SWOOPIER LICENSE AGREEMENT
This is a license agreement between you and Swoopier, LLC (“Swoopier”, “we”, “us”, or “our”) that explains how you can use photographs that you license from Swoopier (the “Photograph(s)”). By downloading, or otherwise using, Photographs and content from Swoopier, you accept the terms of this agreement. The terms under which we offer our Photographs may change, and you are bound by the terms in effect at the time you initially purchase a Photograph or download a Photograph if acquiring the Photograph through a membership.
License Types. Swoopier offers three types of licenses: Online License, Membership Version of Online License, and Print License. Unless otherwise agreed to in writing, every photograph obtained from Swoopier will be subject to one of those licenses. Which license applies depends on which license was purchased and whether it was purchased as part of a Swoopier membership.
- Online License. This license is the default license and applies to all Photographs unless those Photographs were obtained through a Swoopier membership or a Print License is purchased for those Photographs.
- Membership Version of Online License. This license applies to all Photographs obtained through a Swoopier membership, unless a Print License is purchased for that Photograph.
- Print License. This license applies only to Photographs for which a Print License is purchased.
Permitted Uses. Unless otherwise agreed to in writing, you may ONLY use the Photographs in accordance with the terms of the applicable license, and if such use is not otherwise restricted (see Restricted Uses below). The specific rights granted to you by us depend on the license type purchased by you. For purposes of this agreement, "use" means to copy, display, publish, or perform limited editing (in accordance with Restricted Uses below).
- Online License. Under the Online License, we grant you a perpetual, worldwide, non-exclusive, non-transferrable, non-sublicensable, license to use the Photograph on or in websites, web and mobile applications, email, and text messaging.
- Membership Version of Online License. Under a Membership Version of Online License, we grant you a worldwide, non-exclusive, non-transferrable, non-sublicensable, license to use, reproduce, and display the Photograph on or in websites, web and mobile applications, email, and text messaging as long as your Swoopier membership is active. If your membership is terminated, your license is immediately terminated and you must cease all use of the Photographs immediately.
- Print License. Under the Print License, we grant you a perpetual, worldwide, non-exclusive, non-transferrable, non-sublicensable, license to use the Photograph on or in websites, web and mobile applications, email, and text messaging, and up to 100,000 times in physical print form.
- Limited editing rights. Unless agreed to by us in writing, you may not modify the Photographs in any way, including by applying filters, color adjustments, or automated editing, except as permitted below. The following edits are permitted: minor image markups (including text overlay for sales), minor cropping, resizing to a lower resolution if necessary for use with digital platform or communication, and the addition of property lines.
- Limited print rights. Unless you purchase a Print License you may not reproduce the Photographs in physical print form.
- No Unlawful Use. You may not use Photographs in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations or industry codes.
- No Standalone File Use. You may not use Photographs in any way that allows others to download, extract, or redistribute Photographs as a standalone file (meaning just the Photograph file itself, separate from the project or end use).
- No Use in Trademark or Logo. You may not use Photographs (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, tradename, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such Photographs (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third-party use of the Photographs or any similar Photographs (including by us, our customers, or the copyright owner of such Photographs).
- No False Representation of Authorship. You may not falsely represent that you are the original creator of an end use that is made up largely of licensed Photographs.
- No Products for Resale. You may not use Photographs in connection with any goods or services intended for resale or distribution where the primary value lies in the Photographs 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.
- No Electronic Templates. You may not use Photographs 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).
- No Immutable Digital Assets. You may not use any Photographs in connection with an immutable digital asset intended for sale (such as a non-fungible token).
- No Machine Learning, AI, or Identification of Natural Persons Use. You may not use the Photographs (including any caption information, keywords or other metadata associated with the Photographs) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons.
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 (but these exceptions remain subject to restrictions on the number of users, see below):
- Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the Photographs (but only consistent with the number of user restrictions listed below). 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 or client may not use the Photographs.
- Subcontractors. You may allow subcontractors (for example, your printer or mailing house) to use the Photographs in connection with your business or projects as long as their use is consistent with your rights and restrictions under this agreement. These subcontractors and distributors may not use the Photographs for any other purpose.
- Number of Permitted Users. Except as otherwise provided for in this agreement, only one person (the same person) may access, license, and use the Photographs. If the Photographs are acquired as part of a Swoopier membership, the number of permitted users is limited as follows:
Number of Permitted Users
- User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (1) maintain the security of all passwords and usernames; (2) notify Swoopier immediately of any unauthorized use or other breach of security; and (3) accept all responsibility for activity that occurs under each user account. Swoopier reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Swoopier determines that you are in breach of this or any other term of this agreement, it may suspend access to your account, terminate your membership, and seek further legal remedies.
- Intellectual Property Rights. SWOOPIER OWNS AND RETAINS ALL RIGHT, TITLE, AND INTEREST IN AND TO THE PHOTOGRAPHS, AND ANY NEGATIVES, DIGITAL FILES, AND PREVIEWS OF THE SAME. ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT ARE RESERVED BY SWOOPIER. EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, IT IS ILLEGAL TO USE, REPRODUCE, ALTER, DISPLAY, PUBLISH, OR OTHERWISE USE THE PHOTOGRAPHS, AND VIOLATORS MAY BE SUBJECT TO CIVIL AND CRIMINAL PENALTIES UNDER FEDERAL LAW.
Termination. Except in the case of Swoopier memberships, this agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing use of the Photographs and deleting or destroying any copies. Swoopier may terminate this agreement at any time if you fail to comply with any of the terms of this agreement, in which case you must immediately: cease using the Photographs; delete or destroy any copies; and, if requested, confirm to Swoopier in writing that you have complied with these requirements.
- Membership Termination. If this agreement was entered into as part of a Swoopier membership, the agreement terminates immediately upon termination of your Swoopier membership. Swoopier may terminate any licenses before the end of the membership period if it reasonably believes there is a violation of this agreement and/or abuse of the membership account, in which case you must immediately: cease using the Photographs; delete or destroy any copies; confirm to Swoopier in writing that you have complied with these requirements; and pay Swoopier any amounts which remain owing to the end of the term of your Membership.
- Social Media Termination. If you use the Photographs on a social media platform or other third-party website and the platform or website uses (or announces that it plans to use) the Photographs for its own purpose or in a way that is contrary to this agreement, this agreement shall immediately terminate.
Refunds/Cancellation. All requests for refunds/cancellations must be made in writing. If the request is approved, Swoopier will issue a credit to your account or credit card. In the event of cancellation of your membership, your rights to use the Photographs terminate, and you must immediately delete or destroy any copies of the Photographs.
- Membership Refunds. Refunds for memberships can be made within 7 days of your invoice date, provided you have not downloaded or made use of any Photographs.
- File Download Refunds. Swoopier does not offer refunds or credits for downloaded files. File returns will only be considered based on technical issues with the file at the sole discretion of Swoopier.
- Photographs Withdrawal. Swoopier may discontinue licensing any Photograph at any time in its sole discretion. Upon notice from Swoopier, or upon your knowledge, that any Photographs may be subject to a claim of infringement of a third party's right for which Swoopier may be liable, Swoopier may require you to immediately, and at your own expense: cease using the Photograph, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Swoopier will provide you with replacement Photographs (determined by Swoopier in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
- Termination. Except in the case of Swoopier memberships, this agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing use of the Photographs and deleting or destroying any copies. Swoopier may terminate this agreement at any time if you fail to comply with any of the terms of this agreement, in which case you must immediately: cease using the Photographs; delete or destroy any copies; and, if requested, confirm to Swoopier in writing that you have complied with these requirements.
Warranty and Disclaimer. Swoopier warrants that the Photograph will not infringe on any copyright or moral right of the artist, but it 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 Photographs. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the Photograph and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained by Swoopier for the Photographs, and that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes when they have not provided a release.
- Caption/Metadata Disclaimer. While we have made reasonable efforts to correctly categorize, keyword, caption and title the Photographs, Swoopier does not warrant the accuracy of such information, or of any metadata provided with the Photographs.
- No Other Warranties. Except as provided in the "Warranty and Disclaimer" section above, the Photographs are provided "as is" without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Swoopier does not represent or warrant that the Photographs will meet your requirements or that its use will be uninterrupted or error free.
- Indemnification. You agree to defend, indemnify and hold harmless Swoopier and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective members, managers, officers, directors and employees from all damages, liabilities and expenses (including reasonable legal costs including attorney 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.
Limitations of Liability.
- No Consequential or Indirect Damages. IN NO EVENT SHALL SWOOPIER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SWOOPIER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Maximum Liability. IN NO EVENT SHALL SWOOPIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SWOOPIER PURSUANT TO THIS AGREEMENT.
- Assignment. This agreement is personal to you and is not assignable by you without Swoopier’s prior written consent. Swoopier 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.
- Audit/Certificate of Compliance. Upon reasonable notice, you agree to provide to Swoopier sample copies of projects or end uses that contain licensed Photographs, including by providing Swoopier with free of charge access to any pay-walled or otherwise restricted access website or platform where Photographs are reproduced. In addition, upon reasonable notice, Swoopier 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 Photographs in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Swoopier of five percent (5%) or more of the amount you should have paid, then in addition to paying Swoopier the amount of the underpayment, you also agree to reimburse Swoopier for the costs of conducting the audit. Where Swoopier reasonably believes that a Photograph is being used outside of the scope of the license granted under this agreement, you agree, at Swoopier’s request, to provide a certificate of compliance signed by an officer of your company, in a form to be approved by Swoopier.
- Electronic storage. You agree to retain the copyright symbol, the name of Swoopier, the Photograph’s identification number and any other information that may be embedded in the electronic file containing the original Photographs, and to maintain appropriate security to protect the Photograph from unauthorized use by third parties. You may make one (1) copy of the Photograph for back-up purposes.
- Governing Law/Arbitration. This agreement will be governed by the laws of the State of Florida, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS' Expedited Procedures in its Comprehensive Arbitration Rules and Procedures ("JAMS") in effect on the date of the commencement of arbitration. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover its reasonable legal costs including attorney fees relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Swoopier shall 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 Swoopier, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
- Severability. 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.
- Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
- 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 Swoopier and accepted by you either in writing or by your continued use of your Swoopier membership.
- Notice. All notices required to be sent to Swoopier under this agreement should be sent via email to email@example.com. All notices to you will be sent via email to the email set out in your account.
- Taxes. 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 Photographs.
- Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, Swoopier may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
- Fees and Renewal. If your membership is set to automatically renew, you authorize Swoopier to charge the applicable membership fees at the then applicable rate and taxes for the membership to your credit card on file at the expiration of the term. You may change your auto-renewal preferences by contacting Swoopier at firstname.lastname@example.org. Your membership may only be cancelled as set out in this agreement. Swoopier may deactivate your membership without prior notice if Swoopier is unable to process payment through the credit card provided by you.