IMPORTANT NOTICE TO USERS: PLEASE READ THIS AGREEMENT CAREFULLY.
Non-Exclusive License Agreement
This non-exclusive license agreement is a legal and binding agreement (“Agreement") between you the user (“Licensee") and 404 media, llc d/b/a motion array (“Motion Array"). your purchase, use, or distribution of all or any part of a motion array product or service, whether via download (temporary or permanent), on CD-ROM, DVD or other media, shall hereby constitute your consent to be bound by all of the terms and conditions of this agreement, and this agreement shall be immediately effective upon such purchase, use, or distribution. If an agent or an employee of an employer executes this agreement, the term “licensee" shall include both the agent/employee and the employer jointly and severally. This agreement is enforceable against you and any legal entity that obtains motion array products or services and on whose behalf they are used. If you do not agree, you are not authorized to use any motion array products or services.
Terms & Conditions
Digital Media Files are any images, animations, films, videos or other audio/visual representations recorded in any computer-readable format or form that are created, controlled by or obtained, directly or indirectly, from Motion Array. “Use" or “using" means to access, install, download, copy, distribute, modify, make use of or otherwise benefit from using the functionality of a Digital Media File. “Purchase Price" means the purchase price, membership fee, or pricing structure Licensee selected or will select during Licensee's enrollment process. “Royalty-Free" means Use without charge of Digital Media Files following or subject to payment of the Purchase Price. “Restrictions" means, collectively, those certain uses of the Digital Media Files that are NOT permitted under this Agreement and are exceptions to the license granted pursuant to Agreement.
Grant of License
Subject to the terms and conditions of this Agreement, the Restrictions, and payment of the Purchase Price, Motion Array hereby grants the Licensee a non-exclusive, non-transferable Royalty-Free license to use the Digital Media Files. All rights not specifically granted herein are retained by Motion Array.
Licensee may use the Digital Media Files on a server, image library or network configuration to be viewed by Licensee provided that no more than 1 user of Licensee can access the Digital Media Files, If you need membership plan which allows access to more than 1 user, you contact us for a discounted rate (This includes part-time and freelance users, employees or agents). You may not rent, lease, lend, sell or sublicense the Digital Media Files to another person, company or other entity. Anything you produce using the Digital Media Files must be for your own use, or for the use of your employer, client or customer, who must be the end-user of your work. Please contact Motion Array for a multi-seat site license if you need to use the Digital Media Files over a network for multiple users.
The Digital Media Files may be incorporated into a derivative work such as a film feature, video, broadcast, multimedia, advertisement, live performance, Internet, presentation, or print project. However, the Digital Media Files, in whole or in part, and any derivative work thereof may not be used, sold, licensed, reproduced, distributed or displayed as templates, stand-alone backgrounds, stock elements or effects imagery elements, made available as downloadable files or included in any other clip media/stock product, library, collection, or set of clips for distribution or resale. These terms apply even if the Digital Media Files have been significantly altered.
No Defamatory Use
The Digital Media Files may not under any circumstances be used in a way that would defame, malign, slander, asperse, libel, or vilify the persons, property, countries, races, customs, cultures, religions, governments or military visible on the Digital Media Files.
Licensee may not: (1) sublicense, sell, assign, convey or transfer any of its rights under this Agreement except as specifically provided herein; (2) include the Digital Media Files in an electronic template intended to be used by third parties on electronic or printed products, where the purpose is to create multiple impressions, including but not limited to: website designs, presentation templates, electronic greeting cards, business cards, or any other electronic or printed matter without obtaining a license for such purpose from Motion Array; (3) sell, license or distribute its final product in such a way that permits Licensee's end users to extract or access the Digital Media Files as stand-alone files; (4) incorporate the Digital Media Files into a logo, trademark or service mark; (5) distribute, post or upload the Digital Media Files online in a downloadable format or enable it to be distributed via mobile telephone or other electronic devices; (6) use any Digital Media Files in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other materials; (7) post, upload, or transfer any of Motion Array's digital media files, in any form, on websites offering customization services. These websites include, but are not limited to, Fiverr.com, Youtube.com, and Vimeo.com; (8) use any digital media files in an automated system, including online websites; (9) decompile, reverse engineer, disassemble or otherwise reduce the Digital Media Files to a human readable form; and (10) use any of the Digital Media Files in any manner prohibited by any export laws, restrictions or regulations, including, without limitation, the United States Export Administration Act (collectively, the “Export Laws"). In addition, if the Digital Media Files are identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Libya, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from using the Digital Media Files. All rights to use the Digital Media Files are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
Product Endorsement or Sensitive Use Disclaimer
If any Digital Media File featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person is a model and the Digital Media Files is being used for illustrative purposes only. These requirements are without prejudice to the obligations of Motion Array regarding use of the Digital Media File(s) contained elsewhere throughout this Agreement.
Use of Digital Media Files is provided to Licensee by subscription. Your subscription is effective for the period covered by your subscription fee (which is your Purchase Price) as disclosed in the enrollment process and continues upon your payment in advance of the renewal fee for the applicable period (e.g., monthly, half-yearly, or annually). Renewal fees for your subscription will automatically be charged at the then-current rate to the credit card or other billing source authorized by you on the first day of each successive subscription term until you cancel your subscription. Renewal will occur without prior notice to you. Should you choose to discontinue your subscription for any reason before expiration of the then-applicable subscription term for which you have paid, you may cancel your subscription and terminate further billing by logging in to your account and changing your settings under the "My Account" page. Access to previously downloaded files at MotionArray.com will be revoked upon downgrading your account to a free plan. Your payment to the Motion Array membership is to access the files contained in the site. All content included or made available through any Motion Array service, such as templates, graphics, logos, button icons, audio clips, digital downloads, and data compilations is the property of Motion Array or its content suppliers and is protected by United States and international copyright laws, the use granted through our license is for products downloaded while on a paid membership. Motion Array reserves the right to change the subscription fee for any renewal term to be effective upon the renewal of your subscription for the next applicable period.
Trials and Promotions
Any free membership or other promotion that provides access to the services must be used within the specified time of the trial. You will be asked for valid credit card information when you sign up for the discount or free trial. We will use the payment information for future subscription fees should you fail to terminate the subscription within the timeframe provided by Motion Array. We will start your trial upon completion of your trial signup. You may cancel your trial subscription without charge at any time within 30 days of placing your order. If you do not cancel your free or trial subscription within 30 days of the date you start your trial, your subscription will continue automatically and the monthly fee will be billed to the credit card or other billing source provided by you when you signed up for the free membership or discounted membership, on the first day of each successive subscription term. Such billing will occur without further notice to you. Should you choose to discontinue your subscription for any reason before expiration of the then applicable subscription term or the trial period, you may cancel your subscription and terminate future billing in your account under your subscription settings. You must cancel your subscription before the end of the free trial or discounted membership price period in order to avoid being charged a subscription fee.
Credits roll-over from month to month up to the amount of 100 credits. Any additional credits above 100 will not be added to your total credit count. If you upgrade your membership, any unused credits will be added to the first month of your new membership plan. Download credits have no monetary value, are non-transferable, and can not be refunded.
If you downgrade your account to a free plan, or you are put on to a free plan due to payment failure, you will lose any unused download credits.
The Purchase Price, including, without limitation, subscription or enrollment fees, is non-refundable.
Motion Array reserves the right to terminate a Licensee's access to the Digital Media Files without notice at any time if it determines in its sole discretion that a Licensee is violating any of the terms and conditions of this Agreement. Motion Array also reserves the right for any reason or no reason to refuse to renew a subscription with or without prior notice.
Marketing and Promotion
Unless specifically agreed between Licensee and Motion Array in writing to the contrary, Licensee hereby grants Motion Array the right to display any derivative works within your possession or control that incorporate one or more of the Digital Media Files at tradeshows, on Motion Array's website or in email or other electronic solicitations, in publications or advertising circulars, in collateral, and/or via electronic distribution for Motion Array marketing, educational, and promotional purposes as examples of customer usage and to identify Licensee or Licensee's employer by name or display of trademark or service mark in the same manner for such purpose. Upon request of Motion Array, Licensee shall provide Motion Array any and all such derivative works for such purposes. At Licensee's request, Motion Array will identify Licensee as the author of such derivative work.
The copyrights in all Digital Media Files are owned by Motion Array or its licensors, including, without limitation, Adobe Systems Incorporated, and are protected by United States Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Digital Media Files are transferred to Licensee except as specifically addressed in this Agreement, and Motion Array retains all rights not expressly granted by this Agreement.
Trademarks / Service Marks
Motion Array's trademarks and service marks, including, without limitation, “Motion Array," may not be used or associated with any of Licensee's derivative products created from Digital Media Files without Motion Array's written consent; provided, Motion Array may require appropriate and fair attribution by display of said marks in, on, or around such products with written notice to Licensee.
In no event shall Motion Array be liable to Licensee for any special, indirect, consequential, punitive, or incidental damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Digital Media Files. The foregoing limitations and exclusions apply to the extent permitted by applicable law. Further, in any event Motion Array's aggregate liability in connection with this Agreement and Licensee's use of the Digital Media Files shall be strictly limited to the Purchase Price paid therefor.
Licensee indemnifies and holds Motion Array harmless from and against any damages or liability of any kind arising from Licensee's use of the Digital Media Files in any form, any breach of the terms and conditions of this Agreement, or Licensee's negligent acts, omissions or willful misconduct or that of its contractors, employees, employers, agents, licensees, or invitees. All license rights granted pursuant to this Agreement shall automatically terminate upon your breach of this Agreement.
The Digital Media Files are being delivered to Licensee “AS IS" and Motion Array makes no warranty as to its use or performance, including, without limitation, quality of image or compatibility with any computer hardware or other equipment, operating system, or software program, nor does Motion Array provide any technical support for same. MOTION ARRARY DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE DIGITAL MEDIA FILES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM WHICH CANNOT OR MAY NOT BE EXCLUDED UNDER APPLICABLE LAW AND ONLY SO FAR AS THE SAME MAY BE LIMITED UNDER APPLICABLE LAW, MOTION ARRAY MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, AS TO ANY MATTER WITH RESPECT TO THE DIGITAL MEDIA FILES OR LICENSEE'S USE THEREOF, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
FURTHER, MOTION ARRAY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES, REGISTERED OR COPYRIGHTED DESIGNS OR WORKS OF ART DEPICTED IN ANY IMAGE AND THE USER MUST SATISFY ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS OR PERMISSION AS MAY BE REQUIRED FOR REPRODUCTION ARE SECURED. Further, Motion Array attempted to identify a caption for each image but shall not be held responsible for erroneous or incomplete caption information. MOTION ARRAY IDENTIFIED THE CAPTION FOR EACH IMAGE TO THE BEST OF ITS ABILITY, BUT CANNOT BE HELD RESPONSIBLE FOR ERRONEOUS OR INCOMPLETE CAPTION INFORMATION.
The provisions of this paragraph and the foregoing paragraphs entitled Liability" and “Indemnification" shall survive the termination or expiration of this Agreement, howsoever caused.
Motion Array reserves the right to amend this Agreement at any time without notice to Licensor.
If any term or provision of this Agreement, or any portion thereof, or the application thereof to any person(s) or circumstances shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is so judicially held to be invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law.
The failure of Motion Array to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
This Agreement contains all the terms of the Agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.
This Agreement shall be construed under the laws of the State of Georgia without resort to its conflicts of laws rules.
This Agreement shall be interpreted in a fair and impartial manner without regard to such factors as the party that drafted this Agreement or the relative bargaining power of the parties.
Binding Effect; Further Assurances
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, successors-in-title, representatives and permitted assigns; and the parties hereby agree for themselves and their heirs, executors, administrators, successors and assigns to execute any instruments and to perform any acts which may be necessary or proper to carry out the purposes of this Agreement.
In the event of a dispute hereunder, Motion Array may, at Motion Array's option, cause the dispute to be heard by an arbiter or arbitration panel administered by the American Arbitration Association (AAA) with notice to Licensee. Should Motion Array elect arbitration hereunder, all claims or disputes decided shall be final and binding. Time Time is of the essence of this Agreement.
Written notices here under given by Motion Array to Licensee may be delivered via email to the email address associated with the Licensor's account in Motion Array's records or in a hardcopy writing to Licensor's contact address maintained in its account with Motion Array and deposited in the U.S. mail, certified with return receipt requested, and such notices shall be deemed delivered immediately in the case of email or within three (3) days if deposited in the U.S. mail with adequate postage.
In the event that Motion Array must hire an attorney for the collection of any fees due hereunder or should any lawsuit or court action arise out of or under this Agreement or the terms and conditions stated herein, Motion Array shall be entitled to and shall collect any reasonable attorney's fees actually incurred with respect to same.