This document sets out the conditions under which SimpleClipart.com (hereinafter referred to as "SimpleClipart") provides services and licenses certain materials for you.
This document is the contractual agreement between you and SimpleClipart. Please read this document attentively.
If you do not agree with the terms of this Agreement please do not access the Website (as defined below) and do not use the Services (described below). The terms of this Agreement govern application of the Web site and the Services by you, as well as determine your responsibility as the User. Using this Website and / or the Services you agree to be bound by and comply with the terms of this Agreement. SimpleClipart reserves the right at any time from time to time to amend the terms of this Agreement by publishing such amendments at the Website, and your continued use of the Website and the Services after publication of any such amendment constitutes your acceptance of this amendment, no matter whether you really read it or not. We encourage you to periodically review this Website for amendments.
Under the terms used here the "User" means you, any organization you represent and your successors and assigns and authorized agents. Kava Images Content s.r.o, the Czech Republic ("SimpleClipart"), and the User may be referred to herein as the "Parties" and each individually as the "Party".
Whereas on the one hand, SimpleClipart provides the functioning of the Website where users can post their images and which allows other users to license the referred images;
On the other hand, the user wants to protect certain license rights for the photographs posted at the Website.
Therefore, in order to achieve mutual satisfaction, with its reception and sufficiency hereby acknowledged and in accordance with the above-mentioned recital, also being acknowledged by mutual treaty obligations and agreements set forth below, the Parties hereby agree as follows:
In this Agreement the following terms set forth below shall have the following definitions:
Website refers to the website www.SimpleClipart.com and any other website through which Kava Images Content s.r.o. renders the Services (described below).
Image implies any form of illustration, photograph or any other image submitted in electronic form which may be accompanied by supporting materials and which was placed in the archives of the Website from where you can access it.
Admissible derivative work refers to the work performed on the basis of the Image which was significantly altered resulting in the separate original work which gives the author the right for protection of property rights and copyright protection under the law of the Czech Republic, taking into consideration the condition that this work of authorship will not be posted by the User in any image bank (including the SimpleClipart Website).
Services imply the services provided by SimpleClipart which allow users to post their pictures at the website and to other users to license these images, as well as all other related activities (including, without limitation, promoting communication and transactions between the image and copyright owners and users).
Remuneration is the license fee in the amount indicated during checkout process.
User means the certain number of entities mentioned in the first section of this Agreement.
Author refers to the author or owner of the Images and / or of copyrights for them who adds the image into the image library of SimpleClipart.
Confidential information implies certain information, concepts, data and know-how in oral, visual or electronic form, tangible or intangible, related to the Services, business and future business of SimpleClipart, as well as existing or potential products, processes and services of SimpleClipart, including, without limitation, lists of Users, lists of Images, lists of Authors, trade secrets, inventions, technologies, designs, methods, know-how, materials of visual learning systems, computer programs, works of authorship, financial documentation and information including pricing methods, lists and information about buyers, plans, proposals, marketing plans and strategies.
2. Transfer of license
In accordance with the terms and conditions of this Agreement SimpleClipart transfers to the User and the User accepts non-exclusive, non-transferable right and sub-license for use of those images for which the User paid the fee, all in accordance with the provisions of the Standard and Extended licenses which may periodically be amended by SimpleClipart).
The User can perform Admissible derivative work but only in accordance with the terms and conditions set forth herein. The User agrees not to post any Admissible derivative work in any bank or similar database (including SimpleClipart Website).
The User is solely responsible for use of the Images.
3. Ownership rights
The User acknowledges and agrees that each Image and the copyright for it are the property of the Author of this Image but not of the User. The Authors own all property rights and have proprietary interests for the Image, and the User should not take any actions which are contrary to these property rights and proprietary interests.
4. Confidential information
Except for special rights granted under this Agreement, the User shall not use or disclose any Confidential Information without the written consent of SimpleClipart. The User must make the most commercially reasonable efforts to protect the Confidential Information, including the receipt from the employees or consultants with access to such Confidential Information of the written promise not to disclose the Confidential Information. The User is responsible for any breach of confidentiality by his/her employees and consultants. Within fifteen (15) days after request on behalf of SimpleClipart the User must either return to SimpleClipart all originals and copies of any Confidential Information and all data, records and materials produced from them by the User or to destroy them. The User may disclose only the general sense but not the specific financial terms of this Agreement without obtaining the prior written consent of SimpleClipart. Nothing herein should not hold the User from disclosing all or part of the Confidential Information if it is necessary in accordance with the legal requirement of the public authority or by operation of the law, under the condition that before any such disclosure the User shall use reasonable efforts to:
- timely notify SimpleClipart in writing of such disclosure requirements;
- fully cooperate with SimpleClipart to be protected against any such disclosure.
Cash compensation of damages shall not be deemed the adequate remedy in the event of breach of this Section 4 or of the Sections 2 or 3, and, therefore, SimpleClipart must, in addition to any other legal or lawful actions, obtain the right for the order or similar legal exemption from such violation or from the threat of violation without requiring to declare any obligations.
The User must pay all Fees in accordance with the terms set forth during checkout process.
If the User violated the Section 2 of this Agreement with regards to limitation of the number of copies in the absence of the Extended license the User shall notify SimpleClipart in writing that he/she exceeded the maximum number of copies. The User must send the notice to SimpleClipart within ten (15) days from the moment of exceeding of the specified limits. The notification shall contain the information on the number of copies made by the User during one month in excess of permitted amounts. The User agrees that in the case of excess of permitted number of copies the User will pay the compensation invoice which will be calculated by SimpleClipart on the basis of excess and application by the User.
6. The independent audit
SimpleClipart has the right upon sending the prior written notice within the reasonable time to conduct the independent audit of the User’s compliance with this Agreement. The User must prepare all relevant documentation and accounting records for such testing during normal business hours in the head office of the User. Any such inspection shall be performed by SimpleClipart except when in the course of the audit the underpayment by the User will be revealed for the test period for more than five percent (10%), and in such case the User shall reimburse these costs to SimpleClipart. If during the inspection any underpayment on behalf of the User will be revealed the User must promptly pay this shortfall plus the interest to SimpleClipart.
7. Term of validity and Termination of Validity
This Agreement shall come into force from the date of its conclusion and may be terminated only in the manner specified in this document. This Agreement may be terminated:
- a. by the User - by means of notifying SimpleClipart;
- b. By SimpleClipart - immediately after the User violates the Sections 2, 3 or 4 or after violation by any of the parties if the other party essentially breached any of the provision of this Agreement and the breaching party failed to correct the violation within thirty (30) days after receipt of the notice of such breach from the other party.
If the User terminates this Agreement pursuant to Section 7 or if SimpleClipart terminates this Agreement pursuant to Section 7 the User must make all payments due under this Agreement. Upon termination of this Agreement for any reason all the rights, obligations and licenses of the Parties of this Agreement shall be abolished, except as follows:
- any fees, charges or expenses which the User shall pay to SimpleClipart accrued for payment before the date of termination shall not be revoked by reason of termination - these amounts (if not previously paid) shall be immediately paid as per the date of termination;
- the User loses all future rights to use the Images and immediately after the termination or expiration of this Agreement the User must destroy all originals and copies of the Images and the Confidential information in the possession or control of the User; within fifteen (15) days after termination the User should send the written confirmation to SimpleClipart that he/she fulfilled the requirements of the Section 7; the provisions of Sections 3 (Proprietary Rights), 4 (Confidential Information), 8 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Law Compliance), 12 (General Provisions) and this Section 7 shall remain in force after termination for any reason or expiration of this Agreement.
SimpleClipart reserves the right in its sole discretion to cancel or modify any license sent to the User under this Agreement or to replace any image with similar / alternative one. If this substitution is made after sending the notice to the last left email address the license for the replaced Image (including products that were not yet produced) will be canceled automatically. Renewed Image (Images) requires availability of the updated license. The User agrees to discontinue the use of the replaced Image (Images) and any valid derivative works and to perform all actions necessary to stop using it.
Images, Website and Services are not insured against errors and are provided on "as is" principle without warranty of any kind. SimpleClipart disclaims all warranties, expressed or implied, oral or written, with respect to image, website and services, including, without limitation, any implied warranty of ownership, non-infringement, merchantability or fitness for the particular purpose and all warranties originating from any of the business relationship or business practices.
User agrees to reimburse and defend SimpleClipart, its officers, employees, shareholders, directors, managers, members and suppliers from any losses and liabilities of any kind, appearing as a result of any use of Image or Admissible derivative work by the User or any other party which received copy of the Image or Admissible derivative work from the User. Further, the User agrees to reimburse SimpleClipart for all damages and costs incurred by the SimpleClipart in enforcing the provisions of this Agreement.
10. Limitation of liability
The liability of SimpleClipart for any damage to the User or any third party for any reason, regardless of the form of any claim or action, shall not exceed the aggregate remunerations paid by the User to SimpleClipart for twelve (12) months prior to issuing the claim. In no case SimpleClipart shall be liable for any loss of data, profits or use of images, website or services, or for any special, incidental, indirect, punitive or consequential damages arising in consequence of or in connection with the use or features of the images, the Website or the Service, regardless of whether SimpleClipart was acquainted with the possibility of such damages. These restrictions are independent of all other provisions of this Agreement and shall apply regardless of the impossibility of any remedy provided under this Agreement.
11. Compliance with laws
The rights are transferred to the User only to use the Images. The User must not violate copyright for images, export or re-export the Images or other information and materials provided by SimpleClipart hereunder directly or indirectly (including via remote access) to any country for which the jurisdiction of the Czech Republic or any other relevant jurisdiction requires obtaining the export license or other governmental authorization at the time of export without first obtaining such license or permit. The User is responsible for compliance with the latest export regulations of the Czech Republic and the User shall indemnify and defend SimpleClipart from any harm, fines, commissions, fees, liabilities, damages, losses and expenses (including reasonable fees for legal services and attorneys' fees) arising from claims due to the fact that the images or other information or materials provided SimpleClipart hereunder were exported or became available otherwise, sent or forwarded with violation of applicable laws and regulations. The User must comply with all laws, legislation, rules, regulations and government requirements regarding the Software and fulfillments of the obligations by the User under this Agreement, adopted in any jurisdiction in which or from which the User directly or indirectly uses the Software or obtains the access to it. In the event when this Agreement should be recorded in any public body the User must ensure such registration and pay all fees or taxes required in this connection.
12. General Provisions
Force Majeure. In the event when either Party has difficulty or is unable to perform any of its obligations under this Agreement for any reason beyond the reasonable control of the Party applying this provision the activity of the affected Party will continue for the period of delay or impossibility of performance as a result of the above-mentioned reasons.
Refusal. Failure of any Party to admit violation or failure to comply with any provision of this Agreement by the other Party shall not be construed as a waiver of recognition of any subsequent breach of the same or any other provision, and any delay or failure of any Party to use or get benefit from any right, opportunity or privilege which it owns or may acquire under the present Agreement shall not operate as a waiver of that Party from any rights, opportunities or privileges. Absence of agencies; independent contractors. Nothing herein should be taken as an opportunity to participate as any of the agent’s Parties or as the representative of the third party, or as both parties in the form of joint ventures or partners with whatever goal.
Applicable law; jurisdiction and judicial district. This Agreement shall be governed by and construed in accordance with the laws of the Czech Republic, regardless of the choice of law provisions. In the event of any inconsistency between the laws, rules and regulations of the Czech Republic and other countries the laws, rules and regulations of the Czech Republic shall apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and judicial district in order to review claims arising under this Agreement are located in federal and state courts located in Prague, Czech Republic, and both Parties hereby give their consent to the jurisdiction and the court district for these purposes. The invalidity or unenforceability of any provision of this Agreement does not affect the remainder.
Entire Agreement; the amendments. This Agreement constitutes the entire agreement between the Parties on the subject of the agreement. No waiver, consent, editing or modification of the provisions of this Agreement does not bind SimpleClipart unless it is in writing and signed by SimpleClipart, and in such case this waiver, consent, editing or amendment shall take effect only at the particular time and for specific set purpose. The User expressly waives the conditions set out in any User’s purchase order (or other similar document), which are in the form of supplement or contradict to the terms of this Agreement. All such conditions are regarded by SimpleClipart as significant changes of this license and therefore are rejected. The User’s purchase order is valid only as the unconditional obligation of the User to pay SimpleClipart for the Image license on the terms (and only on the terms) set forth herein. SimpleClipart may from time to time amend this Agreement by sending the written notice to the User (for the purposes of this proposal e-mail is equivalent to the written notice).
During conclusion of the individual contract with the buyer with the wet seal for purchase of the images SimpleClipart company has the right to modify the list of permitted and prohibited use of the images. All such changes are described and recorded in the contract with the buyer separately and individually, without making changes in the general rules posted at the website.
Costs, expenses and fees for legal services. The User agrees to reimburse all reasonable costs to SimpleClipart (including fees for legal services) incurred by SimpleClipart during collection of delayed payment from the User. If SimpleClipart starts any action or proceedings against the User for the purpose of fulfillment or interpretation of this Agreement SimpleClipart will be eligible to cover all valid costs, expenses and fees for legal services at the expense of the User (including all related costs and expenses) incurred by SimpleClipart in connection with such action or proceeding and in connection with procurement and enforcement of the relevant court decision or order.
Transfer of rights. This Agreement and the rights and obligations hereunder may not be transferred in whole or in part by the User without the prior written consent of SimpleClipart, and any unauthorized transfer would be illegal. SimpleClipart has the right to assign this Agreement to the assignee, in whole or the part of the SimpleClipart business which has to do with rendering the services. In the event of any permitted transfer of this Agreement or under this Agreement the Agreement or its relevant provisions will be binding and will act in the interests of successors, executors, heir, representatives, managers and authorized agents of the parties. Notices. All notices and messages of one party to another must be formalized in writing and delivered either personally or sent by fax or registered mail, with mandatory prepaid postage service and return receipt requested to the address of the other party indicated below or to another address which this other party may sometimes indicate in the notice to the other party. All notices must be in English and shall take effect upon receipt.
Language. The parties confirm that this agreement and all related documentation will be made in English. Any other language which sets out the provisions of this Agreement or notification to the user is used for convenience only. In the event of any inconsistency between the English text and the text in another language the English version has the priority.
Signatures and headers. Signatures and headers contained in this Agreement were introduced in order to facilitate reference and for convenience only and shall not be considered during explanation or interpretation of this Agreement.
In witness whereof, accepting this agreement, the User acknowledges to have read and understood this agreement and confirms availability of opportunity to find independent legal advice before agreeing to its terms. In accordance with the agreement of SimpleClipart to provide images the User agrees to be limited by the provisions of this Agreement.