-
This Agreement governs the terms by which members of Voottoo obtain the right to use images, graphics, illustrations, animations, video, photographs, and other media content ("Content") provided by members of the Voottoo.com community through the web site located at www.voottoo.com (the "Site"). This Voottoo Content License Agreement is in addition to the Terms of Use applicable to the Site and to the Voottoo Content Submission Agreement that all persons providing Content to the Site ("Artists") have previously entered into. In the event of any inconsistency between this Agreement and the Terms of Use (which is incorporated into this Agreement by reference), the terms of this Agreement shall govern.
1. Introduction; Modifications
You understand that by downloading Content or commissioning Content, you are agreeing to be bound to this Agreement. If you do not accept or agree with these terms, you may not download or commission any Content. Voottoo reserves the right, in its sole discretion, at any time to modify, discontinue or terminate the Site, or modify this Agreement without notice. All modified terms and conditions will be effective after we have posted the changes, and any Content you download after we have posted the changes is subject to such changes. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease downloading or commissioning Content, and, if applicable, cancel your membership. By continuing to download or commission Content after we have notified you of the changes, you agree to be bound by such changes.
2. Standard License Terms
Voottoo, for itself and on behalf of the applicable Artist(s), hereby grants to you a perpetual, non-exclusive, non-transferable, royalty-free, worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Voottoo or the supplier of the Content, as the case may be. No rights in any Content are granted except the limited licenses specified in this Agreement. You do not acquire any copyright ownership or equivalent rights in or to any Content or any other property of Voottoo or its Content suppliers as a result of any license Voottoo grants to you.
3. Permitted Standard License Uses:
(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a "Permitted Derivative Work" for the purposes of this Agreement). For example, you cannot superficially modify the Content, print it on a t-shirt, mug, poster, template or other item, and sell it to others for consumption, reproduction or re-sale. These uses will not be permitted as or constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted Derivative Work, you should contact Voottoo for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.
(b) Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Content under the Permitted Uses an unlimited number of times. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location or accessible by more than one person, you must pay for and download the Content from the Site for each such use. You may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are "Permitted Uses" of Content:
1. advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (i.e. not for resale or license);
2. entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations;
3. on-line or electronic publications, including web pages to a maximum of 800 x 600 pixels;
4. mugs, t-shirts, prints, posters, and other reproductions (including custom products on sites such as www.cafepress.com or www.zazzle.com) for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and
5. any other uses approved in writing by Voottoo
If there is any doubt that a proposed use is a Permitted Use, you should contact Voottoo for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are "Prohibited Uses" and you may not:
1. use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
2. use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.com and www.zazzle.com);
3. use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
4. use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
5. incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
6. use the Content in a fashion that is considered under applicable law or by Voottoo (in its reasonable judgment) as pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
7. use or display any Content that features a model or person in a manner that (i) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or (ii) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content;
8. to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
9. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
10. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
11. install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
12. use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
13. use the Content for editorial purposes without including the following credit adjacent to the Content: "©Voottoo.com/Artist's Member Name"; or
14. either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 500,000 times.
5. Commissioned Work
You may also commission unique Content ("Commissioned Work") from Artists who may bid on the opportunity to create your Commissioned Work based on your specifications, as agreed to between you and the Artist. You will exclusively own and retain all right, title, and interest of any such Commissioned Work as a work made for hire under U.S. copyright law. However, if any pre-existing copyrighted Content belonging either to you or the Artist is used in creating the Commissioned Work, such copyright and related intellectual property rights therein will remain with the original owner. Once you have initiated a transaction for a Commissioned Work on the Site, you must complete the sale on the Site, pursuant to the terms of Section 6, below. You may not request any Commissioned Work that would violate Voottoo's policies (e.g., those usages listed in Section 4(a)(6), above). If a request for Commissioned Work is in violation of Voottoo's policies, we may ask you to modify the request or we may delete it in its entirety. Transaction disputes stemming from your request for Commissioned Work will be handled as regular Voottoo transactions. You acknowledge that Voottoo shall have no liability for any breach of the Artist related to your agreement for Commissioned Work.
6. Payment
(a) You are required to submit payment to Voottoo for all Content and Commissioned Work that you obtain under the terms of this Agreement, and we may charge your selected payment method to collect any such payments. You are required to keep your billing information current, complete, and accurate (such as a change in billing address, credit card number or expiration date) and notify Voottoo if your selected payment method is cancelled (e.g., for loss or theft).
(b) The fee for each piece of Content that you download will be priced by the Artist. The fee for a piece of Commissioned Work will be negotiated by you and the Artist during the commissioning process. For Commissioned Work, you will pay Voottoo 100% of the agreed-upon fee at the time of your acceptance of the Artist's bid for the commission. Upon Voottoo's receipt of satisfactory confirmation of such agreement for the Commissioned Work, Voottoo will transfer one-half of the fees to the Artist at such time, and the remaining balance after you indicate that you have accepted the final Commissioned Work from the Artist. In the event of either of the following: (i) you are not satisfied with the Commissioned Work, or (ii) the Artist's breach during the project, you acknowledge that Voottoo's sole obligation to you is to refund the remaining balance (one-half of the agreed-upon fee).
(c) You are responsible for all charges incurred under your account made by you or anyone who uses your account. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are responsible for the payment of all sales and use taxes, when applicable. To the extent Voottoo is obligated to collect such taxes, the applicable tax will be added to your billing account.
(d) You hereby acknowledge and agree that Voottoo's sole responsibility under this Section is to conduct the transaction between you and the Artist, and that Voottoo shall have no liability for any payment or Content copyright disputes that arise between you and the Artist.
7. Termination
Voottoo reserves the right to terminate this Agreement at any time if you fail to comply with the Permitted Uses and Prohibited Uses as set forth above. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Voottoo in writing that you have complied with these requirements.
8. Limited Representations and Warranties
(a) The Site acts as an exchange of Content between those who provide Content to the Site and those who wish to use such Content. Voottoo grants no rights and makes no warranties regarding: (i) the use of names, people, trademarks, trade dress, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content; or (ii) the ownership, non-infringement, originality, or authorship of any Content. While we have made reasonable efforts to correctly categorize and keyword the Content, Voottoo does not warrant the accuracy of such information.
(b) You agree that neither Voottoo nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content, or for any disputes arising between you and any Artist.
9. General Provisions
(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
(b) Voottoo's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without Voottoo's prior written consent. Voottoo may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
(f) If you have concerns relating to this Agreement, please contact Voottoo by sending a note using http://www.voottoo.com/contact-us.
10. Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF VOOTTOO AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VOOTTOO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND VOOTTOO RELATING TO THE SUBJECT OF THIS AGREEMENT.
