1. ACCESS TO THE SERVICES
The www.thenounproject.com website and domain name and any other linked pages, features, content, or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the “Website”) are owned and operated by Company. Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Website, and that have been selected by you (together with the Website, the “Services”), solely for your own personal or internal business use. The term “Services” includes, without limitation, use of the Website, any service Company performs for you and the Content (as defined below) offered by Company on the Website. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or Content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
Company does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the Services. If you are under 13, please do not attempt to register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to Company or on the Services. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at email@example.com.
You represent and warrant to Company that: (i) you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
2. SERVICES CONTENT
2.1 The Services and its contents may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Content,” and which includes User Submissions (as defined below))) are protected by copyright (except as expressly described in Section 2.5(A) and (B)). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners (which may be obtained through the Services via one of the licenses described in Section 2.5 below) and in strict accordance with the parameters of such consent, and (ii) in any way that violates any third party right. Any and all rights you receive pursuant to Section 2.5 below are personal to you, and may not be transferred, sublicensed, or assigned to any other party, in whole or in part.
The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. Except as expressly set forth herein, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
2.2 If you link to the Website, Company may revoke your right to so link at any time, at Company’s sole discretion. Company reserves the right to require prior written consent before linking to the Website.
2.4 You also hereby do and shall grant each user of the Services a non-exclusive license to access your User Submissions through the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted (a) through the functionality of the Services, (b) under this Agreement, and (c) for images you’ve uploaded to the symbol library on the Services (each, a “Symbol,” and such library, the “Symbol Library”), in accordance with any additional license terms you may apply through the functionality of the Services, as described in more detail in Section 2.5 below.
Creative Commons Licenses
2.5 When you upload a Symbol to the Symbol Library, you will be prompted to choose between the various types of Creative Commons licenses or designations you wish to apply to other users’ use of such Symbol. Regardless of how you designate a Symbol for use by other users, please be aware that, as between you and Company, Symbols are considered User Submissions, and the license you grant to Company in Section 2.3 above applies to Company’s use and exploitation of all Symbols. In uploading any Symbol to the Services, you understand and agree that Company may use and exploit such Symbol as described in Section 2.3.
(A) Public Domain. You may designate a Symbol you upload as being “Public Domain.” This means that you aren’t licensing the Symbol, but rather stating that the Symbol is free of known copyright restrictions throughout the world. By marking a Symbol as Public Domain, you are representing and warranting (to Company and to any user of the Services) that (i) there are no attribution or payment requirements associated with another user’s use of such Symbol, and (ii) you agree not to assert, or assist any third party in asserting, any intellectual property or other proprietary rights (throughout the world) with respect to such Symbol. For more details on the Public Domain designation, see Creative Commons.
(B) No Rights Reserved. You may designate a Symbol you upload as being “No Rights Reserved.” This means you aren’t licensing the Symbol, but rather stating that you are the owner of the copyright in such Symbol but you are waiving all such copyrights throughout the world. By marking a Symbol as No Rights Reserved, you are representing and warranting (to Company and to any user of the Services) that (i) prior to such waiver, you owned all such copyrights, (ii) there are no attribution or payment requirements associated with another user’s use of such Symbol, and (iii) you agree not to assert, or assist any third party in asserting, any intellectual property or other proprietary rights (throughout the world) with respect to such Symbol. For more details on the No Rights Reserved designation, see Creative Commons.
(C) Attribution License and Purchasable Option. Through the Services, you may apply the Attribution 3.0 Unported (CC BY 3.0) license (“Attribution License”) to a Symbol you own or have the right to license. The Attribution License allows other users to use your Symbol for free, as long as they attribute it to you. For more details on the Attribution License, see Creative Commons. For rules on how to attribute properly, see Using Symbols.
Notwithstanding the foregoing, if you so license a Symbol to other users under the Attribution License, you acknowledge and agree that the attribution requirement of such Attribution License will not apply if (i) you designate such Symbol as having “Purchasable” status and (ii) a user pays the Attribution Waiver Fee (as defined below). “Purchasable” means that the applicable Symbol is licensed under the Attribution License, but a user may pay the Attribution Waiver Fee, and the paying user may subsequently use such Symbol without attribution, but in accordance with all other terms of the Attribution License; you understand and agree that though Company uses the term “Purchasable” with respect with such Symbol, you are only licensing, and not purchasing, such Symbol.
2.6 You understand that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that Company will not be liable for any errors or omissions in any Content. You understand that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, Company cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
You warrant, represent and agree that you will not contribute any Content (including without limitation any Symbol) or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party (including without limitation by misrepresenting or mischaracterizing the rights you actually hold in any Symbol you upload to the Services); (ii) violates any law, statute, ordinance or regulation, or breaches any agreement to which you may be a party; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such Content to Company and to grant Company the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Services, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Services is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services.
You understand and agree that Company shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Section, and shall have sole discretion regarding the course of action to take in connection therewith.
4. WARRANTY DISCLAIMER
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. Company makes no representations or warranties regarding the accuracy of descriptions anywhere on the Services, or regarding suggestions or recommendations of services or products offered or purchased through the Services (including without limitation any Symbols for which you have paid an Attribution Waiver Fee). Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind from Company or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product or service. THE SERVICES, CONTENT, WEBSITE, PRODUCTS AND SERVICES OBTAINED THROUGH THE WEBSITE, AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. REGISTRATION AND SECURITY
As a condition to using some aspects of the Services, you may be required to register with Company and select a password and user name (“Company User ID”). If you are accessing the Services through a third party site or service (such as “Facebook Connect”), Company may require that your Company User ID be the same as your user name for such third party site or service. You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. If you access the Service through a third party site or service, you will provide your third party account credentials to Company, and you are consenting to have the information in those accounts transmitted into your Company account, and you agree that you shall only use accounts owned by you, and not by any other person or entity.
You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
8. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 OR THE FEES PAID BY YOU FOR THE SERVICES AND ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SERVICES DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. FEES AND PAYMENT
9.1 Although our basic Services are currently free to users, Company reserves the right to require payment of fees for certain or all Services.
9.2 If you would like to use a Purchasable Symbol without attributing it, you may pay a fee to Company (the “Attribution Waiver Fee”). The Attribution Waiver Fee amount for each Purchasable Symbol is noted on the Services, and may vary from Symbol to Symbol. Company reserves the right to change Attribution Waiver Fees at any time in its sole discretion, without notice to you. Following Company’s actual receipt of the Attribution Waiver Fee from you, you may use the applicable Purchasable Symbol in accordance with all terms of the Attribution License except the requirement of attribution. The Attribution Waiver Fee will be charged to the credit card you provided to Company through the Services; if Company is unable to successfully complete such credit card transaction due to your error or omission, or if any amount of the Attribution Waiver Fee is charged back to Company, the waiver of attribution set forth in the foregoing sentence shall be void.
9.3 If you have designated a Symbol as a Purchasable, then you are eligible to share in the Attribution Waiver Fee according to the terms of this Section 9.3.
(A) In order to receive payment for a Purchasable Symbol, you must link a PayPal account to your Services account. Failure to provide Company with accurate, up-to-date, and complete payment information may prevent Company from paying amounts due to you pursuant to this Section 9.3. Company will not be responsible or liable for failure to pay any amounts due if such failure arises in connection with your error or omission.
(B) Within ten (10) business days after the end of each calendar month during the term of this Agreement, Company will pay you fifty percent (50%) of the Attribution Waiver Revenue actually received by Company during such calendar month (the “Revenue Share”). Company reserves the right to change the Revenue Share percentage at any time upon notice to you. “Attribution Waiver Revenue” means the applicable Attribution Waiver Fees actually received by Company from a Services user, upon and in consideration of such user’s download of your Purchasable Symbols, less (i) sales taxes, use taxes, withholding taxes, VAT and any other taxes, duties, or other government tariffs that a governmental authority requires Company to pay with respect to the subject matter hereunder (and/or that you have failed to pay in accordance with Section 9.4 below), (b) any applicable transaction fees, disputes, chargebacks, or refunds. Notwithstanding anything else, Company reserves the right to withhold any payment due to you hereunder if the total amount owed to you is less than ten USD ($10) (the “Minimum Threshold”). If amounts payable to you hereunder with respect to a given calendar month fail to meet the Minimum Threshold, such amounts will be paid to you in the next calendar month during which the Minimum Threshold is met.
(C) Company may delay payment or refuse to make any payment due to you hereunder, without liability to Company, if any of your Purchasable Symbols infringe (or Company reasonably suspects infringe) any intellectual property or other right of any third party.
9.4 Any fees paid by you hereunder are non-refundable. You will be responsible for withholding, filing, reporting, and paying all taxes, duties and other governmental assessments associated with your activity in connection with the Services (except for taxes on Company’s net income).
10. INTERACTION WITH THIRD PARTIES
10.2 Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time. Company may terminate or suspend your access to the Services or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Company may also terminate or suspend any and all Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. For clarity, payment obligations incurred prior to termination will survive termination, subject to the terms of Section 9.3(A) and (C) above.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. You and Company agree there are no third party beneficiaries intended under this Agreement.
13. ARBITRATION; GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Central District of California.
14. COPYRIGHT DISPUTE POLICY
Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Company’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Company’s policy:
to remove or disable access to the infringing material;
to notify the content provider, member or user that it has removed or disabled access to the material; and
that repeat offenders will have the infringing material removed from the system and that Company will terminate such content provider’s, member’s or user’s access to the Services.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
It is Company’s policy:
If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
A physical or electronic signature of the content provider, member or user;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Content provider’s, member’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact Company’s Designated Agent to Receive Notification of Claimed Infringement at the following address: Attn: Sofya Polyakov, The Noun Project, P.O. Box 480677, Los Angeles, CA 90048.
If you have any questions, complaints, or claims with respect to the Services, you may contact us at firstname.lastname@example.org.
Effective Date: September 25, 2012