Licensing

THIS LICENCE AGREEMENT (“LICENCE”) SET OUT THE TERMS ON WHICH SNAPTANK LTD (“SNAPTANK”, “US”, “WE”, “OUR”) PROVIDE YOU (“LICENCEE“, “YOU”, “YOUR”) WITH THE LICENSED MATERIAL. PLEASE READ THIS LICENCE CAREFULLY AND ENSURE THAT YOU HAVE UNDERSTOOD THEM. BY DOWNLOADING THE LICENSED MATERIAL YOU WARRANT THAT YOU UNDERSTAND AND ACCEPT THE TERMS OF THIS LICENCE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOUR EMPLOYER OR ACTING AS AN EMPLOYEE, YOU WARRANT THAT YOU ARE AUTHORISED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER. THE SAME RIGHTS, LIMITATIONS AND RESTRICTIONS APPLY TO YOUR EMPLOYER. YOU AGREE THAT THIS LICENCE IS ENFORCEABLE AS IF THEY WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOUR EMPLOYER. IF YOU DO NOT AGREE TO THIS LICENCE, PLEASE CEASE USE OF THE LICENSED MATERIAL IMMEDIATELY.

YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THIS LICENCE FOR YOUR FUTURE REFERENCE.

WHEREAS IT IS HEREBY AGREED AS FOLLOWS:

1. DEFINITIONS

“Documentation” means any electronic user guide, notes or comments supplied as part of the Licensed Material;

“Fee” means the one off licence fee for the Licensed Material payable by you to SnapTank and set out on the Website;

“Licensed Material” means the Digital Asset (together with any Documentation) referred to in your Order, licensed by SnapTank to you under the terms of this Licence;

“Order” means the online order completed and submitted by you to SnapTank through the Website for the purchase of the Licensed Material;

“Website” means www.snaptank.com; and

“Work” means your product or service sold (or offered for sale) which incorporates the Licensed Material.

2. GRANT OF RIGHTS; RESTRICTIONS

2.1 In consideration for payment of the Fee and subject to the restrictions in this clause 2, SnapTank hereby grants you a perpetual (terminable in accordance with clause 5.2), worldwide, non-exclusive, non-transferable (without a right to sub-licence) royalty free licence to use, display, copy, modify, adapt, enhance in an unlimited number of projects (including as part of a Work) in whole or in part and by whatever means the Licensed Material in accordance with the terms of this Licence. This Licence is in respect of use of the Licensed Material by Licensee only and no subsidiaries or holding company of Licensee may use the Licensed Material.

2.2 Where the Licensed Material is identified as “Standard Use”, subject to clause 2.5, this will include use in:

2.2.1 advertisements (whether on printed material or web/digital format);

2.2.2 commercial films and motion pictures;

2.2.3 video games;

2.2.4 books and book covers;

2.2.5 CD and DVD cases; and

2.2.6 web pages or other online publications.

2.3 Where the Licensed Material is identified as “Editorial Use Only”, you shall not be entitled to use the Licensed Material for any commercial, promotional, endorsement, advertising or merchandising use, which includes use in any “advertorials”. For the avoidance of doubt, Licensed Material identified as “Editorial Use Only” means use solely for non commercial purposes or relating to events that are (i) newsworthy; or (ii) of general cultural public interest.

2.4 You may produce 3d printed copies of the Licensed Material for your own private, non-commercial use only.

2.5 You shall not:

2.5.1 display or make the Licensed Material available in a manner which permits, offers or invites a third party to download, extract, redistribute or access the Licensed Material (e.g. display on a website or included in electronic or digital template applications, for sale or distribution to third parties);

2.5.2 use or display the Licensed Material on websites or other venues concerning the sale, license or other distribution of user-customised “on demand” products (e.g. products in which the Licensed Material is selected by a third party for customisation of such product on a made to order basis) including, without limitation, postcards, mugs, t-shirts, posters and other items;

2.5.3 use the Licensed Material in connection with any products or services intended for resale or distribution where the primary value lies in the Licensed Material itself including, without limitation, cards, stationary items, paper products, calendars, apparel items, posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;

2.5.4 incorporate the Licensed Material into:

2.5.4.1 a logo, corporate ID, trademark or service mark, without obtaining SnapTank’s prior written consent;

2.5.4.2 any product or service that results in a re-distribution or re-use of the Licensed Material (including but not limited to electronic greeting card web sites and website templates) or otherwise allows a person to extract, access or reproduce the Licensed Material as an electronic file;

2.5.5 use or display the Licensed Material in an electronic format that enables it to be downloaded or shared in any peer-to-peer or similar file sharing arrangement;

2.5.6 install and use the Licensed Material in more than one location at a time or post a copy of the Licensed Material on a network server or web server for use by other users;

2.5.7 where the Licensed Material features a person or property, use the Licensed Material in a way a reasonable person would consider to be unflattering or unduly controversial, unless such use includes a statement indicating: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model;

2.5.8 use the Licensed Material in any way SnapTank acting reasonably considers, or applicable law considers, to be pornographic, defamatory, obscene, unlawful or libelous;

2.5.9 use the Licensed Material in a manner that infringes the intellectual property rights of any third party;

2.5.10 falsely represents, expressly or impliedly, that you are the original creator of the Licensed Material or any work that derives a substantial part of its components from the Licensed Material;

2.5.11 make the Licensed Material available in the form of fine art print; or

2.5.12 use the Licensed Material in such a way that SnapTank deems, acting reasonably, to be in competition with SnapTank’s business.

2.6 Any re-production of the Licensed Material on a website is subject to the terms and conditions of such website including provisions consistent with the rights and restrictions set out in this clause 2.

2.7 Except as expressly permitted in this Licence, you shall not, and shall not permit others to: (i) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Licensed Material or your right to use the Licensed Material; (ii) remove or modify any copyright, trademark, or other proprietary notices of SnapTank and/or its licensors affixed or contained within the Licensed Material; or (iii) use the Licensed Material in any manner not expressly authorised by this Licence.

3. PROPRIETARY RIGHTS

3.1 SnapTank and/or its licensors has sole and exclusive ownership of all right, title, and interest in and to the Licensed Material, including all copyright and any other intellectual property rights therein. Nothing in the Licence shall be construed to convey title to or ownership of the Licensed Material to you. All rights in and to the Licensed Material not expressly granted to you are reserved by SnapTank and/or its licensors.

3.2 You shall promptly and fully notify SnapTank of any actual, threatened or suspected infringement of any intellectual property rights of SnapTank or its licensors which comes to your notice, and of any claim by any third party so coming to its notice that the licensing of the Licensed Material in relation thereto infringes any rights of any other person, and you shall at the request and expense of SnapTank do all such things as SnapTank may reasonably require to assist SnapTank in taking or resisting any proceedings in relation to any such infringement or claim.

3.3 You shall indemnify and continue to indemnify and hold SnapTank harmless in full and on demand from all losses, damages, claims, liabilities and expenses (including reasonable legal expenses) incurred or suffered by SnapTank arising out of or in connection with any claim or action by third parties arising out of or in connection with your use of any Licensed Material outside the scope of the rights and restrictions set out under clause 2 of this Licence.

3.4 Notwithstanding the limitations at clause 7, SnapTank shall defend any claim, demand, action or proceeding against you asserting that the Licensed Material infringes any Intellectual Property Rights of any third party (each an “Infringement Claim”) and shall pay any final judgments awarded or settlements entered into with such third party, provided that you: (1) give prompt written notice to SnapTank of any such Infringement Claim, (2) provide assistance in respect of such defence as SnapTank may reasonably request, (3) grant SnapTank the full authority to proceed as contemplated herein and (4) use all reasonable endeavours to mitigate the sums which may be payable by SnapTank.

4. FEE

4.1 In consideration for the licence granted to you hereunder, you shall pay SnapTank a one time non-refundable Fee.

4.2 The Fee shall be payable in accordance with the payment option offered to you on the Website from time to time.

4.3 Payment via an invoice is subject to SnapTank’s prior consent. Where SnapTank has consented to payment by invoice, the Fee shall be payable by you within fourteen (14) days of the date of the invoice.

4.4 We reserve the right to withhold provision of the Licensed Material in the event we have not received the Fee from you.

5. TERM AND TERMINATION

5.1 This Licence shall commence on the Effective Date and continue in effect indefinitely, unless and until terminated in accordance with this Clause 5.

5.2 This Licence may be terminated:

5.2.1 forthwith by SnapTank if you are in breach of any terms of clause 2;

5.2.2 forthwith by SnapTank on notice to you that the Licensed Material is subject to an actual or alleged infringement of a third party’s rights, title or interests (including any intellectual property rights);

5.2.3 forthwith by SnapTank or you if the other commits any material breach of any term of any of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;

5.2.4 forthwith by SnapTank or you if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).

5.3 Upon any termination of this Licence, (a) the rights and licences granted to you herein shall terminate; (b) you shall cease all use of the Licensed Material; (c) you shall delete or destroy (as applicable) all copies of the Licensed Material in your possession or under your control; and (d) you shall certify in writing to SnapTank your compliance with the foregoing. Clauses 1, 3, 4 (to the extent of unpaid obligations), 5.3, 6, 7 and 8.3 shall survive any termination of this Licence Agreement.

6. REPRESENTATIONS AND WARRANTIES

6.1 SnapTank warrants that the Licensed Material will be free from defects for a period of thirty (30) days from the date of your Order. You acknowledge and agree that your sole and exclusive remedy in respect of any defective Licensed Material will be either (a) replacement of the Licensed Material; or (b) refund of any Fee paid by you, decided at SnapTank’s sole discretion. SnapTank shall have no obligations under this clause 6.1 to the extent any defect was caused by you.

6.2 SnapTank warrants that your use of the Licensed Material in accordance with the terms of this Licence and in the form delivered to you pursuant to your Order (i.e. excluding any modifications, amendments or additions made thereto or its combination with any Work) shall not infringe the intellectual property rights of any third party.

6.3 The warranties set forth in this clause 6 are exclusive and in lieu of all other warranties, representations, guarantees, conditions and terms, whether express or implied, including without limitation relating to satisfactory quality, fitness for a particular purpose, arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.

7. LIMITATION OF LIABILITY

7.1 Subject to clause 7.4, the maximum aggregate liability of SnapTank arising out of or in connection with this Licence, whether in contract, tort (including negligence) or otherwise, shall be limited to the Fee paid by you under this Licence.

7.2 Subject to clause 7.4, in no event shall either party be liable for any special, indirect, incidental, or consequential damages.

7.3 You acknowledge that whilst the Licensed Material may be used in combination with your Work, SnapTank bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Licensed Material to integrate with the Work.

7.4 For the avoidance of doubt, nothing in this Licence shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for (a) death or personal injury resulting from their negligence; or (b) any liability for fraudulent misrepresentation; or (c) payments arising under clause 3.4.

8. GENERAL

8.1 You may not assign this Licence, in whole or in part, without the written consent of SnapTank.

8.2 This Licence Agreement and its performance shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the courts of England.

8.3 Licensee agrees that because of the unique nature of the Licensed Material and SnapTank’s proprietary rights therein, a demonstrated breach of this Licence Agreement by Licensee would irreparably harm SnapTank and monetary damages would be inadequate compensation. Therefore, Licensee agrees that SnapTank shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.

8.4 Any notice, request, instruction or other document to be given hereunder shall be delivered, sent by first class post, sent by e-mail or sent by facsimile to SnapTank’s address specified on the Website or your address specified in your Order (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and upon the expiration of 12 hours after dispatch (if sent by email or facsimile).

8.5 If any provision of this Licence is declared void, illegal, or unenforceable, the remainder of this Licence will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

8.6 Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Licence Agreement.

8.7 Neither SnapTank or Licensee shall be liable for any breach of this Agreement resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”). Each of SnapTank and Licensee agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 13 weeks then the party not in default shall be entitled to terminate this Agreement. Neither SnapTank nor the Licensee shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.

8.8 This Licence (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by you shall supersede this Licence. Each of the parties acknowledges that in entering into this Licence on the terms set out herein it has not relied on or been induced to enter into this Licence by any representation, warranty, undertaking, promise or assurance (whether made innocently or negligently) made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Licence other than those expressly set out in this Licence.

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