posted this on December 04, 2013 04:07
This agreement is intended to be easy to understand, and to provide clarity for using Stock Media Products in the work you create (“Creations”). Over the years, TurboSquid has been asked many questions about how Stock Media Products may be used in Creations, and we have attempted to answer those questions in this agreement.
Some words in this agreement are given specific meanings. Words that appear initially in quotations, such as “you” and “Creations”, are defined in the text preceding the word. Other capitalized words are defined below:
“Stock Media Product” is the collection of one or more digital files, packaged in the form of a product on the Site that can be identified by a product ID, and that is uploaded by you, or otherwise made available to you, for Purchase on the Site. A Stock Media Product may include 3D models, texture maps, motion captures, photographs, imagery, application and plug-in software, materials and shaders, shapes and vector graphics, training materials, building components, sound effects, stock music, and videos. Additionally, a Stock Media Product may include a number of individual files of different file formats to make it easier for Customers to work in a variety of software applications (such as 3ds Max, Maya, and Cinema 4D), and may also include other files (such as jpeg images used for texturing), and images or other files that are used for promotional purposes. For Customers and their use in Creations, this definition also includes derivative and intermediary files used for that purpose.
"Site" refers to the TurboSquid websites, API’s, software applications or any approved means or utility either currently in existence or in the future; the software and source code used by TurboSquid to provide such services; user interface layouts, designs, images, text, knowledgebase articles, program offers; site information provided in reports (such as popular keyword searches); and all other intellectual property protected under copyright, trademark, patent, publicity, or any other proprietary right.
“Purchase” is the acquisition of a Stock Media Product by you from the Site under this agreement, whether as a purchase of Stock Media Product made available at a price of greater than $0, or a download of Stock Media Product made available at no charge.
“TurboSquid” includes TurboSquid, Inc. and all licensed affiliates and partners that distribute Stock Media Products on behalf of TurboSquid, Inc.
“Product Page” is the product page or interface that displays Stock Media Products available for Purchase on the Site.
“Computer Game” is a type of Creation that includes digital games, computer-based games, handheld electronic games, mobile games, online games, social games, game mods, and console-based games.
“Imagery” is a Creation made of any single image or sequence of images.
“Intellectual Property” means, copyright, trademark, trade secret, right of publicity, or any other proprietary right throughout the world.
To make reading this agreement easier and less repetitive, the following constructions are used:
“Include,” including,” and “such as” are considered to be followed with “but not limited to.” Examples are used in this agreement to illustrate, rather than limit, the scope of the terms.
“The following restrictions”, “the foregoing restrictions”, and “subject to the restrictions” are considered to be followed with “in addition to all other restrictions applicable within this agreement.”
II. License Rights
1. Ownership. TurboSquid does not grant title or ownership in Stock Media Products. All rights in Stock Media Products not expressly granted in this agreement are reserved by TurboSquid for itself and its licensors.
2. Rights Granted. For Stock Media Products, TurboSquid grants to you a non-exclusive, perpetual, worldwide right and license to copy, distribute, reproduce, adapt, publicly display, publicly perform, digitally perform, transmit, broadcast, telecast, advertise, create derivative works, and market Stock Media Products within Creations in the uses authorized in this agreement. You may request authorization for a use not covered by this agreement (“New Use”) by writing email@example.com. TurboSquid is authorized to approve a New Use if TurboSquid finds in its sole judgment that the New Use is substantially similar to another established use in this agreement, and authorizes the New Use in writing.
3. Rights Granted When Sharing Stock Media Products. If you Purchase as an employee of a corporate entity,sharing Purchased Stock Media Products with other employees of your corporate entity is allowed. Examples of allowed sharing include storing files on a networked hard drive, and aggregating Stock Media Products for later use in future Creations. You are responsible for any downstream distribution, use, or misuse by a recipient of a shared Stock Media Product.In all cases, sharing Stock Media Products with external people or entities is only allowed in the following situations, and with the following restrictions:
a. In the production of a Creation owned by you, if you are working in collaboration with external parties, and there is a need to share Stock Media Products for the development and production of your Creation, sharing Stock Media Products with those external parties is allowed. Any external party that receives Stock Media Products may only use Stock Media Products on your Creations and must take reasonable care to secure and limit access to Stock Media Products to that purpose.
b. In the production of a Creation owned by another entity (“your Client”), if you are working as a contractor and need to share Stock Media Products with your Client, or any external parties working with your Client, sharing Stock Media Products is allowed, subject to the restriction that all parties may use Stock Media Products only for your Client’s particular Creation, and for successive versions of your Client’s Creation, such as sequel Computer Games or movies that utilize the same 3D models. All parties must take reasonable care to secure and limit access to Stock Media Products to the parties working on your Client’s Creation. For all other use by any party, Stock Media Products must be Purchased again to create a new license agreement governing that use.
4. Editorial Use Restriction for Some Stock Media Products. The following restrictions apply to any Stock Media Product affixed with an “Editorial” notice on its Product Page. The Editorial notice is one way to alert you that certain subject matter depicted by Stock Media Products, such as a manufactured product under a brand name, may be protected by another party’s Intellectual Property rights (“Other-Party Intellectual Property”). Permitted use of Other-Party Intellectual Property in Stock Media Products is limited to news reporting in Creations of some cultural, editorial, journalistic, or otherwise newsworthy value, and includes news reporting on television and the internet. This restriction does not apply if you have the needed authorization to use the Other-Party Intellectual Property for your Creation, such as if you are the Intellectual Property owner yourself, or an Intellectual Property owner’s advertising team, hired party, or licensee purchasing that company’s product.
5. Other-Party Intellectual Property. TurboSquid does not own or license any Other-Party Intellectual Property. TurboSquid does not in any way make any representations or warranties about Other-Party Intellectual Property associated with Stock Media Products. You are solely responsible for determining the need for and, if appropriate, obtaining any needed Other-Party clearance, consent, or release to use any Other-Party Intellectual Property in your Creations.
6. Creations of Imagery.
Permitted Uses of Creations of Imagery. Subject to the following restrictions, you may use Creations of Imagery within news, film, movies, television programs, video projects, multi-media projects, theatrical display, software user interfaces; architectural renderings, Computer Games, virtual worlds, simulation and training environments; corporate communications, marketing collateral, tradeshow promotional items, booth decorations and presentations; pre-visualizations, product prototyping and research; mobile, web, print, television, and billboard advertising; online and electronic publications of blogs, literature, social media, and email campaigns; website designs and layouts, desktop and mobile wallpapers, screensavers, toolbar skins; books, magazines, posters, greeting cards; apparel items, brochures, framed or printed artwork, household items, office items, lenticular prints, product packaging and manufactured products.
Restrictions on Permitted Uses of Creations of Imagery.
a. Stock Media Clearinghouse. You may NOT publish or distribute Creations of Imagery through another stock media clearinghouse, for example as part of an online marketplace for photography, clip art, or design templates.
b. Promotional Images. Images displayed for the promotion of Stock Media Products, such as preview images on the Stock Media Product’s Product Page (“Promotional Images”), may be used in Creations of Imagery, provided that the Stock Media Product itself has been Purchased and subject to the following restrictions:
i. You may NOT use a Promotional Image that has any added element which is not included as part of the Stock Media Product. An example of this type of restricted use is if the Stock Media Product contains a 3D model of an airplane, and there is a Promotional Image of that airplane rendered over a blue sky; however, the blue sky image is not included as part of the Stock Media Product. Other prohibited examples include use of Promotional Images from movies or advertisements that may have used Stock Media Product.
ii. You may NOT use any Promotional Image that has a logo, mark, watermark, attribution, copyright or other notice superimposed on the image without prior approval from TurboSquid Support.
c. Business Logos. You may NOT use Imagery in any Creation that is a trademark, servicemark, or business logo. This restriction is included because the owners of these types of Creations typically seek exclusivity on the use of the imagery in their Creation, which is incompatible with the non-exclusive license granted to you under this agreement.
7. Creations of Computer Games and Software
Permitted Uses in Creations of Computer Games and Software. Subject to the following restrictions, you may include Stock Media Products in Creations of Computer Games, virtual worlds, simulation and training environments; mobile, desktop and web applications; and interactive electronic publications of literature such as e-books and electronic textbooks.
Restrictions on Permitted Uses of Stock Media Products in Creations of Games and Software.
a. Interactivity. Your inclusion of Stock Media Products within any such Creation is limited to uses where Stock Media Product is required to produce an interactive experience for the user. Such a permitted example of this use would be to include a 3D model of human anatomy in a medical training application, in a way that the 3D model may be manipulated or interacted with, and also where Imagery would not reasonably suffice for the intended use.
b. Access to Stock Media Products. You must take all reasonable and industry standard measures to prevent other parties from gaining access to Stock Media Products. Stock Media Products must be contained in proprietary formats so that they cannot be opened or imported in a publicly available software application or framework, or extracted without reverse engineering. You may NOT publish or distribute Stock Media Products in any open format, or format encrypted with decryptable open standards (such as WebGL or an encrypted compression archive).
c. Open Systems. You may NOT include Stock Media Products in Creations that have the general functionality for importing and/or exporting Stock Media Products. An example of such a prohibited use is to include Stock Media Products as a starter library within a Creation that allows users to generally work with 3D models, even if the Stock Media Product itself is somehow protected and is not capable of being exported. Instead, the users of such a software application may Purchase Stock Media Products directly from the Site.
d. Virtual Good Sales. You may NOT import, upload, reproduce, make available, publish, transmit, distribute, or sublicense Stock Media Products in Creations of virtual goods or worlds for any 3D community (“Virtual World”), unless you or your Client owns the Virtual World platform and it complies with the foregoing restrictions.
8. Creations of Physical Form.
Permitted Uses in Creations of Physical Form . Subject to the following restrictions, you may use Stock Media Products to make physical Creations such as 3D printed works, articles of manufacture, custom vehicles, furniture, jewelry, sculptural artwork, toys, and physical entertainment goods (“Creations of Physical Form”).
Restrictions on Permitted Uses in Creations of Physical Form .
a. Substantially Similar Creations. Permitted use of any Creation of Physical Form in which a Stock Media Product is untransformed or substantially similar to the Stock Media Product, is limited to personal use, gifts, or charitable donations, with a maximum of 5 instances of such Creation per Purchase; unless the Stock Media Product is a small part of a much larger array of other physical objects in the Creation. For example, if you are creating a real-world, physical human skeleton for manufacture for sale, it is permitted to add a 3D printed human head that exactly resembles the Purchased Stock Media Product, but it is not permitted to sell the 3D printed head by itself. Another permitted example of a Stock Media Product being a small part of a larger array is using a 3D model that ends up within an automobile as a part of the automobile.
b. No Other-Party Intellectual Property. You may NOT reproduce Other-Party Intellectual Property in any Creation of Physical Form for any purpose.
9. 3D Industry Promotional Use. If TurboSquid has granted you, as a hardware or software partner, access to priced Stock Media Products on a free-of-charge basis, your use of Stock Media Products is restricted to internal testing for your 3D software or hardware products, and to the promotion of your software or hardware products with Creations of Imagery provided that an attribution of the artist’s name and the Site are included. You agree that should any Stock Media Products be used outside of these purposes in ways that are normally allowed after a Purchase, that you will promptly Purchase the Stock Media Products and otherwise comply with the terms herein.
10. Unauthorized Use. If you use Stock Media Products in an unauthorized way, TurboSquid may terminate your account and pursue other penalties, damages, losses, and profits TurboSquid is entitled to under this agreement or at law or equity. The following are unauthorized uses that are explicitly prohibited:
a. Competition. You may NOT use Stock Media Products in a way that competes with the Site or the Stock Media Products themselves.
b. Re-Distribution. You may NOT re-distribute, publish, or make Stock Media Products available to any third party except in the form of a permitted Creation, or shared as authorized in this agreement.
c. Group Buying. You may NOT aggregate funds to Purchase Stock Media Products with one or more other parties. An example of this prohibited use is a website membership where members pool their money to make a single Purchase that is shared by the members of the group. Each such member must Purchase individually.
d. Stock Media Product Clearinghouses. You may NOT publish, distribute, or make Stock Media Products available through any online clearinghouse infrastructure.
e. No Obscene or Unlawful Use. You may NOT use Stock Media Products for any defamatory, harassing, obscene, or racist purpose, or to infringe any party’s Intellectual Property rights.
f. False Attribution. You may NOT misrepresent yourself as the creator of Stock Media Products.
III. License Term and Termination
1. Term. Your right and license to Stock Media Products is perpetual, unless terminated as described herein.
2. Termination. Your license grant is terminated immediately and without notice in the cases below. In such termination, you and any recipients of Stock Media Products must cease use, distribution, and destroy all copies of Stock Media Products.
a. Reversal of Purchase. Your right and license to Stock Media Products are contingent on your Purchase of Stock Media Products. Any payment reversal of a Purchase for any reason immediately terminates all rights granted under this agreement. Potential Reasons for a payment reversal include:
i. TurboSquid reverses your Purchase at your request.
ii. TurboSquid receives a charge back notice from your bank or credit card cancelling your Purchase and withdrawing the funds used for your Purchase.
iii. TurboSquid determines in its sole discretion that your Purchase was fraudulent.
iv. Your purchase was made with a dishonored check.
v. Your purchase was made and there is a bank transfer failure.
vi. When you are granted delayed payment terms, and fail to make payments such that TurboSquid sends you notice and terminates your account.
b. Failure to Abide by the License Grant.Material failure to abide by the terms of this agreement immediately terminates your right and license to Stock Media Products. If you detect a violation of the license grant by you or any recipient of shared Stock Media Products, and promptly report the violation to firstname.lastname@example.org, TurboSquid will make a good faith effort to find an appropriate remedy to preserve your license grant.
You covenant, represent, and warrant to TurboSquid that:
1. You have full right, power, legal capacity, and authority to enter into and perform this agreement, have obtained any third-party consent needed to do so, and, prior to any Purchase, had an opportunity to seek independent legal counsel.
2. You will not use Stock Media Products except pursuant to the terms of this agreement. Should you use Stock Media Products in an unauthorized way, you agree to any reasonable fee or penalty exercised by TurboSquid under this agreement or applicable law.
3. You will, prior to Purchase, determine the need for and, if appropriate, obtain any needed third-party clearance, consent, or release to use Other-Party Intellectual Property shown in the digital rendering of Stock Media Products, and shall not use Stock Media Products to infringe any party’s Intellectual Property rights.
4. You will immediately notify TurboSquid of any Intellectual Property claim against your use of Stock Media Products or any other rights issue, before disclosing such issue to any third-party.
V. Limitation of Liability
1. Stock Media Products are provided on an “as is”, “as available”, and “with all faults” basis. TurboSquid makes no representations, warranties, conditions, or guarantees as to the usefulness, quality, suitability, truth, fitness for a particular purpose, non-infringement, merchantability, or cosmetic attributes of Stock Media Products, and does not guarantee the accuracy or completeness of specifications associated with Stock Media Products, including measurements, weight, durability, strength, materials, general physical properties, regulatory compliance, other engineering or construction attributes.
2. TurboSquid disclaims all express or implied conditions, representations, and warranties of any kind regarding Stock Media Products, including any implied warranty or condition of merchantability. TurboSquid allows your Purchase to be refunded under certain reasonable time frames and conditions, subject to the Site’s policies.
3. You assume all risk for any damage to your computer systems and network for any damage to your computer system by obtaining Stock Media Products, including any damages resulting from computer viruses.
4. To the fullest extent permitted by law, TurboSquid shall not be liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including loss of business, revenue, profits, goodwill, use, data, electronically transmitted orders, or other economic advantage) arising out of or in connection with Stock Media Products, even if TurboSquid has previously been advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract or in tort (including negligence). To the extent that any jurisdiction does not allow the exclusion or limitation of direct, incidental, or consequential damages, portions of the preceding limitation or exclusion may not apply, but should be construed to the greatest extent applicable in such jurisdictions.
5. You agree to indemnify and hold TurboSquid and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives ("TurboSquid Parties") harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of your use of the Source Material or Creations.
VI. Other Terms
1. Entire Agreement. This agreement constitutes the entire agreement between you and TurboSquid relating to your Purchase, unless you have a corporate license agreement with TurboSquid. Corporate licenses are available with additional protections for additional fees. Please contact email@example.com if your organization requires a corporate license. TurboSquid does not otherwise offer any other changes, additions, variations, or additional signed forms related to this agreement. No modification to this agreement will be binding, unless in writing and signed by an authorized TurboSquid representative.
2. Material Breach. You agree that any material breach of these Terms will result in irreparable harm to TurboSquid for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, TurboSquid will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if TurboSquid seeks such an injunction.
3. Import/Export Regulations. Stock Media Products may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall with Stock Media Products: (a) obtain any export, re-export, or import authorizations required by U.S. or Your local laws; (b) not design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Stock Media Products to prohibited countries and entities identified in the U.S. export regulations.
4. Governing Law. This agreement is governed by New York law, excluding conflict of law principles. Any action or proceeding arising out of or related to this agreement must be brought in a state or federal court located in New York, New York, and both parties irrevocably submit to the exclusive jurisdiction of such courts. All notices, requests and other communications under this agreement must be in writing (e-mail messages shall be deemed writings).
5. LIMITED INTERNAL USER ARBITRATION. You acknowledge and agree that TurboSquid may, in its sole discretion, arbitrate disputes between TurboSquid users involving Stock Media Products (including any purchaser or supplier of Stock Media Products), and such findings shall be final and non-appealable. Either party may request that TurboSquid arbitrate the dispute, or TurboSquid may elect, at its option, to arbitrate the dispute. After TurboSquid elects to arbitrate any dispute hereunder, TurboSquid will waive any rights to a commission from both the Purchase and arbitration, and the parties must keep the results and process confidential and may not disclose anything related to the dispute to any other party (whether by oral, written, or other type of disclosure). To resolve disputes, TurboSquid may decide to terminate or suspend users, revoke the license, offer replacement Stock Media Products, reestablish the licensee, or surrender or reallocate fees (whether by refund, charitable donation, or otherwise). TurboSquid may award up to 3X the Purchase price to either party depending on the circumstances. YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ACCEPTING THIS ARBITRATION PROVISION WAIVES RIGHTS TO JUDICIAL RESOLUTION, TRIAL BY JURY AND RIGHTS YOU WOULD OTHERWISE HAVE IF YOU HAD NOT AGREED TO THIS ARBITRATION PROVISION.
6. Notice. Any notice under this agreement shall be via email to firstname.lastname@example.org, provided that you receive an acknowledgement email from a TurboSquid representative within 5 business days. If no such acknowledgement email is received, notice must be in writing and delivered by mail to the following address.
TurboSquid, Inc. c/o TurboSquid Support 935 Gravier St., Suite 1600 New Orleans, LA 70112
7. Assignment. TurboSquid may not assign its rights under this agreement without providing you notice, except in the case of a bankruptcy, merger, acquisition, sale of all or substantially all of TurboSquid’s assets to a subsequent owner or operator, or similar event. You may not assign your rights under this agreement without the prior written consent of TurboSquid, which will not be unreasonably withheld.
8. English. This agreement may be translated into other languages, but English is the official language of this agreement and in any conflict between the English language version and any other version, the English language version shall control.
This Royalty Free License is effective for use with Stock Media Products for use on or after December 12. 2013.