SMAGPIE STANDARD CONTENT USAGE AGREEMENT
Dear Smagpie Member:
Smagpie reserves the right to change this Agreement at any time, and you agree to be bound by such changes. If and when changes are made notification will be provided to you. Please make sure that you read and understand all changes. If you do not agree to this Agreement, as same may be amended from time to time, do not download or use any Content. If the use you are contemplating is not permitted by this Agreement, please review our Extended Content Usage Agreement, which offers a broader range of permitted uses.
Credits expire on the one-year anniversary of the date of purchase and are nonrefundable without exception. Subscription downloads expire at the end of the day or month (as applicable)
- All Content on the Smagpie website is protected by United States and international copyright laws and treaties. Smagpie and/or the various artists who provide Content to Smagpie ("Contributors") own all rights, including the copyrights in and to the Content. Smagpie and/or its Contributors reserve all rights in and to the Content not expressly granted to you by the terms of this Agreement. Your rights to use any Content are subject to this Agreement and are conditioned upon your payment to Smagpie for your use of the applicable Content. If you fail to make any payment to Smagpie when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed to be delinquent. If your account becomes delinquent, your right to use any Content downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Smagpie costs of collection, bank charges and credit card processing fees are received by Smagpie no later than fifteen (15) days from the date that your account became delinquent. This Agreement grants you a single-user, single-seat license. This license may not be used simultaneously on multiple devices, or at any time by multiple persons. If you require additional users to be able to access your account and license Content, please see our Team Account product.
- You may not copy or reproduce any Content (in whole or in part) more than two hundred fifty thousand (250,000) times, either directly or indirectly, except as expressly provided in Part II hereof.
By this Agreement, Smagpie grants you a personal, non-exclusive, non-transferable (except as herein provided), royalty-free right, throughout the world, in perpetuity, to use and reproduce Content in the following ways, subject to the limitations set forth herein and in Part II hereof.
PERMITTED WEB / ELECTRONIC USES
This Agreement grants you the right to:
- Incorporate Content on web sites (including Social Media Platforms, as such term is defined herein), provided that no Content is: i) displayed at a resolution greater than the display resolution of the intended viewing device; or ii) displayed as part of gallery, collection, album, archive, scrapbook or other aggregation of individual images and/or footage;
- Use Content in coordination with opt-in email marketing. However, Content cannot be used in connection with unsolicited email or linked to from unsolicited email;
- Incorporate Content into software (including mobile “apps”) as background images or splash screens, provided that the primary purpose of the software is not the display of Content and further provided that Content or any digital files containing the Content cannot be unincorporated from the software;
- Incorporate Content into film, video, multimedia presentations, or advertising for broadcast, public performance, or sale provided that: (i) the distribution is fewer than two hundred fifty thousand (250,000) copies; or (ii) the intended audience (excluding video distributed solely on the internet at no cost to viewers) consists of fewer than two hundred fifty thousand (250,000) viewers, in the aggregate;
- Use Content in eBooks, including multi seat license electronic textbooks, provided that the sales or distribution of any such eBook does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
PERMITTED PRINT USES
- Use Content as prints, posters, postcards (i.e. a hardcopy) and other reproductions for your own personal use and display, including display in commercial settings, provided such hardcopies are not resold or otherwise distributed;
- Incorporate Images into advertising materials, posters and tradeshow signage for use in promoting the sale of other products or services (as opposed to promoting the sale of the prints, posters, etc. containing the Images), provided that the Image is an integrated, supportive part of your project or product and not the definitive part of such prints and/or posters and/or other reproductions and further provided that no Image is used for Out-of-Home advertising and further provided that the print or manufacturing run(s) of such posters does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
- Use Images in magazines, newspapers, books, book covers and/or textbooks for editorial and/or advertising purposes, provided that the print or manufacturing run(s) of such magazines, newspapers, books, book covers and textbooks does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
- Use Images in the artwork for the packaging of any product provided that the print and/ or manufacturing run does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
- Incorporate Images on letterhead and business cards, pamphlets, brochures, and catalogs provided that Images are not used as a logo or trademark, and further provided that no individual Image is reproduced more than 250,000 times in the aggregate;
- Incorporate Content into set design and dressing for public performance, provided that the intended audience for all such performances in the aggregate consists of fewer than two hundred fifty thousand (250,000) people.
- All other rights in the Content are expressly reserved by Smagpie for itself and its Contributors. If you wish to use Content in any manner not provided by this Standard Content Usage Agreement, you may license Content under Smagpie's Extended Content Usage Agreement , which provides a broader grant of rights.
YOU MAY NOT:
- Use any Content other than as specified in PART II.
- Use or display any Content on websites or in connection with any service designed to sell or induce sales of user-commissioned “print-on demand" products using or incorporating Image(s), including, by way of example only, postcards, mugs, tee shirts, posters, giclée prints, wallpaper, artwork and other items. For the purposes of this Agreement, the term “print on demand” means, a printing technology and business process in which copies of a product are not printed until an order for the product has been received. Incorporating Content in any “print on demand” products, requires a Smagpie Extended License or participation in Smagpie's API program.
- Use Content in such a manner that it infringes upon any third party's trademark or other intellectual property.
- Use any Content in a way that places any person depicted in the Content in a way that a reasonable person would find offensive - this includes, but is not limited to the use of Content: a) in pornography, "adult videos" or the like; b) in ads for tobacco products or other addictive substances; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements and/or promotional materials for pharmaceutical, healthcare, herbal or medical products (including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products), f) if the use implies that the depicted person suffers from a physical or mental infirmity, ailment or condition or engages in any immoral or illegal activity, unless such depiction is expressly consistent with the portrayal of the model as represented in such Content in its original, unaltered form; or g) in any manner that is defamatory, or contains unlawful or offensive content.
- Except as expressly provided in Part II hereof, directly or indirectly copy or reproduce any Content (in whole or in part) more than two hundred fifty thousand (250,000) times. Nor may you produce or otherwise create for resale or distribution, printed reproductions of any Content on canvas, paper, plastic or any other medium unless expressly permitted by this agreement.
- Share any Content by providing access to such Content on shared disk drives, computer networks, servers, cloud network or other intranets of any nature or otherwise.
- Use any Content on any third party social media website or platform (a “Social Media Platform”), if such Social Media Platform claims to acquire rights contrary to this Agreement as a result of such use. In such event, you will promptly remove Content from the Social Media Platform upon Smagpie's request.
- Use Content in any manner that competes with Smagpie's business. This includes, by way of illustration only and not by way of limitation, displaying Content in any format (including thumbnails) for download on a website, offering Content for sale, incorporating Content into templates of any nature, including templates for websites, social networking profiles, documents, projects or otherwise making Content available for distribution and/or sale to third parties.
- Use Smagpie Content as the primary feature of any individual physical or digital product or any collection thereof which is offered for sale, trade or otherwise distributed in violation of the terms of this Agreement. Additionally, Content must be an integrated, inseparable part of any product and must constitute less than 50 percent of the overall product area, page layout, design, or running time.
- Use still images captured from Footage other than for the in-context marketing, promotion, and advertising of your derivative works incorporating Footage
- Use any Content marked "Editorial use only" for commercial purposes. If Content is marked, "Editorial use only", additional permissions may be required for commercial use. Smagpie does not provide such permissions.
- Use any Content (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
- Use or display any Content in such a manner that gives the impression that the Content was created by you or a person other than the copyright holder of that Content. Additionally, you may not use or display any Content is such a manner that gives the impression that any person depicted in the Content is the author or creator of any product in which the Content is incorporated.
- Use automated programs, applets, bots or the like to access the Smagpie.com website or any content thereon for any purpose, including, by way of example only, downloading Content, indexing, scraping or caching any content on the website.
- Smagpie shall be under no obligation to refund the cost of a purchase. However, in the event that Smagpie determines that you are entitled to a refund of all or part of your purchase price, such refund shall only be made to the credit card account originally used by you to make the subject purchase. If your payment was made by check, your refund will be made by check.
- "Non-transferable" as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Content or the right to use Content. You may however, transfer Content to a third party for the sole purpose of causing such third party to produce and/or manufacture your goods incorporating Content subject to the terms and conditions herein.
- The work you produce with Content must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. 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 Smagpie Content please notify us via email at email@example.com.
- You agree that you will not share your username and password combination. Your Smagpie username and password are to be used only by you. Each person that desires to access the Smagpie site must have his/her own username and password. You may access your account on multiple computers, but only one computer may be logged in using your account at any one time. If any two users on two separate computers are using the same username and password, we reserve the right to terminate that subscriber's account without refund or prior notice. We reserve the right to monitor accounts and institute measures to stop users from sharing their login information. If you require additional users to be able to access your account and license Content, please purchase a Team Account
- You agree to indemnify and hold Smagpie, its officers, employees, shareholders, directors, managers, members and suppliers, and those of its affiliates including parent companies and subsidiaries, harmless against any damages or liability of any kind arising from any use of Content other than the uses expressly permitted by this Agreement. You further agree to indemnify Smagpie for all costs and expenses that Smagpie incurs in the event that you breach any of the terms of this or any other agreement with Smagpie.
- You Warrant and Represent that: undefinedundefinedundefinedundefinedundefinedundefined
- Smagpie warrants and represents that it has the right and authority to enter into this Agreement and to grant the rights in the Content set forth herein, subject to the limitations and exclusions set forth herein.
- While Smagpie uses commercially reasonable efforts to ensure the accuracy of keywords and descriptions, as well as the integrity of our Editorial Content, Smagpie makes no warranties and/or representations regarding such keywords, descriptions or Editorial Content integrity.
- The rights granted to you under this Agreement shall terminate immediately and without notice: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings, by or against you; (ii) upon you making an assignment for the benefit of creditors; or (iii) upon the dissolution of any entity on whose behalf you entered into this Agreement, or at the moment such entity ceases to do business. Smagpie shall not consent to any assumption or assignment of the rights granted hereunder in the event of any of the preceding.
- You must be at least 18 years of age to use the bsmagpie.com website and accept this Agreement. Smagpie may require any registrant to provide sufficient proof of age.
- Any legal action or proceeding concerning the validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York, or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this agreement. The validity, interpretation and enforcement of this agreement, matters arising out of or related to its making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). You agree that service of process in any actions, controversies and disputes arising from or relating to this Agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.
- If you are entering into this Agreement 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 Smagpie for any breaches of the terms of this Agreement.
- Credit Attributions and Copyright Notices undefinedundefinedundefinedundefined
- In the event that you breach any of the terms of this or any other agreement with Smagpie, Smagpie shall have the right to terminate your account without further notice. Such termination shall be in addition to Smagpie's other rights at law and/or equity. Smagpie shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of any such breach or breaches.
- Smagpie grants no rights and makes no representations or warranties with respect to the use of any names, trademarks, service mark, logotypes, copyrighted designs or works of art or architecture depicted in any Content. It is your responsibility to assure that all necessary rights, consents, or permissions that may be required for your use of any Content are obtained.
- Smagpie does not warrant that the Content, Smagpie 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.
- You understand that you should seek counsel before using Content on or in connection with any goods or services or for any other commercial purposes.
- In no event shall Smagpie's total aggregate liability to you, or to any third party claiming through you, arising out of or in connection with your use of or inability to use the Smagpie website and/or Content contained thereon (whether in contract, tort or otherwise) exceed the monetary amount actually received by Smagpie from you for your use of the applicable Image(s). Neither Smagpie nor any of its officers, employees managers, members, shareholders, directors suppliers or those of its affiliates including parent companies and subsidiaries, 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 Image(s), Smagpie breach of this Agreement, or otherwise, unless expressly provided for herein, even if Smagpie has been advised of the possibility of such damages, costs or losses.
- In the event that you use fraudulent credit card information to open an account or otherwise engage in any criminal activity affecting Smagpie, Smagpie will promptly file a complaint with www.ic3.gov, the Internet Crime Complaint Center, a partnership between the Federal Bureau of Investigation (FBI) and the National White Collar Crime Center. Effective October 20, 2020