PLEASE CAREFULLY READ THE FOLLOWING PRODUCTS AGREEMENT ("AGREEMENT"). BY ORDERING ANY PRODUCTS, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) CONSENT TO BE BOUND BY AND BECOME A PARTY TO THE FOLLOWING AGREEMENT BETWEEN BOB VAN ZANT ("BVZ") AND YOU. BY ORDERING ANY PRODUCTS, YOU REPRESENT THAT YOU ARE OF MAJORITY AGE AND OTHERWISE COMPETENT TO ENTER INTO CONTRACTS, AND THAT IF ANY ENTITY, YOU ARE DULY AUTHORIZED TO REPRESENT THE ENTITY FOR WHOM YOU ACCEPT THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ORDER ANY PRODUCTS AND DO NOT DOWNLOAD OR USE ANY PRODUCTS.
1. Scope of Agreement. BVZ and you agree that that the terms and conditions of this Agreement shall exclusively govern the purchase and supply of Product(s) hereunder and shall override any conflicting, amending and/or additional terms contained in any order or quote. For purposes of this Agreement, "Product(s)" means any and all products and services provided to You by BVZ including but not limited to any still image, prints, digital prints, and digital files, and all reproductions thereof.
2. Orders. You agree that all orders, once placed by You, are non-cancelable and non-refundable. All orders will include the quantity of Products purchased, estimated delivery dates, ship to location(s), billing address, reference to this Agreement and other delivery instructions. All Products will be deemed accepted upon delivery (if mailed to You), or upon the digital download being posted for download (if digitally provided). You must provide written notice to BVZ within two (2) days of delivery if the Products do not conform to the order, and as Your sole and exclusive remedy, BVZ will redeliver (mail or digitally post) the non-conforming Products to You at no additional cost.
3. Prices and Payment Terms. You agree to pay the prices for the Products set forth in Your order. All prices are exclusive of shipping and insurance charges, and all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale of the Products. Any such charges will be added to the price and billed to You along with Your order. In the event that BVZ is required to pay any such tax, duty or charge, You will be billed and You must reimburse BVZ by check within ten (10) days of BVZ notice. All payments shall be made in U.S. Dollars via the payment method indicated in Your order including payment through BVZ's payment fulfillment partner (i.e., PayPal).
4. Limited License. Subject to the terms and conditions of this Agreement, upon the purchase of the Products, BVZ grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to use the Products for Your internal, non-commercial purposes. You agree that You will not sell or transfer the Products to any third party, nor will You scan, copy, duplicate or otherwise reproduce, display, distribute, publicly perform or publicly display the Products for non-personal, profit, commercial, or public purposes without BVZ's prior written consent. You acknowledge and agree that this license does not include any rights and BVZ makes no warranties regarding the use of names, likeness, trademarks, service marks, trade dress, or registered or unregistered copyrights in any of the Products, and You agree that You will be solely responsible for determining whether or not You are permitted to use the Products after purchase. BVZ makes no representations or warranties as to whether or not any additional fees or payments may be due to any person or entity depicted within the Products in order for You to use the Products, and You agree that You will be solely responsible for any such additional fees or payments, if required. You agree to indemnify, defend and hold harmless BVZ and his suppliers from and against any and all claims, losses, damages and liabilities arising out of or in connection with Your use of the Products including but not limited to Your breach of this Section 4.
5. Ownership. Notwithstanding anything herein to the contrary, all references in this Agreement to the "purchase" or "sale" of Products means, the acquiring or granting, respectively, of a license to use the Products as set forth herein. All right, title and interest in and to the Products, and any improvements or modifications thereof and all copyright, patent, trade secret, trademark and other intellectual property rights embodied within the Products, will at all times remain the property of BVZ and his suppliers.
6. No Warranty.
ALL PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND INCLUDING ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
7. Limitation of Liability. IN NO EVENT WILL BVZ OR HIS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, LOST PROFITS, DATA OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). BVZ AND HIS SUPPLIERS' TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS PURCHASED BY YOU OR OTHERWISE HEREUNDER WILL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO BVZ FOR SUCH PRODUCTS. THE LIMITATIONS SET FORTH IN THIS SECTION 7 WILL APPLY EVEN IF BVZ OR HIS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Term and Termination. BVZ may immediately terminate this Agreement if You breach Section 4 or breach any other material provision of this Agreement and fail to cure such breach within five (5) days of receiving written notice thereof. Either party may terminate this Agreement, effective immediately upon written notice, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors that is not dismissed within sixty (60) days. Sections 2, 3, and 4-17 of this Agreement, and all payment obligations incurred during the term of this Agreement, shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement.
9. Confidentiality. Each party agrees to refrain from using the other party's Confidential Information except as contemplated herein and preserve and protect the confidentiality of the other party's Confidential Information using the same measures that such party uses to protect its own confidential information, which in no event will be less than commercially reasonable measures. Notwithstanding anything herein to the contrary, any party to this Agreement may disclose to it representatives, without limitation of any kind, the transaction and all materials of any kind that are provided to the party for the purposes of obtaining legal and tax advice. For purposes of this Agreement, "Confidential Information" means all non-public information which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential.
10. Assignment. You may not assign or transfer this Agreement or any rights or obligations under this Agreement, whether voluntary or by operation of law, without the prior written consent of BVZ. Any assignment or transfer of this Agreement made in contravention of the terms hereof will be null and void. Subject to the foregoing, this Agreement will be binding on and inure to the benefit of the parties' respective successors and permitted assigns.
11. Entire Agreement. This Agreement and any attached exhibit(s) supersede all prior communications, transactions, and understandings, whether oral or written, constitute the sole and entire agreement between the parties pertaining to the subject matter hereof. No modification, addition or deletion, or waiver of any of the terms and conditions of this Agreement will be binding on either party unless made in a non-preprinted agreement clearly understood by both parties to be a modification or waiver, and signed by each party.
12. Governing Law and Venue. This Agreement will be governed by the laws of the State of California, U.S.A., without regard to provisions on the conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
13. Force Majeure. BVZ will not be responsible for any non-performance or delay attributable in whole or in party to any cause beyond its reasonable control.
14. Severability. If any portion of this Agreement is held invalid, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement.
15. Compliance with Laws; Export Control. You will not export or re-export any Products into any country in violation of any export control laws or regulations, and You agree to comply with all laws, rules or regulations of any country, state or jurisdiction.
16. No Joint Venture or Agency. Nothing in this Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. No party is authorized to act as agent for the other party hereunder except as expressly stated in this Agreement.
17. Attorneys' Fees. The prevailing party in any action to enforce the terms of this Agreement shall be entitled to seek reasonable attorney's fees and other costs and expenses incurred by it in connection with such action.