TAILWIND IMAGERY TERMS OF SERVICE AND LICENSE AGREEMENT
This Terms Of Service And License Agreement (the “Agreement”) is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement (“you” or “Customer”) and Tailwind Imagery, Inc., a Delaware corporation ( the “Tailwind”, “Company”, “we”, “us” or “our”) and sets forth the rights and obligations with respect to any Image licensed by you.
Please revisit this Agreement when you purchase any Image licenses. Tailwind reserves the right to modify the Agreement at any time in its sole discretion. Prior to such changes becoming effective, Tailwind will use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your Tailwind account, an announcement on this page, your login page, and/or by other means. Modifications to this Agreement will only apply to prospective purchases. By licensing any Image following any such modifications, you agree to be bound the Agreement as modified.
THIS IS A LICENSE AGREEMENT AUTHORIZING ONE OR MORE PERSON(S) TO LICENSE, DOWNLOAD AND USE IMAGE(S). UNAUTHORIZED PERSONS (INCLUDING EMPLOYEES, CO-WORKERS OR INDEPENDENT CONTRACTORS) MAY NOT ACCESS YOUR ACCOUNT OR USE IMAGES LICENSED THROUGH YOUR ACCOUNT.
If you require access and usage rights for more than one natural person, please contact the Company at 415-903-2299, or EmailUs@TailwindImaging.com. For clarity, if a user is acting in an employment capacity, the employer will be deemed the licensee for the purposes of the license.
For the purposes of this Agreement, the following words shall have the following provided definitions:
- “Image(s)” means still photographs, digital elevation models, digital surface models, point clouds, LAS files, vectors, shape files, geospatial data, drawings, graphics, videos, and the like.
PART I – IMAGE LICENSES
- Tailwind hereby grants you a non-exclusive, non-transferable right to use, modify (except as expressly prohibited herein) Images worldwide, in perpetuity, as expressly permitted by the applicable license selected below, and subject to the limitations set forth herein:
- IMAGE LICENSE
- THE IMAGE LICENSE grants you the right to use Images in accordance with the following:
- IMAGE LICENSE
- RESTRICTIONS ON USE OF IMAGES
YOU MAY NOT:
- Use any Image other than as expressly provided by the license you purchased with respect to such Image.
- Use any Image in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.
- Resell, redistribute, provide access to, share, or transfer any Image except asspecifically provided herein. For example, and not by way of limitation, the foregoing prohibits displaying Images as, or as part of, a “gallery” of content through which third parties may search and select from such content.
- Use any Image in a manner that infringes upon any third party’s trademark or other intellectual property or would give rise to a claim of deceptive advertising or unfair competition.
- Use any Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof.
- Falsely represent, expressly or by way of reasonable implication, that any Image was created by you or a person other than the copyright holder(s) of that Image.
- ADDITIONAL LICENSE TERMS
For purposes of all licenses provided under the terms of this Agreement:
- “Non-transferable” as used herein means that except as specifically provided in this Agreement, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, Images or the right to use any Image. You may however, make a one-time transfer of any Image to a third party for the sole purpose of causing such third party to print and/or manufacture your goods incorporating such Image subject to the terms and conditions herein.
- If you become aware that any social media website uses any Image in a manner that exceeds your license hereunder, you agree to remove all derivative works incorporating any Image from such social media site, and to promptly notify Tailwind of each such social media website’s use. You agree to take all commercially reasonable steps to prevent third parties from duplicating any
Image. If you become aware of any unauthorized duplication of any Image please notify us via email at EmailUs@TailwindImaging.com.
- You agree that you shall not utilize Tailwind’s website, or any information that is gathered, provided, or made available through the website and/or any Image, either directly or indirectly, or in a latent or obvious fashion, for any purpose other than locating and reviewing Images to be licensed under the terms of this Agreement.
- You agree that you shall not initiate or maintain contact with any affiliate, employee, agent, contractor, or consultant of the Company or its affiliates regarding the Company’s or any affiliate, employee, agent, contractor, or consultant’s business, prospects, operations, or finances, except with the express written permission of the Company, other than as initiated by the Company and as expressly provided herein.
- NO OTHER RIGHTS
Except for the specific license expressly granted you under the terms of this Agreement, nothing in this Agreement shall be construed as a grant to you of any right or license, express or implied, in or to any Image, or other intellectual property rights owned, licensed or controlled by Company.
- CREDIT AND COPYRIGHT NOTICES
- “The use of Images in connection with news reporting, commentary, publishing, or any other “editorial” context, shall be accompanied by an adjacent credit to Tailwind.
- If and where commercially reasonable, the use of Images in merchandise or an audio-visual production shall be accompanied by a credit to Tailwind.
- Credit attributions are not required in connection with any other use of Images unless another stock content provided is afforded credit in connection with the same use.
- In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
PART II – WARRANTIES AND REPRESENTATIONS
- Tailwind warrants and represents that:
- Tailwind has and/or Tailwind’s contributors have granted Tailwind all necessary rights in and to the Images to grant the rights set forth in Part I as applicable.
- Images in their original unaltered form and used in full compliance with this Agreement and applicable law, will not: i) infringe any copyright, trademark or other intellectual property right; ii) violate any third parties’ rights of privacy or publicity; iii) violate any US law, statute, ordinance, or regulation; or iv) be defamatory, libelous, pornographic or obscene.
- While Tailwind makes commercially reasonable efforts to ensure the accuracy of Images, keywords and descriptions, TAILWIND MAKES NO WARRANTIES AND/OR REPRESENTATIONS REGARDING ANY: I) KEYWORD, TITLES OR DESCRIPTIONS; OR II) AUDIO IN IMAGES. For the sake of clarity, Tailwind will not indemnify or have any liability in respect of any claims arising from inaccurate keyword, titles or descriptions, or any audio in Images.
- TAILWIND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS “WARRANTIES AND REPRESENTATIONS” SECTION.
- Except as expressly set forth in this Part II, all Images are provided “as is” without warranty of any kind, either express or implied, including, but not limited to the implied warranties of non-infringement, merchantability, or fitness for a particular purpose. Some Images may contain elements that require additional clearance if the Image is modified or used in a particular context. If you make such modification or use such Image in such context, you are solely responsible for obtaining any additional clearances thereby required.
PART III – INDEMNIFICATION AND LIABILITY
SUBJECT TO THE TERMS HEREOF, AND PROVIDED THAT YOU HAVE NOT BREACHED THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH TAILWIND, TAILWIND WILL DEFEND, INDEMNIFY, AND HOLD YOU HARMLESS UP TO THE APPLICABLE “LIMIT OF LIABILITY” SET FORTH BELOW. SUCH INDEMNIFICATION IS SOLELY LIMITED TO CUSTOMER’S DIRECT DAMAGES ARISING FROM A THIRD-PARTY CLAIM DIRECTLY ATTRIBUTABLE TO TAILWIND’S BREACH OF THE EXPRESS WARRANTIES AND REPRESENTATIONS MADE IN PART II HEREOF, TOGETHER WITH ASSOCIATED EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES). INDEMNIFICATION IS CONDITIONED UPON YOU NOTIFYING TAILWIND, IN WRITING, OF ANY SUCH CLAIM OR THREATENED CLAIM, NO LATER THAN FIVE (5) BUSINESS DAYS FROM THE DATE YOU KNOW OR REASONABLY SHOULD HAVE KNOWN OF THE CLAIM OR THREATENED CLAIM. SUCH NOTIFICATION MUST INCLUDE ALL DETAILS OF THE CLAIM THEN KNOWN TO YOU (E.G., THE USE OF THE IMAGE AT ISSUE, THE NAME AND CONTACT INFORMATION OF THE PERSON AND/OR ENTITY MAKING THE CLAIM, COPIES OF ANY CORRESPONDENCE RECEIVED AND/OR SENT IN CONNECTION WITH THE CLAIM). THE NOTIFICATION MUST BE EMAILED TO TAILWIND EMAILUS@TAILWINDIMAGING.COM. TAILWIND SHALL HAVE THE RIGHT TO ASSUME THE HANDLING, SETTLEMENT OR DEFENSE OF ANY CLAIM OR LITIGATION TO WHICH THIS INDEMNIFICATION APPLIES. YOU AGREE TO COOPERATE WITH TAILWIND IN THE DEFENSE OF ANY SUCH CLAIM AND SHALL HAVE THE RIGHT TO PARTICIPATE IN ANY LITIGATION AT YOUR OWN EXPENSE. YOU AGREE THAT TAILWIND IS NOT LIABLE FOR ANY LEGAL FEES AND/OR OTHER COSTS INCURRED BY YOU OR ON YOUR BEHALF PRIOR TO TAILWIND HAVING A REASONABLE OPPORTUNITY TO ANALYZE SUCH CLAIM’S VALIDITY.
- TAILWIND SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE IMAGES OR DUE TO THE CONTEXT IN WHICH YOU USE THE IMAGES.
- NEITHER TAILWIND NOR ANY OF ITS OFFICERS, EMPLOYEES, MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGES, TAILWIND’S BREACH OF THIS AGREEMENT, OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN, EVEN IF TAILWIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
- LIMITS OF LIABILITY: TAILWIND’S TOTAL MAXIMUM AGGREGATE OBLIGATION AND LIABILITY (THE “LIMIT OF LIABILITY”) ARISING OUT OF EACH OF CUSTOMER’S:
- IMAGE LICENSES SHALL BE USD $1,000.
IN ALL OTHER CASES, EXCEPT AS SPECIFICALLY PROVIDED IN ABOVE, IN NO EVENT, WILL TAILWIND’S TOTAL AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE TAILWIND WEBSITES, AND/OR IMAGES (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY TAILWIND FROM YOU FOR THE APPLICABLE IMAGE LICENSE.
- YOU WILL INDEMNIFY AND HOLD TAILWIND, ITS OFFICERS, EMPLOYEES, SHAREHOLDERS, DIRECTORS, MANAGERS, MEMBERS AND SUPPLIERS, HARMLESS AGAINST ANY DAMAGES OR LIABILITY OF ANY KIND ARISING FROM ANY USE OF THE IMAGE OTHER THAN THE USES EXPRESSLY PERMITTED BY THIS AGREEMENT. YOU FURTHER AGREE TO INDEMNIFY TAILWIND FOR ALL COSTS AND EXPENSES THAT TAILWIND INCURS IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH TAILWIND.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, THE PART OF THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY AND ALL OTHER TERMS SHALL REMAIN IN FULL FORCE AND EFFECT.
- Upon notice from Tailwind or if you learn that any Image is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Tailwind may be liable, or if Tailwind removes any Image due to perceived business risk as determined in Tailwind’s reasonable discretion and gives you notice of such removal, you will remove the Image from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Image at your own expense. Tailwind shall provide you with a comparable Image (which comparability will be determined by Tailwind in its reasonable commercial judgment) free of charge, but subject to the terms and conditions of this Agreement.
PART IV – ADDITIONAL TERMS
- Except when required by law, Tailwind shall be under no obligation to issue refunds under any circumstances. All fees are non-refundable. In the event that Tailwind determines, in its sole and absolute discretion, that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase. Tailwind may decide, in its sole and absolute discretion, that you are entitled to a refund in certain situations, which may include, but are not limited to, situations where an Image fails to meet certain specifications, e.g., Ground Sample Distance, cloud cover, quality (meaning an Image that is of poor quality, blurry, hazy, has read-out issues, etc.) lighting conditions, shadow conditions, over exposure or underexposure, etc.
- If Tailwind is required to collect indirect and/or transactional taxes (such as sales tax, value-added tax, goods and services tax, et al) under the laws of your state or country of residence, you shall be liable for payment of any such indirect tax. Where Tailwind or you are required to collect or remit direct or indirect taxes, you may be required to self-assess said tax under the applicable laws of your country of residence.
- If you use any Image as part of work product created for or delivered to a client or customer, you will disclose the identities of such clients or customers to Tailwind, upon Tailwind’s reasonable request.
- Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding individual (not class) arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association, rather than in court, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The place of arbitration shall be Colorado Springs, Colorado. The language of the arbitration shall be English. There shall be one arbitrator to be mutually agreed by the parties. Each party shall bear its own costs in the arbitration. Both parties agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack) (iii) any claim arising solely from Customer’s alleged failure to pay fees due to Tailwind. This arbitration provision will survive termination of this Agreement.
- YOU AND TAILWIND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOU/YOUR/ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Tailwind agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Tailwind acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable disputes under this Agreement.
- If a court decides that applicable law precludes enforcement of any of the limitations in this Part IV, Section 4 as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. This Agreement is governed by and shall be construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws principles.
- If you are entering into this Agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Tailwind for any breaches of the terms of this Agreement.
- You may not assign this Agreement without Tailwind’s prior written approval.
- If any individual term of this Agreement is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of this Agreement, so that this Agreement shall otherwise remain in full force and effect.
- You expressly agree that any feedback provided to you by Tailwind or its representatives regarding any questions you may have about this Agreement or your use of any Image licensed hereunder, is solely for the purpose of interpreting this Agreement and is not legal advice. Tailwind cannot render legal advice to you and expressly disclaims any liability of any kind related to any feedback provided by Tailwind or its representatives.
- It is expressly understood and agreed that this Agreement is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended by this Agreement as to third parties.
- In the event that you breach any of the terms of this or any other agreement with Tailwind, Tailwind shall have the right to terminate your account without further notice, in addition to Tailwind’s other rights at law and/or equity. Tailwind shall be under no obligation to refund any fees paid by you in the event that your account is terminated by reason of a breach.
- Except as expressly set forth herein, Tailwind grants no rights and makes no warranties, with regard to the use of personally identifiable information that may be contained in any Image, trademarks, trade dress or copyrighted designs or works of art or architecture depicted in any Image.
- Tailwind’s liability under any individual license purchased hereunder shall not exceed the “Limit of Liability” applicable to the license in effect at the time customer knows or should have known of the claim, and is without regard to the number of times the subject
Image is licensed or used by you.
- Tailwind does not warrant that the Image, Tailwind websites, or other materials will meet your requirements or that use will be uninterrupted or error free. The entire risk as to the quality, performance and use of the Image is solely with you.
- Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between you and the Company.
- After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting intellectual property, requiring indemnification, payment of licensing fees. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you or the Company from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
- This Agreement sets forth the entire agreement and understanding between you and the Company relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and the Company, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though the Company drafted this Agreement, you represent that you had ample time to review and decide whether to agree to this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or the Company because of the authorship of any provision of this Agreement.
- The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, pandemics, epidemics, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
- Digital Millennium Copyright Act; Copyright Complaints
- Company respects the intellectual property rights of others and requires those that visit the Company’s website and/or license the Image do the same. Company may, in appropriate circumstances and at our discretion, remove or disable access to material on the website or our network that infringes upon the copyright rights of others. Company also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any visitors to the website or users of our network repeatedly infringe on other’s copyrights, Company may in its sole discretion terminate those individual’s accounts and/or rights to use the website.
- If you believe that your work has been used on our website in any manner that constitutes copyright infringement, please notify Company’s by written notice. The notice should include the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
- A description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
- Identification of the specific location on the website of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
- Your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner, or the law; and
- A statement by you that the information in the notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner’s behalf.