freetinyimages.com License Agreement

THIS LICENSE AGREEMENT (this "Agreement") governs the terms and conditions under which users of www.freetinyimages.com (the "Website") may use certain stock Images (as defined below), that are either owned by freetinyimages.com or by third parties who have contributed such images for use by Website visitors. This Agreement is in addition to, and shall be read to complement, any other agreements that may exist between freetinyimages.com and User; provided, that if at any time there is an inconsistency between this Agreement and any other such agreement, this Agreement shall control.

BY CLICKING ON THE .I AGREE. BUTTON OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, OR BY USING ANY IMAGE AVAILABLE ON THE WEBSITE, YOU SPECIFICALLY AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH BELOW, ON BEHALF OF YOURSELF AND ON BEHALF OF ANY PRINCIPAL, EMPLOYER, OR OTHER THIRD PARTY ON WHOSE BEHALF YOU ARE ACTING IN USING THE IMAGES. THIS IS A BINDING AGREEMENT THAT AFFECTS YOUR RIGHTS. IF YOU DO NOT AGREE TO ANY TERM SET FORTH BELOW, THEN YOU MAY NOT UNDER ANY CIRCUMSTANCES USE ANY IMAGE PRESENTED ON THE WEBSITE.

1. Terms Defined. As used in this Agreement, the following terms shall have the meanings indicated:

"You" or "User" means you, the user of the Website. If you are acting on behalf of a third party such as an employer or other principal, then .you. means that third party as well, and by accepting these terms and using the Images, you agree to bind the third party and to be responsible for violations of this Agreement by such third party.

"We" or "freetinyimages.com" means Pacific Software Publishing, Inc., a Washington corporation, which operates the Website. For purposes of Sections 9 and 10 below, the foregoing terms shall include all of the officers, directors, affiliates, managers, employees, agents and principals of Pacific Software Publishing, Inc.

"Image" means any photographic image, illustration, drawing, artistic rendering, and other media or visual representation, whether generated optically, electronically, digitally or by any other means or in any media or other material that you have downloaded from the Website.

"Image Size Limit" means the maximum size in which any Image may be used without either paying a License Fee as defined below or obtaining the prior written consent of freetinyimages.com. The Image Size Limit is 640 by 480 pixels.

"Supplier" means a party other than freetinyimages.com that owns an Image. Some Images are owned by freetinyimages.com and others are owned by Suppliers.

2. License. Subject to the terms and conditions specified in this Agreement, we hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Image for the Permitted Uses (as defined below), but specifically not for any Prohibited Uses.

(a) Permitted Uses. You may use any Image for the following (collectively, "Permitted Uses"). Any use of an Image for a use that is not a Permitted Use (including any listed Prohibited Use) shall constitute infringement of copyright and entitle freetinyimages.com and/or the Supplier, as applicable, to exercise all remedies available under this Agreement and under applicable law.

(i) Advertising and promotional projects, including printed materials, product packaging, catalogues, brochures, and similar products, so long as none of the foregoing are produced or distributed for resale, license, or sub-license.

(ii) Any personal, private, non-commercial use.

(iii) entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and similar presentations;

(iv) On.line or electronic publications, including websites and similar media, so long as such use does not permit any third party to access of download the Image;

(v) Prints, posters, and other reproductions for personal use or promotional purposes that otherwise would constitute a Permitted Use, but not for resale, license or sub-license;

(vi) As part of a trademark, trade dress, or logo; and

(vii) Any other use approved in writing by freetinyimages.com.

If there is any doubt whether a proposed use is a Permitted Use, you may not use the Image for such use without first obtaining the prior written approval of freetinyimages.com, which may be withheld in its sole and absolute discretion.

(b) Prohibited Uses. You may not use any Image for any of the following purposes (collectively, "Prohibited Uses"). Any use of an Image for a Prohibited Use shall constitute infringement of copyright and entitle freetinyimages.com and/or the Supplier, as applicable, to exercise all remedies available under this Agreement and under applicable law:

(i) Use or display the Image in any manner or fashion that encourages or permits use of the Image by third parties, including any use that permits resale, reuse, downloading, or distribution of the Image, and including without limitation any of the following examples (A) any use that involves a sub-license, resale, lease, loan, assignment, gift or other transfer or distribution of the Image or the rights granted under this Agreement; (B) use in an electronic format that enables it to be downloaded or distributed via computer, telephone, other mobile device, or via any file sharing arrangement or similar means; (C) posting a copy of the Image on a network server or web server for use by other users; (D) use or display of the Image on websites or other venues designed to induce or involve the sale, license or other distribution of .on demand. products such as (but not limited to) awards, trophies, trinkets, postcards, mugs, t-shirts, posters, banners, flags, and other items; (E) use of the Image in any posters (printed on paper, canvas, plastic, or any other media) or other items for resale, license or other distribution for profit; or (F) use of the Image in design template applications intended for resale, whether on-line or not, including, without limitation, website templates; flash templates; business card templates; electronic greeting card templates; templates for personalizing golf balls, other sporting goods, or similar objects; or brochure design templates; or incorporation of the Image in any product that results in a re-distribution or re-use of the Image or by which the Image is otherwise made available in a manner such that a person can extract or access or reproduce the Image as an electronic or other form of data file.

(ii) Use the Image in a manner that is illegal, pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Image into disrepute (the determination of freetinyimages.com, acting reasonably, shall be conclusive for purposes of determining whether a use violates this subparagraph (ii)).

(iii) Use or display any Image that features a model or person in a manner that states or suggests that such model or person uses or personally endorses any business, product, service, cause, association or enterprise; or that depicts such person in a potentially sensitive subject matter, including, but not limited to in a manner that invokes mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Image;

(iv) To the extent that source code is contained within the Image, any effort to reverse engineer, decompile, or disassemble any part of such source code;

(v) Remove any notice of copyright, trademark or other proprietary right from any place where it is on or embedded in the Image;

(vi) Use any Image in a size or format in excess of the Image Size Limit without paying the License Fee required by this Agreement and specified on the Website.

3. Rights Reserved; No Exclusivity. All rights in and to the Images, including, without limitation, all copyright, trademark, patent, and other intellectual property rights relating to the Images, are expressly retained by freetinyimages.com and/or the Supplier of the particular Image, as applicable. Without limiting the generality of the foregoing, we reserve the right to further license or sub-license any or all Images to any number of others, and nothing herein shall be interpreted as creating any exclusive rights on the part of any User.

4. Payment. You may use any Image for a Permitted Use in a size and format at or below the Image Size Limit without charge or payment obligation (but subject in each case to all other terms and provisions of this Agreement). Where the Website states that a particular Image is available for use in a size or format exceeding the Image Size Limit, you may use the Image for a Permitted Use in such larger size or format only after paying the fee specified on the Website (the .License Fee.) for such use. We may change the License Fee applicable to any Image, or withdraw the right to use the Image in excess of the Image Size Limit at any time (provided, that such withdrawal shall not discontinue your right to use an Image for which you have already paid a License Fee except as expressly provided herein).

5. Derivative Works. If an original Image has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Image and the Image is not capable of being downloaded, extracted or accessed by a third party as a stand-alone file, such modified or transformed image shall constitute a "Derivative Work" for the purposes of this Agreement, and such Derivative Work shall not be subject to the obligations of this Agreement. Superficial modification of an Image, or incorporation of an Image into another medium (for example, printing the Image on another physical item, or in another color) shall not result in the Image being considered a Derivative Work. Nothing in this Agreement shall be interpreted as granting permission to modify or manipulate any Image except to the extent such is expressly permitted by applicable law. Should you have any doubt whether a work is a Derivative Work, you must contact freetinyimages.com for clarification.

6. Use by Third Parties. Only you are permitted to use the Image. You are not under any circumstances allowed to permit any third party to use the Image. You may transfer files containing Images to customers, contractors, or other third parties for the purpose of reproduction of the Image in connection with a Permitted Use, but the parties to whom you transfer the Images shall have no further or additional rights to use the Image or to extract it from any file you provide than the rights you have been granted hereunder. If you require an Image to be in more than one location or accessible by more than one person, you must download the Image from the Website for each such use (and pay the License Fee for each download, if applicable).

7. Term and Termination. The term of this Agreement shall commence immediately when you first download an Image, and shall continue as to that Image until either we or you terminate it. You may terminate this Agreement at any time by destroying the Image (including any archival copies and reproductions of the Image) and immediately ceasing to use the Image for any purpose. If you default in your performance of this Agreement, including by misuse of the Images or failing to pay any License Fee or other amount due hereunder, then freetinyimages.com may notify you in writing of such default or deficiency and of termination of this Agreement, and such termination shall be without prejudice to any other right or remedy available to freetinyimages.com hereunder or under applicable law. Upon termination, regardless of cause, you must (and you hereby agree to) immediately cease using each Image for any purpose and destroy or delete all copies and archives of the Image or accompanying materials. In the event of such termination, you shall promptly upon request confirm to freetinyimages.com in writing that you have complied with these requirements.

freetinyimages.com makes no warranty about the continued availability of any Image. freetinyimages.com may at any time, without prior notice, discontinue offering any Image and, if it considers it appropriate, replace the Image with an alternative Image. In the event of any such discontinuance or replacement, the license for the discontinued or replaced Image shall immediately terminate for any products or uses that you have not already implemented and, if the original Image has been replaced, the license granted as to the original Image shall automatically apply to the replacement Image. After an Image has been discontinued or replaced, you may not use the discontinued or replaced Image for any further purpose or product whatsoever. We will use commercially reasonable efforts to notify you of the discontinuance or replacement of any Image.

Notwithstanding anything in this Agreement (including any warranty from freetinyimages.com) to the contrary, upon notice from freetinyimages.com that any Image is the subject of a claim of copyright, trademark, or other intellectual property infringement by a third party (or if you learn of such a claim without notice from freetinyimages.com), you must immediately and at your own expense stop using the Image, delete or remove any copies or stored versions of the Image from your computers or other storage systems, and require that all third parties assisting you in using the Image pursuant to this Agreement (including any customers, contractors, or other third parties using the Image pursuant to Section 6 of this Agreement) immediately cease use of the Image. In that event, freetinyimages.com shall provide you with replacement Image which is determined by freetinyimages.com in its reasonable judgment to be comparable to the original Image free of charge (and in such event, the license applicable to the original Image shall immediately apply to the replacement Image).

8. freetinyimages.com Limited Warranty and Indemnity. freetinyimages.com warrants only that (i) your use of an offered Image in strict accordance with this Agreement and in the form delivered by freetinyimages.com (without further manipulation or modification of any nature) will not infringe on any copyright, trademark or other intellectual property right held by any third party; and (ii) to the extent a Supplier owns the copyright, trademark, or other intellectual property rights in an Image, freetinyimages.com has used commercially reasonable efforts to determine the owner of such rights and obtain its permission to use the Image in accordance with this Agreement. THE FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY FREETINYIMAGES.COM, AND IS OFFERED IN LIEU OF (AND NOT IN ADDITION TO) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED ABOVE, EACH IMAGE IS PROVIDED STRICTLY .AS IS. AND IN ITS CURRENT CONDITION, AND BY USING ANY IMAGE, YOU EXPRESSLY WAIVE ANY OTHER WARRANTIES AND REPRESENTATIONS THAT OTHERWISE MAY BE APPLICABLE TO IT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FREETINYIMAGES.COM DOES NOT WARRANT OR REPRESENT THAT THE IMAGE WILL BE SUITABLE FOR YOUR REQUIREMENTS OR FOR YOUR INTENDED USE, OR THAT ITS USE WILL BE UNINTERRUPTED (ON THE CONTRARY, YOU ACKNOWLEDGE THAT FREETINYIMAGES.COM HAS EXPRESSLY RESERVED THE RIGHT TO DISCONTINUE USE OF IMAGES AS PROVIDED IN THIS AGREEMENT).

Provided that your use of each Image is in strict compliance with all of the terms and conditions of this Agreement and that you are not otherwise in default of any term of this Agreement, freetinyimages.com shall, subject to the remainder of this Agreement (including Section 9 below) defend, indemnify and hold you harmless from and against all claims, damages, liabilities and expenses (including reasonable attorneys. fees and costs of litigation), arising directly from the falsity of the warranty and representation provided in this Section 8. This paragraph sets forth the entire indemnity obligation of freetinyimages.com under this Agreement. This indemnification is conditioned upon your prompt written notification of freetinyimages.com of the actual or suspected existence of a claim that would be subject to defense or indemnity. You hereby agree to cooperate in all respects with freetinyimages.com in the defense, settlement, and other processing of any claim pursuant to this Section 8. freetinyimages.com shall be solely responsible for selecting counsel to provide defense of any covered claim.

9. Limitations on Damages. The responsibility of freetinyimages.com for any actual or alleged default under this Agreement (including its responsibility for defense and indemnity costs under Section 8 above) shall be expressly subject to the following limitations and requirements. By accepting use of any Image, you acknowledge that the following limitations were expressly negotiated and are an essential part of this Agreement (and that if any such limitation is unacceptable to you, your prerogative is to reject this Agreement, in which event you may not use any Image):

(a) Absolute Cap on Damages. THE MAXIMUM AGGREGATE LIABILITY OF FREETINYIMAGES.COM UNDER THIS AGREEMENT FOR ANY ONE OR MORE EVENTS OF DEFAULT HEREUNDER, INCLUDING THE TOTAL EXPENSE FOR WHICH FREETINYIMAGES.COM IS RESPONSIBLE PURSUANT TO SECTION 8 ABOVE, SHALL BE THE LESSER OF (I) TWICE THE TOTAL AMOUNT OF LICENSE FEES YOU HAVE PAID TO FREETINYIMAGES.COM IN THE ONE YEAR PERIOD PRIOR TO THE DEFAULT, OR (II) ONE THOUSAND DOLLARS ($1,000.00). THE FOREGOING LIMIT SHALL APPLY REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE ANY ONE OR MORE IMAGES FROM FREETINYIMAGES.COM.

(b) No Consequential Damages. UNDER NO CIRCUMSTANCES SHALL FREETINYIMAGES.COM, OR ANY THIRD PARTY SUPPLIER OF ANY IMAGE BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF PROFITS OR LOSS OF BUSINESS EXPECTANCY), REGARDLESS OF WHETHER ANY SUCH DAMAGES WERE REASONABLY FORESEEABLE, AND REGARDLESS OF WHETHER THE ACTION IS BASED ON TORT, CONTRACT, STATUTORY GROUNDS, OR OTHERWISE.

(c) Limitation Period. NO ACTION OR CAUSE OF ACTION UNDER THIS AGREEMENT, INCLUDING ANY ACTION FOR INDEMNITY OR DAMAGES, MAY BE INITIATED BY ANY PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.

(d) No Responsibility for Modifications. UNDER NO CIRCUMSTANCES SHALL FREETINYIMAGES.COM BE LIABLE FOR ANY CLAIMS OR DAMAGES OF ANY NATURE OR DESCRIPTION WHATSOEVER ARISING OUT OF OR RELATED TO ANY IMAGE THAT HAS BEEN MODIFIED SUBSEQUENT TO DOWNLOADING FROM THE WEBSITE, WHETHER OR NOT THE MODIFICATION WOULD RESULT IN A PERMITTED DERIVATIVE WORK UNDER THIS AGREEMENT. FURTHER, FREETINYIMAGES.COM SHALL HAVE NO RESPONSIBILITY FOR ANY CLAIM OR DAMAGES PROMPTED BY THE PARTICULAR MANNER, LOCATION, OR CONTEXT IN WHICH YOU HAVE USED ANY IMAGE.

10. Your Warranty and Indemnity Obligations. As a condition to use of any Image, you agree to indemnify, defend and hold freetinyimages.com and the Supplier of that Image harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable attorneys. fees and costs of litigation) incurred by any of the foregoing as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf or under your direction of any of the terms or provisions of this Agreement. Without limiting the generality of the foregoing, you agree to indemnify, defend, and hold harmless freetinyimages.com and each Image Supplier from and against claims that any Image has been used in any illegal, immoral, or improper manner.

11. Additional Covenants Concerning Use of Images. You hereby agree to use the Images only in accordance with the following specific covenants. You acknowledge that such covenants constitute express conditions to the license granted in this Agreement.

(a) Promptly after written request, you agree to provide to freetinyimages.com and the Supplier of any Image that you are using, such information as we may reasonably request concerning your use of the Image to permit us to verify compliance with the terms of this Agreement.

(b) You shall not under any circumstances hold yourself out as the author, owner, or licensor of any Image. You shall not delete or mask any copyright notice, logo, or trademark from any Image, or take any other action that would avoid or prevent identification of the Image as property of its owner. You expressly acknowledge and agree that nothing in this Agreement shall be interpreted or applied so as to invalidate or diminish any copyright, trademark, or other intellectual property right of freetinyimages.com or any Image Supplier associated with the Images; on the contrary, all of such rights are expressly reserved and retained by their legal owners.

(c) You acknowledge and agree that freetinyimages.com has made no guarantee or warranty concerning the effect or impact of the Images on your business. Under no circumstances shall freetinyimages.com be responsible for any claim an Image or its use failed to bring about a desired or anticipated business result.

(d) You shall promptly notify freetinyimages.com of any unauthorized use of any Image by a third party of which you become aware and you shall, at no material expense to you (except where you have participated in or encouraged the unauthorized use), cooperate with any effort by freetinyimages.com to challenge unauthorized use of any Image that you have used. To the extent permitted by law, freetinyimages.com shall have the right to intervene at its own expense in any legal proceeding affecting the rights acquired by you under this Agreement.

12. Miscellaneous.

(a) This Agreement constitutes the entire agreement between Freetinyimages.com and you concerning use of the Images. This Agreement may not be amended, nor may any of its provisions be waived, except by a written instrument signed by the party against which the modification or waiver is sought to be enforced.

(b) This Agreement shall be interpreted and enforced in accordance with the laws of the state of Washington, without regard to its choice of law principles. Venue of any action to interpret or enforce this Agreement shall lie in the state and federal courts of King County, Washington.

(c) This Agreement is personal to you and is not assignable by you without freetinyimages.com.s prior written consent. freetinyimages.com may assign this Agreement without your consent to any other party, including the Supplier of any Image, so long as such party agrees to be bound by its terms. Subject to restrictions on assignment herein, this Agreement shall bind the parties hereto and their respective heirs, successors, and assigns.

(d) The prevailing party in any action to interpret or enforce this Agreement shall be entitled to reimbursement of its reasonable attorneys. fees and costs from the other party.

(e) If any term or provision of this Agreement (including, but not limited to, any disclaimer of warranty or limitation on damages contained herein) is found in any jurisdiction to be unenforceable or void as against public policy or law, such term or provision shall be modified to the minimum extent necessary to make such term or provision enforceable (or, if such modification is impossible, then such term shall be stricken from this Agreement) and the balance of the Agreement shall be enforced and shall not be affected thereby.

(f) 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 Image, pursuant to this Agreement.

(g) This Agreement constitutes the complete and exclusive statement of our agreement concerning use of Images, and supersedes any proposal or prior agreement, oral or written, any purchaser order, invoice term, or other ancillary communication between us with respect to its subject matter. It may not be modified, nor may any of its provisions be waived, except in an instrument executed and acknowledged by the party against whom the modification or waiver is sought to be enforced. Notwithstanding the foregoing, this Agreement shall be supplemented by, and shall at all times be interpreted in a manner consistent with, the content of the Website, including with respect to pricing, Image availability, and updates to this Agreement. Further, freetinyimages.com may from time to time modify the terms of its standard license agreement and update this Agreement accordingly; in such event, the modified Agreement shall govern any downloading and use of Images occurring after the effective date of the modification.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAVE HAD AMPLE OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO ACCEPTING IT. YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS A CONDITION TO USE OF ANY IMAGE.

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