CAPE AERIALS, LLC IMAGE LICENSE AGREEMENT

This License Agreement (“Agreement”) is between Cape Aerials, LLC (“Licensor”) and the purchaser of a photographic image from Cape Aerials, LLC via the website located at www.capeaerials.com (“Licensee”).  If an individual purchases a product as a gift or on behalf of another, the restrictions contained herein will also apply to the recipient as a Licensee, as well as to the purchaser, and the purchaser must alert the recipient of the existence of this Agreement and the recipient must also agree to the terms herein.  Similarly if an individual allows another to purchase an item via their registered account, both individuals will be considered Licensees for purposes of the obligations and restrictions contained herein.  If the individual consenting to this Agreement does so on behalf of a legal entity, then the individual represents and warrants to Licensor that he or she has the authority to legally bind that entity to this Agreement and the individual will have no individual license rights. This Agreement explains how Licensees are permitted to use the photographic images that are licensed to them (the “Content”) and are contained in the products they purchase and/or receive. By placing an order for or receiving a product containing Content, Licensees accept the terms of this Agreement.

 

  1. License Grant Licensees are granted the perpetual, worldwide, non-exclusive right to use the Content for personal, internal business and educational purposes (the “License”) in connection with the purchase of a product containing the Content.
  2. Restrictions. The Content cannot be used for commercial purposes or for resale. The Content may not be included in an offering to any third parties and may not be transferred, sublicensed or distributed, except as expressly provided for herein.  Copying the Content, except for the personal or internal business use of Licensee or for educational purposes, is strictly prohibited.   Licensees are not permitted to modify the Content or create any derivative works using the Content.   Removal of any copyright, trademark, or other proprietary notices that appear on or with the Content is prohibited.  Except for the License rights expressly stated in this Agreement, Licensor and its licensors retain all right, title and interest in and to the Content and all related intellectual property.  The License confers no title or ownership in the Content and is not a sale of any rights in the Content
  3. Indemnification Licensee agrees to indemnify, defend and hold harmless Licensor and its officers, directors, employees, contractors, agents, service providers, subcontractors and suppliers, from and against any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees and court costs, arising or resulting from Licensee’s (i) unauthorized use of the Content; or (ii) negligence or willful misconduct in connection with the Content or the License granted hereunder. Licensor reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification and, in such case, Licensee agrees to cooperate with Licensor in defense of such matter.
  4. Warranty Disclaimers. Licensor makes no representation or warranty whatsoever regarding the Content, and the Content is provided AS IS.   Licensor disclaims any implied or statutory warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and disclaims any warranty that may arise from a course of dealing.  Any warranty that cannot be excluded under applicable law is limited in duration to 30 days from the event giving rise to the warranty.
  5. Limitation of Liability. LICENSOR WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED THE CONTENT WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY ERROR, OMISSION, DEFECT, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OF USE OF, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS. THE MAXIMUM AMOUNT OF DIRECT DAMAGES RECOVERABLE BY A LICENSEE AGAINST LICENSOR, EXCLUDING EVENTS INVOLVING FRAUD OR WILLFUL MISCONDUCT, SHALL NOT EXCEED THE TOTAL CASH AMOUNT PAYABLE FOR THE PRODUCT CONTAINING THE CONTENT. IN NO EVENT WILL THE MEASURE OF DAMAGES INCLUDE, NOR WILL LICENSOR BE LIABLE FOR, ANY AMOUNTS FOR LOSS OF INCOME, PROFIT OR SAVINGS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING CLAIMS OR DAMAGES OF THIRD PARTIES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief or other equitable remedy. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
  6. Arbitration. Products are offered and the License is granted by Licensor from its offices located within the United States of America and has been designed to comply with the laws of the United States. Questions regarding the enforceability and scope of the arbitration provision contained herein will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act. Otherwise, the laws of the Commonwealth of Massachusetts govern this Agreement and use of the License. If the License is used in a location outside of the United States, it is done at the user’s sole risk and discretion with the understanding that laws applicable in a foreign location may not be applicable. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to binding arbitration and decided on an individual basis, and not on a class-wide or multiple plaintiff basis or in an action where any party hereto acts in a representative capacity, unless prohibited by law. Any such arbitration shall be administered by the American Arbitration Association under its Consumer Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. It is expressly acknowledged, understood and agreed that: arbitration is final and binding; the parties are waiving their right to seek legal remedies in court including the right to a trial by jury; pre-arbitration discovery generally is more limited than and different from that available in court proceedings; the arbitrator’s award is not required to include factual findings or legal reasoning; and any party’s right to appeal or vacate, or seek modification of, the arbitration award, is strictly limited by law. The arbitration will be before a single arbitrator. The place of arbitration will be Boston, Massachusetts, United States of America. It is understood, acknowledged and agreed that in any such arbitration, each party will be solely responsible for payment of his/her/its own counsel fees. The parties will each pay their required share of the costs of arbitration. Notwithstanding the foregoing, either party may seek injunctive relief from an appropriate state or federal court located in Massachusetts prior to or during the arbitration, may file suit in a court of law to address intellectual property infringement claims which may include monetary damages and may bring individual actions in small claims court.
  7. Privacy Policy and Terms of Use. Any collection and use of information obtained by Licensor in connection with the purchase of a product containing the Content will be consistent with the Cape Aerials Privacy Policy located at capeaerials.com. Additionally, website transaction and usage are governed by the website Terms of Use also located on the Cape Aerials website.
  8. Export Compliance. The products containing the Content may be subject to export laws and regulations of the United States and other jurisdictions. Licensees may not provide access to or use of the products in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Licensor to be in violation of U.S. export laws, even if the use is permitted under the laws applicable to Licensee or the user. Licensee represents that he/she/it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.  “Export laws” include the U.S. Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.), International Traffic in Arms Regulations (Title 22 of the U.S. Code of Federal Regulations Parts 120-130), the economic sanctions rules and regulations implemented under statutory authority and/or President’s Executive Orders and administered by the U.S. Treasury Department’s Office of Foreign Assets Control (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.), the EU’s restrictive measures as published on the website of the European External Action Service, and the applicable export laws of any other jurisdiction.
  9. Unauthorized Use. Licensee agrees to take reasonable steps to prevent non-Licensees from obtaining and/or using the Content contained in a product purchased by Licensee in a manner not authorized hereunder. In the event Licensee learns of such unauthorized use, Licensee must immediately contact Licensor and inform Licensor of all known facts. Licensee agrees to assist Licensor in the investigation of the matter, and if necessary, in any legal action that may arise as a result of the unauthorized use.
  10. General. This Agreement, including any documents referenced herein and any invoice generated in a transaction, constitutes the entire Agreement and supersedes all prior agreements, negotiations, representations and proposals, written and oral, relating thereto. This Agreement may be amended or modified only in writing and accepted by both parties. The waiver or failure of any party to exercise any rights pursuant to this Agreement shall not be deemed a waiver or other limitation of any right or future right. Except as expressly set forth herein, each party shall bear its own costs, expenses, taxes and other charges whatsoever incurred in connection with the execution and performance of this Agreement. If any provision of this Agreement is unlawful, void or unenforceable, the remaining provisions shall remain in full force.  In the event any provision is found by an arbitrator or court of competent jurisdiction to exceed the limits permitted by any applicable law or to be invalid as written, it may be reformed to the extent necessary to make it reasonable and enforceable. Licensees may not assign the rights and obligations under this Agreement, without the express prior written consent of Licensor.  Licensor may assign its rights and obligations hereunder without Licensee consent.

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