SWART CONTENT LICENCE AGREEMENT

This is a Licence agreement between you and Swart that explains how you can use photos that you Licence from Swart. By downloading content from Swart, you accept the terms of this agreement.

1         Licencee Representation – You represent and warrant that:

  1. You are at least 18 years of age and have the right to enter into this Licence
  2. You will not use Content in any way that is not permitted by this Licence
  3. Information You provide to Swart is accurate and true, including without limitation all payment and billing information
  4. Except as otherwise stated in this Licence, any account(s) opened or maintained by You on the Sites will only be accessed and used by You for the purposes and on terms stipulated in this Licence)

2         Types of Licence offered by Swart

There are two types of licences offered by Swart: standard and extended (not currently available). Swart offers the standard licence for every file downloaded. An extended Licence gives you added rights in exchange for an additional Licence fee. Unless you purchase an extended Licence, your use of content is subject to the standard Licence terms.

You can licence files from Swart by purchasing the image rights through payment of the designated amount for a particular image.

The use of watermarked content from Swart site is allowed on complimentary basis for sample or test use only. Any final material or any publicly available materials cannot be used with a watermarked content from the Swart site and may be used for 30 days following download.

3         Grant:

Subject to the terms herein, Swart grants You a non-exclusive, royalty-free, worldwide, perpetual, non-transferable sub-Licence to use, Reproduce, unlimited, modify, publish and display downloaded Content (other than as restricted in heading 4).

In this agreement, “use” means to copy, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of.

3.1        Definition of Grant

o   Non-exclusive, means you do not have exclusive rights to use the content. Any particular content purchased by you can be licenced to other customers by Swart site.

o   Royalty-free, means that royalty is not to be paid to the owner of the content once a licence is purchased from Swart.

o   Worldwide, means the content can be used in any country around the world.

o   Perpetual, means the use of the content your rights have no expiration or end date.

o   Non-transferable, means that a customer cannot give or transfer the rights purchased to another customer. Only Swart and the original owner of the content have the authority to transfer rights.

o    Reproduce(d), means the distortion, alteration, cropping, editing, incorporation or manipulation of any part of the Content to create a finished derivative product (the Licenced Work), whereby the reproduced Content will not be disassociated from the Licenced Work by the end user or any third party to be a Standalone Content.

o   Unlimited, meaning you can use the content in an unlimited number of projects and in any media.

 

3.2        How to use Licenced Content

Content may be used in any way that is not regarded as restricted (other than as restricted in heading 4).

Examples include: websites; blog posts; social media; advertisements; marketing campaigns; corporate presentations; newspapers; magazines; books; film and television productions; web and mobile applications; product packaging.

3.2.1        Advertising / Marketing / Promotions (Business & Commercial Purposes)

o   Advertisements prepared by graphic designers / agencies for clients on magazines, periodicals, newspapers, reports and other traditional print media

o   Print ads, mailers, handouts, brochures, flyers, posters, catalogues, packaging for promotional materials which EXCLUDES packaging for merchandise (e.g. where the packaging forms part of the product, such as a box for a toy) and packaging as a product (e.g. wrapping paper being the merchandise)

3.2.2        Print / Publications / Education

o   Prints on book covers (front and back), up to 500,000 prints collectively for each Content

o   Business cards, letterhead, catalogs, brochures and pamphlets

3.2.3        Presentations

o   Use Content for multimedia presentations like Powerpoint, provided the following copyright notice is displayed next to the file: “[Contributor’s Name] © Swart.com”

3.2.4        “Editorial Use Only” Contents & Editorial Context

o   Important – Content marked “Editorial Use Only” may only be used for editorial purposes and may not be used for commercial / advertising / promotional purposes.

o   Content used for editorial purposes (such as magazines, newspapers, textbooks, books, eBooks, directories online or multimedia CDs) must display the following copyright notice next to the file: “[Contributor’s Name] © swart.com”

o   For the avoidance of doubt, all Content (including Contents not marked “Editorial Use Only”) may also be used in an editorial context, whether in traditional or electronic print, websites, blogs, television, online video, provided that the above copyright notice is displayed next to the file.

o   Editorial publication only up to 500,000 print collectively for each Content

3.2.5        Design Elements & Art

o   On a website, video game or data storage device for distribution or use by others (BUT not in connection with any website template or software product for distribution, resale or use by others)

o   As background or screen Content in software or mobile applications, provided that the Content does not play a Vital Role in the Licensed Work.

o   Substantially Reproduced into original artwork

o   On video, film, television broadcast and internet for home video, documentary, feature film or commercial use provided the following copyright notice is prominently displayed next to the file: “[Contributor’s Name] © Swart.com” and the Content does not play a Vital Role in the Licensed Work. Prominent display of the credit statement could include, e.g. beginning or ending credits to a television program or broadcast, or cited reasonably close to the Content used, or appended or annotated clearly.

3.2.6        Social Media Websites & Applications

o   Posting and/or uploading Content onto social media websites and applications (such as Facebook, Instagram and Twitter), provided that (1) such social media websites and applications do not assume or deem the ownership or rights (including Copyright) in the Content (whether as Standalone Image, in a derived form or as a Licensed Work), other than being permitted through You as a licensee of the Content to have the Content and/or Licensed Work displayed or used as permitted under this License; or (2) You must include Your organization logo at any corner of the Content measuring a minimum of 125 pixel width or length, (whichever is the larger) and/or the Content must be incorporated in a Licensed Work.

3.2.7        Personal Use

o   Home decoration, wall murals / art, albums, prints, personal property and use DIY items and other personal prints

o   Personal blogs and other personal publications (traditional or online) provided that personal publications will not cause You or any third party publication service providers (e.g., blog service providers) to assume or deem the ownership or rights (including Copyright) in the Content (whether as a Standalone Image, in a derived form or as a Licensed Work)

o   As décor in an office, lobby, public area, restaurant or retail store

4         Restrictions

  1. Illegal Use of Content. You may not use Contents in any way that violates any law, regulation or statute in any applicable jurisdiction. You may not use content in a pornographic or defamatory manner.
  2. SubLicence. Sell or Transfer Any Rights in Licence. Licence rights are personal to you. You may not transfer any rights in this License to third parties without Swart’s consent.
  3. No Standalone File Use. Conveyance of Content to third parties must always be in a Reproduced Licensed Work and never as Standalone Content. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use). You must ensure with adequate technological measures that Standalone Content may not be extracted / copied from Licensed Works by third parties.
  4. No Commercial Use of “Editorial Use Only” Content. You may not use content marked “editorial use only” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events that are newsworthy or of general interest (for example, in a blog, textbook, newspaper or magazine article).
  5. Infringe Intellectual Property Rights. You may not remove any Copyright Notice, watermark, author attributions, legal notices, proprietary designations or other intellectual property information in any Content.
  6. Extract Contents Illegally. You must not download Contents from the Swart Site using methods other than provided by Swart.
  7. No Use of Content in Logos / Trademarks / Service Marks. You may not use content as part of or incorporated into a logo, trademark, design mark, trade name, business name, or service mark.
  8. Sensitive Use Disclaimer Required. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for “editorial use only” content that is used in an editorial manner.
  9. No Use of Content to Derogate Persons / Property. You may not use Content in connection with a subject that would be unflattering or unduly controversial to a reasonable person unless you accompany each use with a statement that clearly indicates that
  10. the Content is being used for illustrative purposes only and
  11. any person depicted in the Content, if any, is a model. You may not imply that the creator of the Content endorses any political, immoral or offensive inclinations
  12. No Products for Resale. Unless you purchase an extended license, you may not use content in connection with any goods or services intended for resale or distribution where the primary value lies in the content itself including, without limitation, cards, stationery items, paper products, calendars, apparel items, posters (printed on paper, canvas, or any other media), DVDs, mobile applications or other items for resale, licence or other distribution for profit. This includes “on demand” products (meaning products in which content is selected by a third party for customization on such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, posters and other items (this includes the sale of products through custom designed websites, as well as sites such as zazzle.com and cafepress.com)
  13. No Electronic Templates. Unless you purchase an extended license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, brochure design templates).

 

Restriction Products for resale/ Electronic templates
Standard License Not permitted
Extended License Up to 100,000 postcards, greeting cards or other cards, stationery, stickers and paper products;

Up to 10,000 posters, calendars or other similar publications, mugs or mousepads; or

Up to 2,000 t-shirts, sweatshirts, or other apparel, games, toys, entertainment goods like CDs or DVDs, framed or mounted artwork.

Unlimited for electronic products such as mobile applications and electronic templates.

 

  1. Limited print run. Unless you purchase an extended license, you may not reproduce the content more than 500,000 times in physical print form. This restriction does not apply to electronic reproduction.
Restriction Print run
Standard License 500,000
Extended License Unlimited

 

5         Single User Account Only.

This Agreement only allows the creation and registration of a Single User Account. You may not allow anyone else to use your username or password. If you wish to create multiple seats to concurrently and/or separately access Your Account, please contact Swart at licence@swart.com for directions.

You are wholly responsibly for each user account. For more on account use please visit our terms of service page.

6         Termination/Cancellation/Withdrawal.

6.1         Termination.

This agreement is effective until it is terminated by either party. You can terminate this agreement by ceasing use of the content and deleting or destroying any copies. Swart may terminate this agreement at any time if you fail to comply with any of the terms, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Swart in writing that you have complied with these requirements.

6.1.1        Social Media Termination.

If you use the content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, this agreement shall immediately terminate.

6.1.2        Refunds/Cancellation.

File Download Refunds – Swart does not offer refunds for downloaded files. File returns will only be considered based on technical issues with the file at the sole discretion of Swart.

All requests for refunds/cancellations must be made in writing. If the request is approved, Swart will issue a credit to your account or credit card. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.

6.1.3        Content Withdrawal.

Swart may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Swart, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Swart may be liable, Swart may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Swart will provide you with replacement content (determined by Swart in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.

7         Disclaimer.

In no case shall Swart, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors and (sub)licencees (other than You), shall be liable for any general, punitive, special, incidental, indirect or consequential damages or loss of profits or any other damages, costs or losses arising from any use or non-use of the Contents, even if such parties have been advised, or advised of the possibility, of such damages. Refer to our terms of service.

8         Licensee Indemnity.

You agree to indemnify, defend and hold harmless Swart and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, (sub) licensees (other than You), service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

9         Swart Indemnity.

Provided that you have not breached the terms of this License, Swart agrees to defend, indemnify, and hold you harmless up to the Liability Cap (defined below). Such indemnification shall only apply to claims for damages directly attributable to Swart’s breach of the warranties and representations in this Agreement, together with the expenses (including reasonable attorneys’ fees), arising out of or directly connected to any valid actual or threatened third party lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of unaltered Contents downloaded and used by You pursuant to this Agreement violate Swart’s warranties and representations contained herein. This indemnification is on the condition that You give Swart:

  1. no later than five (5) business days written notice from the date You know or reasonably should have known of the claim or threatened claim, where such notification must include all details of the claim then known to You and emailed to legal@Swart.com, Attention: General Counsel;
  2. full information, assistance and cooperation for the defense or settlement thereof; and
  3. at Swart’s option, sole control of any defense, settlement or action related thereto.

Swart shall not be responsible for any claim settled without Swart’s consent or any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.

 

10    General Provisions.

  1. Assignment. This agreement is personal to you and is not assignable by you without Swart’s prior written consent. Swart may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
  2. Audit/Certificate of Compliance. Upon reasonable notice, you agree to provide to Swart sample copies of projects or end uses that contain licensed content, including by providing Swart with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Swart may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Swart of five percent (5%) or more of the amount you should have paid, then in addition to paying Swart the amount of the underpayment, you also agree to reimburse Swart for the costs of conducting the audit. Where Swart reasonably believes that content is being used outside of the scope of the license granted under this agreement, you agree, at Swart’s request, to provide a certificate of compliance signed by an officer of your company, in a form to be approved by Swart.
  3. Electronic storage. You agree to retain the copyright symbol, the name of Swart, the content’s identification number and any other information that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
  4. Governing Law/Arbitration. These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 40 NorthWest Canyon, Brigdestone, Ibadan, OY, 500211, Nigeria.
  5. Severability. In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
  6. Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
  7. Entire Agreement. The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

  1. Notice. All notices required to be sent to Swart under this agreement should be sent via email to legal@swart.com. All notices to you will be sent via email to the email set out in your account.
  2. Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
  3. Licensing Entity. The licensing entity under this agreement is determined based on your billing address in accordance with the chart found here.