EFFECTIVE DATE: November 17, 2011
You should carefully read this Membership Agreement and the Policies before using this Website. By creating a membership account and using the Website to purchase Content, you agree to be bound by and accept this Membership Agreement and the Policies and by clicking “I agree” in creating your membership account you expressly agree to and acknowledge the terms and conditions stated herein.
If you do not agree to the Membership Agreement and the Policies, do not use this Website. This Website is the sole property of Dny3d.com (the “Company”) and shall not be used for any purpose that is unlawful or otherwise prohibited by the Membership Agreement or the Policies.
You agree not to use this Website in any manner which could damage, disable, overburden, or impair this Website or which would interfere with any other party’s use of this Website. You hereby assume all risks associated with the use of this Website and should not rely upon any Content or materials on this Website for any reason whatsoever.
1. Age Limit. In order to utilize the Website, you must be 18 years of age or older. By using the Website, you hereby represent and warrant to the Company that you are in fact 18 years of age or older.
2. Site/Account Registration. In order to utilize the Website and to purchase Content, you agree to the following: (a) to provide the Company with accurate, current and complete information about you as required by the various forms on the Website (“Registration Information”); (b) to maintain and promptly update the Website with accurate, current and complete Registration Information; (c) to maintain with reasonable diligence, the security of your Registration Information, including, without limitation, you password and username; (d) to notify the Company in writing as soon as possible of any alleged unauthorized use of your account or the Website; (e) to unconditionally accept any and all responsibility for all use and activities that occur on your account; and (f) to accept any and all risks of unauthorized access to your account and your Registration Information, and/or any other information you submit to the Company.
3. Pricing. The pricing for each piece of Content shall be clearly displayed on the Website at the time you purchase the Content from the Company on the Website.
4. Payment. Content can be purchased by you through the purchase of download credits. Download credits may be purchased using PayPal. By using a PayPal account with the Website, you represent and warrant to the Company that (a) you are the holder of the PayPal account submitted for approval to the Company; (b) the PayPal account billing information is correct, current and complete; and (c) you authorize the Company to charge the provided PayPal account for the total amount of the purchase for which you have submitted the PayPal account. All unused download credits shall expire on the fifth anniversary of their purchase.
5. Website Contains Copyrighted Information. The Content provided on this Website is subject to the ownership rights of the Company and/or its licensors. Any use of the Content on the Website without the consent of the Company is strictly prohibited. Except as otherwise provided in this Membership Agreement, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, content, photographs, materials, products or services from this Website. The Company will aggressively enforce its intellectual property rights to the fullest extent of the law.
6. Grant of License/Use of Content.
(a) License and Permitted Uses. Subject to the terms and conditions of this Membership Agreement and the Policies, the Company hereby grants to you a limited, nonexclusive, and nontransferable (except as set forth in this Membership Agreement) license to use the Content purchased by you pursuant to this Membership Agreement for the following purposes (each a “Permitted Use”):
(i) personal use;
(ii) products or uses where the Content is not the main portion of the product;
(iii) if the original Content has been modified or transformed in such a manner that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and the Content is not capable of being downloaded, extracted or accessed by a third party as a stand-alone file (a “Permitted Derivative Work”);
(iv) advertising purposes, including printed materials, advertisements, product packaging, presentations, film and video presentations, newsletters, commercials, catalogues, trade show signage, and brochures;
(v) entertainment purposes, including book covers, magazines, newspapers, editorials, set designs and video, broadcast and theatrical presentations;
(vi) electronic purposes, including ebooks, software, web page design, web templates, PowerPoint templates and other electronic templates;
(vii) scholastic purposes, including classroom presentations, seminars and webcasts;
(viii) promotional materials, including art prints, posters, paintings, postcards, e-cards, greeting cards, calendars, t-shirts, mugs, hats, and mouse pads; and
(ix) any other purpose specifically agreed to in writing by the Company.
(b) Editorial Uses. Notwithstanding Section 6(a) hereof, certain Content on the Website is designated for “editorial use” only. This Content generally includes, but is not limited to, Content such as news events, sporting events, concerts, street scenes, celebrities, etc. These images cannot be used for general commercial purposes, but typically can be used only for editorial purposes, such as news reporting, criticism, commentary and parody relating to the Content. Before utilizing editorial use Content, you should consult an attorney to ensure your use of the Content is in compliance with applicable law.
(c) Prohibited Uses. Any use of the Content not specifically listed in Section 6(a) hereof shall be expressly prohibited. By way of example, and not as a limitation, the following uses of the Content shall be prohibited:
(i) use that, in the sole and absolute discretion of the Company, is in any manner obscene, indecent, pornographic, sexually explicit, immoral, profane or otherwise offensive;
(ii) use that, in the sole and absolute discretion of the Company, depicts Content in situations involving hate or discrimination based upon race, color, religion, sex, military status, national origin, disability, age, ancestry, sexual preference, or family situations;
(iii) use that, in the sole and absolute discretion of the Company, infringes upon the intellectual property rights of the Company, its licensors, or any third party;
(iv) use that, in the sole and absolute discretion of the Company, is libelous, slanderous, or defamatory in any manner, or that would otherwise damage the reputation of others;
(v) use of Content that, in the sole and absolute discretion of the Company, is abusive, harassing, stalking, threatening or otherwise violative of the legal rights of others;
(vi) use that, in the sole and absolute discretion of the Company, could be considered the unwanted appropriation or exploitation of a person’s personality, the publication of a person’s private affairs, the wrongful intrusion into a person’s private activities, the depicting of a person in a false light, or any other use that is the invasion of a person’s privacy;
(vii) use that, in the sole and absolute discretion of the Company, depicts a person in sensitive subject matter, as judged in the Company’s sole and absolute discretion, including, without limitation mental and physical health issues, social issues, sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other offensive subject matter;
(viii) use that, in the sole and absolute discretion of the Company, attempts to reverse engineer, duplicate, replicate, decompile, disassemble, reproduce, or copy the source code of the Content, or any portion thereof;
(ix) use that, in the sole and absolute discretion of the Company, removes, obliterates, eliminates, hides, minimizes, or modifies, in whole or in part, any notice of copyright, trademark or other proprietary right from any place where it is on or embedded in the Content;
(x) except as set forth in Section 7 hereof, sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Membership Agreement; or
(xi) use of Content in image libraries or other online galleries;
(xii) use that contains viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer or personal property;
(xiii) use that incorporates any Content into a trademark, service mark, logo, or trade dress; or
(xiv) use that violates any applicable laws or regulations.
(d) Other Rights Retained. 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 the Company or the licensor of the Content, as the case may be.
7. Transfer of License/Sublicense. Except as specifically set forth in this Membership Agreement, you are not permitted to transfer or assign the license granted herein or otherwise sublicense any of the Content. Notwithstanding the foregoing, 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. Subject to the Prohibited Uses and the other terms of this Membership Agreement, you are entitled to utilize the Content for Permitted Uses an unlimited number of times.
8. Representations and Warranties.
(a) Buyer/User Representations and Warranties. You hereby represent and warrant to the Company that: (i) you are 18 years of age; (ii) this Membership Agreement and the Policies are the legal, valid and binding obligations of you enforceable against you in accordance with their terms; (iii) you have full authority to enter into this Membership Agreement and your entering this Membership Agreement does not require the approval or consent of any third party; and (iv) your use of the Content will be in accordance with terms and conditions of this Membership Agreement and the Policies.
(b) Company Representations and Warranties. The Company hereby represents and warrants to you that: (i) this Membership Agreement and the Policies are the legal, valid and binding obligations of the Company enforceable against it in accordance with their terms; (ii) your use of the Content in accordance with terms and conditions of this Membership Agreement and in the form delivered to you by the Company through the Website will not infringe on any intellectual property right; and (iii) all necessary model and/or property releases for use of the Content in the manner authorized under the terms and conditions of this Membership Agreement have been obtained.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8(b), BOTH THE WEBSITE AND THE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE WEBSITE OR THE CONTENT WILL MEET YOUR REQUIREMENTS, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, ITS SERVERS OR THE CONTENT ARE FREE OF VIRUSES, BUGS OR OTHER HARMFUL OR DAMAGING COMPONENTS. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT OR MATERIAL ON THE WEBSITE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
(a) Indemnification by Buyer/User. You shall defend, indemnify and hold harmless the Company and its parent, subsidiaries and commonly owned or controlled affiliates and all of their respective shareholders, officers, directors, members, managers, employees and agents from and against any claims, actions, damages, penalties, fines, costs, expenses, losses or other liabilities, including, but not limited to, reasonable attorney fees (collectively “Liabilities”), arising from, in connection with, or in any way relating to any actual or threatened lawsuit, claim or legal proceeding alleging your use of any Content outside the scope of the Permitted Uses in this Membership Agreement or any other actual or alleged breach by you of this Membership Agreement or the Policies.
(b) Indemnification by Company. Provided that you are in compliance with the terms of this Membership Agreement and the Policies, the Company shall, subject to the other terms and conditions of this Membership Agreement, defend, indemnify and hold you harmless from and against any Liabilities, arising from, in connection with, or in any way relating to any actual or threatened lawsuit, claim or legal proceeding alleging that your possession, distribution or use of the Content is in breach of the representations and warranties set forth in Section 8(b) above.
(c) Demand for Indemnification. Upon the occurrence of an event that a party believes is entitled to indemnification from the other party, such party shall promptly notify the other party in writing of such claim and its right and obligation to assume the handling, settlement or defense of any claim or litigation. Both parties agree to cooperate with the other party in the defense of any such claim or litigation, at no charge, and shall have the right to participate in such litigation at its sole expense. The parties shall not be responsible for legal fees and other costs of the other party incurred prior to the notice of any claim. This indemnification provision shall survive the termination of this Membership Agreement.
10. Limitation of Liability. YOU ACKNOWLEDGE THAT THE COMPANY SHALL HAVE NO LIABILITY FOR ANY ACTION TAKEN WITH RESPECT TO YOUR USE OF CONTENT THAT IS NOT AUTHORIZED BY THIS MEMBERSHIP AGREEMENT. THE COMPANY’S SOLE LIABILITY UNDER THIS MEMBERSHIP AGREEMENT SHALL BE FOR THE LICENSING FEES PAID BY YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGGREGATE LIABILITY OF THE COMPANY UNDER THIS AGREEMENT, INCLUDING ATTORNEY FEES PURSUANT TO SECTION 15 HEREOF, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF: (A) THE AGGREGATE PURCHASE PRICE OF ALL CONTENT PURCHASED BY YOU ON THE WEBSITE, OR (B) TWO THOUSAND DOLLARS ($2,000.00). THE COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS MEMBERSHIP AGREEMENT, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF ANY MODIFICATIONS MADE TO THE CONTENT OR THE CONTEXT IN WHICH THE CONTENT IS USED.
11. Modifications and Revisions. The Company may, in its sole discretion, modify or revise the terms and conditions of this Membership Agreement and the Policies at any time, without notice to you, and all Content purchases after the effective date of such modifications shall be subject to such changes, amendments and modifications. Any changes or revisions to this Membership Agreement or the Policies will be posted on the Website. Accordingly, you should visit this Website periodically to review the current version of this Membership Agreement and the Polices.
12. Term of Agreement.
(a) Generally. This Membership Agreement shall be effective as of the date you create your membership account and shall continue until terminated by either party pursuant to the terms hereof. This Membership Agreement shall terminate upon the earlier of: (i) upon thirty (30) days prior written notice by you to the Company of your intent to termination this Membership Agreement, (ii) immediately upon your material breach of any of the terms and conditions of this Agreement, or (iii) immediately, by the Company in its sole and absolute discretion. Upon the termination of this Membership Agreement, you shall immediately (a) cease using all purchased Content for any purpose; (b) destroy or delete all copies and archives, in whatever form, of the Content, Permitted Derivative Works, or accompanying materials; and (c) upon reasonable request from the Company, confirm in writing that you have complied with the foregoing requirements. Your only right with respect to your disapproval with the terms and conditions of this Membership Agreement or the Policies is to terminate the Membership Agreement and to refrain from using the Website.
(b) Revocation of License/Replacement of Content. The Company reserves the right at any time to revoke or amend the license granted by this Agreement and replace the Content with alternative Content for any reason. Upon notice from the Company of the replacement of the Content, the license for the replaced Content shall immediately terminate, and this license automatically applies to the replacement Content. Additionally, upon the replacement of Content, you agree, at your expense, not to use the replaced Content, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
(c) Discontinue of Use upon Notice of Infringement. Upon notice to you from the Company, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of 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, in whatever form; and (iii) ensure that your clients, printers or ISPs do the foregoing as well. The Company shall provide you with replacement Content free of charge, but subject to the other terms and conditions of this Membership Agreement.
(d) Survival of Provisions after Termination. The terms and conditions of this Membership Agreement that by the natural import thereof are designed to survive the termination of this Membership Agreement shall survive the termination hereof, including, without limitation, Sections 1, 4(c), 6, 7, 8, 9, 10, 12, 13, and 15 hereof.
13. General Provisions. The Company reserves the right, in its sole discretion, to terminate your access to this Website and related services or any portion thereof, without notice for any reason whatsoever. The use of the Website, the Membership Agreement, and the Policies shall be governed by the laws of the State of Ohio, without regard to conflict of law provisions. The sole jurisdiction for any legal proceedings arising out of your use of the Website or any provision in the Membership Agreement or the Policies shall be the state and federal courts covering Wayne County, Ohio. Any waiver by the Company of a breach of any provision of the Membership Agreement or the Policies shall not operate as or be constructed to be a waiver of any other breach of that provision or of any breach of any other provision of the Membership Agreement or the Policies. If any one or more of the provisions contained in the Membership Agreement or the Policies shall be held to be illegal, invalid, unenforceable or void in any respect by any court of competent jurisdiction, the Membership Agreement or the Policies and any provision therein shall not be rendered null and void and shall not be affected or impaired. The Membership Agreement and the other terms and agreements incorporated herein contain the entire agreement between you and the Company with respect to your use of the Website and hereby supersedes all previous agreements with respect to the use of the Website. Your use of the Website shall not create any joint venture, partnership, agency relationship or employment relationship between you and the Company.
14. Contact Us. If you have any questions or comments regarding the use of the Website and the Membership Agreement, or the Policies, you may contact the Company by electronic mail at email@example.com. The Company will make reasonable efforts to answer your questions or comments but does not guarantee a response to such questions or comments. Please note that the Company cannot give legal advice and no discussions or correspondences with the Company should be construed as such.
15. Attorney Fees. In the event of a dispute between you and the Company regarding any claim arising out of your use of the Website, this Membership Agreement, or the Policies, subject to the limitations set forth in Section 10 hereof, the prevailing party shall be awarded all costs of bringing a claim, including reasonable attorney fees and the ordinary costs and expenses incurred in resolving the dispute.
16. Acknowledgement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS MEMBERSHIP AGREEMENT AND THE OTHER AGREEMENTS REFERENCED HEREIN, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.