NATURE CREATIVE, INC. CONTENT LICENSE AGREEMENT
LAST UPDATED: January 2022
This is a license agreement between you and Nature Creative, Inc. (“Nature Creative”) that explains how you can use the images, photos, illustrations, Design Effects (as defined below), User Designs (as defined below), and graphics (collectively, the “Content”) that you license from Nature Creative. By downloading Content from the Nature Creative website, www.naturecreative.com, and the mobile site (collectively, the “Site”), you accept the terms of this agreement (“Agreement”).
The Site and all Content are the copyrighted property of Nature Creative. All rights in the Site and the Content are reserved worldwide. It is strictly prohibited to retain, copy, distribute, publish, or use any portion of the Site or Content except as expressly allowed in this Agreement. Nature Creative reserves the right to add to, delete from, or modify any part of the Site and Content at any time without prior notice, and all such modifications shall remain the property of Nature Creative.
The Site contains design tools (“Tools”) which employ various elements, including, without limitation, icons, fonts, color schemes, layouts, and design effects (collectively, the “Design Effects”). The Tools may be utilized by you to create designs incorporating Design Effects and Content (each a “User Design”), which User Designs shall be subject to the terms contained in this Agreement. You do not obtain any right or claim to any of the individual Design Effects that you may incorporate into your User Designs. You hereby acknowledge and agree that any and all User Designs created by you on the Site are and shall remain in perpetuity the property of Nature Creative. To further ensure such ownership by Nature Creative, you hereby exclusively, irrevocably and unconditionally assign, transfer, and convey unto Nature Creative, the entire right, title, and interest (within the United States and all foreign jurisdictions) in and to any and all User Designs you create on the Site, and to any and all copyrights on said User Designs that may arise and/or may be granted, and including each and every derivative work arising from said User Designs. You hereby acknowledge and agree that Nature Creative may utilize the User Designs for its own purposes as well as make all User Designs available for use by other Nature Creative customers subject to the terms and conditions of this Agreement.
1. What type of license does Nature Creative offer?
- Nature Creative offers various levels of licenses for purchase on the Site, each of which designates the type and extent of use permitted under each level (each a “License Level”). The License Levels offered are as follows: CHART OF LICENSES.
- Subject to the terms of and uses permitted by the License Level purchased, Nature Creative offers a royalty-free license. Royalty-free does not mean there is no cost for the license. Instead, royalty-free means that the license fee is paid once and there is no need to pay additional royalties if the Content is re-used. Pricing is based on the Content being licensed and its intended use as set forth in the License Level purchased.
2. How can I use licensed Content?
Subject to the restrictions/limitations set forth in the License Level you purchased, the Restricted Uses (as hereafter defined), and the rest of the terms of this Agreement, the rights granted to you by Nature Creative are as follows:
- Perpetual, meaning there is no expiration or end date on your rights to use the Content.
- Worldwide, meaning Content can be used in any geographic territory.
- Unlimited, meaning Content can be used an unlimited number of times.
- Any and all media, meaning Content can be used in print, in digital or in any other medium or format.
- Non-Exclusive, meaning that, unless otherwise indicated on the Site, your invoice, sales order or separate agreement, you do not have exclusive rights to use the Content. Nature Creative can license the same Content to other customers. If you would like the right to restrict future sales of a particular piece of Content on the Site (a “Market Freeze”), please contact Nature Creative to discuss such Market Freeze option. Any customer who has purchased a license to use the Content prior to your purchase of a Market Freeze therefor will still have the ability to use the Content pursuant to the License Level they purchased; however, no further sales of such Content will be made to any future customers once your Market Freeze is purchased.
For purposes of this Agreement, "use" means to copy, reproduce, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the terms of the License Level you purchased and the Restricted Uses section herein for exceptions.
3. Restricted Uses.
- No Unlawful Use. You may not use Content in a pornographic, defamatory or other unlawful manner, or in violation of any industry codes or applicable regulations.
- No Standalone File Use. You may not use Content in any way that allows others to download, extract, or redistribute Content as a standalone file (meaning just the Content file itself, separate from the project or end use).
- No Sensitive Use Without Disclaimer. If you use Content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the Content is being used for illustrative purposes only, and (2) any person depicted in the Content is a model. For example, you could say: "Stock photo. Posed by model."
- No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed Content. For instance, you cannot create artwork based solely on licensed Content and claim that you are the author.
- No Modifications or Edits. You may not modify or edit the Content other than through the use of the Tools on the Site or as otherwise negotiated with Nature Creative in a separate agreement.
- No 'On Demand' Products. You may not use Content in connection with "on demand" products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom designed websites, as well as sites such as zazzle.com and cafepress.com), except as otherwise permitted by the particular License Level purchased or pursuant to a separately negotiated agreement with Nature Creative.
- No Electronic Templates. You may not use Content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates) except as otherwise permitted by the particular License Level purchased or pursuant to a separately negotiated agreement with Nature Creative.
- No Use in Trademark or Logo. You may not use Content (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, tradename, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such Content (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third party use of the Content or any similar content (including by Nature Creative, our customers, or the copyright owner of such Content).
- No Machine Learning, AI, or Biometric Technology Use. You may not use Content (including any caption information, keywords or other metadata associated with Content) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons. Additionally, Nature Creative does not represent or warrant that consent has been obtained for such uses.
- No Metadata Exploitation. You may not use the caption information, keywords, accompanying text, or other metadata associated with Content separate and apart from the Content, or allow any third parties to access or use any such information associated with Content.
- NFT Use. Unless expressly authorized by Nature Creative, you may not use any items of Content in connection with an immutable digital asset intended for sale (such as a non-fungible token).
4. Who, besides me, can use the licensed Content?
The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the Content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this Agreement. If you do not have that authority, then your employer or client may not use the Content. The rights purchased may only belong to you or your employer/client, depending on who is named as the "Licensee" at the time of purchase. In other words, if you purchase a royalty-free image, only one of you (and not both) may re-use that image for multiple projects.
- Sharing and Storage Restrictions for Content. Please note that sharing and storage restrictions apply for the licensed Content. Only one individual may use an item of Content on behalf of an entity, however you may make Content available for viewing by any of your employees, clients and subcontractors. There are no restrictions on where such individual may store the Content. The raw file of Content may not be provided to anyone outside of your legal entity. If you require the Content to be available to more than one user, please contact Nature Creative to purchase rights for additional users.
- Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use Content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this Agreement and may not use the Content for any other purpose.
5. User Accounts.
You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Nature Creative immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Nature Creative reserves the right to monitor downloads and user activity to ensure compliance with the terms of this Agreement. If Nature Creative determines that you are in breach of this or any other term of this Agreement, it may suspend access to your account and seek further legal remedies.
6. Who owns the content?
As stated above, all Content, including, without limitation, User Designs, is owned by Nature Creative. All rights not expressly granted in this Agreement are reserved by Nature Creative. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the licensed Content.
- Do I need to include a photo credit? You do not need to include a photo credit for personal use or use in connection with your business, but if you are using Content for editorial purposes, you must include a credit adjacent to the Content or in production credits. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the Content on the Nature Creative website: "[Photographer Name]/[Collection Name] via Nature Creative."
- Do I need to include a video credit? If licensed Content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit in comparable size and placement. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the Nature Creative website: "[Video] [Imagery] supplied by [Artist Name]/[Collection Name] via Nature Creative."
- Can I use the Nature Creative name or logo? You may use the name of Nature Creative as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.
Termination. Nature Creative may terminate this Agreement at any time if you breach any of the terms of this Agreement or any other agreement with Nature Creative, in which case you must immediately: cease using the Content; delete or destroy any copies; and, if requested, confirm to Nature Creative in writing that you have complied with these requirements.
- Social Media Termination. If you use the Content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the Content for its own purpose or in a way that is contrary to this Agreement, the rights granted for such use shall immediately terminate, and in that event, upon Nature Creative's request, you agree to remove any Content from such platform or website.
- Refunds/Cancellation. All requests for refunds/cancellations must be made in writing or using the cancellation function on the Site. Digital Content download purchases are non-refundable once the Content file has been delivered to you. For all other purchases, provided that the request is made within thirty (30) days and the licensed Content has not been used, Nature Creative may consider a refund and/or credit depending on the circumstances set forth in the request. No credits or refunds are available for cancellation requests received more than thirty (30) days from your receipt of Content. In the event of cancellation, your rights to use the Content terminate, and you must delete or destroy any copies of the Content.
- Content Withdrawal. Nature Creative may discontinue licensing any item of Content at any time in its sole discretion. Upon notice from Nature Creative, or upon your knowledge, that any Content may be subject to a claim of infringement of a third party's right for which Nature Creative may be liable, Nature Creative may require you to immediately, and at your own expense: cease using the Content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Nature Creative will provide you with replacement Content (determined by Nature Creative in its reasonable commercial judgment) free of charge, subject to the other terms of this Agreement.
9. Representations and Warranties by Nature Creative.
Nature Creative makes the following representations and warranties:
- Warranty of Non-Infringement. For all licensed Content, Nature Creative warrants that your use of such Content in accordance with this Agreement and in the form delivered by Nature Creative (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the Content owner/creator, will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
- Warranty Disclaimer. Unless specifically warranted above, Nature Creative does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted designs, works of art or architecture depicted or contained in the Content. In such cases, you are solely responsible for determining whether releases are required in connection with your proposed use of the Content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for Content identified as "editorial," and that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed Content.
- Caption/Metadata Disclaimer. While Nature Creative has made reasonable efforts to correctly categorize, keyword, caption and title the Content, Nature Creative does not warrant the accuracy of such information, or of any metadata provided with the Content.
- No Other Warranties. Except as provided in this section above, the Content is provided "as is" without representation, warranty or 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. Nature Creative does not represent or warrant that the Content or its Site will meet your requirements or that use of the Content or the Site will be uninterrupted or error free.
10. Representations and Warranties by you.
You hereby represent and warrant that (a) you are the sole owner of all concepts, designs and elements you provide and/or create for inclusion in your User Designs (the “User IP"), and (b) that such User IP, nor any element thereof, infringes any existing copyright, patent, trademark, trade secret or other intellectual property right of any third party or misappropriates any trade secret of any third party.
11. Indemnification/Limitation of Liability.
- Indemnification of Nature Creative by you. You agree to defend, indemnify and hold harmless Nature Creative and its parent, subsidiaries, affiliates, and licensors, and each of their respective officers, directors, members, shareholders, employees, representatives, successors and assigns from all damages, liabilities and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with (i) your use of any Content outside the scope of this Agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this Agreement or any other agreement with Nature Creative; and (iii) your failure to obtain any required release for your use of Content.
- Indemnification of you by Nature Creative. Provided that you are not in breach of this Agreement or any other agreement with Nature Creative, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 9 above, Nature Creative agrees, subject to the terms of this Section 11, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable legal costs including attorney fees) arising out of or in connection with any breach or alleged breach by Nature Creative of its warranties in Section 9 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 Content or the context in which the Content is used by you. This indemnification also does not apply to your continued use of Content following notice from Nature Creative, or upon your knowledge, that the Content is subject to a claim of infringement of a third party's right.
- Process. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation with counsel approved by the indemnified party. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal costs including attorney fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
12. Limitation of Liability.
NATURE CREATIVE 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 NATURE CREATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
13. General Provisions.
- Assignment. This agreement is personal to you and is not assignable by you without Nature Creative' prior written consent. Nature Creative may assign this Agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
- Audit. Upon reasonable notice, you agree to provide to Nature Creative sample copies of projects or end uses that contain licensed Content, including by providing Nature Creative with free of charge access to any pay-walled or otherwise restricted access website or platform where Content is reproduced. In addition, upon reasonable notice, Nature Creative may, at its discretion, either through its own employees or through a third party, audit your records directly related to this Agreement and your use of licensed Content in order to verify compliance with the terms of this Agreement.
- Electronic storage. You agree to retain the copyright symbol, the name of Nature Creative, the Content's identification number and any other information or metadata that may be embedded in the electronic file containing the original Content, and to maintain appropriate security to protect the Content from unauthorized use by third parties.
- Governing Law/Arbitration. This agreement will be governed by the laws of the State of California, without reference to its laws relating to conflicts of law. The jurisdiction for any disputes arising from or related to this Agreement shall be in Los Angeles County, and shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under (i) if you are in North America: the JAMS' Expedited Procedures in its Comprehensive Arbitration Rules and Procedures ("JAMS"); or (ii) if you are outside of North America: the International Centre for Dispute Resolution ("ICDR") or JAMS (the applicable rules to be at your discretion), in effect on the date of the commencement of arbitration. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs including attorney fees relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Nature Creative shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Nature Creative, such action is necessary or desirable to protect Nature Creative' intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
- Severability. If one or more of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
- Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
- Entire Agreement. No terms or conditions of this Agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Nature Creative and accepted by you. In the event of any inconsistency between the terms of this Agreement and the terms contained on any purchase order sent by you, the terms of this Agreement will apply.
- Notice. All notices required to be sent to Nature Creative under this Agreement should be sent via email to [email protected]. All notices to you will be sent via email to the email set out in your account.
- Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed Content.