(Last UPDATED May 9, 2017)
This is a License Agreement between you and Benchmark Imaging, LLC (“Benchmark” or “Company”) that explains how you can use photos, illustrations, vectors, video and audio clips that you license from Benchmark (collectively, the “Content”). By purchasing and/or downloading Content from Benchmark, you accept the terms of this agreement.
- Types of Licenses Offered.
Benchmark offers two types of licenses: (1) temporary and (2) permanent. Every Content file purchased or downloaded from Benchmark comes with a temporary license. A permanent license gives you additional rights in exchange for an additional license fee. Unless you purchase a MarkTwo or MarkThree service level or a separate permanent license, your use of Content is subject to the temporary license terms.
- Use of Licensed Content.
You may use Content in any way that is not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Benchmark are:
a) Temporary license- the non-exclusive rights to use the Content, including without limitation, revised, updated, and new editions thereof, in whole or in part, in all forms, formats and versions (electronic or otherwise) expires for the period when the property associated with the Content is no longer actively listed by you and no longer available on the market to be sold.
b) Permanent license- the non-exclusive rights to use the Content, including without limitation, revised, updated, and new editions thereof, in whole or in part, in all forms, formats and versions (electronic or otherwise) with no expiration or end date on your rights to use the Content.
For purposes of this agreement, the term “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, advertise, promote, market, sell and distribute or otherwise make use of the Content.
- Restricted Uses.
You agree not to:
a) Use Content in a pornographic, defamatory or other unlawful manner;
b) Use Content in any way that allows others to download, extract, or redistribute Content as a standalone file (meaning just the Content file itself, separate from the project or end use);
c) Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Content;
d) Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of the Content;
e) Violate any applicable laws or regulations;
f) Falsely represent that you are the original creator of a work that is made up largely of licensed Content;
g) Use Content in connection with any goods or services intended for resale or distribution where the primary value lies in the Content itself including, without limitation, cards, stationery items, paper products, calendars, apparel items, posters (printed on paper, canvas, or any other media), CDs, DVDs, mobile applications or other items for resale, license or other distribution for profit unless you purchase a permanent license; and
h) Use Content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, brochure design templates) unless you purchase a permanent license.
- Permitted Users.
The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
a) If you are purchasing on behalf of your employer, then your employer can use the Content. In that case, 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 that authority, then your employer may not use the Content.
b) You may allow subcontractors (for example, your printer or mailing house) or distributors to use Content in any production or distribution process related to your final project or end use. These subcontractors and distributors may not use the Content for any other purpose.
Unless you purchase a permanent license, you may not store the Content on a server giving more than one person simultaneous access to the Content.
- Intellectual property rights.
You acknowledge and agree that Benchmark shall retain sole and exclusive ownership of, and all right, title, and interest in and to, the Content, including, but not limited to, all copyrights, moral rights, trademark rights, service mark rights and/or any and all other proprietary rights and any other intellectual property rights relating to the Content. All rights not expressly granted in this agreement are reserved by Benchmark.
You do not need to include credit for commercial use, but if you are using Content for editorial purposes, you must include the following credit adjacent to the Content or in audio/visual production credits: “Benchmark Imaging/www.benchmarkimagingcorp.com”.
This agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing use of the Content and deleting or destroying any copies. Benchmark may terminate this agreement at any time if you fail to comply with any of the terms, in which case you must immediately: cease using the Content; delete or destroy any copies; and, if requested, confirm to Benchmark, in writing, that you have complied with these requirements.
If you use the Content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the Content for its own purpose or in a way that is contrary to this agreement, this agreement shall immediately terminate.
All requests for refunds/cancellations must be made in writing. If the request is approved, Benchmark will issue a credit to your account or credit card. In the event of cancellation, your rights to use the Content terminate, and you must delete or destroy any copies of the Content.
Benchmark may discontinue licensing any item of Content at any time in its sole discretion. Upon notice from Benchmark, or upon your knowledge, that any Content may be subject to a claim of infringement of a third party’s right for which Benchmark may be liable, Benchmark may require you to immediately, and at your own expense: cease using the Content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Benchmark will provide you with replacement Content (determined by Benchmark in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
- Representations and Warranties.
Except with respect to Content identified as “editorial use only,” Benchmark represents and warrants that your use of the Content in accordance with this agreement and in the form delivered by Benchmark will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and all necessary model and/or property releases for use of the Content in the manner authorized by this agreement have been obtained.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, THE CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO STATEMENT OF THE COMPANY OR ANY OF THE COMPANY’S DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.
NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER THE COMPANY NOR ANY OF ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR AFFILIATES (COLLECTIVELY, THE “COMPANY PARTIES”) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO THE COMPANY’S PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS AND SERVICES IS TO OBTAIN A REFUND, THE MAXIMUM LIABILITY OF THE COMPANY PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THE COMPANY’S PROVISION OF (OR FAILURE TO PROVIDE) THE COMPANY OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU.
- Indemnification/Limitation of Liability
b) Indemnification by Benchmark. Provided that the Content is 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 7 above, Benchmark agrees, subject to the terms of this Section 9, 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 Benchmark of its warranty in Section 7 above. 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 Content or the context in which the Content is used by you. This indemnification also does not apply to your continued use of Content following notice from Benchmark, or upon your knowledge, that the Content is subject to a claim of infringement of a third party’s right.
- General Provisions.
a) This agreement is personal to you and is not assignable by you without Benchmark’s prior written consent. Benchmark may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
b) Electronic storage. You agree to retain the copyright symbol, the name of Benchmark, the Content’s identification number and any other information that may be embedded in the electronic file containing the original Content, and to maintain appropriate security to protect the Content from unauthorized use by third parties. You may make one (1) copy of the Content for back-up purposes.
c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its choice of law principles. The parties consent to exclusive jurisdiction and venue in the federal and state courts sitting in Collin County, Texas. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, costs and other expenses.
d) If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
e) No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
f) Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Benchmark and accepted in writing by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
g) All notices required to be sent to Benchmark under this agreement should be sent via email to firstname.lastname@example.org. All notices to you will be sent via email to the email set out in your account.
h) 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 Content.
i) Licensing Entity. The licensing entity under this agreement is determined based on your billing address and shall be as set out on your invoice.