NICICK TERMS OF SERVICE
The creator of nicick.com is Romanas Boruchovas – photographer from Lithuania (Rob Rye). This License Agreement, together with any invoice (collectively, the “Agreement”), sets forth the terms and conditions between you, your employer, or any other client or end-user on whose behalf you are Purchasing a license as the licensee (collectively, “You(r)” or “Licensee”) and creator of nicick.com Romanas Boruchovas (“Nicick”), as Licensor. Your acceptance of this Agreement by licensing any images offered for licensing on the website (“Image(s)”) forms a binding agreement between Licensee and nicick.
Ownership of Images. All Images on the Nicick Website are protected by Lithuania copyright law and international copyright treaties. Nicick and/or its contributors own or control all rights, including the copyrights in and to the Images. Nicick and/or its Contributors reserve all rights in and to the Images not expressly granted to Licensee in this Agreement.
THIS IS A SINGLE SEAT LICENSE AUTHORIZING ONE NATURAL PERSON TO LICENSE, DOWNLOAD AND USE CONTENT. NO OTHER PERSONS (INCLUDING EMPLOYEES, CO-WORKERS OR INDEPENDENT CONTRACTORS) MAY ACCESS YOUR ACCOUNT OR USE CONTENT LICENSED THROUGH YOUR ACCOUNT.
Nicick hereby grants you a non-exclusive, non-transferable right to use, modify and reproduce Image worldwide, in perpetuity, as expressly permitted by the applicable license and subject to the limitations set forth herein:
PART I – IMAGE LICENSES
A STANDARD IMAGE LICENSE grants you the right to use Images:
- As a digital reproduction, including on websites, in online advertising, in social media, in mobile advertising, mobile “apps”, software, e-cards, e-publications (e-books, e-magazines, blogs, etc.), email marketing and in online media (including on video-sharing services such as YouTube, Dailymotion, Vimeo, etc., subject to the budget limitations set forth in sub-paragraph I.a.i.4 below);
- Printed in physical form as part of product packaging and labeling, letterhead and business cards, point of sale advertising, billboards, CD and DVD cover art, or in the advertising and copy of tangible media, including magazines, newspapers, and books provided no Image is reproduced more than 500,000 times in the aggregate;
- As part of an “Out-of-Home” advertising campaign, provided the intended audience for such campaign is less than 500,000 gross impressions.
- Incorporated into film, video, television series, advertisement, or other audio-visual productions for distribution in any medium now known or hereafter devised, without regard to audience size, provided the budget for any such production does not exceed EUR € 9,000;
- For your own personal, non-commercial use (not for resale, download, distribution, or any commercial use of any kind)
PART II – RESTRICTIONS ON USE OF IMAGE
YOU MAY NOT:
- Use Image other than as expressly provided by the license you purchased with respect to such Image.
- Portray any person depicted in Image (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) in a political context, such as the promotion, advertisement or endorsement of any party, candidate, or elected official, or in connection with any political policy or viewpoint; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities.
- Use any Image(s) in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.
- Modify Image(s) designated “Editorial Use Only” in a manner that changes the context of what is depicted.
- Use Image(s) designated “Editorial Use Only” for commercial purposes.
- Resell, redistribute, provide access to, share or transfer any Image(s) except as specifically provided herein. For example and not by way of limitation, the foregoing prohibits displaying Content as, or as part of, a “gallery” of content through which third parties may search and select from such content.
- Use Image(s) 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(s) (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(s) was created by you or a person other than the copyright holder(s) of that Image(s).
PART III – INDEMNITY AND LEGAL COVERAGE
- NICICK INDEMNITY. Provided Licensee is not otherwise in breach of this Agreement and subject to Sections 4 and PART IV of this Agreement, Licensee’s sole and exclusive remedy for any breach of the representations and warranties, Nicick shall defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or connected with any actual lawsuit or legal proceeding alleging that Nicick is in breach of its warranties set forth in Section PART IV of this Agreement. No other indemnification is offered by Nicick under this Agreement.
- LICENSEE INDEMNITY. Licensee agrees to defend, indemnify and hold Nicick from all damages, liabilities and expenses (including reasonable attorneys’ fees and costs), arising out of or as a result of claims by third parties relating to Licensee’s use of any Image(s) outside the scope of this Agreement; modification of any Images or combination of any Images, with any text or other content; or any other breach by Licensee of this Agreement. Nicick 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 the Images are used by Licensee.
- INDEMNIFICATION CONDITIONS. The parties’ indemnity obligations contained in this Agreement are conditioned upon the indemnified party: (i) promptly providing the other party with written notice of any claim; (ii) giving the other party control of such defense and settlement, provided that the indemnifying party shall not make any settlement which imposes any material obligations on the indemnified party without the prior written consent of the indemnified party; and (iii) providing the indemnifying party with all reasonable information necessary to defend such claim.
- LEGAL COVERAGE. All standard licenses include up to EUR € 9,000 indemnification coverage per licensed Image, if Nicick breaches any of its warranties set forth in Section PART IV of this Agreement, subject to the Licensee (a) not breaching the terms of this Agreement; and (b) using the Images in a manner that is consistent with the terms of this Agreement.
PART IV – WARRANTIES AND LIMITATION OF LIABILITY
Nicick warrants (a) it has all necessary rights and authority to enter into and perform its obligations under this Agreement and grant the rights provided herein; and (b) the authorized use of the unaltered Images will not violate any third party copyrights, trademarks, or right of privacy or publicity to the underlying Images if model releases are available.
NICICK MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NICICK SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE’S USE OF THE IMAGES, OR OTHERWISE, EVEN IF NICICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF NICICK OR ANY OF ITS SUBSIDIARIES, SUCCESSORS, PREDECESSORS, PARENTS, AFFILIATES, OR CONTENT CONTRIBUTORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR LICENSORS OWED TO LICENSEE OR ANY THIRD PARTY CLAIMING THROUGH LICENSEE ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE’S USE OF ANY IMAGES PROVIDED BY NICICK, EXCEED € 9,000 PER IMAGE LICENSED. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES.
PART V – PAYMENT TERMS
Although you may be allowed to use the Images before payment is received by Nicick, your use of any Images will be considered to be unlicensed until full payment of Nicick’s invoice is received pursuant to Nicick’s payment terms. Unless credit terms have specifically been agreed upon in writing by Nicick, payment of Nicick’s invoices must be received within thirty (30) days of its date (net of any discounts). The Licensee agrees to pay Nicick a service charge of 1.5% percent per month on any unpaid balance after this time period for the use of any Image. Any disputes concerning the invoice must be submitted in writing, within thirty (30) days of the invoice date, or the Licensee shall be deemed to have accepted the invoice as issued.
PART VI – CANCELLATION POLICY
All licenses are final; no refunds or credits will be allowed.
PART VII – COPYRIGHT INFRINGEMENT AND LIQUIDATED DAMAGES
In the event that the Licensee utilizes any Image without a license, Nicick reserves the right to seek damages through a legal claim unless the Licensee agrees to reimburse Nicick, as liquidated damages, a sum equal to at least five (5) times the market value price charged for such use of an Image. If the Licensee fails to make the payment as outlined above, within thirty (30) days of Nicick’s invoicing such fee, this liquidated damage provision shall be void and Nicick reserves the right to sue Licensee (including without limitation Licensee’s client(s) and end-user(s)) for copyright infringement, including attorneys’ fees and all associated costs.
PART VIII – TERMINATION
The license contained in this Agreement will terminate automatically without notice from Nicick if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Images; (ii) destroy or, upon the request of Nicick, return the Images to Nicick; and (iii) delete or remove the Images from Licensee’s premises, computer systems and storage (electronic or physical).
PART IX – REVOCATION
Nicick reserves the right to revoke the license to use any Image for good cause and elect to replace such Image with an alternative Image. Upon notice of any revocation of a license for any Image, Licensee shall immediately cease using such Images, shall take all reasonable steps to discontinue use of the replaced Images in products that already exist and shall inform all end-users and clients of same. If the Image(s) is used on a social media or other third party website; the Images may only be used as part of another work and not as a stand-alone file; and any rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to the Images contrary to the terms of this Agreement.
PART X – SEVERABILITY
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it enforceable.
PART XI – CHOICE OF LAW/ATTORNEYS’ FEES
This Agreement shall be interpreted in accordance with the laws of the Lithuania, without reference to any laws relating to conflicts of laws. Licensee agrees to submit to the exclusive jurisdiction of the Siauliai County Court located in Siauliai County, Lithuania. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. If Nicick is obligated to go to court to enforce any of its rights, the Licensee agrees to reimburse Nicick for its legal fees and disbursements (including attorneys’ fees and costs) if Nicick is successful.
PART XII – WAIVER
No action of Nicick, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
PART XIII – ENTIRE CONTRACT
This Agreement (including any invoice issued to Licensee) contains all the terms of the license 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.