THIS PHOTO USE AGREEMENT (THIS “AGREEMENT”) CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN THE PERSON OR ENTITY PURCHASING RIGHTS TO THE ASSET (AS DEFINED BELOW) (“YOU”) AND BAT CONSERVATION INTERNATIONAL (“BCI”).
YOU MUST READ CAREFULLY AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT BEFORE YOUR ORDER (AS DEFINED BELOW) CAN BE COMPLETED. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT DOWNLOAD, ACCESS OR USE ANY DIGITAL ASSET APPEARING ON THIS WEBSITE, INCLUDING, WITHOUT LIMITATION, EACH DIGITAL ASSET IDENTIFIED ON AN ORDER, LOCATED AT WWW.BATCON.ORG (THE “SITE”) OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT (EACH, AN “ASSET”). YOUR CLICKING ON THE BUTTON MARKED “I AGREE” AND/OR YOUR DOWNLOAD, ACCESS AND/OR USE OF ANY ASSET INDICATES (1) YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT, AND (2) YOU HAVE AUTHORITY TO LEGALLY BIND TO THIS AGREEMENT THE INDIVIDUAL OR ENTITY SPECIFIED IN THE ORDER THAT REFERENCES THIS AGREEMENT.
1.0 ORDERS AND FEES
1.1 Orders. You may select Assets to download from the Site, and be subject to the terms and conditions of this Agreement with respect to such Assets, by completing an order via BCI’s Digital Asset Management system on the Site (an “Order”).
1.2 Fees; Payment. In consideration of and prior to completing each Order, you shall pay BCI the fees payable with respect to a license of the Assets and any associated sales, value added, use and/or other taxes and government charges required to be collected by BCI via credit card, Automated Clearing House (“ACH”) debit from your designated U.S. bank account. All such taxes shall be based on your “bill-to address” and shall be determined at the rate in effect at the time each Order is completed. Taxes will be charged only in states and other taxing jurisdictions where digital goods and services are taxable. The fee payable in respect of each Asset is as set out on the Order and/or the Site. All fees and prices are subject to change at the sole discretion of BCI. Your payment of, and BCI’s receipt, of such fees shall complete your Order for the Assets identified therein and entitles you to use such Assets, subject to the terms and conditions of this Agreement.
2.0 LICENSE; RESTRICTIONS
2.1 License. Subject to the terms and conditions of this Agreement, upon completion of an Order (including, without limitation, the payment of the fees contemplated in Section 1.2), BCI hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Asset identified on a completed Order solely in connection with the one-time purposes and/or uses identified on such Order and limited to the individual edition, volume, series, show, event, or other use so identified (the “Permitted Use”); provided, that (1) you do not modify the Asset, (2) as between you and BCI, BCI retains all copyright and other intellectual property and proprietary right notices contained on or in the Asset, (3) you do not use, copy, modify, translate, publish, broadcast, transmit, distribute, perform, reproduce, display, republish, download or sell any Asset except for the Permitted Use, in accordance with the terms of an Order, or with the prior written consent of BCI, and (4) you do not use the Asset for any defamatory, libelous, scandalous, misleading, pornographic or otherwise unlawful use.
2.2 Copying. Without limiting the generality of the foregoing, you may make one (1) copy of the Asset for backup purposes only, which copy shall only be used in the event the original Asset becomes defective, destroyed or otherwise irretrievably lost. The Asset must not be downloaded to create, establish or form any part of an online interactive stock photo or video library, nor may it be used in relation to any business similar to or in competition with that operated by BCI.
2.3 Rights. All rights to the Asset are owned by BCI and/or its creators and are protected by United States of America copyright laws, international treaty provisions and other applicable laws of jurisdictions worldwide. All rights not expressly granted to you pursuant to this Agreement are expressly reserved by and to BCI.
2.4 Trademarks and Logos. An Asset may contain trademarks, service marks, trade names, trade dress, brands, and logos (“Trademarks”) that appear in or on the Asset. This Agreement does not grant any rights to use any Trademarks and any use of any Trademarks must be used in a manner permitted by the holder(s) of rights to such Trademarks.
2.5 Copyright Notices; Moral Rights.
2.5.1 You shall ensure that your use of any licensed Asset is marked with the appropriate copyright notices in a reasonably prominent position in the order and manner provided by BCI (including without limitation as may be already located on the Asset or as set forth in the Order). You shall abide by the copyright laws and what are considered to be sound practices for copyright notice provisions in the jurisdiction(s) where you access or use the Asset. You shall not use any copyright notices that conflict with, confuse, or negate the notices BCI provides and requires hereunder.
2.5.2 It is acknowledged that the photographer of the Asset may have certain moral rights in the Asset in certain jurisdictions. In recognition of this, (a) you hereby warrant that you will not breach any of the author’s moral rights in relation to the Asset, whether or not in the course of reproducing the Asset in a material form, publishing, transmitting or exhibiting the Asset or otherwise, and (b) a credit line in the following form must appear adjacent to the Asset in respect of each use by you of the Asset:
3.0 TERM; TERMINATION
3.1 Term. This Agreement shall remain in full force and effect as long as you use the Asset, unless terminated earlier as provided herein.
3.2 Termination. BCI reserves the right (in its sole discretion, at any time, for any or no reason, with or without prior notice, and without liability) to restrict, suspend, or terminate your access to or use of all or any part of the Assets and/or take technical and/or legal steps to prevent you from accessing and/or using the Assets. Without limiting the generality of the foregoing, this Agreement will terminate automatically, with or without notice from BCI, if you fail to comply with any provision of this Agreement. Even after your access to or use of any Asset is terminated, this Agreement will remain in effect as applicable to your access or use of any Asset prior to such termination.
3.3 Effects of Termination. Upon termination of your access to or use of any Asset, all rights thereto licensed under this Agreement will revert immediately to BCI and you shall immediately (a) stop using the Asset, and (b) delete the Asset and all copies of it from all magnetic media and destroy all other copies or, upon the request of BCI, return all such copies to BCI.
3.4 Discontinuance. BCI reserves the right to discontinue the use of any Asset for any reason and to elect to replace such Asset with an alternate Asset. Upon notice from BCI of any discontinuance of a license for a particular Asset, your license to use the discontinued Asset shall terminate and you shall comply with Section 3.3 with respect to such Asset.
4.0 WARRANTIES AND OBLIGATIONS
4.1 Warranties and Obligations. You hereby represent, warrant and covenant that (a) you will comply with all, and will not access, use, view, download or attempt to download an Asset, data file, or other material from the Site in any way prohibited by or which breaches any, applicable laws, including, without limitation, (i) the laws of the jurisdiction in which you are currently situated and/or permanently reside and/or conduct business and/or intend to use the Asset and (ii) laws and regulations relating to currency and moral rights, (b) you will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of any Asset or BCI, or cause confusion as to the ownership of any Asset, (c) your access to or use of any Asset will not infringe, misappropriate, or otherwise violate the intellectual property or other rights of any third party, (d) you have secured all third party consents, licenses and permissions necessary to enter into and perform under this Agreement and each Order and no further action or authorization on the part of you or any third party, or payment to any third party, is necessary for you to carry out the terms and conditions of this Agreement or any Order, (e) all information provided by you in connection with this Agreement and any Order is accurate and true in all respects, and (f) there is no agreement, understanding, license, right, restriction, settlement, consent, judgment, order, or pending or, to your knowledge, threatened litigation, arbitration or administrative proceeding that restricts, impairs, limits or otherwise adversely affects, or which could be reasonably expected to restrict, impair, limit or otherwise adversely affect, any Order or your ability to perform your obligations under this Agreement.
5.0 INDEMNIFICATION; LIMITATION ON LIABILITY
5.1 Indemnification. You agree to indemnify and hold harmless BCI and its Related Parties (as defined below) from and against any and all Claims (as defined below) arising out of or related to your breach of any of the representations, warranties or covenants of this Agreement including, without limitation, Claims arising out of your use of any Assets in a manner outside of the Permitted Use.
5.2 DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT THE ASSET IS PROVIDED ON AN “AS IS” BASIS AND, TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, RULES, AND REGULATIONS, BCI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL AND WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. YOU UNDERSTAND AND AGREE THAT BCI IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY.
5.3 LIMITATION ON LIABILITY.
5.3.1 IN NO EVENT SHALL BCI OR ANY OF ITS AFFILIATES, OR ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OWNERS OR REPRESENTATIVES OF ANY OF THE FOREGOING (COLLECTIVELY, “RELATED PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS, OR LOSS OF GOODWILL, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, EVEN IF BCI OR ANY OF ITS RELATED PARTIES HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
5.3.2 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NONE OF BCI NOR ANY OF ITS RELATED PARTIES ARE LIABLE OR SHALL BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OR INABILITY TO USE THE ASSETS, (II) THE ACTIONS OR OMISSIONS OF THIRD PARTIES, OR (III) A SUSPENSION OR TERMINATION OF YOUR ACCESS TO ANY ASSETS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS OF WARRANTIES OR EXCLUSIONS OF DAMAGES AND, TO THE EXTENT PROHIBITED BY LAW, SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU.
5.3.3 REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF BCI OR ANY RELATED PARTY IS FOUND TO BE LIABLE, THE AGGREGATE LIABILITY OF BCI AND ITS RELATED PARTIES FOR ANY AND ALL CLAIMS, ACTIONS, DEMANDS, LOSSES, LIABILITY, DAMAGES (ACTUAL AND CONSEQUENTIAL), COSTS, EXPENSES OR SIMILAR ITEMS OF ANY KIND OR NATURE, WHETHER KNOWN OR UNKNOWN (COLLECTIVELY, “CLAIMS”) ARISING UNDER OR RELATED TO THIS AGREEMENT, THE SITE, ANY ASSET OR OTHERWISE SHALL BE LIMITED TO THE GREATER OF (I) ONE HUNDRED U.S. DOLLARS ($100), OR (II) THE FEES ACTUALLY PAID BY YOU TO AND RETAINED BY BCI FOR THE ASSETS SET FORTH IN THE ORDER.
6.1 Disputes; Governing Law. PLEASE READ THIS PROVISION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
6.1.1 This Agreement and all matters arising out of or relating to this Agreement are governed by the laws of the State of Texas, without giving effect to any conflict of laws provisions thereof. Any dispute regarding this Agreement, including the validity, interpretation, performance, or breach thereof shall be arbitrated in Austin, Texas under the rules of the American Arbitration Association (“AAA”) in accordance with Section 6.1.2. Without limiting the generality of the foregoing, you may submit any claim or dispute, without arbitration, to any small claims court having jurisdiction thereof, if the claim or dispute so qualifies, so long as the claim or dispute remains in small claim court and advances on an individual (non-class) basis.
6.1.2 The arbitration will be conducted by the American Arbitration Association under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable) as modified by this Agreement to arbitrate. The AAA’s rules are available at www.adr.org. The AAA’s rules shall govern the number of arbitrators assigned to conduct the arbitration. The party intending to seek arbitration shall send to the other notice of the dispute in accordance with Section 6.5. If you and BCI are unable to resolve any of the claims or disputes described in such notice within thirty (30) days after such notice is received, either party may initiate arbitration proceedings. The form for initiating arbitration is available at www.adr.org, and the party initiating arbitration must both file this form with the AAA and send a copy of the completed form to the other party in accordance with Section 6.5. Any settlement offer made by you or BCI shall not be disclosed to the arbitrator. The arbitration hearing shall be held in a mutually agreed location. The arbitrator’s award shall be consistent with this Agreement and final and binding, and judgment shall be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees and costs and attorneys’ fees shall be governed by AAA’s rules.
6.1.3 If the Order constitutes your first purchase of a license to any Asset, you can opt-out of this requirement to arbitrate by mailing a written-opt out notice postmarked no later than thirty (30) days after the date you accept the terms of this Agreement for the first time. The opt-out notice should be mailed to BCI in accordance with Section 6.5. The opt-out notice should state that you are opting out of the agreement to arbitrate in the BCI Photo Use Agreement and provide your name, address, phone number, electronic mail address, signature and date.
6.1.4 If the agreement to arbitrate does not apply to you, either because you opt-out or as a result of a decision by an arbitrator or court order, you agree that any claim or dispute that has arisen between you and BCI will be resolved exclusively by a state or federal court located in Austin, Texas. You and BCI agree to submit to personal jurisdiction of the courts located in Austin, Texas for purposes hereof.
6.2 Assignment. You may not assign or transfer this Agreement, any Asset, or any of your rights and obligations set forth in this Agreement (with respect to the Asset or otherwise) to any third party, by operation of law or otherwise, and any such attempted transfer shall be null and void. The rights and permissions granted to you under this Agreement are personal. No Asset may be assigned, transferred, sublicensed or re-sold or otherwise made available for use or distribution separately or detached from a product or web page. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns.
6.3 Amendment; Waiver. This Agreement may be amended or supplemented only in a writing signed by authorized representatives of both parties hereto. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
6.4 Severability. Any provision in this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be enforced to the maximum extent permissible so as to effect the intent of the parties hereto, without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction.
6.5.1 Any notice required or permitted to be given to any party to this Agreement shall be in writing and shall (i) if to BCI, be either personally delivered by hand, delivered by prepaid courier or sent by prepaid registered mail and shall be deemed received upon delivery, and (ii) if to you, be delivered via email and shall be deemed received upon sending.
6.5.2 Any such notice shall be delivered or sent: (i) if to BCI, to Bat Conservation International, 500 N Capital of TX Hwy., Bldg. 1, Austin, TX 78746, with a copy to Bat Conservation International, 1012 14th Street NW, Suite 905, Washington, DC 20005, and (ii) if to you, to your email address specified on the Order or in connection with their respective account established with BCI.
6.5.3 The address at which notice may be given to a party may be changed by such party by giving written notice to the other parties as provided in this Section 6.5.
6.6 Independent Contractors. Nothing herein shall be deemed to constitute you and BCI as partners, joint venturers, or principal and agent. You have no authority to represent BCI as to any matters. BCI shall have no liability for the acts or omissions of your personnel or subcontractors.
6.7 Headings. Headings used or contained in this Agreement are for reference purposes only and do not constitute part of this Agreement or the interpretation thereof.
6.8 Entire Agreement. This Agreement and the Order sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof, and supersedes any and all prior proposals, agreements, understandings, and contemporaneous discussions, whether oral or written, between the parties with respect to such subject matter.