Copyright

Content License Agreement

This Agreement governs the terms by which visitors to www.schwimmbacher.com (the “Site”) and clients of www.schwimmbacher.com may obtain the right to use photographic, and other media content located at www.schwimmbacher.com.

1. Background of Agreement

In this Agreement: (i) “you” or the “Client”; means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “Schwimmbacher”, “Wes Schwimmbacher Photography”, “I”, or “we”; means Wes Schwimmbacher, the operator of the Site; and (iii) “Content”; means any photographic image, illustration, animation, flash file, copy, film or video footage, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you may download from the Site

2. Standard License Terms

All rights regarding the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Schwimmbacher or the supplier of the Content, as the case may be.

3. Permitted Uses:

You may only use the Content for those advertising, publication, promotional and other specified purposes for which permission has been expressly granted, in writing, by Schwimmbacher. If there is any doubt that a proposed use is a Permitted Use, you should contact Schwimmbacher for guidance.

4. Standard License Prohibitions

Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:

1.use the Content in advertising and promotional projects, including (but not limited to) printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, business cards, promotional greeting cards and promotional postcards (ie. not for resale or license);

2.use the Content in entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations;

3.use the Content in online or electronic publications, including web pages;

4.use the Content in prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and

5.use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, flash templates, business card templates, electronic greeting card templates, and brochure design templates;

6.use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items;

7.use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;

8.use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;

9.incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;

10.use the Content in a fashion that is considered by Schwimmbacher (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;

11.use or display any Content that features a model or person in a manner that (i) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (ii) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content;

12.to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;

13.remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;

14.sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;

15.install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;

16.use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;

17.use the Content for editorial purposes without including the following credit adjacent to the Content: “© Wes Schwimmbacher”; or

18.use the Content in any other uses unless approved in writing by Schwimmbacher.

5. Limited Representations and Warranties

(a) The Site acts as a showcase of Content between Schwimmbacher and those who wish to procure his services. Schwimmbacher grants no rights and makes no warranties regarding the use of names, people, trademarks, trade dress, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content. While we have made reasonable efforts to correctly categorize the Content, Schwimmbacher does not warrant the accuracy of such information.

(b) The content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to the implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Schwimmbacher does not represent or warrant that the content will meet your requirements or that its use will be uninterrupted or error free.

(c) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.

6. Limitation of Warranties and Liability

(a) In no event shall Schwimmbacher or any affiliates or content providers or their respective directors, officers, employees, shareholders, partners or agents be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this agreement, including without limitation your use of, reliance upon, access to, or exploitation of the content, or any part thereof, or any rights granted to you hereunder, even if we have been advised of the possibility of such damages, whether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise.

(b) In any event, the total maximum aggregate liability of Schwimmbacher under this agreement, the license provided hereunder, or the use or exploitation of any or all of the content in any manner whatsoever shall be limited to the fees actually paid by you to Schwimmbacher under this agreement in respect of the use of the relevant content.

(c) Some jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

7. General Provisions

(a) Schwimmbachers failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

(b) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

(c) This Agreement will be governed under the laws of the Republic of South Africa (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

8. Contact

If you have concerns relating to this Agreement, please contact Schwimmbacher at wes(at)schwimmbacher(dot)com or via phone at +27 23 342 5613.