End User License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU, YOUR COMPANY, YOUR EMPLOYER AND/OR YOUR CLIENT, AND PRESENTERMEDIA. THIS LICENSE AGREEMENT APPLIES, WITHOUT LIMITATION, TO THE WEBSITE CURRENTLY LOCATED AT PRESENTERMEDIA.COM, ANY INTERNATIONAL OR OTHER VERSIONS OF THE FOREGOING, AND/OR ANY CONTENT DELIVERED VIA ANY STORAGE MEDIA.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS. YOUR ACCEPTANCE OF THESE TERMS IS AN ABSOLUTE CONDITION TO YOUR ACCESS TO AND USE OF ANY CONTENT. DOWNLOADING AND/OR USING ANY CONTENT FROM PRESENTERMEDIA CONFIRMS YOUR ACCEPTANCE OF THESE TERMS AND FORMS A LEGAL CONTRACT BETWEEN YOU AND PRESENTERMEDIA. PRESENTERMEDIA RESERVES THE RIGHT TO CHANGE ANY OF THE TERMS OF THIS AGREEMENT AT ANY TIME, AND YOU AGREE TO BE BOUND BY SUCH CHANGES. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS, AS MAY BE AMENDED, DO NOT DOWNLOAD OR USE ANY CONTENT.
"Content" shall mean animations, templates clipart, footage, graphics, music, sounds, and text regardless of whether the Content is obtained via download from the www.presentermedia.com website, delivered via any Storage Media, or obtained from a PRESENTERMEDIA’ authorized distributor, together with all accompanying material.
"Excessive" shall mean greater than an acceptable data usage, pertaining specifically to downloads and pageviews. This amount may change based on subscriber base and numbers, at the discretion of PRESENTERMEDIA.
"Storage Media" shall mean CD-ROM, digital video disc (DVD), floppy disk, or any other storage device or media now known, or hereafter created.
"User" shall mean the individual, legal entity or agent entering into this license agreement or any employee or contractor of such individual, legal entity or agent that accesses the Content. All Users shall only use the Content in accordance with the terms of this Agreement.
"You" shall mean a single: (i) individual, (ii) legal entity (corporation, partnership, LLC, sole proprietorship, etc.), or (iii) agent acting on behalf of a single individual or entity.
The Content is copyrighted and protected under the various laws of the United States, International treaties and other applicable laws. The Content shall remain the sole and exclusive property of PRESENTERMEDIA, or its licensors. Use of the Content is licensed, not sold, pursuant to the terms of this License Agreement. Use of the Content without agreeing to this License Agreement, or a breach of these License Agreement terms, is copyright infringement.
PRESENTERMEDIA grants you a non-exclusive and non-transferable license to use the Content only as provided in this License Agreement.
D. Number of Users (defined above):
YOU ARE GRANTED A ONE (1) USER SEAT LICENSE. ONLY ONE USER MAY ACCESS THE PRESENTERMEDIA.COM WEB SITE. YOU MAY NOT DESIGNATE ONE (1) USER TO ACCESS THE SUBSCRIPTION WEB SITE IF MORE THAN ONE (1) USER WILL USE THE CONTENT.
E. Standard License Terms
You are granted a perpetual, non-exclusive, non-transferable license to use the Content for the Permitted Uses (see 1F). Unless given explicit written permission by PRESENTERMEDIA, you are not allowed to use the Content except for that which is specifically listed below.
F. Permitted UsesSubject to the restrictions described under Prohibited Uses (1G) below, the following are considered “Permitted Uses” of Content:
I. advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (i.e. not for resale or license);
II. prints, posters (physical document/print) and other reproductions for personal use or promotional purposes specified in (I) above, but not for resale, license or other distribution;
III. business, professional, personal or educational presentations which may be viewed by a public audience, e-Learning environment or internal network, which can be distributed and/or sold to the audience provided that credit is given to PRESENTERMEDIA for the creation of the Content which was used, so long as the purpose of the redistribution or sale is not the purpose of gaining access to the Content specifically;
IV. entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations;
V. on–line or electronic publications, including web pages and both personal and professional blogs so long as the Content is not being resold or redistributed;
VI. Modify or create derivative works from the Content, provided that such works are not intended to be re-sold;
VII. Use the Content for a corporate or business identity or logo. Note: You cannot trademark or otherwise register a business identity or logo that uses the Content as you cannot establish your own rights to the Content.
VIII. any other uses approved in writing by PRESENTERMEDIA. To request written permission for a specific use of Content, please contact PRESENTERMEDIA directly via the contact link on PresenterMedia.com.
G. Prohibited Uses: You may NOT:
I. sublicense, distribute, sell, transfer or assign the Content or rights to the Content.
II. use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.com, www.zazzle.com, etc.);
III. incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
IV. use the Content 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, and brochure design templates;
V. use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
VI. Copy or reproduce the Content, except as specifically provided for in Section 1(F).
VII. Remove any copyright, trademark or watermark from any place where it appears on the Content.
(Note: Watermarks are not visible on content for subscribers.)
VIII. Use the Content, or any part of the Content, as part of a trademark, service mark, or registered logo. PRESENTERMEDIA or its licensors retain the full rights to the Content, and therefore you cannot establish your own rights.
IX. Use the Content in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise.
X. Use the Content to compete with PRESENTERMEDIA.
XI. Download excessive amounts of content, or view excessive number of pages, causing other subscribers to experience slower than usual download speeds.
H. Additional Terms
(I) PRESENTERMEDIA reserves the right to (i) not permit access to or use of any Content for any reason whatsoever; and (ii) notify you that certain Content is no longer available for use. Upon such notification, the license to use such Content shall automatically and immediately terminate.
(II) All other rights not expressly granted to you are reserved solely for PRESENTERMEDIA.
(III) PRESENTERMEDIA reserves the right to replace Content with an alternative Content for any reason. Upon notice of such replacement, the license for the replaced Content immediately, and automatically, terminates for any use of the Content that does not already exist, and this License Agreement shall automatically apply to any replacement Content.
(IV) PRESENTERMEDIA reserves the right to cancel an account / terminate a License Agreement due to excessive downloads and/or pageviews. This includes, but is not limited to the use of auto-download programs and/or "bots", allowing others to access an account to continue downloading in place of the original subscriber, downloading content as a "library" or attempting to download the library in its entirety.
A. This License Agreement is effective until it is terminated.
(I) This License Agreement will terminate automatically, without notice from PRESENTERMEDIA, if you fail to comply with any provision of this License Agreement.
(II) You can terminate this Agreement by destroying the Content, any CD-ROM or accompanying materials (if applicable), and ceasing all use of the Content for any purpose.
(III)An active PRESENTERMEDIA subscription is not required to keep this License Agreement effective. You may continue to use the Content under this License Agreement if your account should expire. You will not be permitted to access additional Content if your account should expire.
B. PRESENTERMEDIA may, in its sole discretion: (i) monitor, as frequently as PRESENTERMEDIA determines, anything you access or download from our Web sites, (ii) limit access or downloads to a fixed amount of downloads per 24 hour period so as to insure the best possible service to all subscribers to our Web sites, (iii) track any abuse of your username and password, (iv) suspend or terminate your account, without notice, if PRESENTERMEDIA believes there is a violation of this Agreement, the website terms, and/or any abuse of your username and password.
C. Upon termination of this Agreement (not referring to a current subscription of PRESENTERMEDIA in good standing- refer to Section 2-A-(iii) above), you agree to cease using the Content for any purpose, and confirm to PRESENTERMEDIA in writing that you have complied with this requirement.
3. WARRANTY AND LIMITATION OF LIABILITY
A. PRESENTERMEDIA represent and warrants that:
(I) it has the right to enter into this Agreement and to grant the rights hereunder;
(II) the Content or other Storage Media (if applicable) will be free from defects in materials and workmanship under normal use for a period of 30 days from the date of license; and
(III) the Content as provided hereunder, and used as permitted herein, will not infringe any copyright, trademark, moral right, right of privacy or any other intellectual property right of any third party.
B. EXCEPT AS PROVIDED ABOVE, THE CONTENT, 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 MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PRESENTERMEDIA GRANTS NO RIGHTS OR WARRANTIES WITH RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE, AND THE USER MUST SATISFY ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED ARE OBTAINED. PRESENTERMEDIA DOES NOT WARRANT THAT THE CONTENT, WEB SITES 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 THECONTENT IS SOLELY WITH YOU. PRESENTERMEDIA SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER 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 CONTENT, PRESENTERMEDIA’ BREACH OF THIS AGREEMENT OR OTHERWISE, EVEN IF PRESENTERMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL PRESENTERMEDIA’ 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 CONTENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY PRESENTERMEDIA FOR YOUR USE OF THE APPLICABLE CONTENT.
C. You represent, warrant and covenant that:
(I) You are at least eighteen years of age and have the full right and authority to enter into this License on behalf of you and/or your company, employer or principal;
(II) You do not reside in any country to which export of US products are prohibited or restricted and you may not ship, transfer or export any of the Content into any country or use any of the Content in any manner prohibited by any laws, restrictions or regulations;
(III) You will not use the Content in any way that is not permitted by this License;
(IV) Your use of the Content will not violate any applicable law or regulation of any country, state, or other governmental entity;
(V) The information that you provide to PRESENTERMEDIA is accurate and true, including, without limitation, all credit card or other payment information and you shall update such information as necessary;
(VI) You are solely responsible for determining whether your use of any Content requires the consent of any other party or the license of any additional rights. If you are unsure whether additional rights are needed for your use of the Content, you are responsible for consulting with competent legal counsel; and
(VII) If you are acting as an agent, you must inform your client/principal of the terms of this License.
(VIII) You will hold all passwords for any subscription in the strictest of confidence. You may not share or disclose any password to any other user or third party other than as specifically provided for herein. If you breach any provision of this section, we shall be entitled to (i) terminate this Agreement immediately and (ii) seek any legal or equitable remedies.
4. LIMITATION OF REMEDIES
PRESENTERMEDIA' entire liability and your exclusive remedy, with respect to any claims arising out of this Agreement, except as set out in Section 5 below, shall be replacement of Content. Claims must be brought within twelve (12) months of the date that you discovered such claim, or reasonably should have discovered such claim, or shall be waived.
You agree to indemnify and hold PRESENTERMEDIA, its affiliates, parents, subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else associated with PRESENTERMEDIA, harmless from, and against, any and all claims, liabilities, costs, damages, or expenses, (including attorneys' fees) asserted against PRESENTERMEDIA arising out of your use of the Content or in connection with any breach of any of the terms of this Agreement. Provided that the Content are used only in accordance with this Agreement and you are not otherwise in breach of this Agreement, PRESENTERMEDIA shall defend, indemnify and hold you harmless from all damages (excluding punitive damages), liabilities and expenses (including reasonable attorney's fees and authorized costs), arising out of or in connection with any actual or threatened lawsuit, legal proceeding or claim alleging that PRESENTERMEDIA is in breach of its warranties set out in Section 3 above. The foregoing states PRESENTERMEDIA' entire indemnification obligation under this Agreement and your sole and exclusive remedy for any actual breach of PRESENTERMEDIA' representations and warranties set forth herein. PRESENTERMEDIA shall have no obligation under this Section 5 unless you promptly provide PRESENTERMEDIA with written notice of such claim. At the indemnifying party's option, the indemnifying party may assume the handling, settlement or defense of any claim or litigation and the indemnified party shall reasonably cooperate in the defense thereof. The indemnified party shall have the right to participate in the litigation, at its own expense, through counsel selected by the indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the indemnified party giving notice of the claim for which indemnity is sought.
If any provision of this Agreement is held to be not enforceable, such provision shall be reformed only to the extent to make it enforceable, consistent with the parties' intent.
B. Taxes and other:
You agree to pay and be solely 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 your use of the Content, pursuant to this Agreement.
C. Waiver. No action of PRESENTERMEDIA, other than an express written, signed waiver may be construed as a waiver of any part of this Agreement, and no employee of PRESENTERMEDIA is authorized to make an oral waiver. In the event that PRESENTERMEDIA waives a specific part of the Agreement, it does not mean that PRESENTERMEDIA waives any other part.
This Agreement, its validity and effect, shall be solely interpreted, and governed by, the laws of the State of South Dakota, United States. Any claims shall be brought solely in the Federal District Court of the District of South Dakota and you expressly consent to the exclusive jurisdiction of the federal courts of the State of South Dakota, United States. You consent to the service of any required notice or process upon you by registered mail or overnight courier to the address provided to PRESENTERMEDIA with your registration, as you may update from time to time, with proof of delivery.
8. LEGAL FEES
You agree to reimburse PRESENTERMEDIA for its legal fees, costs and disbursements if PRESENTERMEDIA is successful in enforcing any of its rights under this Agreement including, without limitation, in connection with any action to collect payment.
You may not assign or transfer to anyone else the rights granted to you in this Agreement, without our prior written consent. PRESENTERMEDIA may assign or transfer this Agreement freely.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT,AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND PRESENTERMEDIA, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEENYOU AND PRESENTERMEDIARELATING TO THE SUBJECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PURCHASE ORDER TERMS (EVEN IF SUCH TERMS ARE SUBSEQUENT TO THE DATE OF THIS AGREEMENT). FAQ'S, OTHER EXPLANATIONS, AND TEXT IN PRESENTERMEDIA’ WEB SITES ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT UNLESS SPECIFIED OTHERWISE IN THIS AGREEMENT.December 2012