This agreement (the “Agreement”) between you (“you” or “Licensee”) and the University of Central Florida Research Foundation, Inc. (“we,” “us” or “UCFRF”) governs commercial use of images you obtain from the Picbreeder.org website and other works created using the images (collectively “Images” or “Picbreeder Images”). All of the Terms and Conditions for the Picbreeder.org site (the “Site”) found at http://picbreeder.org/legalterms.php are incorporated into this Agreement and apply to your commercial use of Images, except for the terms prohibiting commercial use and any other conflicting terms, each of which are superseded by this Agreement. If you agree to the terms of this Agreement, sign it where indicated below and email the executed copy to firstname.lastname@example.org to receive instructions on how to download Images for commercial use.
1. Grant of License
This license grants you a non-exclusive, worldwide, license during the Term to sublicense Picbreeder Images to others, to make derivative works based on Picbreeder Images and to make, have made, advertise, import, export, distribute and sell Images or products incorporating Images, subject to the terms and conditions of this Agreement.
2. Prohibited Uses
We do not monitor the Images you choose, how you modify them, or how you use them commercially or otherwise. We do, however, place certain restrictions on how you use Images from the Picbreeder site, including the following:
You may not place the original Images in a downloadable format on the Internet, electronic bulletin board, or allow access to the Images via P2P file sharing networks or utilities or otherwise make the Images available free of charge.
You may not use, or allow anyone else to use, any of the Images to create pornographic, libelous, obscene, fraudulent, illegal, or defamatory material.
You may not use, or allow anyone to use, any of the Images in a manner that infringes or violates any copyright rights, trademark rights, rights of publicity/ privacy or any other intellectual property rights.
You are not required to pay any license fees at the time you download images from the Site. In exchange for the right to commercialize Picbreeder Images, you agree to pay us royalties equal to four (4) percent of the gross revenue received from your commercial use of Picbreeder Images. Royalty payments with a royalty report are due once per year commencing one year from the Effective Date and on that same date each year thereafter during the initial Term or any annual renewal Term. The royalty report should include a listing of all sales of Images or products including Images during the preceding year and the calculation of the royalty due under this Agreement. You should provide a royalty report for each year, even if you have no sales to report during the year to which the report applies. Payments shall be payable to the University of Central Florida Research Foundation, Inc. Payments and reports shall be sent to the following address:
University of Central Florida Research Foundation, Inc.
ATTN: Office of Technology Transfer
12201 Research Parkway, Suite 501,
Orlando, FL 32826
4. Records-Keeping and Audit
You agree to keep true and complete records relating to the sales of Images and all products including Images under this Agreement. You agree to make these records available, at reasonable times during normal business hours, for inspection by us, no more than one (1) time in any 12-month period, for the purpose of auditing to determine the accuracy of the payments made and reports provided to us. You also agree to maintain such records for at least three (3) years following the end of the calendar year to which they pertain. Should the results of any such audit show a shortfall in payment to us under this Agreement, you agree to promptly pay such royalties, and if the shortfall exceeds five (5) percent of the actual royalties due for the period of such audit, you will also pay our reasonable expenses for conducting the audit.
5. Copyright and Other Intellectual Property Rights
Except for the license rights expressly granted in this Agreement, UCFRF is and remains the owner of all copyright and other intellectual property rights in the Picbreeder Images. Any derivative works you create outside of the Site or other modifications you make to the Images outside of the Site belong to you, and UCFRF does not claim any ownership rights in those modifications or derivative works apart from its ownership of the Picbreeder Images that were used to create those works. Please bear in mind that, although the changes made to Picbreeder Images are your property, you are still responsible for paying royalties on commercial use of the works you create using Picbreeder Images.
This Agreement remains in effect for a period of one (1) year from the Effective Date. Following the initial one (1) year term, this Agreement automatically renews for successive one (1) year terms, unless you provide us or we provide you with written notice of cancellation of the Agreement. Notice of cancellation may be provided for any reason and is effective thirty (30) days from the date on which the notice of cancellation is received. Cancellation does not relieve either party of any obligations incurred prior to the cancellation, including the obligation to pay royalties for commercial use of Images prior to cancellation.
7. Trademarks and Publicity
You agree not use the name of UCFRF, UCF, Picbreeder or any trademark, trade device, service mark, symbol, or any abbreviation, contraction, or simulation thereof, owned by UCFRF or UCF, nor the names of any officer, employees, or any adaptation thereof, in any advertising, promotional, or sales literature relating to your use of Images or the Site without prior written consent obtained from an authorized officer of UCFRF or UCF in each case. Depending on the circumstances of your use, UCFRF may require you to provide attribution explaining that the Images you are using were created or derived from Images created on the Picbreeder.org Site and will contact you to request such attribution.
You agree to indemnify and hold UCRF, together with The University of Central Florida (“UCF”), and the officers, directors, boards, employees, agents and affiliates of both entities (collectively the “UCF Entities”) harmless from any and all claims and expenses, including (without limitation) attorney's fees, arising from your use of Images. By engaging in commercial use of Images, you are hereby agreeing to release the UCF Entities from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against the UCF Entities, if any, arising out of or in any way related to such disputes and/or to the products and services.
9. Disclaimer of Warranties
A. ALL IMAGES DELIVERED THROUGH THE SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE UCF ENTITIES MAKE NO PROMISES, REPRESENTATION OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE IMAGES OR INFORMATION PROVIDED ON THE SITE, INCLUDING THEIR ACCURACY, OPERATION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND THE UCF ENTITIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, WORKMANLIKE EFFORT, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES RELATING TO ENCUMBERANCES OR LIENS, AND, UNDER THE LAW OF THE UNITED STATES, THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY AND ACCEPTANCE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE AND OTHER IMPLIED OR STATUTORY WARRANTIES. THE UCF ENTITIES MAKE NO PROMISES, REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED OR SECURE. ANY MATERIAL DOWNLOADED FROM THE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WAIVE ALL CLAIMS AND CAUSES OF ACTION RELATING TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM SUCH DOWNLOADS OR ACCESS TO OR USE OF THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ANY OF THE UCF ENTITIES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. AS A RESULT, SOME OF THE EXCLUSIONS ABOVE MAY NOT APPLY TO YOU. ACCORDINGLY, THE UCF ENTITIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW FOR TORT, REGARDLESS OF THE NUMBER OR NATURE OF CLAIMS IN TORT, EQUITY, OR CONTRACT.
B. EXCEPT AS EXPRESSLY STATED HEREIN, THE UCF ENTITIES MAKE NO WARRANTY THAT: (i) ANY IMAGE WILL MEET YOUR REQUIREMENTS; (ii) ANY IMAGE WILL BE ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY IMAGE WILL BE ACCURATE OR RELIABLE: (iv) THE QUALITY OF ANY IMAGE OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; OR (v) ANY DEFECTS WILL BE CORRECTED.
10. Limitation of Liability
TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE UCF ENTITIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, RESULTING FROM YOUR USE OF IMAGES, THE USE OR THE INABILITY TO USE THE SITE OR RESULTING FROM ANY MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE LOSS, EVEN IF YOU OR ANOTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP USING THE SITE AND IMAGES AND, IF YOU ARE A REGISTERED USER, TO CANCEL YOUR PICBREEDER MEMBERSHIP. YOU ACKNOWLEDGE AND AGREE THAT THE AGREEMENT TO MAKE THE SITE AVAILABLE TO YOU DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION OF THE RISK OF ANY OF YOUR DAMAGES, REGARDLESS OF WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL OR ANY OTHER DAMAGES WHICH MAY ARISE IN CONNECTION WITH YOUR USE OF THE SITE. UCF, AND UCFRF AS A DIRECT SUPPORT ORGANIZATION AND INSTRUMENTALITY OF UCF, EXPRESSLY RETAIN ALL RIGHTS, BENEFITS, AND IMMUNITIES OF SOVEREIGN IMMUNITY IN ACCORDANCE WITH SECTION 768.28, FLORIDA STATUTES.
THE UNIVERSITY OF CENTRAL
FLORIDA RESEARCH FOUNDATION,