THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU EITHER AS AN INDIVIDUAL OR A SINGLE ENTITY (“YOU” OR “YOUR” OR “CUSTOMER”), AND THE LUBRIZOL CORPORATION (“LUBRIZOL” OR “PROVIDER”) THROUGH WHICH THE SERVICE ARE PROVIDED (AS DEFINED BELOW). THE TERMS CONTAIN SIGNIFICANT RESTRICTIONS AND LIMITATIONS ON RIGHTS AND REMEDIES AND CREATE OBLIGATIONS UPON ACCEPTING THIS AGREEMENT. THEREFORE, YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE AGREEING TO THESE TERMS.
BY CLICKING THE “AGREE” CHECKBOX AND ENTERING YOUR NAME IN THE FIELD DISPLAYED AS PART OF THE ONLINE SIGNUP FOR LUBRIZOL STOCK MEDIA (THE “SERVICE,” AS FURTHER DEFINED BELOW) , YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE WRITTEN END USER AGREEMENT (THE “AGREEMENT”) DEEMED SIGNED BY BOTH PARTIES WHICH GOVERNS YOUR USE OF THE LUBRIZOL STOCK MEDIA ONLINE SERVICE ENABLING THE ACCESS, DOWNLOAD AND USE OF MEDIA CONTENT VIA THE INTERNET PROVIDED BY THE LUBRIZOL. IF YOU AGREE TO THE TERMS ON BEHALF OF A LEGAL ENTITY YOU REPRESENT THAT YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY; OR IF YOU AGREE TO THE TERMS.
This Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter hereof. The Agreement expressly limits Customer’s acceptance to the terms of the Agreement. These terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Customer’s general terms and conditions of purchase or any other document issued by Customer in connection with this Agreement.
1. Definitions. Capitalized terms not otherwise defined in this Agreement have the following meanings:
“Lubrizol,” “we” or “us” means (i) The Lubrizol Corporation, an Ohio corporation.
“Service” means the provision of the Stock Media service accessible through an Internet web address specified by Lubrizol, subject at all times to the terms of this Agreement.
“Commencement Date” means the date on which Lubrizol grants Customer access to the Service.
“Image(s)” means the Lubrizol digitized image(s), video and animations contained in Lubrizol’s Stock Media online database and licensed to Customer during the Term of the Service in accordance with Section 2.2, 2.3 and 2.4 of this Agreement as well as derivative works thereof prepared by you.
“Initial Term” means the initial term of the Service specified on the Order Form.
“Intellectual Property Rights” means registered and unregistered copyrights, rights in the nature of copyright, domain names, trademarks (whether registered and unregistered), service marks, database rights, design rights, proprietary indicia, inventions, patents, applications or registrations or any of the foregoing, renewals and extensions of any of the foregoing, and all other intellectual property and intangible rights of any description in any part of the world, whether now known or in the future created.
“Order Form” means the online Signup for Lubrizol Stock Media page agreed to by Customer, including any subsequent agreed amendment, revision or replacement, specifying the Lubrizol Stock Media Service for which you have subscribed.
“Renewal Term” means a renewal term for the Service equal to the greater of (i) 12 months or (ii) the duration of the Initial Term, unless otherwise mutually agreed by Lubrizol and the Customer.
“Service Fee” means with respect to the Initial Term, the fees set forth on the Order Form for the Service; or with respect to any Renewal Term, (i) the fees set forth in a subsequent Order Form for such Renewal Term or (ii) as otherwise agreed in writing between Customer and Lubrizol.
“Service” means the provision of the Lubrizol Stock Media service accessible through an Internet web address specified by Lubrizol, subject at all times to the terms of this Agreement.
“Term” means the term of this Agreement, including each Renewal Term.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service for your benefit.
“You” or “Customer” means the person or entity identified in the Order Form.
2. The Service.
2.1. Access. During the Term, we will provide you access to and use of the Service in accordance with this Agreement.
2.2. Image License. Lubrizol grants you a limited non-exclusive, non-transferrable license to use, reproduce, modify, publish, display and distribute the Images during the Term in accordance with the terms of this Agreement. You acknowledge, and will acknowledge, that Lubrizol owns the Intellectual Property Rights in and to Images and you agree that all goodwill associated with the Images shall inure to the benefit of Lubrizol. You agree, upon expiration of the Term or termination of the Agreement, to destroy all copies of the Image(s).
2.3. License Rights. You may, subject to the restrictions set out below, incorporate any Image(s) into your own original work and publish, display and distribute your work in any media. You may not, however, resell, sublicense or otherwise make available the Image(s) for use or distribution separately or detached from your product or your web page. For example, the Image(s) may be used as part of a web page design but may not be made available for downloading separately or in a separate digital format designed or intended for permanent storage or re-use by others. Similarly, your clients may view Image(s) as an integral part of your marketing or sales work product but may not be provided with the Image(s) or permitted to use the Image(s) separately or as part of any other product.
2.4. License Restrictions. You may not:
1. create scandalous, obscene, defamatory or immoral works using the Image(s) nor use the Image(s) for any other purpose which is prohibited by law;
2. use or permit the use of the Image(s) or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Image(s) or any part thereof;
3. use the Image(s) in electronic format, online or in multimedia applications unless the Image(s) are incorporated for viewing purposes only and no permission is given to download or save the Image(s) for any reason;
4. rent, lease, sublicense or lend the Image(s), or a copy thereof, to another person or legal entity; or,
5. use any Image(s) except as expressly permitted by this license.
2.5 Modifications. We may modify the Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Service that materially reduce the functionality of the Service provided to you during the Term.
3. Customer Support
3.1. Support. Support is included in your Service Fee and available by emailing firstname.lastname@example.org.
3.2. Availability. Our goal is to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance, although there is always the possibility of something happening outside our control.
4. Fees and Payments
4.1. Service Fees. The Service Fee is payable by you, and fully earned by us, on the Commencement Date and the first day of each Renewal Term thereafter, for so long as this Agreement continues.
4.3. Invoice; Payment. We will invoice you at the beginning of the Term and at the beginning of each subsequent Renewal Term; Service Fees are due and payable on the date of invoice, unless otherwise specified in the Order Form or agreed in writing between Lubrizol and you.
4.4. Payment Information. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. In the event that payment is not made in accordance with this Agreement, you will remain liable to make payment but we reserve the right to terminate or restrict the Service until payment is made.
4.5. Sales Tax. All fees are exclusive of any applicable sales taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Service, including all sales, use, value-added, transfer, and telecommunications taxes. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state.
4.6. Late Payments. Customer shall pay interest on all late payments at the lesser of (i) 1.5% per month or (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Lubrizol for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5. Service Renewal
5.1. This Agreement may be renewed or extended by the mutual agreement of Lubrizol and the Customer. Each Renewal Term is subject to this Agreement.
6. Lubrizol Proprietary Rights
6.1. This is an Agreement for access to and use of the Service, solely during the Term, and you are not granted a license to any software used by Lubrizol to provide the Service. The Service is protected by intellectual property laws. By using the Service you acknowledge and agree that Lubrizol is the owner of all Intellectual Property Rights relating to the Service, the Images and any other materials provided or made available to you through the Service or under this Agreement. Nothing in this Agreement shall transfer any ownership or proprietary interest in Lubrizol’s Intellectual Property Rights to you.
6.2. We retain all ownership rights in the Service. You agree not to copy, rent, lease, sell, distribute, alter, or create derivative works based on the Service or the Service in whole or in part, by any means, except as expressly authorized in a prior writing by us. The Lubrizol name, logo and trademark as well as other logos and trademarks that we use from time to time are our trademarks and you may not use them without our prior written permission.
6.3. We encourage all customers to comment on the Service and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service, without payment to you.
7. Service Access Security.
7.1. You shall not share any password, credentials or access code provided to you by Lubrizol with any third party or publicly disclose it or permit any third party to access the Service.
7.2. You shall notify us immediately of any breach of security or unauthorized use of your account.
7.3. Although we will not be liable for your losses caused by unauthorized use of your account, you may be liable for the losses incurred by us due to unauthorized use.
7.4. You shall not use the Service for any illegal, unethical or unauthorized purpose.
7.5. You shall not attempt to hack, destabilize or adapt the Service or its source code, or transmit worms, viruses or any code of a destructive nature to the Service or any other users.
7.6. You shall not, without our prior express written permission, use any high-volume automated means (including but not limited to robots, spiders and scripts) to access the Service.
7.7. You are solely responsible for obtaining and maintaining all equipment and services needed for access to and use of the Service and for paying all charges related to them.
8.1. You will indemnify, defend and hold us harmless against any claim, suit, action, or proceeding brought by a third party that alleges or arises out of or in connection with (a) your download or use of Image(s) outside the scope of the license granted under Section 2; (b) your misuse, modification or alteration of the Images; or, (c) your negligence or misconduct in the use of the Service. Each of the foregoing under this Section 8.1 (a), (b) or (c) shall be considered an “Action.”
8.3. In the event of an Action, we shall (i) provide you written notice within 15 days of becoming aware of any such Action; (ii) give you sole control of the defense or settlement of such Action; and, (iii) provide you (at your expense) with any and all information and assistance reasonably requested to handle the defense or settlement of the Action. You shall not accept any settlement that (1) imposes an obligation us; (2) requires us to make any admission; (3) imposes liability upon us; or (4) places any restrictions us, in each case without our prior written consent.
9. Disclaimers; Limitations of Liability
9.1. We and our affiliates, agents or representatives make no representations about the suitability, reliability, availability, timeliness, security or accuracy of the Service. Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the Service is provided “as is” without warranty or condition of any kind. Lubrizol disclaims all warranties and conditions of any kind with regard to the Service, including all implied warranties or conditions of merchantability, or fitness for a particular purpose. We disclaim all liability with respect to third party products.
9.2. THE SERVICE IS PROVIDED AND THE IMAGES LICENSED THROUGH THE SERVICE ARE PROVIDED AND LICENSED ON AN “AS IS” BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. LUBRIZOL SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF LUBRIZOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. LUBRIZOL IS ALSO NOT RESPONSIBLE FOR CLAIMS OF ANY THIRD PARTY. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY WHETHER OR NOT ANY ALLEGED BREACH OR DEFAULT UNDER THIS AGREEMENT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH. SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; IN SUCH INSTANCE, THIS LIMITATION WILL BE APPLIED ONLY TO THE EXTENT LEGALLY PERMITTED.
9.3. If, notwithstanding the other terms of this Agreement, either party is determined to have any liability to the other party or any third party, the parties agree that the aggregate liability of a party will be limited to the total amounts Customer has actually paid for the Service in the twelve month period preceding the event giving rise to a claim.
10. Termination, Suspension and Expiration.
10.1. Termination for Breach. For a material breach, the non-breaching party shall provide the other party thirty (30) days’ notice to the other party and, if such breach remains uncured at the expiration of such period, the Agreement shall be terminated. We may immediately terminate upon our determination that you have breached section 2.4. If the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors, either party may terminate the Agreement upon written notice.
10.2. Suspension for Prohibited Acts. We may suspend any Customer’s access to the Service, in our discretion, for: (i) use of the Service in a way that violates applicable laws and regulations or this Agreement, or (ii) during any investigation by us of your use of the Service or Images in violation of this Agreement.
10.3. Suspension for Non-Payment. We may suspend your access to all or any part of the Service upon ten days’ notice to you of non-payment of any amount due. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
10.4. Suspension for Actual or Apparent Harm. If your use of the Service: (i) is being subjected to or used to for disruptive activity, (ii) is creating a security vulnerability for the Service or others, or (iii) is causing harm to us or others, then we may immediately suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.
10.5. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, you will stop all use of the Service. If you properly terminate this Agreement for our breach, we will promptly refund any prepaid but unused fees covering use of the Service after termination. If we terminate this Agreement for your breach, you will promptly pay all unpaid fees due through the end of the Term. Fees paid are otherwise non-refundable.
11.1. Amendment and Waiver. Any provision of this Agreement may be modified, amended, or waived only if such modification, amendment or waiver is approved in writing by Lubrizol and Customer. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2. Applicable Law. This Agreement is governed by the laws of the State of Ohio without reference to conflicts of law principles, and the parties consent to the exclusive jurisdiction and venue of the courts in Cuyahoga County, Ohio or the Federal Court for the Northern District of Ohio, for all disputes arising out of or relating to this Agreement. If you are located in any country outside North or South America, then this Agreement is governed by the laws of England without reference to conflicts of law principles, and the parties consent to the exclusive jurisdiction and venue of courts in London, England for all disputes arising out of or relating to this Agreement.
11.3. Force Majeure. Neither party will be responsible for failure or delay of performance, except for payment obligations, if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.4. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one year after the cause of action has accrued.
11.5. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.6. Compliance with Laws. Each party will comply with all applicable laws in the provision or use of the Service. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
11.7. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.8. Notices. Notice to the Customer will be sent to the contact address set forth in the most recent Order Form or applicable billing details (as such may be changed by notice given Lubrizol). Notice to Lubrizol will be made at Notices.Legal@Lubrizol.com. All notices will be deemed delivered as of the date of actual receipt. We may give electronic notices by general notice via the Service and may give electronic notices specific to you by email to your email address(es) on record in our account information for you.
11.9. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of any merger, reorganization, sale of all or substantially all of our assets or change of control, or otherwise by operation of law.
11.10. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA (and each and every provision thereof) pursuant to the opt-out provision(s) contained therein. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.11. Miscellaneous. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The provisions of this Agreement which by their nature are intended to survive the termination, cancellation or expiration of this Agreement shall continue as valid and enforceable obligations of the parties, notwithstanding any such termination, cancellation or expiration, including without limitation the following sections: Lubrizol Proprietary Rights; Indemnification; Disclaimers, Limitations of Liability; Termination, Suspension and Expiration; and General.