End-User License Agreement
End-User License Agreement
This END-USER LICENSE AGREEMENT (the “Agreement”) relates to use of the content provided through www.thecoverlab.com (“Website”) and is made and entered into between the individual person or legal entity that downloads one or more photograph(s) from the Website (“You” “Your” or “Licensee”), and the owner/operator of the Website, The Cover Lab, LLC (“Licensor” or “Cover Lab”). This Agreement explains how You can use the photographs that You license from Cover Lab (“Photographs”). By downloading one or more Photographs, You accept the terms of this Agreement. You and Cover Lab are sometimes referred to herein each as a “Party” and together as the “Parties.”
NOW, THEREFORE, for good and valuable consideration, including the foregoing and the mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged by each of the Parties, and intending to be legally bound, the Parties hereby agree as follows:
- “Book Cover” shall mean the outside front cover or display image of a literary work (including sexually explicit works) in physical, digital, audio or any other format.
- “Book-Related Content” shall exclude Book Covers and mean the images inside and/or on the back cover of a literary work in any format (digital, audio or otherwise) as well as advertising, promotion, marketing and packaging for any literary work or service (including sexually explicit literary works).
- “Derivative Works” shall mean new works in any Media that include some or all of one or more Photographs edited, adapted, combined with other content, or otherwise transformed, whether or not such new works include new copyrightable authorship.
- “Intellectual Property Rights” shall mean all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trademark, trade name and similar rights, including, but not limited to, service marks, symbols, identifiers, formats, designs, and devices; (c) other proprietary rights, services, and information; (d) rights of publicity; and (e) rights in or relating to enforcement, registrations, renewals, extensions, and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(d)” above
- “IP Claim” shall mean any claim, suit, or proceeding that is based on a claim that Use of a Photograph infringes, violates, or misappropriates any Intellectual Property Right.
- “Likeness” means a person’s actual, photographic, or illustrated appearance and/or likeness.
- “Media” shall mean all media including digital (including e-books and audiobooks), electronic, online (including social media), print, television, film, radio and other media now known or to be invented.
- “Receipt” shall mean the summary of Your purchase from Cover Lab, which shall include the unique identifier of each Photograph, applicable license type (BC, SCP, or MCP as defined in Section 2 herein), and price for each Photograph that You license.
- “Royalty-Free” means that the license is paid all at once and there is no need to pay additional royalties as the Photograph(s) are Used.
- “Use” means to copy, reproduce, modify, edit, display, distribute, publish, create Derivative Works of, or otherwise make use of the Photograph(s) in accordance with the terms of this Agreement.
- Grant of Rights Cover Lab offers three types of licenses. Book Cover License (“BC”), Single-Cover Package License (“SCP”), and Multi-Cover Package License (“MCP”).
- Grant to You. Subject to the terms and conditions of this Agreement (including Section 5.2.4 regarding exclusivity), and in exchange for completed payment of the amount in Your Receipt for the relevant Photograph, Cover Lab agrees to and does hereby grant to You the following rights, as applicable to the license type stated on Your Receipt and the product webpage for the particular Photograph(s):
- BC License. Cover Lab grants You an exclusive, English worldwide, Royalty-Free, perpetual license to Use the Photograph, in whole or in part, as the Book Cover of a single literary work in an unlimited amount of copies as well as Book-Related Content, in any Media for commercial and non-commercial purposes. This license is transferable only on the following conditions: (a) You have not Used the Photograph for a Book Cover or the assignment is limited to Use of the Photograph for the one existing Book Cover (and Book-Related Content); (b) You provide written notice to Cover Lab of such assignment within 30 days of such assignment; and (c) You assign Your interest in the BC License, in whole or in part, as applicable, on the same terms and conditions as provided in this Agreement, and the assignee agrees to assume such terms and conditions.
- SCP License. Cover Lab grants You an exclusive, English worldwide, Royalty-Free, perpetual license to Use in any Media for commercial and non-commercial purposes: (a) one Photograph within each SCP group of Photographs (which have been selected and sold by Cover Lab as one SCP-type package) for the Book Cover of a single literary work in an unlimited amount of copies and (b) all Photographs within each SCP group of Photographs, including the Photograph used for the Book Cover, for Book-Related Content. This license is transferable only on the following conditions: (x) You have not Used any Photograph for a Book Cover or the assignment is limited to continued Use of the relevant Photograph for the one existing Book Cover along with Use of all Photographs for Book-Related Content; (y) You provide written notice to Cover Lab of such assignment within 30 days of such assignment; and (z) You assign the SCP License, in whole or in part, as applicable, on the same terms and conditions as provided in this Agreement, and the assignee agrees to assume such terms and conditions.
- MCP License. Cover Lab grants You an exclusive, English worldwide, Royalty-Free, perpetual license to Use in any Media for commercial and non-commercial purposes all Photographs within each MCP group of Photographs (which have been selected and sold by Cover Lab as one MCP-type package) for the Book Cover of distinct literary works in an unlimited amount of copies as well as for Book-Related Content, except for any one or more Photographs within the MCP group that are expressly marked as “Book-Related Content Only” on the product webpage, which means that such Photograph(s) is/are not authorized for Use as a Book Cover. This license is transferable only on the following conditions: (x) the relevant Photograph(s) have not been Used publicly or, to the extent any Photograph authorized for Use as a Book Cover is in Use publicly, the assignment is limited to continued Use of the relevant Photograph for the one existing Book Cover along with Use for Book-Related Content; (y) You provide written notice to Cover Lab of such assignment within 30 days of such assignment; and (z) You assign the MCP License, in whole or in part, as applicable, on the same terms and conditions as provided in this Agreement, and the assignee agrees to assume such terms and conditions.
- Publicity License and Release.
- Subject to the terms of this Agreement, Cover Lab hereby grants to You, a perpetual, non-exclusive, English worldwide, Royalty-Free, transferable right to use Photographer’s and Model's name to give authorship attribution for the Photograph when Used as permitted under this Agreement, although attribution is not required unless expressly stated in your direct download content after purchase. To the extent you include an attribution credit, it should be in substantially the form [Photographer Name]/[Model Name]/licensed by The Cover Lab, LLC.
- Subject to the terms of this Agreement, Cover Lab hereby grants to You, a perpetual, non-exclusive, English worldwide, Royalty-Free, transferable right to Use (including for sexually explicit Book Covers and Book-Related Content, as applicable under the terms of the license You purchase, but excluding defamatory content) the Likeness of all models included in the Photograph for which You purchased a license. To the extent any model’s personal information is provided to You in order to complete a transaction and/or confirm rights granted herein, You may retain such information as long as necessary to fulfill such purposes, provided that You store such information in a manner that is compliant with the applicable privacy and data protection laws.
- Intellectual Property Rights and Obligations. Except as specifically granted in Section 2.1 and 2.2, each Party to the Agreement retains all right, title and interest to its Intellectual Property Rights. For avoidance of doubt, the owner(s) of the copyright in the Photograph(s) retain all rights not expressly granted herein and Cover Lab retains the right to use the Photograph(s) as reasonably related to its Website and promotion and operation of Cover Lab other than for the sale of additional licenses to third parties. Please also note that there may be other Photographs that are similar to the Photograph(s) You have licensed, and nothing in this Agreement prohibits Cover Lab from licensing such similar Photographs to other end users.
- No Unlawful Use. You may not use content in a defamatory or other unlawful manner, or in violation of any applicable laws or regulations.
- No Use Other than for Book Cover and Book-Related Content. Unless additional rights and permissions are provided by separate written agreement between Cover Lab and You, this Agreement, including any license granted to You hereunder, does not include any rights or permissions to Use or sublicense any Photograph or model’s Likeness for any purposes other than for Book Covers and/or Book-Related Content, as specified under the particular license type reflected on Your Receipt and each product's webpage.
- No Bare Use. You may not use any Photograph in any publicly accessible manner that allows others other than You (or Your business or authorized publishing partners) to download, extract, or distribute the Photograph as a standalone file (meaning the Photograph itself apart from its end use as a Book Cover or incorporated into Book-Related Content or drafts thereof).
- No Trademark Use. You may not use or register any Photograph (in whole or in part) as a distinctive or distinguishing feature of a trademark, design mark, service mark, or logo.
- You may not falsely represent that You are the original author of the Photograph (including within any copyright applications, although You may claim authorship of original authorship added to create Derivative Works).
- Payment to Cover Lab. Consistent with the terms of this Agreement, You shall pay Cover Lab, in-full by credit card or other method of payment made available on the Cover Lab Website at the time of purchase, a one-time fee (“O-T Fee”) equal to the price stated in the Receipt for each relevant Photograph or package of Photographs based on the applicable license.
- No Other Fee. Other than the O-T Fee provided in Section 4.1, no other fee shall be due to either Party for any Use in accordance with this Agreement.
Representations and Warranties
Your Representations and Warranties.
- You have the full right, power and authority to enter into and fulfill the terms of this Agreement; and
- Your Representations and Warranties.
- You will only Use the Photograph(s) that You license from Cover Lab in accordance with the terms of this Agreement.
- Cover Lab Representations and Warranties:
- Cover Lab has the full right, power and authority to enter into and fulfill the terms of this Agreement.
- Warranty of Non-Infringement. For all Photographs licensed to You under this Agreement, Cover Lab warrants that Your Use of such Photograph(s) as provided by Cover Lab and in accordance with this Agreement will not infringe on any copyrights or moral rights of the content owner/creator or the rights of publicity of any model(s) whose Likeness is contained therein.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE, COVER LAB DOES NOT GRANT ANY FURTHER RIGHTS OR ANY WARRANTY WITH REGARD TO USE OF PHOTOGRAPHS, NAMES, TRADEMARKS, TRADE DRESS, LOGOS, DESIGNS, WORKS OF ART OR ARCHITECTURE DEPICTED OR CONTAINED IN THE PHOTOGRAPH(S). IN SUCH CASES, YOU ARE SOLELY RESPONSIBLE FOR OBTAINING SUCH RELEASE(S) AND FOR PAYMENT OF ANY AMOUNTS THAT MAY BE DUE UNDER SUCH ADDITIONAL RELEASE(S) OR AGREEMENTS. YOU HEREBY ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE PHOTOGRAPH(S) ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY, OR OTHER CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COVER LAB DOES NOT REPRESENT OR WARRANT THAT THE PHOTOGRAPHS WILL MEET YOUR REQUIREMENTS.
- While Cover Lab has made reasonable efforts to obtain and accurately describe the grants of exclusivity with respect to the Photographs as provided by Cover Lab in each license type, Cover Lab does not warrant or guarantee such grants of commercial exclusivity.
- Distinctive Use. Although the mission of Cover Lab is to provide accessible photographs to authors and publishers to create individualized Book Covers by only licensing a particular photograph for one literary work (in any and all Media), please note there may be other photographs that are similar to the Photograph(s) You have licensed from Cover Lab, and that such similar photographs may be licensed by Cover Lab to third parties. You hereby agree and acknowledge that a license by Cover Lab to a third party of the right to Use a photograph similar to the Photograph licensed to You is not a breach of this Agreement. Nothing in this Agreement prohibits Cover Lab from licensing similar Photographs to other customers for Use as Book Covers or Book-Related Content.
Indemnification / Limitation of Liability
- IP Claims. You will cooperate and assist with the defense against any IP Claim brought against Cover Lab.
- Notice of IP Claims. In the event that You become aware of actual or threatened infringement of Intellectual Property Rights in the Photograph or of an IP Claim against the Photograph, You shall so notify Cover Lab in accordance with Section 8.6 within fifteen (15) days.
- Indemnification of Cover Lab. You agree to defend, indemnify and hold harmless Cover Lab and its parent, affiliates, and content suppliers, and each of their respective officers, directors and employees from and against all damages, claims, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) Your use of any Photograph(s) outside the scope of the Agreement; (ii) any breach or alleged breach by You (or anyone acting on Your behalf) of any of the terms of this or any other Agreement with Cover Lab; and (iii) Your failure to obtain from any third party any required release for Your use of the Photograph(s).
- Indemnification of You by Cover Lab/Photographer. Provided that You are not in breach of this or any other agreement with Cover Lab, and as Your sole and exclusive remedy for any breach of the warranties set forth in Section 5.2 above, Cover Lab agrees, subject to the terms of this Section 6, to defend, indemnify and hold harmless You and Your respective officers, directors and employees from and against all damages, claims, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Cover Lab of its warranties in Section 5 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by You to the Photograph(s) or the context in which the Photograph(s) is used by You. This indemnification also does not apply to Your continued Use of the Photograph(s) following notice from Cover Lab, or upon Your knowledge, that the Photograph is subject to an IP Claim.
- Notice Regarding Indemnity. The Party seeking indemnification must promptly notify in writing the other Party about the IP Claim. The indemnifying Party has the right to assume the handling, settlement or defense of any IP Claim. The indemnified Party shall cooperate in any way reasonably requested by the indemnifying Party. The indemnifying Party will not be liable for legal fees and other costs incurred prior to the other Party giving notice of the IP Claim for which indemnity is sought.
- Opportunity to Cure. In the event that a Photograph, or any part thereof, is subject to, or in the opinion of Cover Lab is likely to become subject to, an IP Claim, Cover Lab, at no expense to You, will (i) seek from the relevant photographer a replacement or modification of the relevant Photograph so that it is no longer infringing, provided that the replacement is satisfactory to Cover Lab in its reasonable commercial judgment; or (ii) procure, from the photographer, for Cover Lab and/or You, as applicable, the rights necessary to continue using the Photograph under this Agreement.
- Withdrawal of Photographs. At any time, at its sole discretion, and without notice, Cover Lab may remove from the Cover Lab Website any photograph not yet licensed to an end user.
- Limitation of Liability. COVER LAB WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT EVEN IF COVER LAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
Term and Termination
- Unless otherwise terminated or taken down pursuant to Section 7.2 and 7.3, the “Term” of this Agreement shall commence on the date you download the Photograph pursuant to the license type stated on Your Receipt and the product webpage and shall continue on a per-Photograph basis in accordance with the term identified for that license type as stated in Section 2.
- Cover Lab may terminate Your license to any and all Photograph(s) licensed pursuant to this Agreement at any time if You breach any terms of this or any other agreement with Cover Lab, in which case You must immediately: cease using the Photograph, destroy or delete any copies of materials that include the Photograph (but not including works made in accordance with the terms of this Agreement if created before the termination date), and, if requested, confirm to Cover Lab in writing that You have complied with these requirements.
- Mitigation of IP Claims. Upon notice from Cover Lab, or upon Your knowledge, that any Photograph may be subject to an IP Claim for which Cover Lab may be liable, Cover Lab may require You to immediately, and at Your own expense: cease using the Photograph, destroy or delete any copies of materials that include the Photograph, and ensure that Your agents, distributors, and other affiliates do the same. Cover Lab will provide You with a replacement Photograph as set forth in Section 6.6.
- All Sales Final/No Refunds or Exchanges. Due to the exclusive licenses and digital nature of the Photographs sold by Cover Lab, all sales of Photographs are final and are not eligible for refund or exchange, except as required by law for defective products in applicable jurisdictions. If you are experiencing technical difficulty in downloading a Photograph, please contact us at email@example.com.
- No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented.
- Successors/Assigns. This Agreement is binding upon and shall inure to the benefit of any respective successors and/or assigns of the Parties hereto.
- This Agreement together with any attachments, if any, which are incorporated by reference, is the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in a signed writing by both parties or issued electronically by Cover Lab and accepted by You. Unless expressly stated otherwise in writing, in the event of a conflict between provisions of this Agreement and any Receipt, this Agreement shall take precedence.
- Governing Law: Forum. This Agreement will be governed by U.S. federal law, and, to the extent that there is no relevant federal law, the laws of the State of New York without regard to its conflicts of laws principles. Both Parties consent and agree that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the State of New York and both Parties consent and agree that jurisdiction and venue for such proceedings shall be exclusively with such courts.
- Force Majeure. Neither Party shall be liable for delay or failure in the performance of its obligations hereunder if such delay or failure arises from the occurrence of events beyond the reasonable control of such party, which events could not have been prevented by the exercise of due care and could not have been foreseen at the time of entering into this Agreement, such as fire, explosion, flood, storm, acts of God, war, embargo, or riot.
- No Joint Venture. Nothing contained herein shall be construed as creating a relationship of partnership, agency, employment, franchise, joint venture, or other form of joint enterprise or joint authorship between the Parties.
- All notices required to be sent to Cover Lab under this Agreement must be sent via email to firstname.lastname@example.org. All notices will be sent to You at the email address provided for Your account with Cover Lab or as otherwise expressly agreed between the Parties.
- This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument.
- Electronic Execution. This Agreement and future written communications requiring a signature may be executed by any form of valid electronic signature recognized under U.S. law. Documents executed with such signatures shall be deemed binding for all purposes hereof, without physical delivery of an original signature being thereafter required.
- Written Communication by E-Mail. Where this agreement calls for a written document, written communication by e-mail shall be deemed to comply with such requirement. To the extent a signature is required, such signature must comply with Section 8.8.
- If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
- WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- Unless the express context otherwise requires: (a) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (b) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (c) references herein to a specific Section or Schedule shall refer, respectively, to Sections or Schedules of this Agreement; (d) wherever the word “include,” “includes,” or “including” is used in this Agreement, then, unless it is immediately preceded by the word “not,” it shall be deemed to be followed by the words “without limitation”; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) any reference to “days” shall mean calendar days unless business days are expressly specified; (h) references herein to any contract or agreement (including this Agreement) mean such contract or agreement as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; (i) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; (j) references herein to any law means such law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time; and (k) references herein to any law shall be deemed also to refer to all rules and regulations promulgated thereunder.
- Headings Not Controlling. The headings in this Agreement are for reference purposes only and shall not be construed as a part of this Agreement.