This Content License Agreement (the "Agreement"), is between you and Divvy, operated by Grey Dog Media, LLC (“Divvy”).
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH DIVVY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
WHEREAS, Divvy solely and exclusively owns or controls the rights in certain photographs, drawings, designs, illustrations, vectors, and video clips, and any other content (“Images”), and wishes to grant to you a license under those rights, and you wish to obtain a license to the Images for the uses and purposes described herein, each on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Grant of Rights. Divvy hereby grants to you during the Term the nonexclusive, nontransferable, and nonsublicenseable right and license to use an unlimited number of times, each of the Images for all or any purposes whatsoever, including, but not limited to, for purposes of publication, commerce, and trade and in connection with or as part of your goods, services, package, container, label, or advertising, promotional, marketing, or sales materials, subject to the type of purchase category selected below:
(a) Multimedia: In addition to the license granted above, purchasing a multimedia image provides you with a high-resolution JPG file at 300 dpi.
(b) Digital: In addition to the license granted above, purchasing a digital image provides you with a high-resolution JPG file at 72 dpi.
(c) Recipes: In addition to the license granted above, purchasing a recipe grants you with a Microsoft Word document, PDF file, and nutritional information (where noted).
For purposes of clarity and without limiting the foregoing, Divvy acknowledges and agrees that the rights and license granted to you under this Agreement include your rights: (a) to modify, edit, combine with other materials, translate, include in collective works, and create derivative works of the Images in whole or in part (collectively, "Adapt", "Adapted", and "Adaptation" have correlative meanings); and (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise) and transmit the Image[s], in whole or in part, as provided by Divvy or as Adapted for such purposes and uses as are permitted under this Section 1.1.
For purposes of clarity and without limiting the foregoing, you may allow subcontractors, employees, and/or distributors to use Images in any production or distribution process related to your final project or end use. Such individuals may not use the Images for any other purpose.
1.2 Watermarked Images. You are not required to purchase a license under this Agreement in order to utilize watermarked Images from Divvy for sample or test use. Watermarked material cannot be used in an final materials or any publicly available materials and may only be used for thirty (30) days following the download.
2. Ownership. Divvy will own and retain all right, title, and interest in and to the Images, subject to the license granted in Section 1.1.
(a) Subject to Section 4(a) and in full consideration of Divvy’s timely delivery of the Images and grant of the rights and license hereunder, you will pay Divvy a one-time license fee (“credit”) determined by the following rates found at: https://divvycontent.com/pricing
(b) If you are purchasing on behalf of your employer or client, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this Agreement. If you do not have such authority, then you may not use the Images.
(c) 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 licensed Images.
4. Attribution and Copyright Notice. You shall provide the following source attribution of each Image (including any applicable copyright or trademark notice) in connection with any publication of such Image in its entirety, in connection with editorial content (i.e., in a newspaper or magazine article, on a blog or website for descriptive purposes, in a non-commercial presentation), provided, however, that you shall have no obligation to provide such attribution where, in your reasonable judgment, space does not reasonably permit such attribution or such attribution would be commercially disadvantageous, physically impractical, or contrary to custom or applicable law:
5. Representations and Warranties.
5.1 Mutual Representations and Warranties. Each party represents and warrants that it has the full right, power, and authority to enter into, perform, and grant the rights and licenses it grants and is required to grant under, this Agreement
5.2 Divvy Representations and Warranties. By providing the Images to you, Divvy hereby represents and warrants that:
(a) the Images are Divvy’s sole and original creation;
(b) Divvy has not granted and will not grant any license, lien, security interest, or other encumbrance in, to, or under the Images, and has not and will not enter into any license or contractual or other obligation, that could conflict or interfere with your receipt or exercise of its rights or license hereunder;
(c) Divvy is the sole and exclusive legal and beneficial owner of the entire right, title, and interest in and to the Images, including all copyrights and other intellectual property rights therein; however, Divvy does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content;
(d) There is no settled, pending, or, to Divvy's knowledge, threatened litigation, opposition, or other claim or proceeding challenging Divvy's ownership of copyrights in or use of the Images or the validity, enforceability, or registration of such copyrights or any other intellectual property rights in or to the Images;
(e) the Images do not, and use thereof as permitted hereunder will not, violate any law or regulation or infringe or otherwise violate any right of any third party, including, but not limited to, any copyright, trademark, patent, trade secret or other intellectual property right, any right against defamation, or any right of publicity or privacy, provided that this representation and warranty shall not apply to any modified Images or Adaptations.
5.3 Your Representations and Warranties. You hereby represent and warrant that you will not use the Images in any manner that:
(a) is defamatory, obscene, pornographic, libelous, or otherwise unlawful or injurious as provided by and in the sole discretion of Divvy or causes the image to become defamatory, obscene, pornographic, libelous, or otherwise unlawful or injurious in the sole discretion of Divvy;
(b) uses any Images in any way that allows other to download, extract, or redistribute Images as a standalone file;
(c) uses any Images as part of a trademark, design mark, trade name, business name, service mark, or logo;
(d) uses Images that feature models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person without the presence of a disclaimer which states: (1) the Images are being used only for illustrative purposes; and (2) any person depicted is a model;
(e) uses Images in connection with any goods or services intended for resale or distribution where the primary value lies in the Images themselves including, without limitation, cards, stationery items, paper products, calendars, apparel items, posters (printed on paper, canvas, or any other media), DVDs, mobile applications or other items for resale, license or other distribution for profit;
(f) uses Images in electronic or digital templates intended for resale or other distribution; and
(g) competes with or is detrimental to Divvy.
In the event you wish to use any Images in connection with a trademark, design mark, trade name, or in connection with any goods or services intended for resale or distribution where the primary value lies in the Images themselves, please contact Divvy for a customized license agreement.
6.1 Indemnification of Divvy by you. You agree to defend, indemnify and hold harmless Divvy and its parent, subsidiaries, affiliates, and suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out 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.
6.2 Indemnification of you by Divvy. Provided that the Images are 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 any breach of the warranties set forth in Section 5, Divvy agrees, subject to the terms of this Section 6.2, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Divvy of its warranty in Section 5. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the Images or the context in which the Images are used by you. This indemnification also does not apply to your continued use of Images following notice from Divvy, or upon your knowledge, that the Images are subject to a claim of infringement of a third party's right.
6.3 Maximum Liability. Divvy’s total maximum aggregate liability (meaning the total amount Divvy is responsible for, whether under this Agreement or any other Agreement for the same Images) is limited to $10,000 US dollars per Image. This limit applies regardless of the number of times you license the same Image(s) from Divvy.
6.4 Notice Requirements. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation, in which case the indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
7. Term and Termination.
7.1 Term. This Agreement is effective from the date the Images are purchased until one (1) year from such date (the "Term").
(a) Divvy may terminate this Agreement if you materially breach this Agreement.
(b) You may terminate this Agreement by ceasing use of the Images and deleting or destroying any and all copies. To the extent Images are incorporated in existing projects, works, content, and the like, created prior to the date of Termination, you may continue to use Images in said existing items, provided no further modification or adaption is made to the Images.
8. Refunds and Cancellations.
8.1 REFUNDS FOR CREDIT PACK PURCHASES CAN BE MADE WITHIN FOURTEEN (14) DAYS OF YOUR PURCHASE DATE, PROVIDED THAT YOU HAVE NOT YET USED ANY CREDITS FROM THE CREDIT PACK. All requests for refunds/cancellations must be made in writing. If the request is approved, Divvy will issue a credit to your account or credit card. In the event of cancellation, your rights to use the Images terminate, and you must delete or destroy any and all copies of the Images.
8.2 Image Download Refunds. Divvy does not offer refunds or re-credits for downloaded Images. Images returns will only be considered based on technical issues with the file at the sole discretion of Divvy.
8.3 Images Withdrawal. Divvy may discontinue licensing Images at any time in its sole discretion. Upon notice from Divvy, or upon your knowledge, that any Images may be subject to a claim of infringement of a third party's right for which Divvy may be liable, Divvy may require you to immediately, and at your own expense: (i) cease using the Images; (ii) delete or destroy any and all copies of the Image(s); and (iii) ensure that your clients, distributors and/or employer do likewise. Divvy will provide you with replacement Images (determined by Divvy in its reasonable commercial judgment) free of charge, subject to the other terms of this Agreement.
9. Limitation of Liability. DIVVY WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF DIVVY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
10.1 User Accounts. You are responsible for tracking all activity for any user account created in association with your final products or end use. As such, you agree to: (i) maintain the security of your account, including all usernames and passwords; (ii) notify Divvy immediately of any unauthorized use or other breach of security; and (iii) accept all responsibility for activity that occurs under each user account. Divvy reserves the right to monitor downloads and user activity to ensure compliance with the terms of this Agreement. If Divvy determines that you are in breach of this or any other term of this Agreement, it may suspend access to your account and seek further legal remedies.
10.2 Audits and Certificate of Compliance. Upon reasonable notice, you agree to provide to Divvy sample copies of projects or end uses that contain licensed Images, including by providing Divvy with free of charge access to any pay-walled or otherwise restricted access website or platform where Images are reproduced. In addition, upon reasonable notice, Divvy may, at its discretion, either through its own employees or through a third party, audit your records directly related to this Agreement and your use of licensed Images in order to verify compliance with the terms of this Agreement. If any audit reveals an underpayment by you to Divvy of five percent (5%) or more of the amount you should have paid, then in addition to paying Divvy the amount of the underpayment, you also agree to reimburse Divvy for the costs of conducting the audit. Where Divvy reasonably believes that Images are being used outside of the scope of the license granted under this Agreement, you agree, at Divvy’s request, to provide a certificate of compliance signed by an officer of your company, in a form to be approved by Divvy.
10.3 Electronic Storage. You agree to retain the copyright symbol, the name of Divvy, the Image’s identification number and any other information that may be embedded in the electronic file containing the original Images, and to maintain appropriate security to protect the Images from unauthorized use by third parties. You may make one (1) copy of the Images for back-up purposes.
10.4 Relationship of the Parties. The relationship between the Divvy and you is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.5 Assignment. This Agreement is personal to you. You shall not assign or otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of its obligations or performance, under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.5 is void. Divvy may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
10.6 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by the parties. No waiver by either party of any of the provisions hereof shall be effective unless expressly set forth in writing signed by the waiving party, nor shall the waiver of any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.7 Severability. If any part of this Agreement is invalid, illegal, or unenforceable in any jurisdiction it shall not affect any other part of this Agreement or invalidate or render unenforceable such part in any other jurisdiction.
10.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule.
BY AGREEING TO THESE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST DIVVY ON AN INDIVIDUAL BASIS IN BINDING AND CONFIDENTIAL ARBITRATION, AS SET FORTH IN THIS AGREEMENT.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final, binding, and confidential arbitration in Iowa before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
10.10 Notice. All notices required to be sent to Divvy under this Agreement should be sent via email to [email protected]. All notices to you will be sent via email to the email set out in your account.
10.11 Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
10.12 Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.