Enhanced License Agreement
Effective as from October 14, 2019
This License Agreement (“License Agreement”) contains important legal terms and conditions about what the Licensee can and cannot do when the Licensee purchases and downloads digital content (including, but not limited to, any 3D models, multi-layer computer file in PSD or TIFF format, fonts, templates, photographs, video, audio, animated objects, or any and all such other product or service offered by Yellow Images), (the “Licensed Asset”) owned by the Author, through the online platforms (including, but not limited to, Object Mockups, Creative Store, PNG Images, Creative Fonts, and any and all other platforms and stores) owned and operated by Yellow Images Inc. and its subsidiaries and affiliates (collectively, “Yellow Images”). By completing the purchase of the Licensed Asset, downloading the Licensed Asset or using the Licensed Asset, the Licensee acknowledges and agrees that it has read this entire License Agreement and agrees to the terms herein.
Yellow Images offers two types of license agreements: standard and enhanced. Both types of license agreements are different in terms of what the Licensee can and cannot do with the Licensed Asset. As you have purchased the Licensed Asset with this enhanced license, this License Agreement will govern your use of the Licensed Asset. Notwithstanding that the Licensed Asset may be made available to the Licensee at no cost, this License Agreement shall also apply to such Licensed Asset.
Subject to the terms and conditions of this License Agreement, the Licensee is granted an ongoing, non-exclusive, worldwide license to make use of the Licensed Asset as described herein.
Parties To The License Agreement; Number Of Users
This License Agreement is an agreement between:
- The “Licensee” who is the individual person or legal entity indicated as the “Licensee” during the purchase process who purchases the Licensed Asset; and
- Seller (“Author”) who, as owner of the Licensed Asset, licenses the Licensed Assets to the Licensee through the Yellow Images platform.
- This is a license for Commercial or Non-Commercial Use (as defined below), and the Licensed Asset may only be used and accessed (as permitted in this License Agreement) in one single Project (as hereinafter defined) by an individual person or legal entity, who is the Licensee indicated at the time of purchase.
- In the event multiple individuals will work together to use the same Licensed Asset, then the purchase of the Licensed Asset must be done through one of Yellow Images multi-user accounts available in Team and Enterprise subscription models. In such an event, the Licensee will be the owner of the account that has purchased such a subscription model. For the avoidance of any doubt, all of the users will not be treated as the Licensees for the purposes of this License Agreement. Should you require more information about multi-user accounts, please contact [email protected].
- For the purposes of this License Agreement, a “Project” is deemed to consist of one or more activities that are planned and designed to achieve a particular aim or objective and is connected in respect of the client, requirements, scope of work, key visuals, including, but not limited to, the same Stock Keeping Unit (SKU) number, design concept, promotional materials and marketing campaign. Yellow Images reserves the sole and absolute discretion to determine whether the Licensee’s use of the Licensed Asset is used in one single Project. In the event Yellow Images determines that the Licensee has used the Licensed Asset in more than one Project, the Licensee will be required to purchase an additional license.
- This License Agreement is an agreement between:
Licensed Asset Management
Licensee shall only be entitled to upload the Licensed Asset to (i) a personal server owned and controlled by Licensee; (ii) a private cloud storage service, cloud-based design application or digital asset manager account that is actively controlled by Licensee; (iii) business owned server or cloud-based software with the limited access, in each case for the use of the Licensed Asset by Licensee only, as permitted herein.
This License Agreement Permits Both Commercial And Non-commercial Use Of The Licensed Asset Only
This License Agreement permits only “Non-Commercial Use” and “Commercial Use” of the Licensed Asset, as herein defined and as expressly specified in Section 4 (Permitted Uses and Quantity/Impression Limitations).
- “Commercial Use” is any use of a Licensed Asset that: (i) involves an exchange of money or other consideration, (ii) promotes a Business (where “Business” shall mean a sole proprietorship, corporation, or partnership or other similar incorporated or unincorporated entity), a product of a Business, or a service of a Business, or (iii) where financial gain or other consideration is either sought or a result, directly or indirectly, of Licensee’s use of the Licensed Asset. If any one or more of the criteria in (i), (ii), and (iii) is met, with respect to the Licensed Asset, then the use of the Licensed Asset is deemed “Commercial”.
- “Non-Commercial Use” is a use of a Licensed Asset for personal purposes or any activities that are not performed in order to gain profit or other form of consideration.
- Any Licensed Asset that is marked on the platform as “Editorial Use Only” is also deemed to be a Non-Commercial Use and requires the consent from a third party.
Permitted Uses And Quantity/impression Limitations
An “End Use” of a Licensed Asset means use of the Licensed Asset only as expressly permitted below:
End Products for Commercial Use and Non-Commercial Use:
- Physical Products: Licensee may only create physical end products such as, but not limited to, clothing, cards, invitations, stickers, mugs, stamps, posters, signs, and home décor, for Commercial Use or Non-Commercial Use.
- Product Packaging: Licensee may only create physical or digital end packaging products used for resale or wholesale such as, but not limited to, boxes, labels, stickers, or containers, for Commercial Use or Non-Commercial Use.
- Digital Products: Licensee may only create digital end products for resale such as, but not limited to, web interface, for Commercial Use or Non-Commercial Use.
- Digital or Print Publication: Licensee may only use the Licensed Asset in digital or print publications such as, but not limited to, magazines, cards, invitations, photo albums, and scrap books, e-books or e-publications, for Commercial Use or Non-Commercial Use.
- Quantity Limitations on End Products: The number of lifetime combined individual end products or packaging (digital or physical) sales, instances, impressions or installations (as applicable) that the Licensee incorporates the Licensed Asset into is unlimited for Commercial Use or Non-Commercial Use.
Social Media, Marketing and Advertisements:
- Social Media for Commercial Use or Non-Commercial Use: the Licensee may use the Licensed Asset in all of the Licensee’s owned and managed business or personal social media accounts for Commercial Use or Non-Commercial Use. There is no limit on the number of social media accounts owned and managed by the Licensee, that the Licensed Asset may be incorporated or used on.
- Physical (Printed) Advertisements for Commercial Use: The Licensee may use the Licensed Assets for physical (printed) advertisements such as, but not limited to, billboards, signage or printed advertisements for Commercial Use in Local Markets, National Markets or Global Markets. “Local Markets” means all displayed or distributed physical (printed) advertisements within a 200 mile radius within the borders of a single country. “National Markets” means all displayed or distributed physical (printed) advertisements beyond a 200 mile radius within a single country. “Global Markets” means all displayed or distributed physical (printed) advertisements in more than one country.
- Digital Advertisements for Commercial Use: The Licensee may use the Licensed Asset for internet advertisements such as, but not limited to, Google Ads, Bings Ads, Facebook Ads or LinkedIn Ads, for Commercial Use.
- Quantity Limitations on Promotion and Advertisements: There is no limit on the number of impressions of social media posts or advertisements that incorporate the Licensed Asset for Commercial Use or Non-Commercial Use (where Non-Commercial Use is available).
Broadcasting and Streaming of Motion Picture and Audiovisual Content
- Broadcast and Streaming: The Licensee may use the Licensed Asset for broadcasting and streaming via network, cable, internet, satellite, pay-per-view, video on demand or steaming of motion picture and audiovisual works, including advertisements, for Commercial Use and Non-Commercial Use.
- Quantity Limitations on Broadcasting and Streaming: There is no limit on the lifetime viewers for Commercial Use and Non-Commercial Use.
- Website Software Development, Mobile App Development, Desktop Application Development and Video Game Development for Commercial Use and Non-Commercial Use: The Licensee may use the Licensed Asset in one (1) title for Commercial Use or Non-Commercial Use.
- Quantity Limitations on Digital Development: The Licensed Asset may only be used in a single website, application, video game. An additional enhanced license is required for any and each additional website, application or video game, including, without limitation, successor websites, applications or video games.
- End Products for Commercial Use and Non-Commercial Use:
Prohibited Uses (these uses may be available with a custom license so you should contact Yellow Images to find out):
- End Products:
On-Demand Applications (such as print-on-demand or create-on-demand services): Any use that allows anyone other than the Licensee, such as an end user, to:
- customize a digital or physical end product with the purpose of downloading the product; or
- charging the end user for customization of a digital or physical end product,
Trademark and Copyright
- Trademark: Licensed Asset may not be used as part of a trademark, service mark, design mark, trade name in any manner whatsoever unless: (i) the Licensed Asset is significantly altered, and (ii) the altered Licensed Asset is not the predominate element of the End Use. In no event does this License Agreement allow Licensee to, and Licensee shall in no way whatsoever seek to, register, protect, or enforce any trademark or similar rights in and to the Licensed Asset, which must be disclaimed in any trademark registration. You should contact Yellow Images for a custom license if so required.
- Copyright: Licensee may not claim the Licensed Asset (or a modification thereof) as its own copyrighted work. For the avoidance of doubt, the original Licensed Asset must be disclaimed in any copyright registration.
The license is limited to the expressly permitted uses stated in this License Agreement: future-existing technologies and uses are expressly reserved and not included within the scope of the license.
- End Products:
Strictly Prohibited Uses
Nothing in this License Agreement grants Licensee any of the following rights, all of which rights are expressly retained:
- Resale or Sub-Licensing the Licensed Asset or any modification of it in source file form is strictly prohibited.
- Resale or Sub-Licensing of the Licensed Asset or any modification of it in a way that is directly competitive with the original Licensed Asset is strictly prohibited (e.g., as a stock asset or template).
- Making public or sharing the Licensed Asset in any way that allows others to download, extract, or redistribute Licensed Asset as a standalone file (meaning just the content file itself, separate from the Project or End Use that is expressly permitted) is strictly prohibited.
Use the Licensed Asset in any pornographic, fraudulent, immoral, infringing, illegal, harassing, offensive or defamatory material is strictly prohibited, including, without limitation, any use of the Licensed Asset that:
- may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
- may create a risk of any other loss or damage to any person or property;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, profane, or otherwise objectionable;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- contains any information or content that you know is not correct and current; or
- promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.
- Falsely representing authorship and/or ownership of the Licensed Asset is strictly prohibited.
- Any use of the Licensed Asset in any template for sale or service in which the Licensee creates templates or is engaged by a third party, to create a template for sale.
Any other use that is not expressly permitted in Section 4 (Permitted Uses and Quantity/Impression Limitations) is strictly prohibited.
Yellow Images reserves the complete and absolute right to determine in its sole discretion as to whether any use of the Licensed Assets by the Licensee is prohibited under the terms of this License Agreement and the extent to which the Licensee is in breach of this Section 6.
Sublicensing To Third Parties Is Strictly Prohibited With Limited Exceptions For Clients And Service Providers (Third party use requires the third party to obtain its own license unless a custom license is purchased)
- Transfers to Subsidiaries and Affiliates: In the event the Licensee is a legal entity, it shall be entitled to transfer the Licensed Asset only to its Subsidiary or Affiliate. For the purposes of this section, Subsidiary shall mean a legal entity in which the Licensee, directly or indirectly, controls more than 50% of the voting rights of such legal entity. For the purposes of this section, Affiliate shall mean a legal entity that is affiliated with the Licensee as a result of (i) one is a Subsidiary of the other or (ii) both of them are Subsidiaries of the same legal entity. In the event the Licensed Asset is transferred to a Subsidiary or Affiliate, such party will be deemed to be the Licensee under this License Agreement and shall be bound by the terms and conditions of this License Agreement as if such Subsidiary or Affiliate has been the original Licensee.
- Third Party Use Requires Separate License: This License Agreement does not permit sublicensing to third parties. To transfer rights for the Licensed Asset, Section 7.3 shall apply to those limited exceptions.
- Limited Transfer Rights is Permitted: The Licensee, subject to purchasing an enhanced license, may transfer the Licensee’s rights to the Licensed Asset to third parties upon written agreement. Transfer rights are irreversible and therefore it is the Licensee’s responsibility and obligation to ensure that the Licensee checks and verifies the process for transferring the Licensee’s rights to the Licensed Asset. Once the right to use the Licensed Asset is transferred, the Licensee shall no longer have any rights whatsoever to use the Licensed Asset for any and all uses, including Commercial Use and Non-Commercial Use. The Licensee shall have no right to use the Licensed Asset in its portfolio, professional or personal social media accounts, websites or any other promotional activity. In the event that the Licensee has acquired the Licensed Asset and has not purchased an enhanced license, the Licensee shall have no right to transfer the Licensed Asset.
- When credit is required: All editorial use requires a credit; however for non-editorial use a credit is only required where credits are accorded to other providers of licensed material. Credits, when required, shall be legible and in close proximity to the Licensed Assets and, where applicable, substantially similar in placement and prominence to other credits.
- How to provide credit: “[Licensed Asset product type] copyright [Author] via Yellow Images”.
Important General Legal Provisions
- Intellectual Property: Any and all content available on yellowimages.com, including, without limitation, the Licensed Asset, is protected under the applicable intellectual property protection of Canada and other international copyright and other intellectual property laws and treaties. As between the Licensee and the Author, the Author retains sole and exclusive ownership of the Licensed Asset, but, pursuant to the terms of this License Agreement, grants to Licensee the limited, non-exclusive, non-transferrable, and non-sublicensable (except as expressly allowed above), license to use the Licensed Asset as expressly set forth above on the terms herein. All other rights, as between Licensee, the Author, and Yellow Images are reserved by the Author and Yellow Images. Licensee may not assert any ownership in the Licensed Asset itself or any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the Licensed Asset. Any reference to the “purchase” or “sale” (or similar terms) of the Licensed Asset refers to the purchase of this limited license only in accordance with the terms and conditions hereof and not to the purchase of the underlying copyright or work of the Licensed Asset itself. As a licensee, Licensee’s ownership of the media and/or device on which the Licensed Asset is recorded, if any, is distinct from and does not grant any ownership right, title or interest in and to the design of the Licensed Asset itself. This Licensee Agreement does not grant Licensee any rights to trademark or any other intellectual property rights (aside from copyright) in the Licensed Asset.
- Content Withdrawal: Upon notice from Author, or Yellow Images, or upon Licensee’s knowledge that a Licensed Asset may be subject to a claim of infringement of a third party’s right, Yellow Images may require Licensee to immediately, and at Licensee’s own expense: (i) cease using the Licensed Asset, (ii) delete or destroy any copies, and (iii) ensure that Licensee’s clients, distributors and/or licensees do likewise. Yellow Images may provide Licensee with replacement content (determined by Yellow Images in its reasonable commercial judgment) free of charge, as its sole obligation, subject to the other terms of this License Agreement or any other agreement that may be applicable.
- Audit: Upon reasonable notice, Licensee agrees to provide to Yellow Images sample copies of Projects or End Uses that contain Licensed Asset, including by providing Yellow Images with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Asset is reproduced. In addition, upon reasonable notice, Yellow Images may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this License Agreement and Licensee’s use of the Licensed Asset in order to verify compliance with the payment and other terms of this License Agreement. If any audit reveals an underpayment by Licensee to Yellow Images of five percent (5%) or more of the amount Licensee should have paid, then in addition to paying Yellow Images the amount of the underpayment and any other remedies to which Yellow Images is entitled, you also agree to reimburse Yellow Images for any and all costs (including fees and disbursements of professional advisors on a full indemnity basis) of conducting the audit.
- Disclaimer of Warranties: LICENSEE’S USE OF THE LICENSED ASSET IS AT LICENSEE’S OWN RISK. THE LICENSED ASSET IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YELLOW IMAGES AND THE AUTHOR HEREBY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FIT FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Limitation on Liability: IN NO EVENT WILL YELLOW IMAGES, ITS AFFILIATES OR THEIR LICENSORS (INCLUDING, WITHOUT LIMITATION, THE AUTHORS), SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE, OR INABILITY TO USE, THE LICENSED ASSET, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF YELLOW IMAGES, ITS AFFILIATES OR THEIR LICENSORS (INCLUDING, WITHOUT LIMITATION, THE AUTHORS), SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE, OR INABILITY TO USE, THE LICENSED ASSET, EXCEED THE LESSER OF (I) THE AGGREGATE FEES THAT LICENSEE PAID FOR THE LICENSED ASSET, OR (II) £100 USD. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Indemnification: Licensee agrees to defend, indemnify and hold harmless the Yellow Images, its affiliates, licensors (including, without limitation, the Authors) and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including but not limited to reasonable attorneys’ fees) arising out of or relating to Licensee’s (or anyone acting on Licensee’s behalf, including, without limitation, service providers) (i) violation of this License Agreement, (ii) use of the Licensed Asset in violation of law, rules or regulations, or (iii) use of the Licensed Asset in violation of third party rights where such violation is due to the modification of the Licensed Asset.
- Limitation on Time to File Claims: TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE LICENSED ASSET OR THIS LICENSE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Choice of Law and Forum: All matters relating to Licensed Asset and the License Agreement and any dispute or claim arising therefrom or related thereto (in each case, including, without limitation, non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the Province of British Columbia and laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, the Licensed Asset or this License Agreement shall be instituted exclusively in accordance with the provisions of Section 9.10. Licensee waives any and all objections to the exercise of jurisdiction over Licensee by such courts and to venue in such courts to the maximum extent permitted by law.
- Arbitration: With respect to any disputes relating to Licensed Asset and the License Agreement and any dispute or claim arising therefrom or related thereto (in each case, including, without limitation, non-contractual disputes or claims) (collectively, “Claims” and each, a “Claim”), you agree to be bound by Yellow Images’ dispute resolution procedure. It provides for resolution of most disputes through arbitration instead of court proceedings and class actions. You should ensure that you read through these provisions carefully as they could affect your rights. Arbitration is final and binding and subject to only very limited review by a court. These dispute resolution provisions will survive the termination of this License Agreement. Before initiating arbitration proceedings, the Licensee, Yellow Images and the Author will seek to resolve any Claim through good faith negotiations for a period of 30 days. In the event that a Claim is not resolved through negotiation, Licensee, Yellow Images or the Author has the ability to have the Claim resolved exclusively through final and binding arbitration pursuant to the Commercial Arbitration Act (British Columbia) (as amended from time to time) by a single arbitrator. The location of the arbitration will take place in Vancouver, British Columbia. All administrative fees and expenses of the arbitration shall be divided equally between the parties to the arbitration, and each party shall be solely responsible for the expense of their respective legal and professional advisors, unless the arbitrator determines that a Claim was frivolous in which case, the party that is found to have submitted the frivolous Claim shall be liable for any and all expenses incurred by the other parties. There is no right or authority or any Claim to be arbitrated on a class-action basis or to utilize class action procedures or for any Claim to be brought in a purposed representative capacity. Under no circumstances may the arbitrator consolidate one or more person’s Claims or otherwise preside over any form of a representative or class proceedings. Such a right is expressly waived by the License as is the right to request a jury decide on the merits of any claims.
- Notices: All notices required to be sent to Yellow Images under this License Agreement should be sent via email to [email protected] All notices to Licensee will be sent via email to the address provided by Licensee during account creation or purchase.
- Modifications: Yellow Images may modify this License Agreement by posting an updated version on the Yellow Images website at any time. The current version of the License Agreement posted at the time of purchase shall apply to purchases (even if the Licensed Asset is downloaded after the License Agreement is updated). Updated versions of the License Agreement shall not apply retroactively to prior purchases unless either (1) Licensee is notified of its option to apply the updated terms to prior purchases and expressly agrees (e.g., via clicking “Agree”) or (2) such modification (i) does not adversely affect any rights of Licensee and (ii) Yellow Images notifies Licensee of the changes and that they will apply retroactively (e.g., via email to the address on file).
- Interpretation: Unless the context requires otherwise, in any part of this License Agreement: (i) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; and (ii) use of the singular imports the plural and vice versa. This License Agreement shall not be interpreted against the drafting party.