LICENSE AGREEMENT

This is an agreement (“Agreement”) between CreationSwap, LLC, an Oregon limited liability company (“Us” or “CreationSwap” or “We”), and our end users and members.

Recitals

  1. CreationSwap allows owners (“Content Providers”) of illustrations, images, animations, video, photographs, drawings, and other media (“Content”) to post the content on websites owned by CreationSwap and our affiliates and partners (the “Sites”).
  2. CreationSwap allows customers to use the Content under certain terms and conditions.
  3. Content Providers who upload Content must own the rights that they grant to Us, and give Us permission to allow customers to use the Content in the various ways permitted in this Agreement.

Agreement

This Agreement governs the terms and conditions of use for all Site users, including Content providing users, and customers who use the Content.

Content Providing Users

CreationSwap will pay the Content Provider the prevailing payout based on the payout schedule available at ShareSell to the providers of Content.

Grant of License

Users who upload Content to the site hereby grant to CreationSwap a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below), and to grant to our Site users the same rights to use the Content for the Permitted Uses pursuant to the terms of this Agreement.

Derivative Work Ownership and Registration

Content providing users who upload Content to CreationSwap hereby grant CreationSwap the right to encode the Content in any manner seen fit by CreationSwap, and for CreationSwap to register, in its own name, the re-encoded Content as a derivative work which is owned by CreationSwap.

You warrant the following:

You own all right, title and interest in and to the Content and are entitled to grant the rights to CreationSwap as set forth in this Agreement, and that such grant of rights to CreationSwap is not in violation of any agreement with any third-party, nor in violation of any law of any jurisdiction.

Content Using Users

We 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 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 Creationswap or the supplier of the Content, as the case may be.

Permitted Uses

You may only use the Content for those advertising, promotional and other specified purposes that 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 if it is available for the Content, and you have paid for such Extended License; or (ii) if the proposed use is allowable under the Exclusive License, and you have paid for such Exclusive License.

Seat Restrictions

Only you are permitted to use the Content, although you may transfer files containing Content or 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 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 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.

Standard Use

Free Gallery

Content available in the “Free Gallery” may be used as set forth above free of charge.

Standard Use

Content other than Free Gallery Content may be used as set forth above for a fee. The license to use any Content is not valid if the user’s payment is returned or otherwise charged back or is otherwise unpaid for any reason.

All Sales Final; Downloading and Risk of Loss; Availability of Digital Content. All sales of Digital Content are final. We do not accept returns of Digital Content. Once you have purchased Digital Content, we encourage you to download it promptly and to make back-up copies of it. If you are unable to complete a download after having reviewed our online help resources, please contact support. You bear all risk of loss after purchase and for any loss of Digital Content you have downloaded, including any loss due to a computer or hard drive crash. We may, from time to time, remove Digital Content from the Service without notice.

Standard License 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, presentations, video presentations, catalogues, brochures, promotional greeting cards and promotional postcards (i.e. not for resale or license);
  2. entertainment applications, such as magazines, newspapers, editorials, newsletters, and video, and theatrical presentations;
  3. 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
  4. any other uses approved in writing by CreationSwap.
  5. single website (commercial, personal, or non-profit).
  6. single Sermon presentation, or other live corporate or group setting.
  7. single graphic design project for yourself or a client (eg. bulletin, posters, invite cards, flyers, brochures etc).
  8. single free video such as a church announcement video, sermon video illustration for your church; however no Content may be used in a video that is uploaded to YouTube, Facebook, Vimeo or other social media or video websites, and no content may be used in any video that is broadcast over the Internet, radio or television or other similar media.

If there is any doubt that a proposed use is a Permitted Use, you should contact Us.

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 or Exclusive 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 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 “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 or 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 We believe is 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 or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or (b) that depicts a 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, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;
  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; however, notwithstanding the restriction on re-sale, if you acquire the Content on behalf of your client you may recoup from your client the cost of acquiring the Content.
  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: “©CreationSwap/Artist’s Member Name”; or
  14. use the Content in whole or in part in any video that is broadcast on radio, television, over the Internet or through any similar media, including, without limitation, on Youtube, Vimeo, Facebook, or other video sharing or social media site.
  15. use the Content in whole or in part in any template that is sold, licensed, sublicensed or used by third-parties, including, without limitation, as templates for newsletters, website templates, and themes for content management systems such as WordPress. By way of example, reselling a website template that uses the Content on themeforest.com would be prohibited.

Extended Use

The Extended License pricing is the pricing set forth at the time of purchase, which is subject to change from time to time in the sole discretion of CreationSwap and/or its Content Provider. www.creationswap.com/rates. The Extended License rights include the following:

  1. Single item for sale (church bulletin template, book, magazine, post card, t-shirt, CD, or DVD for sale).
  2. Single website template for resale, provided the resale is a customized website and not simply a resale of an image or other Content in its original or nearly original state.

Even with an Extended License, You CANNOT use the Content:

  1. in its present or modified form for sale, redistribution, resell, lease, license, sub-license, free downloads of the image to any third party.
  2. as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo.
  3. on shared drives, intranets, computer networks or the like.
  4. in such a way as to suggest that the product was created by you.
  5. for sale on Print on Demand sites.
  6. for resell except to the extent that it is incorporated into a work you have created for resale.
  7. as part of any video that is broadcast on radio, television, over the Internet or through any similar media, including, without limitation, on Youtube, Vimeo, Facebook, or other video sharing or social media site.

You may incorporate the Content in a work which is created for resale by you or your client (provided that only the complete work is offered for sale and the terms of sale (i) require those that acquire the work to only use the Content for their own personal use or in a work they are creating for a client (ii) prohibit resale of the Content as a stand-alone item).

You may display the Content, and make the Content available for use by an unlimited number of your clients, in conjunction with a web site service that you host on behalf of your clients. When using the Content through a web site service, you may make unlimited copies of the Content but you must ensure that your clients do not reproduce or use the Content in another application.

If the Content is used or incorporated in a work there is no restriction on the number of copies of that work that can be reproduced and distributed.

For example: you may incorporate the Content, such as a photo file, in a calendar that you or your client distributes commercially. An unlimited number of copies of the calendar may be made and sold but the Content cannot be incorporated in more than one calendar or other work. Additionally, buyers of the calendar must not offer the Content (that is the photo/file) for sale, such as on a site like iStockphoto.com.

Exclusive Use

Content may be used for purposes other than the Standard license for a fee. The Exclusive License pricing is the pricing set forth at the time of purchase, which is subject to change from time to time in the sole discretion of CreationSwap and/or its Content Provider. The Exclusive License rights include all rights set forth in the Extended License plus the right to use the Content for:

Company logos
Website Templates
Book cover art

Use of the particular Content will not be licensed again from CreationSwap, and only uses that have been previously licensed by the Content Provider or by CreationSwap will remain valid. Exclusive Licenses do not give you the right to sell the Content as a template, single image, collection of images or in any other manner otherwise restricted in this Agreement. The purpose of the Exclusive Use license is to provide reasonable assurance that the particular Content has not been excessively used or licensed, and to extend the rights to use the Content for logos and cover art.

General Terms and Conditions of Use of the Site for All Users

Term

This Agreement shall remain effective until termination. For users of Content, termination occurs when you destroy your copies of the Content along with any copies or archives of it or accompanying materials (if applicable), and cease to use the Content for any purpose. The Agreement also terminates upon your breach of this Agreement. 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 Us in writing that you have complied with these requirements.

For providers of Content, this Agreement terminates when you remove your content and cancel your account. All previously granted licenses remain in full force, but after Termination, We will no longer use the Content or offer the Content to Users.

CreationSwap may terminate this Agreement at any time and reissue a new or amended license provided that such new or amended license will not materially impair any previously granted licenses for previously purchased Content. Any new or amended license will become in full force for all Content beginning on the date that the new or amended license is posted to the Site.

If Content is alleged to violate any third-party rights, CreationSwap may immediately remove the Content, terminate all rights granted to any user for such Content, and request that any user cease use of the Content. In the event that the user is requested to cease use, the fees, if any, paid by the user for the Content will be refunded or you will receive replacement Content at no charge, at the discretion of CreationSwap. If We are notified or you have or obtain knowledge of any claim of potential or actual infringement, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise.

Representations and Warranties:

OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CREATIONSWAP 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 PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT CREATIONSWAP) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY 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.

Indemnification of Content Users

CreationSwap requires that the Content providing users defend, indemnify and hold the Content users harmless on the following terms:

  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 breach of the representations and warranties set forth above, Content providing users shall defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in above.
  2. The indemnification set out in above is conditioned on your prompt notification in writing to CreationSwap of such claim and our right to assume the handling, settlement or defense of any claim or litigation. CreationSwap will notify the Content Provider, and that You agree to cooperate with CreationSwap and the Content Provider in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Content Provider shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
  3. IN NO EVENT SHALL CREATIONSWAP OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
  4. NOTWITHSTANDING ANY OTHER TERM HEREIN, CREATIONSWAP SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
  5. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF CREATIONSWAP UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF CREATIONSWAP UNDER THIS AGREEMENT SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) US DOLLARS. FOR GREATER CLARITY, CREATIONSWAP’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM CREATIONSWAP.
  6. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Indemnity by User

You agree to indemnify, defend and hold CreationSwap, its affiliates, its Content Providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “CreationSwap Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any CreationSwap Party as a result 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.

DMCA Take Down Notice Procedures

In the event that a third-party claims copyright or trademark infringement of any kind, we require that the user notify CreationSwap as follows:

  1. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  2. A description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit the service provider to locate the material;
  3. Information reasonably sufficient to permit the service provider to contact the complainant, such as an address, telephone number, and, if available, an electronic mail address;
  4. A statement that the complainant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  5. A statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

CreationSwap will notify the Content Provider within 72 hours by email. Content Provider agrees that if it does not respond within 5 business days of the notice, that CreationSwap will permanently remove the Content.

General Terms

  1. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and 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.
  2. CreationSwap’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.
  3. This Agreement is personal to you and is not assignable by you without CreationSwap’s prior written consent. CreationSwap may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
  4. 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.
  5. 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 Content, pursuant to this Agreement.
  6. Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the laws of the state of Nevada, Venue shall be Clark County, Nevada, USA. 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 excluded. 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.

Contact:

If you have concerns relating to this Agreement, please contact:

Online here: contact us

or by postal mail here:

Creation Swap LLC
PO BOX 549
Bend, OR 97709

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

By selecting the correct box at the end of this Agreement or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions.

If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download the Content.