terms on this page. By continuing to use or access the Website after the revisions come into effect, you agree to be bound by the revised terms.