CDL Rev 2: 2-5-07
FETCH-A-SKETCH
USER AGREEMENT
This Agreement establishes
the legal terms under which visitors to www.Fetch-a-Sketch.com (the "Site") may
view and use the home improvement design drawings and related content (referred
to in this Agreement as "Designer Content") that is presented on the Site. This User Agreement is in addition to
the Designer Agreement that all persons providing Designer Content to the Site
have entered into. It is important
that you read this Agreement and indicate your acceptance of its terms by
selecting the "I Agree" box at the end of the Agreement. If you do not accept and agree to be
legally bound by these terms, do not select "I Agree" and do not download any
Designer Content.
1. The
Fetch-A-Sketch Site.
The Site is owned and
managed by Intellectual Property Sales, Inc. ("IPS"), to allow design
professionals to display their original design and concept drawings for
landscape design and other home improvement projects, and to allow individuals
and businesses to view and, for a fee, to download a copy of such Designer
Content, to be used only for the Permitted Uses defined below. Individuals and businesses who use the
Site are referred to in this Agreement as "users" or as "you."
2. Permitted Uses
All Designer Content is
owned or controlled by IPS. You
are free to view all Designer Content appearing on the Site. You may also purchase a non-exclusive
license to download a digital copy of one or more individual Designer Content
drawings and use the downloaded drawing (referred to in this Agreement as a
"Licensed Concept Drawing") for the following Permitted Uses:
(a) You may make one print copy of
the digital download of the Licensed Concept Drawing and use that print
Licensed Concept Drawing as a starting point to create, or to commission a duly
qualified and licensed design professional to create, the architectural and/or
construction drawings necessary to construct the home improvement project
depicted in the Licensed Concept Drawing.
(b) If you are a design professional,
you may include the print of the Licensed Concept Drawing among the design
concepts that you present to the public in connection with promoting your
professional services, but only subject to the prohibitions against removing
copyright notice and making false claims of authorship as provided in section
3(d) and 3(g) below.
(c) In connection with either of the
Permitted Uses described above, you may modify, edit, expand upon or otherwise
alter either the digital file or the print copy of the Licensed Concept Drawing
so as to create a Derivative Work under copyright law, and thereafter make one
print of that Derivative Work and use that print for any Permitted Use. All Derivative Works shall be included
within the term Licensed Concept Drawing as used elsewhere in this Agreement.
3. Prohibited
Uses
Any use of Designer
Content or of a Licensed Concept Drawing that is not a Permitted Use as defined
above violates this Agreement and constitutes copyright infringement. In particular, but without limitation,
you may not:
(a) create multiple digital or print
copies of any Licensed Concept Drawing;
(b) re-sell, sub-license,
distribute, publish or display Licensed Concept Drawings, except as
specifically allowed by one of the Permitted Uses. For example, a design professional may show a Licensed
Concept Drawing to a customer to illustrate the type of home improvement
project that design professional might undertake, but may not sell a copy of
that Licensed Concept Drawing or charge a fee for showing the Licensed Concept
Drawing to the customer;
(c) use any Licensed Concept Drawing
as part of a trademark, service mark or logo,
(d) remove, alter or obscure any
copyright notice, trademark or other legal rights designation from any place
where it is embedded in the Licensed Concept Drawing;
(e) use the Licensed Concept Drawing
in design template applications intended for resale, whether online or not,
including, without limitation, website templates and brochure design templates;
(f) use or display any
Licensed Concept Drawing on a website, through any telecommunications network
or by wireless transmission or by any other means now or hereafter created
other than by physical delivery of the print on which the Licensed Concept
Drawing resides;
(g) falsely represent that you are
the author of a Licensed Concept Drawing, but you may truthfully represent that
you are the author of any new, original elements added by you to a Licensed
Concept Drawing to create a Derivative Work.
4. Prices
for Licensed Concept Drawings.
Designer Content on the
Site is segregated into categories A, B and C. Further, digital downloads of Designer Content is offered at
different levels of resolution, namely, Standard Resolution (capable of yielding
a clear print up to __ "by __"), High Resolution (capable of yielding
a clear print up to __ "by __") and Maximum Resolution (capable of
yielding a clear print up to __ "by __"). The prices for digital download of Designer Content are
stated on the Order Page, and are subject to change.
5. Featured
Designer Referral Service.
(a) Certain of the design
professionals who have submitted Designer Content for display on the Site are
designated as Featured Designers and have chosen to participate in the Featured
Designer Referral Program. This
participation is noted on the corresponding Designer Content concept
drawings. If you desire to contact
any of these participating design professionals, you may send an email to us at
[email address], identify the Designer Content drawing whose creator you wish
to contact, identify the purpose or proposed project that you wish to discuss
with the Featured Designer, and we will forward your inquiry to that design
professional. You understand and
agree that it is solely the designer professional’s responsibility to contact
you regarding your inquiry, and IPS shall have no responsibility or obligation
other than to communicate your inquiry to the designated design professional.
(b) IPS makes no representation,
express or implied, concerning the qualifications, experience or licensed
status (if any) of any Featured Designer.
It is your sole responsibility to investigate the credentials of any
Featured Designer that you may consider hiring to confirm that the person or
company is qualified to perform the services in question, such as by inquiring
of the applicable contractor licensing boards, the local Better Business
Bureau, and similar resources.
6. Designer
Content For Conceptual Use Only
You understand and agree
that the Designer Content appearing on the Site, and Licensed Conceptual
drawings downloaded from the Site, are presented solely for the purpose of
illustrating concepts for home improvement projects. The Designer Content is not to scale, does not constitute and may not be used or
relied upon as working drawings,
construction drawings or any other form of drawings or plans suitable or
capable of being constructed or built.
If you desire to construct or install any home improvement project
illustrated by any Designer Content drawing, it is your responsibility to
purchase the Licensed Concept Drawing and thereafter to have a qualified
architect, contractor or other design professional prepare all required plans
and drawings and secure all permits and permissions required by all laws, regulations
and ordinances applicable to the project in question.
7. Limitation
of Warranties and Representations
(a) You acknowledge and agree that
your use of the Site, and your use of Licensed Concept Drawings and of any
other services or goods obtained through the Site or from any third party
provider linked through the Site, is at your sole risk. IPS does not make any warranty,
representation or undertaking regarding the quality, characteristics,
suitability, buildability or other attribute of the Designer Content, nor as to
the qualifications of any person or entity providing Designer Content.
(b) ALL
DESIGNER CONTENT, AND ALL OTHER INFORMATION PRESENTED ON THE SITE, IS PROVIDED
"AS IS" AND ON AN "AS AVAILABLE" BASIS,
WITHOUT WARRANTY OF ANY KIND, AND IPS EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE. IPS DOES NOT WARRANT THAT
THE OPERATION OF THE SITE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT BREACHES
OF SECURITY. IPS MAKES NO
REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS,
CURRENCY OR TIMELINESS OF THE CONTENT, SOFTWARE, TEXT, GRAPHICS, LINKS, OR
COMMUNICATION PROVIDED ON OR THROUGH THE USE OF THE SITE. WE DO NOT GUARANTEE THE SITE TO BE ERROR-FREE, SECURE, CONTINUOUSLY AVAILABLE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Some jurisdictions do not allow the exclusion or limitation of implied
warranties, so in these jurisdictions the above limitations or exclusions may
not apply or may be limited.
8. Limitation
of Liability.
(a) IN NO EVENT WILL IPS, ITS
OFFICERS, DIRECTORS, EMPLOYEES, OR SUBSIDIARIES, BE LIABLE TO USERS OR ANY
PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES
(INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH
YOUR USE OF THE SITE OR OF THE SERVICES OFFERED BY THE SITE, THE AVAILABILITY
OR UNAVAILABILITY OF THE SITE OR OF LICENSED CONCEPT DRAWINGS, OR ANY OTHER
SERVICES OR GOODS OBTAINED THROUGH USE OF ANY OF THE FOREGOING, OR ANY DATA
TRANSMITTED THROUGH THE SITE, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF
IPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND IRRESPECTIVE
WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE),
INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHERWISE.
(b) IPS 'S ENTIRE AGGREGATE
LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR BASED UPON YOUR USE OF THE
SITE OR OF THE SERVICES OFFERED BY THE SITE SHALL BE LIMITED TO THE AGGREGATE
AMOUNT PAID BY YOU TO IPS FOR LICENSED CONCEPT DRAWINGS DURING THE THIRTY (30)
DAY PERIOD IMMEDIATELY PRIOR TO THE ACTION OR EVENT GIVING RISE TO THE CLAIM.
(c) REMEDIES UNDER THIS AGREEMENT
ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of
certain damages, so in these jurisdictions the above limitations or exclusions
may not apply to you.
9. Indemnification
You agree to indemnify,
defend and hold IPS, its affiliates, its Designer Content contributors, and
their respective employees, officers, directors, agents and representatives
(collectively, the "IPS Parties") harmless from and against any losses, costs,
liabilities and expenses (including reasonable attorneys' fees) incurred by any
IPS Party as a result of or in connection with any breach by you or anyone
acting on your behalf of any of the terms of this Agreement.
10. General
Provisions
(a) This Agreement is personal to
you and is not assignable by you without the prior written approval of
IPS. IPS may assign this Agreement
without your consent to any other party that agrees to be bound by its terms.
(b) 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 Site, the Designer Content or any Licensed Concept
Drawing.
(c) IPS does not recommend any
specific design professional or Designer Content and does not provide its
advice on which Content or designer to select.
(d) This
Agreement is made in and shall be performed by IPS in, and shall be governed by
and interpreted in accordance with the laws of, the State of California, USA,
without regard to its conflict of law provisions. This Agreement shall not be governed by the United Nations
Convention on contracts for the International Sale of Goods, the application of
which is expressly excluded. Any
dispute arising under or concerning this Agreement shall be finally resolved
exclusively under the Rules of Arbitration of the International Chamber of
Commerce by a single arbitrator appointed in accordance with such rules. The arbitration shall take place in Los Angeles, California,
and shall be conducted in English.
By using the Site, you agree and consent to personal and subject matter
jurisdiction in such arbitration in Los Angeles, California.
(e) The failure
of IPS to insist upon or enforce strict performance of any provision of this
Agreement, or to exercise any right under this Agreement, will not be construed
as a waiver or relinquishment of the right of IPS to rely upon or demand
performance of that provision on any other occasion.
(f) This constitutes the
entire Agreement between the parties concerning the subject matter hereof. IPS reserves the right to modify or
amend the provisions of this Agreement from time to time, and it shall prominently
post notice of any such modified or amended terms on the Site. You shall be bound by any such modified
or amended terms if you use or access the Site after such posting unless you
give written notice to IPS that you have decided to terminate this Agreement
and perform the actions upon termination described in section 10(g) below.
(g) This Agreement shall remain in
effect until it is terminated. You
can terminate this Agreement by destroying all Licensed Concept Drawings and
all Derivative Works, along with all copies or archives of any of them, and
ceasing to use the Site, the Designer Content or Licensed Concept Drawings for
any purpose. The Agreement also
terminates without notice from IPS if at any time you fail to comply with any
of its terms.
(h) Should any provision of this
Agreement be held by a court or arbitration tribunal of competent jurisdiction
to be invalid or unenforceable, then the remainder of this Agreement shall
nevertheless remain in full force and effect.
11. Contact
If you have any questions about
this Agreement or wish to terminate the Agreement as provided in section 10(f)
and/or 10(g), please contact IPS at [insert email address} or via phone at
[insert phone number].
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