Buyer Agreement
This agreement (this "Agreement") shall be binding upon DiagramArt, owned and operated by Synthetic Spheres Inc. ("DiagramArt") and any member who downloads any digital content referenced as digital work (the "Work") from the DiagramArt.com website or API. The Buyer acknowledges and agrees that he or she shall be bound by the terms and conditions of this Agreement and that this Agreement applies to each Work that the Buyer downloads.
Except where otherwise noted, all digital content distributed on this site is licensed under a Creative Commons Attribution 4.0 International license.To learn more about Creative Commons Attribution 4.0 International License click here.
1. No Sale
The Buyer acknowledges and agrees that this Agreement does not effectuate any sale of the Work. Except for the rights specifically sublicensed under this Agreement, the Buyer shall not have any right, title or interest in or to, and in any event shall have no ownership of, the Work, including any copyright and other intellectual property rights.
2. Sublicense
Subject to the terms and conditions of this Agreement, DiagramArt hereby grants to the Buyer a non-exclusive, perpetual, worldwide, non-transferable sublicense to use, reproduce or display the Work in the authorized media solely for (a) personal or educational purposes and (b) in connection with the operation of a business. However, the Buyer shall have no right to sell or otherwise distribute the Work or any reproductions thereof to any third parties, whether alone or incorporated or together with or onto any item of merchandise or other work of authorship, in any media or format now or hereafter known. Notwithstanding the above, the Buyer shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-DiagramArt digital content(s)), provided however that the modification must be sufficient enough to qualify as an original work of authorship. Furthermore, the Buyer shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the primary value of the item being sold or distributed does not lie with the Work(s) themselves. For greater clarity, it is noted that reproducing the unmodified Work on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Work itself. The Work may also be distributed free of charge in the form of advertising and promotional material, such as brochures, flyers, and the like. The Buyer shall have no right to grant further sublicenses. The Buyer shall have the right to transfer files containing the Work or permitted derivative works to employees, or have the Work reproduced by subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this agreement. In the normal course of workflow, the Buyer may also convey to a third party (such as a printer) temporary copies of the Work that are integral to the work product and without which the work product could not be completed. Third parties, employees and subcontractors shall have no further or additional rights to use the Work and cannot access or extract it from any other file provided. The Buyer may create a digital library, network configuration or similar arrangement to allow the Work to be viewed by their employees, partners and clients. The Buyer shall pay to Synthetic Spheres Ins. a sublicense fee in accordance with DiagramArt’s Standard pricing and payment policies; provided however that such fee (or a portion thereof) may be required to be paid by the Buyer to DiagramArt’s subsidiary, Synthetic Spheres Slovakia s.r.o ., depending on the Non-Exclusive Buyer’s country of residence or on other similar parameters to be determined by DiagramArt. Notwithstanding anything to the contrary contained in this Agreement, with respect to electronic formats, the Non-Exclusive Buyer's reproduction, distribution or display of the Work : (i) it is intended that this sublicense shall permit use, edit, update, reproduction and display of the Work in or for a business or commercial setting or circumstances, display in an office or other place of business, on advertising and promotion materials, and the like.
Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the restriction in subsection 3(a) below), the Buyer may utilize all the rights under this Agreement for itself, and additionally, on behalf of one (1) of its clients. As such, the Buyer may sublicense its rights and obligations hereunder to one (1) such client, and such client shall have all the rights, restrictions and obligations under this Agreement, but without the right to further sublicense these rights to additional parties. If the Buyer desires to use the Work on behalf of more than one (1) client, then the Buyer will have to download and pay for additional license(s) to the same Work.
Notwithstanding the above, if a Work is in violation of DiagramArt’s Terms and Conditions of Use, DiagramArt reserves the right to instruct the Buyer to cease all use, distribution and possession of such Work, and the Buyer must promptly comply with such instructions.
2.A Social Media
With respect only to Works which are clearly designated or marked on DiagramArt’s website as being “Social-Media Enabled”, in which relevant copyright information is visibly embedded onto the Work and which comply with the size restrictions set forth on DiagramArt’s website (the “Social-Media Enabled Works”): The Buyer may post and/or upload the Social-Media Enabled Works (and modifications thereof) directly onto Social Media Websites and Applications (as defined below) as long as the applicable terms of use of the Social Media Websites and Applications which govern such posting or uploading do not include any provision which would claim to grant any exclusive rights or ownership to the Social Media Websites and Applications or to any other party in respect of such Work or modified Work (the “Social Media Posting”). For purposes hereof, the term “Social Media Websites and Applications” shall mean: A website or technological application which has a primary focus on facilitating social interaction among its users and allowing users to generate, share, exchange and/or modify content in connection with such social interaction. For clarity, the permissions granted in this Section 2A are effective only for Social-Media Enabled Works; and accordingly any Works which are not Social-Media Enabled Works may not be posted or uploaded to Social Media Websites and Applications, unless such posting or uploading is otherwise permitted elsewhere under this Agreement.
3. Restrictions
Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, the Buyer acknowledges, agrees and warrants that he or she shall not:
(a) sublicense, sell, assign, convey or transfer any of it's rights under this agreement. Sell, license or distribute the Work or any modified Work as stand-alone files or as part of an online database or any other database, or any derivative product containing the Work in such way that would allow a third party to download, extract or access the Image as a stand-alone file; provided however that such prohibition shall not prohibit Social Media Posting by the Non-Exclusive Buyer, as described in Section 2A above;
(b) share the Work with any other person or entity except as expressly permitted under this Agreement;
(c) post the Work online in downloadable format, post the Work on an electronic bulletin board, or enable the Work to be distributed via mobile telephone devices; provided however that such prohibition shall not prohibit Social Media Posting by the Non-Exclusive Buyer, as described in Section 2A above. Include the Work in any electronic template or application, including those that are web based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to any kinf of design, architecture, presentation templates, consumer products or any other digital or physical matter;
(d) download or store the Work on more than one computer at the same time, except that the Buyer may make a single backup copy to be stored on media separate from the single permitted computer;
(e) use, reproduce, distribute or display the Work in connection with any potential or existing diagram markets intended for resale;
(f) use, reproduce, distribute or display the Work in connection with any goods or services intended for resale or distribution which primary value lies in the work itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
(g) use, reproduce, distribute or display the Work (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libelous or slanderous or otherwise defamatory, obscene or indecent;
(h) remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form, it being understood that the Buyer shall reproduce any and all such notices in any backup copy of the file comprising the Work that the Buyer makes;
(i) incorporate the Work into a trademark or service mark;
(j) take any action in connection with the Work that violates any law, regulation or statute in an applicable jurisdiction;
(k) Use the Work in an editorial manner, without the following credit adjacent to the Image: "© [Author's name] / DiagramArt” (the “Copyright Notice”); provided however that if such Copyright Notice is not required under applicable law for use in a particular situation, AND if it would not be customary to include such Copyright Notice in such particular situation, then the Copyright Notice will not be necessary for use in such particular situation only;
(l) take any action in connection with the Work that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Work and the rights of any person who, or any person whose property, appears in the Work; or
(m) take any action in connection with the Work that would reasonably imply that the creator of the Work, or the persons or property appearing in the Work (if any), endorse any political, economic or other opinion-based movements or parties.
(n) use the Work in a way that places author in a bad light or in a way that they may find offensive - this includes, but is not limited to:
(1) the use of work;
(2) ads for adult entertainment clubs or similar venues, or for escort or similar services;
(3) political endorsements;
(4) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content.
(o) The Buyer may not cause or allow any given Work (including modifications thereof) to be reproduced more than 100,000 times, in total. For example, a Work may not appear on more than 100,000 flyers, magazine advertisements, book covers, product packages, etc. Likewise, the Buyer may not cause or allow any given Work (including modifications thereof) to be incorporated into a television program, advertisement, video, film, or other production if the audience is (or is anticipated to be) greater than 100,000 viewers, in total. However, such restriction shall not apply to reproductions of the Work which are only displayed on a website, social media platform, or similar media.
4. Payments and Pricing
As indicated above, the Buyer shall pay to DiagramArt a sublicense fee in accordance with DiagramArt’s Standard pricing and payment policies; provided however that such fee (or a portion thereof) may be required to be paid by the Buyer to DiagramArt’s subsidiary, Synthetic Spheres Slovakia s.r.o, depending on the Non-Exclusive Buyer’s country of residence or on other similar parameters to be determined by DiagramArt.
5. Ownership and Retention of Rights
The Buyer acknowledges and agrees that DiagramArt and/or its licensor retains all rights, title and interest in and to the Work (except for the rights granted pursuant to this Agreement), and that neither title nor any ownership interest in or to the Work is transferred to the Buyer by virtue of this Agreement. DiagramArt and/or its licensor (as applicable) shall also retain the right to use, reproduce or display the Work solely to demonstrate the Work as part of his or her professional portfolio. Without any limitation to any other rights that DiagramArt may retain, DiagramArt shall continue to have the right to use the Work for internal archival and reference purposes.
6. Representations and Warranties
In addition to the representations and warranties made by the Buyer above, each of DiagramArt and the Buyer hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
7. Indemnification
The Buyer agrees to indemnify, defend and hold harmless DiagramArt and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, "Indemnitees") from and against all claims, expenses (including attorney fees) or other liability arising from the Non-Exclusive Buyer's breach of any of his or her representations, warranties or obligations under this Agreement, and from any and all uses of the Work, including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or "false light", right of publicity or blurring or distortion or alteration whether or not intentional. DiagramArt shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by the Buyer with counsel of its own choosing. The Buyer shall fully cooperate with DiagramArt in the defense of any such claim, action or matter.
8.A Limitations and Disclaimer
This Section 8A is subject to the limited warranty provided in Section 8B below, and shall not derogate from any of the provisions contained in such Section 8B.
The Buyer agrees that neither DiagramArt nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than the Buyer), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use or non-use of the Work, even if such parties have been advised, or advised of the possibility, of such damages.
The Buyer acknowledges that DiagramArt generally does not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Works. The procuring of such releases is the responsibility of the Non-Exclusive Buyer.
The Buyer acknowledges that DiagramArt generally does not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Works. It is generally not possible for any stock image library or artist to get blanket releases for such products, but they can often be obtained on a case-by-case basis. The procuring of such releases is the responsibility of the Non-Exclusive Buyer.
THE WORK IS PROVIDED "AS IS" AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.B Limited Warranty
(a) Subject to the terms and conditions contained in this Agreement, including without limitation the provisions relating to limitation of liability in this Section 8B, DiagramArt hereby represents and warrants that, notwithstanding anything to the contrary in Section 8A above, the utilization by the Buyer of an unaltered Paid-for Work (as defined below) pursuant to the terms of this Agreement shall not infringe or violate the intellectual property rights, publicity rights or privacy rights of any third party, and that all necessary model and property releases have been properly obtained in respect of such unaltered Paid-for Work. “Paid-for Work” means any Work downloaded from DiagramArt’s website, apart from any Work which (i) is a part of DiagramArt’s collection of free Works, and/or (ii) otherwise can be downloaded without payment of credits or monetary compensation.
(b) Subject to subsections (c), (d) and (e) below, DiagramArt agrees to indemnify, defend and hold harmless the Buyer from and against all damages, liabilities and expenses (including reasonable attorney fees) arising directly from any actual or threatened lawsuit, claim or legal proceeding (collectively, a “Claim”) commenced by a third party against the Non-Exclusive Buyer, where such Claim alleges that the Non-Exclusive Buyer’s utilization of the unaltered Paid-for Work pursuant to the terms of this Agreement is in breach of the representations and warranties set forth in subsection (a) above; conditioned upon and provided that the Buyer gives DiagramArt (i) prompt written notice of any threatened Claim known to the Buyer or any suit or proceeding actually initiated against the Non-Exclusive Buyer, (ii) full information, assistance and cooperation for the defense or settlement thereof, and (iii) at DiagramArt’s option, sole control of any defense, settlement or action related thereto; and further provided that the use and/or distribution by the Buyer of the unaltered Paid-for Work has been at all times in accordance with the terms and conditions of this Agreement and that the Buyer is not otherwise in breach of this Agreement.
(c) DiagramArt shall have no liability for, and DiagramArt’s obligations under subsection (b) above shall not apply to: (i) any damages, liabilities or expenses incurred by the Buyer prior to its notification of the Claim to DiagramArt; and/or (ii) any Claim based on or arising out of: (1) the modification by the Buyer of the Paid-for Work; (2) the combination of the Paid-for Work with any other work(s); and/or (3) the context in which the Paid-for Work has been used by the Non-Exclusive Buyer.
(d) Notwithstanding anything to the contrary contained in this Agreement or in any other agreement between DiagramArt and the Non-Exclusive Buyer, the total maximum aggregate liability of DiagramArt with respect to any Paid-for Work downloaded or licensed by the Buyer shall in no event exceed US$10 (ten US dollars) per Paid-for Work, irrespective of the number of times the Paid-for Work is downloaded or licensed. DiagramArt shall not be liable under this Section 8B in respect of any Work which is not a Paid-for Work.
(e) The foregoing states the entire liability and obligation of DiagramArt, and the sole and exclusive remedy of the Non-Exclusive Buyer, with respect to any breach of the representations and warranties contained in subsection (a) above.
9. Term and Termination
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 9. DiagramArt may at any time terminate this Agreement with respect to any Work in the event of any breach by the Buyer of any of his or her representations, warranties or obligations under this Agreement. The Buyer may at any time terminate this Agreement. Each of DiagramArt and the Buyer shall notify the other in the event it, he or she terminates this Agreement. DiagramArt shall also have the right, in its sole discretion, to deny the downloading of any Work from the DiagramArt.com website. Upon termination of a license for any particular Work, the Buyer shall immediately cease using such Work, destroy, or upon the request of DiagramArt return the Work to DiagramArt, delete or remove the Work from its premises, computer systems and storage (electronic and physical), and shall ensure that its clients and customers do likewise.
10. Effect of Termination
Upon the termination of this Agreement, the Buyer shall cease using the Work and destroy all copies of the Work, and all derivative works and related materials (if any), in his or her possession or control. At DiagramArt's request, the Buyer shall certify in writing to such destruction of the Work, derivative works and/or related materials. Termination of this Agreement shall not relieve the Buyer from any payment obligations that may have arisen prior to such termination. The provisions of Sections 1, 4, 5, 6, 7, 8, 10 and 11 shall survive the termination of this Agreement.
11. Miscellaneous
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of California, and the Buyer and DiagramArt each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The relationship between DiagramArt and the Buyer under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
The Buyer agrees that he or she shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to him or her under this Agreement.
No waiver on the part of DiagramArt to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of DiagramArt to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
Except with respect to any trademark rights, all rights and licenses granted by DiagramArt under or pursuant to this Agreement are for all purposes of Section 365(n) of Title 11 of the United States Code ("Title 11"), licenses of rights to "intellectual property" as defined in Title 11. DiagramArt agrees that, in the event of commencement of bankruptcy proceedings by or against DiagramArt under Title 11, the Non-Exclusive Buyer, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights under this Agreement (including the license granted under this Agreement) and all of its rights and elections under Title 11.
DiagramArt shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. The Buyer shall have no right to assign any of his or her rights or obligations under this Agreement.
Without limitation of DiagramArt’s indemnity obligations herein, DiagramArt is relying on the representations and warranties made by DiagramArt’s Uploading Members regarding the Works and their compliance with DiagramArt's Terms and Conditions of Use, including the non-infringement of Works, and DiagramArt does not have the right or ability to control the Works for purposes of the Digital Millennium Copyright Act or any claim of liability made by any third party against DiagramArt.
This Agreement shall be inure to the benefit of, and be binding upon, DiagramArt and the Non-Exclusive Buyer, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than DiagramArt and the Non-Exclusive Buyer, and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other.
If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect.
The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.