Image License Agreement

This Content License Agreement (“Agreement”) governs the terms by which Users download and sublicense photographs, illustrations, clipart, vectors, video and other media content from Mezzato d/b/a Cutcaster, a company incorporated under the laws of the State of Delaware, located in the United States at 39 Mesa St. Suite 101, San Francisco, California 94129, (“Cutcaster”) via the website, http://cutcaster.com (the “Site”). By obtaining, using or paying for any content from Cutcaster, you agree to be bound by and comply with all of the terms of this Agreement. If you do not agree with any of the applicable terms, do not obtain or use any content from Cutcaster.

This Agreement also incorporates by reference the Cutcaster User Agreement and the information provided on your registration form. In the event of a conflict between this Agreement, the Cutcaster User Agreement and the Contributor Agreement, the order of preference will be (i) the Content License Agreement (ii) th Contributor Agreementand then (ii) Cutcaster User Agreement.

Please read this document carefully and be sure you understand it fully. 

By checking the box “I Agree To the Terms of Use” box on the registration page, you represent and warrant that you are 18 years of age or older, are lawfully able to enter into and perform a legally binding contract, and agree to be bound by the terms and conditions in this Agreement, in the event you choose to download Content displayed on the Site. Please print a copy of this Agreement and retain it for your records.

1. Parties.

This Agreement is a binding legal agreement between Cutcaster and registered User of the Site who desires to download and use Content.

a. Cutcaster sublicenses content via the Site operated by Mezzato Inc. In uploading Content (as defined below) to the Site, Contributors authorize Cutcaster to grant licenses to use their Content to Users, in accordance with the terms and conditions of this Agreement. Mezzato Inc. operates the site from which Cutcaster may offer and sell and which Users (including you) may license Content posted to the site and Mezzato Inc. also processes payments on behalf of Contributors and Users. Cutcaster and Mezzato Inc. do not act as agent for Contributors who license Content or Users who use the Content.

b. For purposes of this Agreement, “You or User” means either: (a) the individual listed as the registrant of the Cutcaster Account through which the Agreement and the license(s) granted hereunder are entered (“Registrant”), or (b) if Registrant is entering into this Agreement and the license(s) granted hereunder are for the benefit of, and/or as an agent on behalf of, Registrant’s employer (“Employer”) and/or a third party (“Principal”) then such Employer or Principal. If Registrant is entering into this Agreement and the licenses hereunder for the benefit of, and/or as an agent on behalf of Employer and/or Principal, then Registrant: (a) represents and warrants that such Principal and/or Employer has authorized Registrant to enter into this Agreement, that the licenses granted hereunder are on that Principal’s and/or Employer's behalf, that such Principal and/or Employer has agreed to be bound hereby and that Registrant has actual and express authority to act on behalf of and bind such Principal and/or Employer to the terms of this Agreement; (b) the Content (and any use thereof) is solely for the benefit of the Employer and or Principal and that Registrant will not use the Content or (any use thereof) for the benefit of any other person or entity without entering into a separate license with Cutcaster, and (c) Registrant will comply with the terms of this Agreement and will be jointly and severally liable for any breach of the terms of this Agreement by Principal and/or Employer.

2. Standard License Terms.

We, Cutcaster, hereby grant to You a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot pursue 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 Cutcaster or the supplier of the Content, as the case may be. If you have concerns regarding your usage and if it is permitted please email webmaster@cutcaster.com.

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 (i) the proposed use is allowable under an Extended License which is available for the Content and agreed upon by both the provider and purchaser of the content; or (ii) if 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 either obtain an Extended License or contact Cutcaster at webmaster@cutcaster.com for guidance. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.

(b) Seat Restrictions. Only you or the firm you represent are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, internal DAM 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. Subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Permitted Uses an unlimited number of times. You may physically or digitally transfer the Content and its archives from one location to another, in which case you may use the Content at the new location.  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. online or electronic publications, including e-books, ipads, Kindles, digital media readers, or web pages to a maximum of 800 x 600 pixels;
4. prints, posters (i.e. a hardcopy) and other reproductions 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 Cutcaster.
If there is any doubt that a proposed use is a Permitted Use, you should contact webmaster@cutcaster.com 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 or permitted by an Extended License. For greater certainty, the following are "Prohibited Uses" and YOU MAY NOT:
1. use the Content in design template applications intended for resale, whether online 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 "on demand" products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.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 by Cutcaster (acting reasonably) as or under applicable law is considered 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 an Image in a way that places any person depicted in the Image in a bad light or in a way that they may find offensive - this includes, but is not limited to the use of Images: a) in pornography, "adult videos" or the like; b) in ads for tobacco products; c) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. You may not use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition;
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. 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: "@Cutcaster.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 without obtaining an Extended License, in which event you shall be required to pay an additional royalty fee equal to US $0.01 for each reproduction which is in excess of 500,000 reproductions. This additional royalty does not apply to advertisements in magazines, newspapers or websites or to broadcast by television, web-cast or theatrical production.

5. Excess Reproduction Run.

In the event you contravene subparagraph 4(a)(xiii) above without purchasing an Extended License, you further agree to notify Cutcaster in the event that you (or a combination of you and others involved with you) reproduce the Content, or an element of the Content in excess of 500,000 times. Such disclosure notice must be sent to Cutcaster each and every month after which the Content, or an element of the Content, has been reproduced in aggregate over the term of this Agreement in excess of 500,000 times. Each such notice must contain the number of reproductions made in any particular month, provided however the first such notice will only be require disclosure of those reproductions which are in excess of 500,000. Cutcaster shall invoice you for the fees associated with such excess use and you agree to pay such invoice within 30 days of receipt.

6. Payment.

Each time you license Content you agree (a) to pay all fees and charges associated with your order; (b) all such fees and charges and additional amounts (including taxes and late fees, as applicable) will be charged to a credit card or other payment method you have selected from your Account Information, which you supplied when you created your Cutcaster User account. If you want to use a different credit card or method of payment, just enter that new information upon checkout. Without limitation, you are responsible for reporting and payment of any taxes applicable to your license and use of Content.

7. Ownership and Intellectual Property.
 

Each Contributor retains all right, title, and interest in and to all of the Content provided by such Contributor, including all copyrights, patent rights, trademarks, trade secrets, and all other proprietary rights. No rights in any Content are granted except the licenses specified in this Agreement. Any right, title or interest arising in any compilation or derivative work created using the Content will not entitle you to use any Content except as permitted hereunder. You do not acquire any copyright ownership or equivalent rights in or to any Content as a result of any license under this Agreement.

8. Disclaimer of Warranty.
 

The Site acts as an exchange of Content between those who provide Content to the Site and those who wish to use such Content. Cutcaster grants no rights and makes no warranties regarding 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. In addition, Cutcaster does not guarantee the quality, title, or legality of the Content, or the truth or accuracy of metadata associated with the Content. Accordingly, you hereby irrevocably and unconditionally release and waive any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, that you may have or assert against Cutcaster and/or Mezzato Inc. relating to or arising out of the purchase of a license to or the use of the Content. Users who are California residents hereby waive California Civil Code #1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”While we have made reasonable efforts to correctly categorize and keyword the Content, Cutcaster does not warrant the accuracy of such information. THE CONTENT IS MADE AVAILABLE "AS IS" AND WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE ENTIRE RISK AS TO USE OF THE CONTENT. CUTCASTER AND ITS CONTRIBUTORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WITH RESPECT TO THE CONTENT. CUTCASTER DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE QUALITY OF SUCH CONTENT BE DEFECTIVE YOU (AND NOT CUTCASTER NOR ITS AFFILIATES) ASSUME THE ENTIRE RISK AND COST OF ALL CORRECTIONS. Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.

9. Limitation of Liability.
 

EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER CUTCASTER, ITS AFFILIATES, EMPLOYEES, SUBSIDIARIES OR AGENTS NOR THE CONTRIBUTORS ("CUTCASTER PARTIES") WILL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR YOUR USE OR INABILITY TO USE THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT WILL THE CUTCASTER PARTIES TOTAL MAXIMUM AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU ARISING FROM THIS AGREEMENT OR THE USE OF ANY CONTENT LICENSED HEREUNDER, EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE CONTENT, UP TO A MAXIMUM OF U.S. $100.00 REGARDLESS OF THE NUMBER OR TYPE OF CLAIMS. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

10. Alteration.
 

Special ethical and legal considerations apply to use of Content that depict subjects of editorial, news, people, and fine art nature. When using such Content, you are solely responsible for, and will indemnify Cutcaster Parties for any claims related to or arising from any modifications to or alterations of the Content or to the caption information.

11. Releases and Clearances.
 

The rights granted you under this license do not include a license to, and Cutcaster makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter (including underlying works protected by copyright or viewable trademarks) depicted in any Content. All Content has been reviewed but may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. Content designated as "fully released," "model released" or "property released" will not be deemed to be a warranty or representation regarding the legal right to use such depicted person(s) or property, it means only that the Contributor has provided a general release purportedly signed by the model or property owner depicted within Content. Notwithstanding any release purported to exist with respect to Content, you are solely responsible for determining whether your use of any Content requires the consent of any other party or the license of any additional rights, and you may not rely on the information provided on the Cutcaster Site. You are solely responsible for obtaining any and all releases and clearances as may be required, including without limitation (a) rights from any representative guild, union, professional organization, or other authorized representative; If you are unsure whether additional rights are needed for your use, you are responsible for consulting with competent legal counsel and can email webmaster@cutcaster.com to obtain more confidence that the appropriate release is held by Cutcaster.

12. Unauthorized Uses.
 

Without limitation, Content may not be used as or as part of a trademark or service mark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person?s right of privacy, publicity or moral rights, or to infringe upon any copyright, trade name or trademark of any person or entity. You do not acquire, and will not claim, any rights (trademark, copyright or otherwise) in the Content itself apart from the limited license granted. Unauthorized use of Content constitutes infringement of copyright and other applicable rights and will entitle Contributor to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content.

13. Indemnification.
 

You agree to indemnify, defend and hold the Cutcaster Parties harmless and its against all claims (including, without limitation, claims by third parties), liability, damages (including punitive damages), judgments, settlements, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (a) your breach of any terms, conditions or restrictions of this Agreement, (b) your use of or modification to any Content, or your combination of any Content with any text or other content, (c) your failure to obtain from third parties all permissions necessary to use the Content regardless of whether Content is designated as "fully released," "model released" or "property released", (d) any act or failure to act by you or anyone acting at your direction or under your control or supervision.

14. Credit Line and Copyright Notice.
 

If the content is used for editorial purposes you will include a copyright notice and credit adjacent to each Content (in the format: "@Cutcaster.com/Member's Name" or as specified on the web page on which you viewed the Content) with each publicly distributed Content. You will not remove or alter any copyright notice, watermark, or other copyright management information from any Content without consent.

15. Termination.
 

Cutcaster may terminate your license to use the Content under this Agreement if you violate any of the terms of this Agreement or if your right to access the Site is terminated as provided in the User Agreement. Termination will be effective immediately upon written notice to you or as otherwise provided herein. Upon termination you will immediately discontinue all use of the Content. Cutcaster also reserves the right to amend the license granted by this Agreement and replace the Content licensed for any reason. Upon receiving such notice from Cutcaster, you agree to not use the replaced Content for any works or future products and take all reasonable steps to discontinue use of the replaced Content in any products that already exist.

16. Electronic Signature.
 

YOU ACKNOWLEDGE AND AGREE THAT EACH TIME YOU ORDER ANY CONTENT, SUBMIT ACCOUNT INFORMATION OR CONDUCT ANY OTHER TRANSACTION IN CONNECTION WITH THE CUTCASTER SITE OR CONTENT, EACH SUCH TRANSACTION CONSTITUTES YOUR AGREEMENT, THE CARD HOLDER'S AGREEMENT WHO PURCHASED CONTENT FROM CUTCASTER AND INTENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE USER AGREEMENT.

17. Security.
 

The Content may be protected from unauthorized access and use by digital rights management technology. You agree not to circumvent or attempt to circumvent any such technologies. The service used to access and download/purchase a license to the Content uses a security technology to protect your digital information and your use of the service is limited by the technology and the User Agreement, which is subject to change from time to time as provided in the User Agreement. Any violation or attempt to violate any security components of the service may result in civil or criminal liability.

18. Privacy.

Your use of the Cutcaster Site and your information (including your Account Information) is subject to Cutcaster's Privacy Policy.

19. Choice of Law / Jurisdiction / Attorneys' Fees.
 

Any dispute regarding this Agreement will be governed by the laws of the State of California, and by Titles 15, 17 and 35 of the U.S.C., as amended, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in San Francisco, California, regardless of conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and will be written in the English language. In any dispute between Contributor or any of the Cutcaster Parties and you regarding this Agreement where Contributor or any of the Cutcaster Parties prevails, Contributor (or the applicable Cutcaster Parties) will be entitled to recover its reasonable attorneys' fees, legal expert fees, court costs, and other legal expenses.

20. Survival.
 

The terms of this Agreement will survive termination of the license granted hereunder.

21. Notice.
 

Unless otherwise specified, all notices and other communications which are required in this Agreement will be in writing and delivered personally, via mail service, via facsimile with acknowledgment of receipt, or to the addresses set forth in the Agreement below, or to such other addresses or fax numbers as either party will have specified by notice in writing to the other party. Notices will be deemed given when delivered personally, or if mailed, three (3) business days after the date of mailing. Notices to Cutcaster should be sent to the attention of "General Counsel" at the following address:
 
Cutcaster
Attn: General Counsel
Baker Donelson
165 Madison Avenue
First Tennessee Building
Memphis, Tennessee 38103
 
22. Circumvention of Cutcaster's Fee and Pricing Structure.
 

FINALLY, the Licensee agrees not to engage in any action or activities meant to circumvent the Site or Cutcaster's stated fees. Prohibited systems or techniques include (but are not limited to) the following:
a. Any offer to purchase or license any creative material directly or indirectly from an author not using Cutcaster or the Site for negotiation;
b. Any agreement between an author and a licensee to mislead or defraud Cutcaster by conducting a transaction at a different cost to the price agreed upon through Cutcaster;
c. Any attempt to change (or to conceal) sale or license prices or other terms and conditions in any way other than through Cutcaster or the Site;
d. Advertising, spamming or offering to deal with any Author outside of Cutcaster or the site; and/or
e. Suggesting that any author contact a licensee directly or indirectly to procure services outside of Cutcaster or soliciting anyone else to do so.

23. Miscellaneous.

This Agreement and any listed restrictions constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous communications. This Agreement will not be modified except by a written agreement signed by User and Cutcaster. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement will remain valid and enforceable according to its terms.
Accordingly, the parties agree that if any provisions are deemed not enforceable, they will be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. Cutcaster may assign its rights and obligations and liabilities arising under this Agreement to any third party without your consent and without written notice, including without limitation, any assignment resulting from any corporate reorganization, merger, sale of substantially all the assets to which this Agreement relates. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that you may not assign or transfer this Agreement.
If you have concerns relating to this Agreement, please contact Cutcaster at help@cutcaster.com or via phone at +1-888-356-2462.

24. FRAUDULENT CREDIT CARD USE OR OTHER CRIMINAL BEHAVIOR

IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING CUTCASTER, CUTCASTER 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.

25. General.

You permit Cutcaster to use your company name and company logo as a client reference within marketing collateral both online and offline, including but not limited to, placement on the Cutcaster.com homepage and client page.

26. 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 CUTCASTER 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 CUTCASTER, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND CUTCASTER RELATING TO THE SUBJECT OF THIS AGREEMENT.


© Cutcaster 2011. All rights reserved. Cutcaster is a trademark of Mezzato Inc. Flash is a registered trademark of Macromedia Inc.


Your Comments or Concerns
We welcome your feedback. If you have any comments or concerns about this Agreement or would like to contact us for any reason, please send an email to help@cutcaster.com.