IMPORTANT NOTICE. PLEASE READ CAREFULLY. By clicking “I Accept,” you agree to all of the terms and conditions of this License Agreement (the “Agreement”). You understand and agree that this Agreement is enforceable against you and any entity with which you are employed or affiliated and on whose behalf the dESIRE Photographs (as defined in Section 1 below) are used. If you are entering into this Agreement on behalf of yourself and an entity, you represent that you have the authority to bind the entity to this Agreement. The terms “you” and “your” refer to the individual or the entity, as applicable, that registers for or uses the dESIRE Photographs. If you do not agree with these terms and conditions, you must select “I Decline” and you may not use the dESIRE Photographs.
1. USE OF THE dESIRE PHOTOGRAPHS. Kristen Alvanson (the “Artist”) has created and may continue to create works of art known as “the dESIRE Project,” which project consists of, among other things, a series of photographs that capture representations of the Artist’s desires without any physical residue. Such photographs are numbered by the Artist and the particular numbered photographs identified by the Artist in your payment transaction with the Artist are referred to in this Agreement as the “dESIRE Photographs.” You will be provided with the dESIRE Photographs, subject to your payment for the dESIRE Photographs and all of the terms and conditions of this Agreement. You must conclude a valid credit card transaction, or another mutually agreed upon method of payment transaction, with the Artist as a condition to receiving the dESIRE Photographs. You must report and pay any applicable taxes to the appropriate governmental agencies. If the dESIRE Photographs are in addition to dESIRE Photographs previously licensed to you, such additional dESIRE Photographs shall be considered “dESIRE Photographs” for all purposes of this Agreement and subject to all of the terms and conditions of this Agreement. Within thirty (30) days after any request by the Artist, you will provide the Artist with a written certification that your use of the dESIRE Photographs at the time of the request is in compliance with the terms and conditions of this Agreement.
2. dESIRE PHOTOGRAPHS REGISTRATION. Following the Artist’s receipt of your payment, the Artist will mail the dESIRE Photographs to you on a CD-ROM disk. You agree the information you provide on the billing information page is current, complete and accurate information and agree to update promptly such information. If you provide any information that is untrue, inaccurate, or incomplete, or if the Artist has reason to believe that the information you provided is untrue, inaccurate, or incomplete, the Artist may suspend or terminate your account and/or this Agreement. You may update any contact information you submitted to the Artist by sending your request to kristenalvanson@gmail.com.
3. dESIRE PHOTOGRAPHS LICENSE. Subject to the terms and conditions of this Agreement, the Artist hereby grants to you a personal, exclusive (except as to the Artist and as described in Section 4 below), non-transferable (except as described in Section 5 below), revocable, limited license to use the dESIRE Photographs. As a condition of your use of the dESIRE Photographs, you represent and warrant that you will not use dESIRE Photographs for any unlawful purpose and:
3.1 You shall not reproduce, display, adapt, translate, publish, exploit for commercial purposes, or modify the dESIRE Photographs, or any components thereof, except as expressly provided in Section 4 below.
3.2 You shall not create derivative works based on the dESIRE Photographs or any components thereof.
3.3 You shall not remove, obscure, or alter the copyright notices, trademarks, or other proprietary rights notices that appear in the dESIRE Photographs.
4. YOUR EXCLUSIVE RIGHTS IN THE dESIRE PHOTOGRAPHS
4.1 You shall have the exclusive right to reproduce the dESIRE Photographs for the sole purpose of displaying and may display the dESIRE Photographs in your private residence or your business office.
4.2 You shall have the exclusive right to reproduce the dESIRE Photographs for the sole purpose of displaying and may display the dESIRE Photographs at an art show or exhibit, provided that you provide the Artist with written notice of your intent to do so (along with reasonable details in writing of such show or exhibit) at least sixty (60) days’ prior to the opening of such art show or exhibit and you have obtained the Artist’s prior written consent.
4.3 You shall have the exclusive right to reproduce the dESIRE Photographs for the sole purpose of publishing the dESIRE Photographs in print or in another form, provided that you provide the Artist with written notice of your intent to do so (along with reasonable details in writing of such publication) at least sixty (60) days’ prior to the publication in print or in another form and you have obtained the Artist’s prior written consent.
4.4 Notwithstanding the foregoing exclusive rights in the dESIRE Photographs, such exclusive rights do not apply against the Artist. The Artist retains all such rights for the Artist only.
5. YOUR RIGHT TO TRANSFER THE dESIRE PHOTOGRAPHS
5.1 You shall not rent, lease, loan, license, sublicense, distribute, transfer, assign, or sell the dESIRE Photographs, or any components thereof, except as expressly set forth in this Section. You may transfer all of the rights granted to you under this Agreement provided that:
5.1.1 you retain no copies whatsoever of the dESIRE Photographs;
5.1.2 you transfer all of the dESIRE Photographs;
5.1.3 you provide the receiving party with a copy of this Agreement;
5.1.4 prior to the transfer, you confirm in writing to the Artist your compliance with this Agreement; and
5.1.5 prior to the transfer, the Artist has received written notice from the transferee, which notice contains the transferee’s name, street mailing address, phone number and e-mail address, and a written promise that the transferee accepts the terms and conditions of this Agreement.
5.2 Any attempted assignment in violation of this Section shall be void and of no effect and the Artist shall have the right to terminate this Agreement without any liability upon written notice to you.
6. LIMITED WARRANTY. FOR A PERIOD OF THIRTY (30) DAYS AFTER THE ARTIST’S RECEIPT OF YOUR PAYMENT FOR THE dESIRE PHOTOGRAPHS, THE ARTIST WARRANTS THAT THE dESIRE PHOTOGRAPHS WILL BE ACCESSIBLE FROM THE CD-ROM DISK (THE “WARRANTY PERIOD”). IF DURING THE WARRANTY PERIOD, THE dESIRE PHOTOGRAPHS ARE NOT ACCESSIBLE FROM THE CD-ROM DISK, YOU MAY, AS YOUR SOLE AND EXCLUSIVE REMEDY AND ON OR BEFORE THE EXPIRATION DATE OF THE WARRANTY PERIOD, RETURN THE CD-ROM DISK WITH PROOF OF PAYMENT TO THE ARTIST FOR A REPLACEMENT COPY OF THE CD-ROM DISK OR FOR A FULL REFUND OF THE LICENSE FEE YOU PAID FOR THE dESIRE PHOTOGRAPHS. IF SUCH FAILURE OF THE dESIRE PHOTOGRAPHS IS THE RESULT OF YOUR BREACH OF THIS AGREEMENT OR ACCIDENT OR ABUSE, THE ARTIST SHALL HAVE NO OBLIGATION TO REPLACE THE CD-ROM DISK, dESIRE PHOTOGRAPHS OR REFUND THE LICENSE FEE. WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTY, THE dESIRE PHOTOGRAPHS ARE PROVIDED “AS IS” AND YOU USE THE dESIRE PHOTOGRAPHS AT YOUR OWN RISK. THE ARTIST DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER THAT THE dESIRE PHOTOGRAPHS OR ANY COMPONENTS THEREOF WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR WILL BE FREE FROM DEFECTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ARTIST HEREBY DISCLAIMS, AND YOU HEREBY WAIVE, ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON- INFRINGEMENT, OR ANY WARRANTY THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OF THIS AGREEMENT.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE ARTIST BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EVEN IF THE ARTIST HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, IF THE ARTIST SHOULD BE HELD LIABLE FOR ANY DAMAGES NOTWITHSTANDING THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE ARTIST’S ENTIRE LIABILITY WITH RESPECT TO HER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY REASON AND UPON ANY CAUSE OF ACTION REGARDLESS OF THE NUMBER OF ACTIONS OR NUMBER OF LICENSED COPIES OF THE dESIRE PHOTOGRAPHS (WHETHER BASED IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE) SHALL NOT EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100.00 USD). NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST THE ARTIST. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE LIMITATIONS OF LIABILITY SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
8. PROPRIETARY RIGHTS. The dESIRE Photographs are the intellectual property of the Artist. With the exception of the limited license granted to you in this Agreement, you have no right, title or interest in any of the intellectual property in or associated with the dESIRE Photographs, including, without limitation, copyright, know-how, ideas, improvements and modifications (collectively “IP Rights”), and the Artist retains all IP Rights in and to the dESIRE Photographs.
9. NOTICES. All notices to the Artist under this Agreement shall be sent by e-mail to kristenalvanson@gmail.com. Such notice shall be deemed given when received by the Artist. The Artist may give notice to you under this Agreement by e-mail to your e-mail address on record in your account, or by written communication sent by first class mail, overnight mail, or certified mail, return receipt requested, to the mailing address on record in your account.
10. TERM AND TERMINATION. This Agreement shall commence as of the time you click “I Accept,” and it shall continue in full force and effect unless and until terminated as set forth in this Agreement. You may terminate this Agreement at any time upon written notice and return of the dESIRE Photographs to the Artist. You agree that the license granted to you in this Agreement may be terminated by the Artist upon written notice to you if you fail to comply with any terms or conditions of this Agreement. You agree and acknowledge that any breach or threatened breach by you of this Agreement will cause the Artist irreparable injury for which the recovery of money damages would be inadequate. Therefore, in addition to any other remedies that may be available at law, in equity, or otherwise, the Artist shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement, without the necessity of proving actual damages, or posting a bond, even if otherwise normally required. The prevailing party in any proceeding arising out of this Agreement shall recover its reasonable expenses and costs, including reasonable attorneys’ fees, from the other party. All provisions relating to proprietary rights, limitation of liability, and warranty shall survive any termination of this Agreement. In addition, any provisions which by their nature contemplate effectiveness beyond the termination of this Agreement shall survive any such termination. Upon any termination of this Agreement, you shall return the dESIRE Photographs to the Artist.
11. MISCELLANEOUS. This Agreement shall be governed by, construed and enforced in accordance with the laws of the United States (excluding the UN Convention on Contracts for the International Sale of Goods) and the State of Connecticut, without regard to conflict of law provisions thereof. The sole and exclusive jurisdiction and venue for any litigation arising out of or related to this Agreement or the subject matter hereof shall be in an appropriate state or federal court located in the State of Connecticut, and you and the Artist hereby irrevocably consent to the jurisdiction of such courts. This Agreement shall not be construed as creating any agency, partnership or joint venture between the Artist and you. The section and other headings contained in this Agreement are intended solely for convenience of reference and are not intended to be part of or affect the meaning or interpretation of this Agreement. The word “or” when used in this Agreement is not exclusive. This Agreement is executed in the English language. In the event this Agreement is translated into another language, and any inconsistency or discrepancy in meaning or interpretation results therefrom, the English language version shall prevail and control. This Agreement constitutes the entire agreement between you and the Artist with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, understandings and representations, written or oral, between you and the Artist with respect to the subject matter hereof, including, without limitation, the terms and conditions for any dESIRE Photographs previously licensed to you. No delay or failure by the Artist in exercising or enforcing any of its rights or remedies hereunder, in whole or in part, and no course of dealing or performance, shall constitute a waiver by the Artist of any provision of this Agreement. In the event any provision of this Agreement is determined to be invalid or unenforceable, such invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement, which shall remain in full force and effect.