THE FOLLOWING TERMS AND CONDITIONS (“LICENSE TERMS”) GOVERN YOUR PURCHASE AND ANY RIGHT(S) TO USE ANY PHOTOGRAPHIC IMAGES, SOUNDS, MUSIC, GRAPHIC IMAGES, TEXT, CAPTIONS OR AUDIO-VISUAL FILES (COLLECTIVELY, “CONTENT”) THAT YOU ACCESS BY DOWNLOADING ANY FILE(S) DELIVERED VIA DOWNLOAD, AND BY ACCESSING ANY SUCH CONTENT, YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THESE LICENSE & PURCHASE TERMS. THEY FURTHER GOVERN ANY CREATOR SUPPORT DONATIONS YOU MAY MAKE AND YOU AGREE TO BE BOUND BY THEM AS A CONDITION OF MAKING ANY CREATOR SUPPORT DONATIONS.
Parties
These License Terms are binding obligations on You. “You” means: (a) the individual listed as the registrant of the account through which Site access privileges have been granted (“User”), and (b) if User is registered, as indicated in User’s account registration, on behalf of User’s employer, client or another third party (such employer, client or third party, a “Principal”), also such Principal. If User is acting on behalf of a Principal, then (a) User represents and warrants that User has the authority to bind, and has bound, such Principal to these License Terms; (b) the rights granted hereunder shall inure solely to the benefit of Principal to the exclusion of User; and (c) User agrees to be jointly and severally liable for any breach of these License Terms by Principal.
FB means FanBeach.com LLC
License Grants
Rights Limited to Those Expressly Granted.
You acknowledge and agree that You have no right to use, copy, publish, display, transmit, broadcast or otherwise exploit any Content except as expressly authorized below in these License Terms, or as expressly authorized in a separate written agreement (a “License Agreement”) between You and FB. Absent a License Agreement, Your authorization to use any Content must be evidenced by the issuance by FB of a written invoice (an “Invoice”), which must include identification of the Content licensed, the uses for which it is licensed, the prices and rates for use, and may include additional restrictions or limitations.
All Licenses Subject to Applicable Restriction.
Subject to the limitations below, any rights granted are subject to, and conditioned upon Your compliance with, all provisions of (i) the Terms of Use, (ii) these License Terms, (iii) the applicable License Agreement, if any, (iv) the Invoice, if any, and (v) any Content restrictions appearing on or in this Site (including in the metadata to each Content element) or provided to You by FB at any time (the “Content-Specific Restrictions”). In the event of an express conflict between an Invoice, License Agreement, these License Terms and/or any Content-Specific Restrictions, such Content-Specific Restrictions shall prevail, followed by the License Agreement, followed by these License Terms, followed by the Invoice; provided, however, that these License Terms shall cover all rights, obligations, terms and conditions not expressly addressed in such Content-Specific Restrictions, License Agreement or Invoice. Subject to the foregoing, these License Terms, together with the applicable License Agreement or Invoice (collectively, the “Content License”), as the case may be, constitute the entire agreement between You and FB regarding any Content and supersede all previous communications, representations, or understandings, either oral or written, relating to the subject matter hereof.
Limited License for Personal Use:
Except as otherwise set forth in a License Agreement, upon Your Access of any Content, You are hereby granted, in perpetuity following the date You Purchase and Access such Content, a non-exclusive, non-sublicensable, non-transferable and non-assignable right solely to view the Content in your private residence in a non-Commercial setting (you may not view the Content in a manner where you charge others to view it nor may it be viewed during any business or commercial activity whatsoever). Such rights are subject to the following additional restrictions:
No Publication, Distribution or Broadcast:
The Content may be used (“Personal Use”) solely in original file format provided herein. You may review the Content Personally; provided, however, that the Content may not be published, displayed, transmitted, broadcast, exploited or in any way made accessible outside Your private residence. The Content may not under any circumstances be shared or made available to any third party or the public, including but not limited to, uploading to YouTube or any other file sharing service or streaming internet-connected service.
No Commercial Use.
The Content may not be used for any Commercial Use, including any promotional, advertising or merchandising use. The Content may not be incorporated into a logo, trademark or service mark, or used in any way to suggest an affiliation with or endorsement of any product, service or commercial or non-commercial enterprise.
Reservation of Rights.
FB reserve all rights in and to the Content other than those rights that have been expressly granted to You in a License Agreement or these License Terms. Without limiting the generality of the foregoing, except as expressly granted in a License Agreement, You may not, directly or indirectly, sublicense any rights granted herein or redistribute any Content. In addition, You may not re-publish, re-display, re-transmit, re-broadcast or otherwise subsequently exploit any Content licensed hereunder, including in any re-purposing (such as compilations, online archives, screen shots), without a separate Invoice or License Agreement expressly authorizing such activities.
Unauthorized Use.
You agree to take all reasonable efforts to prevent third parties from misappropriating or obtaining unauthorized access, use or transmission of the Content (collectively “Unauthorized Use”). In the event that You learn of an Unauthorized Use, You shall promptly and fully inform FB of all facts known to You with respect to such Unauthorized Use. FB may, at its own expense, institute any legal action or proceeding to obtain any relief permitted in law, equity or both, against any persons or entities causing, directly or indirectly, such Unauthorized Use, and if any such action or proceeding is instituted, You shall reasonably cooperate with FB in connection therewith.
At-Will Termination.
FB may terminate Your rights with respect to any Content for any or no reason. Such termination shall be effective immediately upon notice from FB. Upon such termination, You shall immediately cease all use of the Content and shall cause all persons in Your control to do the same.
Creator Support
You may elect to purchase or make creator support payments (fan funding or donations) on a one-time or recurring (subscription) basis. These creator support payments are non-refundable, voluntary, and are your personal, non-commercial support of any creator you select to pay. No tangible or downloadable goods or services will be provided in exchange (except where expressly stated by the creator) for your support. No representation is made by FB, or any creator, as to the tax deductible status of your creator support payments, whatsoever. Please seek the advice of a qualified tax professional. Unless otherwise expressly stated by the creator, all creator support payments are being made to for profit individuals or business entities.
Taxes.
You are responsible for the payment of all sales, use or other taxes arising from Your use of the Content and/or any payments made in respect thereof. All payments of the fee hereunder shall be exclusive of all such taxes. Creator support payments, either one-time, or on a recurring (subscription) basis, are also bound by this tax liability provision.
Unauthorized Use.
In the event that You use of any Content outside the scope of the rights granted in these License Terms or pursuant to a License Agreement, You agree, without prejudice to any other rights or remedies available to FB and/or its licensors, to pay within ten (10) days of such unauthorized use an amount equal to ten (10) times FB’s then-current rate card or standard rate. You acknowledge and agree that this Section is an essential condition of the rights granted to You hereunder. This Section is severable and shall survive any termination or expiration of the rights granted hereunder.
Illegal Use, Defamation, Political Agendas, Integrity of FB and the Content.
You are prohibited from making any unlawful use the Content. You are prohibited from using the Content in any jurisdiction where doing so would violate applicable defamation, libel, commercial disparagement, privacy and other community standards prevailing in said jurisdiction. You are prohibited from using the Content to suggest an affiliation with or endorsement of any political party, person or entity, or in any manner that promotes a partisan agenda or advocates illegal or immoral activities. You are prohibited from using the Content in any pornographic manner. You are prohibited from disparaging or impugning the integrity of FB or any of its products or services.
LIMITATIONS ON LIABILITY
EXCEPT AS PROVIDED HEREIN, THE CONTENT AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FB DOES NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT FB) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
Certain states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from state to state.
LIMITATION OF REMEDIES
a) Replacement or Refund:
FB’s entire liability and your exclusive remedy, with respect to any claims arising out of your use of the Content, or out of your actions in downloading the Content, shall be as follows:
Downloaded Content: You may be permitted to download the Content again, at a location FB will provide for you. If you continue to be unable to download the Content, FB will refund your money, provided FB determines in its sole and absolute discretion that you have been unable to download the Content successfully.
b) No Money Damages:
Under no circumstances whatsoever will FB be liable to you for any damages, including any lost profits, lost savings, or other incidental or consequential damages arising out of the use or inability to use the Content even if FB or a distributor authorized by FB has been advised of the possibility of such damages, or for any claim by any other party. Some states do not allow the limitations or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Indemnity
You hereby agree to indemnify, defend and hold harmless FB and its officers, directors, employees, agents or representatives from and against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, losses, or expenses, including attorneys’ fees and costs, arising out of or in any way connected with (a) Your Access to, or use of, the Content (including, the text and/or captions provided with any Content and the Subject Matter depicted or included in any Content) in violation or breach or alleged violation or breach of any term, condition, representation or warranty contained in the Content License, including these License Terms, (b) or Your violation, alleged violation or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary rights of a third party (including defamation, libel, violation of privacy or publicity) or any other applicable laws or regulations, or (c) Your modification of any Content, or use of any Content in combination with any other text, images, content or other materials material.
GENERAL
a) Restricted Rights to the US Government:
If the Content is purchased by or provided to the United States Government then it is provided with restricted rights. Such restricted rights are defined in the Defense Department Supplement to the Federal Acquisitions Regulations (“FAR”) in paragraph S2.227.19(c)(2) of the FAR. Your use of the Content must be in compliance with all laws and regulations including those pertaining to currency, trademarks, and moral rights.
Special Terms applicable to Content sourced from entities releasing Content into the Public Domain: Some Content available for purchase is sourced from government agencies. This Content is believed to be in the Public Domain. As such, FB does not own the copyright (nor does anyone else), and no license is available. When Public Domain-sourced Content is purchased, buyer (You) is (are) paying an access fee, not a license fee.
You expressly agree that you will indemnify and defend, at your sole expense, FB against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of any use of any Content purchased as Public Domain.
All other non-copyright/license purchase Terms and Conditions contained herein apply.
NOTICE:
The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement.
Payment Terms
General Terms.
You agree to pay FB for all Content that You obtain from it, regardless of whether You use such Content. Unless otherwise agreed to in an Invoice or License Agreement, no rights in or to the Content become effective until You have paid in full all amounts due in the License Agreement or Invoice, as the case may be. All amounts due are payable within ten (10) days from the date on the Invoice. A finance charge of one and a half percent (1.5%) per month or the maximum interest permitted by law, whichever is greater, will be applied on any balances unpaid after fifteen (15) days. The maximum amount permitted by state law shall be imposed on each returned check.
Transferability.
The rights granted hereunder are not assignable and non-transferable by You without FB’s prior written consent. Any attempted assignment or transfer of the rights granted hereunder in contravention of this provision shall be null and void. Any permitted assignment or transfer shall inure to the benefit of, and be binding upon, any permitted transferees.
Severability.
If any provision of these License Terms or the Content License is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these License Terms and/or the Content License, as the case may be, and will not affect the validity and enforceability of the remaining provisions. The affected provision shall be modified to the extent necessary to make it lawful, not void or enforceable, as the case may be, in such a manner as comes closest to preserving the intentions of such provision.
LEGAL FEES AND JURISDICTION
If FB is obligated to go to court to enforce any of its rights, or to collect any fees, you agree to reimburse FB for its legal fees, costs and disbursements if FB is successful. You agree that the Superior Court of California, Ventura County and the United States District Court for the District of California are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery.
ENTIRE CONTRACT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND FB, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND FB RELATING TO THE SUBJECT OF THIS AGREEMENT. THE EXPLANATIONS TO FAQ’S AND OTHER EXPLANATIONS AND CONTENT PROVIDED IN FANBEACH.COM WEBSITE ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT.