Terms of Service
TERMS OF SERVICE ("TOS")
PREGEL AMERICA IMAGE(S) - SINGLE USER STANDARD LICENSE
PART I LIMITED LICENSE
This website is owned and operated by PreGel. All elements of the site, including the content and the general design, and Images on the PreGel website are protected by United States and international laws and treaties governing intellectual property. The copyrights to the Images on this PreGel site are owned by PreGel. PreGel reserves all rights in and to the Images not expressly granted to you by the terms of this license. Your rights to use any Image are subject to this license agreement and are conditioned upon your payment to PreGel for your use of the Images. If you fail to make any payment to PreGel when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. Provided that your account is current at the time you download an Image and you are not otherwise in breach of any of the terms hereof (or of the terms of any other agreement between you and PreGel), you have the right to use the downloaded Image, subject however, to the terms of this agreement. If your account becomes delinquent, your right to use any Images downloaded at any time shall automatically terminate unless all payments together with any interest thereon and PreGel's costs of collection, bank charges and credit card processing fees are received by PreGel no later than fifteen (15) days from the date that your account becomes delinquent.
By this Agreement, PreGel grants you a personal, non-exclusive, non-transferable, right to use and reproduce the Images you have selected onto your computer hard drive and to use the Image(s) and any derivative works or copies on one computer and with one user at a time only in the U.S. in the following ways, subject to the limitations set forth herein and in Part II hereof. The use of the selected Image(s) is/are strictly limited to the specific use, medium, period of time, print run, placement, size of Image, territory and any other restrictions specified herein or in any other Agreement between you and PreGel. Any attempted deviation from the terms of our Single User Standard license is a violation of this agreement and the copyright act and shall nullify PreGel’s indemnity obligations, and the representations and warranties made by PreGel hereunder. You shall not undertake any expanded use of the Image(s) without the prior approval of PreGel and the payment of any additional use fees required by PreGel for such expanded use:
On websites, provided that no Image is displayed at a resolution greater than 800 x 600 pixels
As toolbar skins, screensavers and mobile phone "wallpaper" for your own personal, non-commercial use, not for resale, download or distribution;
As prints, posters (i.e. a hardcopy) and other reproductions for your own personal, non-commercial use and display, not for resale, download or distribution;
As a single hand painted reproduction (not as a printed reproduction) on canvas or other material to be used as decoration in the business location where PreGel is sold;
In coordination with opt-in email marketing. However, Images cannot be used in connection with unsolicited email - or linked from unsolicited email, and no Image may be reproduced or used more than 250,000 times;
On letterhead and business cards, pamphlets, brochures, catalogs provided that no individual image is reproduced more than 250,000 times in the aggregate;
In multimedia presentations and incorporated into film and video for television and/or internet broadcast, and theatrical display only for in-store promotions or as part of in-store displays for PreGel products where the intended audience will consist of fewer than two hundred fifty thousand (250,000) viewers;
As part of editorial or advertising copy regarding your business and PreGel products in magazines, newspapers, and directories provided that the print or manufacturing run(s) of such magazines, newspapers, and directories does not exceed two hundred fifty thousand (250,000) copies in the aggregate;
As advertising posters for use in promoting the sale of PreGel products (as opposed to promoting the sale of the prints, posters, etc. containing the Image(s)), provided that such prints and/or posters and/or other reproductions combine words and Image(s) and further provided that the print or manufacturing run(s) of such posters does not exceed two hundred fifty thousand (250,000) copies in the aggregate.
In the event that you create a derivative work based on or incorporating one or more Image(s), all rights in and to such Images shall continue to be owned by PreGel, subject to your rights to use such Image(s) pursuant to the terms and limitations set forth herein.
All other rights in the Images are expressly reserved by PreGel for itself.
PART II RESTRICTIONS
YOU MAY NOT:
Use an Image other than as specified in PART I.
Use the Image(s) beyond the terms of this limited license agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.
Create any derivative use of any Image(s) unless indicated in the invoice.
Except as expressly provided in Part I hereof, directly or indirectly copy or reproduce any Image (in whole or in part) more than two hundred fifty thousand (250,000) times. Nor may you produce or otherwise create for resale or distribution, printed reproductions of any Image on canvas, paper, plastic or any other medium unless expressly permitted by this agreement.
Use or display any Image(s) on websites or in connection with any service designed to sell or induce sales of "print on demand" products using or incorporating Image(s), including, by way of example only, postcards, mugs, t-shirts, posters, prints, wallpaper, artwork and other items.
Use any Image(s) together, directly or in context or juxtaposition, with pornographic, defamatory, obscene or otherwise unlawful or immoral content or in such a manner that it infringes upon any third party's trademark or intellectual property.
Use any Image(s) in a way that places any person depicted in the Image(s) in a bad light or in a way that they may find offensive - this includes, but is not limited to the use of Image(s): a) in pornography, "adult videos" or the like; b) in ads for tobacco products; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements or promotional materials for pharmaceutical or healthcare, herbal or medical products, including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products; and f) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. You may not use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition; (g) use of an Image on a way that violates a depicted person’s right of privacy or publicity, or to infringe and trade name, trademark or service mark.
Resell, redistribute or transfer any Image(s) except as specifically provided herein. Displaying any Image(s) in any digital format or for any digital use at a resolution greater than 800 x 600 pixels, except in preliminary design work, will be deemed to be an attempt to redistribute the Image(s) and could result in the termination of your rights under this agreement.
Copy or publish any of the Image(s) to a network or bulletin board, or otherwise distribute or allow any of the Images to the distributed to or used by anyone other than the authorized users, without prior written consent from PreGel.
Ship, transfer or export any of the Image(s) into any country or use any of the Images in any manner prohibited by any export laws, restrictions or regulations.
Share any Image(s) by providing access to such Image(s) on shared disk drives, computer networks, intranets of any nature or otherwise.
Use any PreGel Image(s) in a manner that competes with PreGel's business. This includes, by way of illustration only and not by way of limitation, displaying Images in any format (including thumbnails) for download on a website, offering PreGel Image(s) for sale, or including PreGel Image(s) in templates of any nature, including templates for websites, social networking websites (e.g., MySpace.com, Facebook, etc.) documents, projects or otherwise for distribution and/or sale to third parties.
Use any Image(s) marked "Editorial Use Only" for commercial purposes. If an Image is marked, "Editorial Use Only", additional permissions may be required for commercial use. PreGel does not provide such permissions.
Use any Image(s) (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
Use or display any Image(s) in such a manner that gives the impression that the Image was created by you or a person other than the copyright holder of that Image
Represent yourself as an agent, employee, designee, or affiliate of PreGel for any purpose, including but not limited to the negotiation of any business, distribution, partnership, or development agreement.
Use automated programs, applets, bots or the like to access the pregelamerica.com website or any content thereon for any purpose, including, by way of example only, downloading Images, indexing or caching the content on the website.
PART III MISCELLANEOUS
Images used editorially should bear a credit line as indicated by PreGel. User must register copyright in their name to afford protection to the photograph. Such copyright shall be immediately reassigned upon request, without charge.
Digital files may be retained for sixty (60) days or until the date indicated on the invoice. Unless this period is extended in writing, you must delete the Image(s) from all electronic and removable media and destroy any other copy of the Image(s), except as licensed under this agreement. PreGel’s copyright information and Image identification number must be retained with the digital files while you retain them.
PreGel shall be under no obligation to refund your imagery purchase fee under any circumstances. However, in the event that PreGel determines that you are entitled to a refund of all or part of your imagery purchase fee, such refund shall only be made to the credit card account originally used by you to purchase the image(s).
"Non-transferable" as used herein means that except as specifically provided in these Terms of Service, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, the Image(s) or the right to use the Image(s). You may however, transfer Image(s) to a third party for the sole purpose of causing such third party to produce and/or manufacture your goods incorporating any Image(s) subject to the terms and conditions herein. In addition, the work you produce with the Image(s) must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially responsible steps to prevent third parties from duplicating any Image(s). If you become aware of any unauthorized duplication of any PreGel Image(s) please notify us via email at email@example.com.
If you plan on using or do use any Image(s) as part of work for a client or customer, you must keep accurate and detailed records of the use of each Image. These records must include the name of the client or customer, the PreGel Image number as well as the date or dates on which the Images were used. You shall deliver copies of such records to PreGel at PreGel's request.
You agree that you will not share your username and password combination. Your PreGel username and password are to be used only by you. Each person that desires to access the PreGel site must have his/her own username and password. You may use your subscription on only ONE COMPUTER at any one time. If any two users on two separate computers are using the same username and password, we reserve the right to terminate that subscriber's account without refund or prior notice. We reserve the right to monitor accounts and institute mechanical or other means to stop users from sharing their login information.
You agree to indemnify and hold PreGel, its officers, employees, shareholders, directors, managers, members and suppliers, harmless against any damages or liability of any kind arising from any use of any Image(s) or any breach of this Agreement other than the uses expressly permitted by this Agreement. You further agree to indemnify PreGel for all costs and expenses that PreGel incurs in the event that you breach any of the terms of this or any other agreement with PreGel.
PreGel warrants and represents that:
Any unaltered Image(s) downloaded and used in full compliance with these Terms of Service and applicable law, will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered Images violate any third parties' rights of privacy or publicity;
Any unaltered Image(s) do not and will not: (i) violate any United States law, statute, ordinance, or regulation; (ii) be defamatory or libelous; or (iii) be pornographic or obscene.
While PreGel makes commercially reasonable efforts to ensure the accuracy of any Image(s) keywords and descriptions, as well as the integrity of our Editorial Images, PreGel makes no warranties and/or representations regarding such keywords, Image descriptions or integrity.
Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with PreGel, PreGel shall defend, indemnify, and hold you harmless up to the "Limits of Liability" (as hereinafter defined). Such indemnification shall only apply to claims for damages directly attributable to PreGel's breach of the foregoing warranties and representations, together with the expenses (including reasonable attorneys' fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of any Image(s) downloaded and used by you pursuant to these Terms of Service violate PreGel's warranties contained herein. This indemnification is conditioned upon you notifying PreGel, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., PreGel Image Number, a copy of the Image as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be faxed to PreGel at 1-704-707-0301 with a hard copy to PreGel AMERICA, 4450 Fortune Ave. NW, Concord, NC, 28027, Attention: PreGel AMERICA Marketing Department, via Certified Mail, Return Receipt Requested, or overnight courier, recipient's signature required. PreGel shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with PreGel in the defense of any such claim and shall have the right to participate in any litigation at your own expense. PreGel shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
Notwithstanding anything to the contrary contained herein, PreGel shall not be liable for any damages, costs or losses arising as a result of modifications made to any Image(s) or the context in which the Image(s) are used by you or any third party to whom you deliver any Image(s).
PreGel's total maximum aggregate obligation and liability to any one subscriber for all claims shall be limited to Ten Thousand United States Dollars - US$10,000.00 - (the "Limits of Liability").
This contract is governed by and shall be construed in accordance with the laws of the State of North Carolina. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these Terms of Service. You hereby consent to the personal jurisdiction of the state and federal courts located within such state. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State, County and City of Concord, NC or Charlotte, NC and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to these Terms of Service may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this agreement shall not affect the validity or enforceability of the balance hereof.
If you are unsure of your rights under this agreement, or if you wish to use any Image(s) in a manner not expressly permitted under this agreement, please address all questions to PreGel AMERICA toll-free 866-977-3435 or firstname.lastname@example.org
If you are entering into this agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to PreGel for any breaches of the terms of this agreement.
Credit Attributions and Copyright Notices for Editorial Uses of Images
You shall provide a link back to www.pregelamerica.com (where applicable) -or- provide a credit to the PreGel contributor and to PreGel in connection with the editorial use of any Image. Such credit shall be in substantially the following form: "Name of Artist/pregelamerica.com"
The unintentional omission of the aforesaid credit will not be a breach of the terms hereof provided that Subscriber cures such omission following email notice from PreGel.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH PREGEL, PREGEL SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO PREGEL'S OTHER RIGHTS AT LAW AND/OR EQUITY. PREGEL SHALL BE UNDER NO OBLIGATION TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED BY REASON OF A BREACH.
PREGEL MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN PARAGRAPH 29 HEREOF, AS TO THE LEGALITY OR VALIDITY OF YOUR USE OF ANY IMAGE OR OF ANY RELEASE ASSOCIATED WITH AN IMAGE. THE IMAGES, AND ANY STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE), ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
PREGEL GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, SERVICE MARK, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
PREGEL DOES NOT WARRANT THAT THE IMAGE(S), PREGEL WEBSITES, OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE IMAGE(S) IS SOLELY WITH YOU.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 32 HEREOF, IN NO EVENT, SHALL PREGEL'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PREGEL WEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY PREGEL FROM YOU FOR YOUR USE OF THE APPLICABLE IMAGE(S). NEITHER PREGEL NOR ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGE(S), PREGEL'S BREACH OF THIS AGREEMENT, OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN, EVEN IF PREGEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL PREGEL'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PREGELWEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING PREGEL, PREGEL WILL PROMPTLY FILE A COMPLAINT WITH www.ic3.gov, THE INTERNET CRIME COMPLAINT CENTER, A PARTNERSHIP BETWEEN THE FEDERAL BUREAU OF INVESTIGATION (FBI) AND THE NATIONAL WHITE COLLAR CRIME CENTER.