END USER LICENSE AGREEMENT (EULA) FOR EXTENDED ROYALTY FREE(RF) AND ROYALTY MANAGED(RM) CONTENT
1.The web pages available at johanswanepoel.com and all linked pages are owned and operated by Johan Swanepoel. This is a legal agreement between the end user, which are you or your company, client, firm or other organisation ("Licensee") and johanswanepoel.com ("Johan Swanepoel"). Please read this agreement carefully in its entirety before you download or use any photograph or graphic image ("Content"). By confirming the purchase of any Content or downloading any Content you have selected from this website you agree to be bound by the terms of this EULA (the "Agreement") as well as the website Terms and Conditions.
1.1. Johan Swanepoel owns all rights, including the copyrights in and to the Content and reserves all rights in and to the Content not expressly granted to Licensee by this Agreement. Licensee rights to use any Content are subject to this Agreement.
2A.GRANT OF RIGHTS FOR EXTENDED ROYALTY FREE(RF) CONTENT (Applicable if you purchased a RF License)
2A.1. Johan Swanepoel hereby grants Licensee a worldwide, non-exclusive, non-transferable, non-sublicensable right in perpetuity to use, modify, and reproduce Content in any and all media for all purposes the following ways, subject to the limitations set forth herein and under the Restrictions (section3):
2A.1.1. The Content may be reproduced an unlimited number of times, with no limits on quantities, for an unlimited time.
2A.1.2. The rights granted are for an unlimited number of seats under the employment of the Licensee, including agents and subcontractors (“Users”), provided that such Users agree to abide by the provisions of this Agreement and the Content are used and reproduced only for the Licensee.
2A.1.3. The rights granted are for a single end user, which is the Licensee.
2A.1.4. If you are an agent who acquires Content on behalf of a client, your client is the Licensee and acquires the rights to the Content under this Agreement. You may use the Content only for this client. You must purchase a separate license for each individual client or customer for whom or which you acquire or use Content.
2A.1.5. If you create a derivative work based on or incorporating any Content, all rights in and to such Content will continue to be owned by Johan Swanepoel, subject to your rights to use such Content under this Agreement.
2B.GRANT OF RIGHTS FOR ROYALTY MANAGED(RM) CONTENT (Applicable if you purchased a RM License)
2B.1. Johan Swanepoel hereby grants Licensee a non-exclusive (unless otherwise stated on invoice), non-transferable, non-sublicensable right to use, modify, and reproduce Content solely and strictly in the manner(type of use), medium, purpose, duration, territory and industry as set out in the Invoice, subject to the limitations set forth herein and under the Restrictions (section3):
2B.1.1. The rights granted are for unlimited print run and print size, but strictly limited to the manner(type of use), medium, purpose, duration, territory and industry as set out in the Invoice.
2B.1.2. The duration of usage is calculated in calendar days from the date of purchase.
2B.1.3. The Licensee must abide by any image restriction/s on use notified to him before, after or at the time of delivery of the Content, either in the information accompanying the Content, the Invoice or otherwise.
2B.1.4. The rights granted are for a single end user, which is the Licensee.
2B.1.5. If you are an agent who acquires Content on behalf of a client, your client is the Licensee and acquires the rights to the Content under this Agreement. You may use the Content only for this client. You must purchase a separate license for each individual client or customer for whom or which you acquire or use Content.
2B.1.6. If you create a derivative work based on or incorporating any Content, all rights in and to such Content will continue to be owned by Johan Swanepoel, subject to your rights to use such Content under this Agreement.
3.1. Licensee may not resell, assign, transfer, sub-license or make any Content, or derivative work based on or incorporating any Content, available in a manner intended to allow or invite a third party to download, extract, redistribute or access any such work as a standalone file.
3.2. Licensee may not use or display the Content on websites or in any other medium designed to induce or involving the sale, license or any other distribution of "on demand" products (e.g., products in which Content is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, calendars, posters, screen-savers or wallpapers on mobile telephones, or similar items.
3.3. Licensee may not make any Content, or derivative work based on or incorporating any Content, available in the form of fine art prints.
3.4. Licensee may not falsely represent, expressly or by way of reasonable implication, that any Content is created by Licensee or a person other than the copyright holder of such Content.
3.5. Licensee may not incorporate Content (in hole or in part) into a logo, corporate ID, trademark or service mark.
3.6. Licensee may not use any Content in a manner that violates the law of any applicable jurisdiction.
3.7. Licensee may not use any Content together with pornographic, defamatory, or otherwise unlawful or immoral content or in such a manner that it infringes upon any third party's trademark or intellectual property rights.
3.8. Licensee may not use any Content in such a way as to imply that any model depicted in the Content personally uses or endorses a product or service, or endorses any political candidate or controversial opinion without a clear and conspicuous disclaimer that the person depicted in the Content is a model.
3.9. Licensee may not use any Content depicting any model in a way that implies that the depicted person suffers from any physical or mental infirmity, ailment or condition, unless accompanied by a clear and conspicuous statement indicating that the person is a model and the Content is being used for illustrative purposes only
3.10 Licensee may not use any Content as references for creating drawings or other visual works unless specifically authorized in the Invoice.
4.CREDIT ATTRIBUTIONS AND COPYRIGHT NOTICES
4.1. No ownership or copyright in any Content shall pass to the Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Johan Swanepoel grants Licensee no right or license, express or implied, to the Content.
4.2. If Licensee use Content in connection with editorial, the internet, a book, magazine, or newspaper, Licensee must give credit and provide a copyright attribution to the copyright holder. Such credit and attribution must be in substantially the following form: "Copyright Johan Swanepoel (johanswanepoel.com)"
5. PAYMENT, INVOICES AND REFUNDS
5.1. All sales of Content are final and cannot be returned. Except for material defects, provided for in the Warranties and Limitation of Liability (section 6), there are no refunds on sales of Content. Prices, offers and products are subject to availability and may change.
5.2. The Licensee is responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction as a result of the license granted or of the use of the Content, pursuant to this Agreement, in addition to the price paid to Johan Swanepoel.
6. WARRANTEES AND LIMITATION OF LIABILITY
6.1. Johan Swanepoel warrants that he has all necessary rights and authority to enter into and perform under this agreement.
6.2. Johan Swanepoel warrants that the Content will be free of material defects.
6.3. Johan Swanepoel has made reasonable efforts to ensure the correct labeling, categorization and keywording of the Content, however, Johan Swanepoel does not warrant the accuracy of such information.
6.4. In the event of any material defects, the Licensee is entitled to a refund equal to the amount of the purchase price only without any further liability by Johan Swanepoel.
6.5. Johan swanepoel makes no other warranties, express or implied, regarding the Content, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Johan Swanepoel and its affiliates, partners, content providers, agents, suppliers or their respective directors, officers, employees, shall not be liable to the Licensee or any other person or entity for any general, punitive, special, indirect, exemplary, consequential or incidental damages, or lost profits or any other damages, costs or losses or proceeding arising under
this agreement or arising out of Licensee’s use of the Content or the download and use of the website, or termination of an account or otherwise, even if Johan Swanepoel has been advised of the possibility of such damages, costs or losses, whether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise.
7.1. The Licensee assumes full responsibility for the use of the Content. The Licensee shall defend, indemnify and hold Johan Swanepoel and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses, including but not limited to reasonable attorneys’ fees and costs, arising out of or as a result of claims by third parties relating to the Licensee’s use of any Content outside the scope of this Agreement, and / or the Licensee’s failure to obtain from third parties all permissions necessary to use the Content, or for any other breach by Licensee of this Agreement.
8. MISCELLANEOUS TERMS
8.1. If Licensee breach any of the terms of this Agreement or any other agreement with Johan Swanepoel, Johan Swanepoel has the right to terminate the account and license in this Agreement. In the event of termination, all rights granted will immediately revert to Johan Swanepoel and any further exploitation of any Content shall constitute an infringement of copyright. Johan Swanepoel is under no obligation to refund any fees paid by Licensee in the event of termination by reason of any such breach.
8.2. Johan Swanepoel does not warrant that the Content, 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 Content is solely with Licensee.
8.3. Licensee understands that legal competent counsel must be seeked before using Content on or in connection with any commercial purposes.
8.4. The validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, and related matters shall be governed and interpreted by the internal laws of South Africa (without reference to choice of law doctrine). Any legal action or proceeding concerning the validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, or related matters shall be brought exclusively to the courts of South Africa in the Pretoria district, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues.
9.1. If you are entering into this Agreement on behalf of an employer or other entity, 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 for any breach of the terms of this Agreement.
9.2. Licensee acknowledges it has read this Agreement, understands it, and has had an opportunity to seek independent legal advice prior to agreeing to it.
Effective from 11 April 2014