Dear Groovyillustration Customer:
The following Terms of Service ("TOS") is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement ("you" or "Customer") and Groovyillustration (as such term is defined in Section 25 below) and sets forth the rights and obligations with respect to any Content licensed by you. By entering into this TOS, you verify that your country of residence is the same as your billing address.
Please revisit this TOS when you purchase any Content licenses. Groovyillustration reserves the right to modify the TOS at any time in its sole discretion. Prior to such changes becoming effective, Groovyillustration will use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your Groovyillustration account, an announcement on this page, your login page, and/or by other means. Modifications to this TOS will only apply to prospective purchases (including any automated renewals). By licensing Content following any such modifications, you agree to be bound the TOS as modified.
- "Content" means all content available for license from the Groovyillustration website, including Illustration Images and Illustration files (as defined herein.)
- "Image(s)" means vectors, drawings, graphics, and the like.
PART I – VISUAL CONTENT LICENSES
Groovyillustration hereby grants you a non-exclusive, non-transferable right to use, modify (except as expressly prohibited herein) and reproduce Visual Content worldwide, in perpetuity, as expressly permitted by the applicable license and subject to the limitations set forth herein:
A STANDARD IMAGE LICENSE grants you the right to use Images:
- As a digital reproduction, including on websites, in online advertising, in social media, in mobile advertising, mobile "apps", software, e-cards, e-publications (e-books, e-magazines, blogs, etc.), email marketing and in online media (including on video-sharing services such as YouTube, Dailymotion, Vimeo, etc., subject to the budget limitations set forth in sub-section I.a.i.4 below);
- Printed in physical form as part of product packaging and labeling, letterhead and business cards, point of sale advertising, CD and DVD cover art, or in the advertising and copy of tangible media, including magazines, newspapers, and books provided no Image is reproduced more than 500,000 times in the aggregate;
- As part of an "Out-of-Home" advertising campaign, including on billboards, street furniture, etc., provided the intended audience for such campaign is less than 500,000 gross impressions.
- Incorporated into film, video, television series, advertisement, or other audio-visual productions for distribution in any medium now known or hereafter devised, without regard to audience size, provided the budget for any such production does not exceed USD $10,000;
- For your own personal, non-commercial use (not for resale, download, distribution, or any commercial use of any kind)
AN ENHANCED IMAGE LICENSE grants you the right to use Images (which rights are in addition to 1-5 above and exclusive to Enhanced Image Licenses):
- In any manner permitted under a Standard Image License, without any limitation on the number of reproductions, impressions, or budget;
- Incorporated into merchandise intended for sale or promotional distribution (collectively "Merchandise"), including, without limitation, textiles, artwork, magnets, wall-art, calendars, toys, stationery, greeting cards, and any other physical reproduction for resale or distribution, provided that such Merchandise incorporates material creative or functional elements apart from the Image(s).
- In wall art (and without requiring further creative or functional elements) for decorative purposes in a commercial space owned by you or your client, and not for sale.
- Incorporated as elements of digital templates for sale or distribution.
- If the Standard or Enhanced Image licenses do not grant the rights you require please contact us at [email protected]
- A STANDARD IMAGE LICENSE grants you the right to use Images:
- IMAGE LICENSES
RESTRICTIONS ON USE OF VISUAL CONTENT
YOU MAY NOT:
- Use Visual Content other than as expressly provided by the license you purchased with respect to such Visual Content.
- Portray any person depicted in Visual Content (a "Model") in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, "adult videos", adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
- Use any Visual Content in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.
- Modify Visual Content designated "Editorial Use Only" in a manner that changes the context of what is depicted.
- Use Visual Content designated "Editorial Use Only" (including, but not limited to, Editorial content) for commercial purposes, including for reference, in any advertising, merchandise or other non-editorial contexts.
- Resell, redistribute, provide access to, share or transfer any Visual Content except as specifically provided herein. For example and not by way of limitation, the foregoing prohibits displaying Content as, or as part of, a "gallery" of content through which third parties may search and select from such content.
- Use Visual Content in a manner that infringes upon any third party's trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition.
- Use any Visual Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof.
- Falsely represent, expressly or by way of reasonable implication, that any Visual Content was created by you or a person other than the copyright holder(s) of that Visual Content.
CREDIT AND COPYRIGHT NOTICES
- The use of Images in connection with publishing shall be accompanied by an adjacent credit to the Groovyillustration contributor and to Groovyillustration in substantially the following form: "created by artist username"
- If and where commercially reasonable, the use of Images in Merchandise or an visual production shall be accompanied by a credit to Groovyillustration in substantially the following form: "Image(s) used under license from groovyillustration.com"
- Credit attributions are not required in connection with any other use of Images unless another stock content provided is afforded credit in connection with the same use.
- In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
- Groovyillustration hereby grants you a non-exclusive, non-transferable right to use, modify (except as expressly prohibited herein) and reproduce Visual Content worldwide, in perpetuity, as expressly permitted by the applicable license and subject to the limitations set forth herein:
PART II - WARRANTIES AND REPRESENTATIONS
Groovyillustration warrants and represents that:
- Groovyillustration's contributors have granted Groovyillustration all necessary rights in and to the Content to grant the rights set forth in Part I as applicable.
- GROOVYILLUSTRATION MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS "WARRANTIES AND REPRESENTATIONS" SECTION.
- Groovyillustration warrants and represents that:
PART III - INDEMNIFICATION AND LIABILITY
- Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with Groovyillustration, Groovyillustration will defend, indemnify, and hold you harmless up to the applicable "Limit of Liability" set forth below. Such indemnification is solely limited to Customer’s direct damages arising from a third-party claim directly attributable to Groovyillustration’s breach of the express warranties and representations made in Part II hereof, together with associated expenses (including reasonable attorneys’ fees). Indemnification is conditioned upon you notifying Groovyillustration, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., the use of Content at issue, the name and contact information of the person and/or entity making the claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed to Groovyillustration at [email protected], with a hard copy to Groovyillustration, 692 Elgin Street Newmarket Ontario L3Y 3B4, Attention: Ryan Kang, via certified mail, return receipt requested; or ii) overnight courier, recipient’s signature required. Groovyillustration shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Groovyillustration in the defense of any such claim and shall have the right to participate in any litigation at your own expense. You agree that Groovyillustration is not liable for any legal fees and/or other costs incurred by you or on your behalf prior to Groovyillustration having a reasonable opportunity to analyze such claim’s validity.
- Groovyillustration shall not be liable for any damages, costs or losses arising as a result of modifications made to the Content or due to the context in which you use the Content.
Limits of Liability: Groovyillustration’s total maximum aggregate obligation and liability (the "Limit of Liability") arising out of each of Customer’s:
- Standard Image Licenses shall be USD $10,000.
- Enhanced Image Licenses shall be USD $250,000.
If you have questions about the foregoing, please email us at [email protected] or call us at 1 (905) 806 3584
- You will indemnify and hold Groovyillustration, its owners, employees, shareholders, directors, managers, members and suppliers, harmless against any damages or liability of any kind arising from any use of the Visual Content other than the uses expressly permitted by this TOS. You further agree to indemnify Groovyillustration for all costs and expenses that Groovyillustration incurs in the event that you breach any of the terms of this or any other agreement with Groovyillustration.
PART IV - ADDITIONAL TERMS
- Except when required by law, Groovyillustration shall be under no obligation to issue refunds under any circumstances. All fees are non-refundable, even if your subscription is terminated before its expiration. You authorize Groovyillustration to charge you all subscription fees for the duration of the term agreed to at the time of purchase. In the event that Groovyillustration determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase. If you reside in the European Union and you cancel your account within fourteen (14) days of making payment to Groovyillustration, provided that you have not yet downloaded or licensed any Visual Content, Groovyillustration, will refund the payment made by you in connection with such cancelled account. To cancel your account, please email us at [email protected] or call us at 1 (905) 806 3584
- If Groovyillustration is required to collect indirect and/or transactional fees and/or taxes (such as sales tax, value-added tax, goods and services tax, et al) under the laws of your province/state or country of residence, you shall be liable for payment of any such indirect tax. Where Groovyillustration or you are required to collect or remit direct or indirect taxes, you may be required to self-assess said tax under the applicable laws of your country of residence.
- "Non-transferable" as used herein means that except as specifically provided in this TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Content or the right to use Content. You may however, make a one-time transfer of Content to a third party for the sole purpose of causing such third party to print and/or manufacture your goods incorporating Content subject to the terms and conditions herein. If you become aware that any social media website uses any Content in a manner that exceeds your license hereunder, you agree to remove all derivative works incorporating Content from such Social Media Site, and to promptly notify Groovyillustration of each such social media website's use. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Content. If you become aware of any unauthorized duplication of any Content please notify us via email at [email protected]
- Upon notice from Groovyillustration or if you learn that any Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Groovyillustration may be liable, or if Groovyillustration removes any Content due to perceived business risk as determined in Groovyillustration's reasonable discretion and gives you notice of such removal, you will remove the Content from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Content at your own expense. Groovyillustration shall provide you with comparable Content (which comparability will be determined by Groovyillustration in its reasonable commercial judgment) free of charge, but subject to the terms and conditions of this TOS.
- If you use any Content as part of work product created for or delivered to a client or customer, you will disclose the identities of such clients or customers to Groovyillustration, upon Groovyillustration’s reasonable request.
- Any controversy or claim arising out of or relating to this TOS, or the breach thereof, shall be settled by binding individual (not class) arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association or of the International Centre for Dispute Resolution in effect on the date of the commencement of arbitration, rather than in court, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The place of arbitration shall be the state and county of New York. The language of the arbitration shall be English. There shall be one arbitrator to be mutually agreed by the parties. Each party shall bear its own costs in the arbitration. Both parties agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack) (iii) any claim arising solely from Customer’s alleged failure to pay fees due to Groovyillustration. This arbitration provision will survive termination of this TOS.
- YOU AND GROOVYILLUSTRATION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Groovyillustration agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Groovyillustration acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable disputes under this TOS.
- If a court decides that applicable law precludes enforcement of any of the limitations in this Part IV, Section 6 as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association or of the International Centre for Dispute Resolution in effect on the date of the commencement of arbitration, rather than in court, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The place of arbitration shall be the province and county of Ontario. The language of the arbitration shall be English. There shall be one arbitrator. Each party shall bear its own costs in the arbitration. Groovyillustration shall also have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Groovyillustration, such action is necessary or desirable.
- this TOS shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. this TOS are governed by and shall be construed in accordance with the laws of the Province of Ontario, without respect to its conflict of laws principles.
- If you are entering into this TOS on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Groovyillustration for any breaches of the terms of this TOS. You hereby grant Groovyillustration a worldwide, non-exclusive, limited license to use your trademarks in Groovyillustration's promotional materials, including a public customer list. Groovyillustration's use of your trademarks shall at all times conform to your then-current trademark use policies as made available to Groovyillustration and shall at all times inure to your benefit. Groovyillustration further agrees that it will use commercially reasonable efforts to terminate any particular use of your trademark no later than thirty (30) days from the date of receipt by Groovyillustration of your email request to [email protected]
- The number of Content downloads available to you is determined by the product you purchase. For the purposes of this TOS, a day is defined as the twenty four (24) hour period beginning at the time your product is purchased. A month is defined as a calendar month beginning on and including the date that you purchase your product and ending on that date which is the earlier of (i) the same date as your purchase in the following month or (ii) the last day of the following month.
- Neither party may assign this agreement, without the prior written approval of the other party, except that Groovyillustration may assign this agreement to a subsidiary, an affiliated company within the Groovyillustration group, the entity that results from a merger or other corporate reorganization involving Groovyillustration, or an entity that acquires all or substantially all of Groovyillustration’s assets or capital stock.
- If any individual term of this TOS is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of this TOS, so that this TOS shall otherwise remain in full force and effect.
- You expressly agree that any feedback provided to you by Groovyillustration or its representatives regarding any questions you may have about this TOS or your use of Content licensed hereunder, is solely for the purpose of interpreting this TOS and is not legal advice. Groovyillustration cannot render legal advice to you and expressly disclaims any liability of any kind related to any feedback provided by Groovyillustration or its representatives.
- It is expressly understood and agreed that this TOS is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended by this TOS as to third parties.
- In the event that you breach any of the terms of this or any other agreement with Groovyillustration, Groovyillustration shall have the right to terminate your account without further notice, in addition to Groovyillustration's other rights at law and/or equity. Groovyillustration shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of a breach.
- Except as expressly set forth herein, Groovyillustration grants no rights and makes no warranties, with regard to the use of personally identifiable information that may be contained in the Content, trademarks, trade dress or copyrighted designs or works of art or architecture depicted in any Visual Content. Groovyillustration only has model or property releases where expressly indicated on the Groovyillustration website.
- Groovyillustration's liability under any individual license purchased hereunder shall not exceed the "Limit of Liability" applicable to the license in effect at the time customer knows or should have known of the claim, and is without regard to the number of times the subject Content is licensed or used by you.
- Except as specifically provided in Part III hereof, in no event, will Groovyillustration's total aggregate liability to you or any third party claiming through you, arising out of or in connection with your use of or inability to use the Groovyillustration websites and/or Content contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by Groovyillustration from you for the applicable Content license.
- Neither Groovyillustration nor any of its owners, employees, managers, members, shareholders, directors or suppliers shall be liable to you or to any other person or entity for any general, punitive, special, indirect, consequential or incidental damages, or lost profits or any other damages, costs or losses arising out of your use of the Content, Groovyillustration's breach of this agreement, or otherwise, unless expressly provided for herein, even if Groovyillustration has been advised of the possibility of such damages, costs or losses.
- Except as expressly set forth in Part II, all Content is provided "as is" without warranty of any kind, either express or implied, including, but not limited to the implied warranties of non-infringement, merchantability, or fitness for a particular purpose. Some Content may contain elements that require additional clearance if the Content is modified or used in a particular context. If you make such modification or use Content in such context, you are solely responsible for obtaining any additional clearances thereby required.
- Groovyillustration does not warrant that the Content, Groovyillustration websites, or other materials will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Content is solely with you.
- In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting Groovyillustration, Groovyillustration will promptly file a complaint with The Canadian Anti-Fraud Centre (http://www.centreantifraude.ca), RCMP, the Ontario Provincial Police and the Competition Bureau.
Groovyillustration contracting party:
- Effective November 10, 2019, and notwithstanding anything to the contrary herein, for licenses fulfilled thereafter, "Groovyillustration" means Groovyillustration, a Sole Proprietorship with its office at Groovyillustration, 692 Elgin Street Newmarket Ontario L3Y 3B4, Canada.
- Visual Content.
EFFECTIVE DATE: November 10, 2019