Richard Billows DBA 4PM.com
4pm.com EDUCATIONAL MATERIAL
DEAR 4PM.com, EDUCATIONAL MATERIALS PURCHASER:
The following is a legal agreement between you and 4PM.com (“4PM”). Please read this agreement carefully before purchasing any 4PM EDUCATIONAL MATERIALS (“EDUCATIONAL MATERIALS”). As used in this agreement, EDUCATIONAL MATERIALS means, text, still images, moving images, practice examinations, animations, films, videos or other audio/visual representations, recorded in any format that are controlled by or obtained, directly or indirectly, from 4PM. By downloading any EDUCATIONAL MATERIALS, you agree to be bound by the terms of this agreement. 4PM reserves the right to change any of the terms of this agreement at any time, and you agree to be bound by such changes. If you do not agree to the following terms, as same may be amended from time to time, do not download or use any EDUCATIONAL MATERIALS and cease use of this website. Your failure to comply with the terms hereof could result in the immediate termination of your account.
1. All EDUCATIONAL MATERIALS on the 4PM website are protected by United States and international copyright laws and treaties. 4PM and/or the various artists and/or entities that provide EDUCATIONAL MATERIALS to 4PM (“Submitters”) own all rights, including the copyrights in and to the EDUCATIONAL MATERIALS. 4PM and/or its Submitters reserve all rights in and to the EDUCATIONAL MATERIALS not expressly granted to you by the terms of this license. Your rights to use any EDUCATIONAL MATERIALS are subject to this license agreement and are conditioned upon your payment to 4PM for your use of the EDUCATIONAL MATERIALS. If you fail to make any payment to 4PM when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. If your account becomes delinquent, your right to use any EDUCATIONAL MATERIALS downloaded at any time shall automatically terminate unless all payments together with any interest thereon and 4PM’s costs of collection, bank charges and credit card processing fees are received by 4PM no later than fifteen (15) days from the date that your account became delinquent.
2. By this Agreement, 4PM grants you a personal, non-exclusive, non-transferable, right to use, the EDUCATIONAL MATERIALS for 365 days. You may not incorporate them into a derivative work such as a feature film, documentary, ideogram, multimedia presentation, advertisement, live performance and/or internet website and displaying and/or distributing that derivative work to the public by any means now known or hereafter developed.
3. The EDUCATIONAL MATERIALS may not be displayed or distributed to the public or incorporated into any final materials, whether or not such final materials are publicly displayed or distributed.
4. 4PM shall be under no obligation to refund any fees paid by you for EDUCATIONAL MATERIALS after 5 days from this purchase.
5. You may not use the EDUCATIONAL MATERIALS other than as specified in PART 1.
6. You may not use the EDUCATIONAL MATERIALS in any way that might be considered defamatory, libelous, obscene, immoral or illegal. This includes use of the EDUCATIONAL MATERIALS in a way that places any person in the EDUCATIONAL MATERIALS in a negative light or depicts them in a way that they may find offensive – this includes, but is not limited to use of the EDUCATIONAL MATERIALS in: a) in pornography; b) tobacco ads; c) ads for escort, dating or similar services; d) political endorsements; and/or e) advertisements for pharmaceutical products, including, but not limited to personal hygiene or birth control products. The EDUCATIONAL MATERIALS may not under any circumstances be used in a way that would defame, malign, slander or libel the persons, property, countries, races, customs, cultures or religions depicted in the EDUCATIONAL MATERIALS. The EDUCATIONAL MATERIALS shall not be incorporated into a logo, trademark or service mark. All trademarks and service marks visible in the EDUCATIONAL MATERIALS are and shall remain the exclusive property of the trademark or service mark owner. If there are any incidental trademarks or logos contained in the EDUCATIONAL MATERIALS, you may not alter these items or use them in any way which implies an association with or an endorsement by the owner(s) of such trademarks. The inclusion of these incidental trademarks in the EDUCATIONAL MATERIALS does not in any way constitute or imply such association with or endorsement of the EDUCATIONAL MATERIALS. If any EDUCATIONAL MATERIALS featuring a model is used in: a) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or b) connection with a subject that would be unflattering or controversial to a reasonable person, you must accompany each such use with a statement that indicates that the person so pictured is a model and is used for illustrative purposes only.
7. The EDUCATIONAL MATERIALS and any derivative work incorporating the EDUCATIONAL MATERIALS, may not, in whole or in part, be used, sold, sub-licensed, reproduced, distributed, displayed, incorporated into or otherwise made available as screensavers, templates, standalone backgrounds, stock elements, effects imagery elements or downloadable files. You may not post any EDUCATIONAL MATERIALS on any electronic bulletin board, put it on-line in a downloadable form or otherwise make it available via FTP, IRC, peer-to-peer file sharing services or the like. The EDUCATIONAL MATERIALS and any derivative work containing the EDUCATIONAL MATERIALS may not, in whole or in part, be included in any other clip media/stock product, library, collection, or set of clips for distribution or resale. These restrictions apply even if the EDUCATIONAL MATERIALS has been significantly altered. If EDUCATIONAL MATERIALS is used in a project that will be reproduced, sold or distributed (e.g., DVDs, home videos, music videos, training videos, etc.) the EDUCATIONAL MATERIALS may not comprise more than fifty percent (50%) of the length of the finished work, even if the EDUCATIONAL MATERIALS is layered with other graphics, nor may the primary value of the work into which the EDUCATIONAL MATERIALS is incorporated come from the EDUCATIONAL MATERIALS.
8. You agree to take all reasonable steps to prevent any third party from duplicating or distributing any of the EDUCATIONAL MATERIALS included in your finished work. You may not resell, redistribute or transfer the EDUCATIONAL MATERIALS or any portion of the EDUCATIONAL MATERIALS except as specifically provided herein.
9. You may not share any EDUCATIONAL MATERIALS by providing access to the EDUCATIONAL MATERIALS on shared disk drives, computer networks, intranets of any nature or otherwise.
10. You may not use any EDUCATIONAL MATERIALS (in whole or in part) as a trademark, logo or an element thereof.
11. You may not produce or otherwise create for resale or distribution, printed reproductions of any portion of the EDUCATIONAL MATERIALS on canvas, paper or any other medium.
12. You may not use automated programs, applets, bots etc., to download EDUCATIONAL MATERIALS.
13. Upon notice from 4PM or if you learn that any EDUCATIONAL MATERIALS are subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which 4PM may be liable, or if 4PM removes any EDUCATIONAL MATERIALS for any reason, you will remove the EDUCATIONAL MATERIALS from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed EDUCATIONAL MATERIALS at your own expense. 4PM shall provide you with comparable EDUCATIONAL MATERIALS (which comparability will be determined by 4PM in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this agreement.
14. EDUCATIONAL MATERIALS with model releases and/or property releases will be marked accordingly on the 4PM.com website. EDUCATIONAL MATERIALS which contains the likenesses or images of individuals and for which no model release is available will be marked “editorial”. 4PM does not otherwise provide any trademark or copyright clearances or model or property releases with respect to the EDUCATIONAL MATERIALS and grants no rights and makes no warranties, other than those specifically set forth herein, with regard to the use of names, people, trademarks, trade dress or copyrighted designs or works of art or architecture depicted in any EDUCATIONAL MATERIALS. You shall be solely responsible for determining whether one or more clearances or releases are required in connection with any proposed use of EDUCATIONAL MATERIALS. You acknowledge that some jurisdictions prevent the use of a person’s image, likeness or property for commercial purposes without their written consent. 4PM makes no representations or warranties regarding whether or not any additional fees or payments may be due to any union, association or other organization for use of any EDUCATIONAL MATERIALS.
15. You must retain the copyright notice and the EDUCATIONAL MATERIALS identifying number associated with the EDUCATIONAL MATERIALS as may be included as part of EDUCATIONAL MATERIALS. You may make no more than one (1) high-resolution copy of the EDUCATIONAL MATERIALS for back-up purposes only. Upon the expiration or termination of this agreement, whichever occurs earlier, you shall promptly delete the EDUCATIONAL MATERIALS from your computer or other electronic storage systems.
16. When incorporating the EDUCATIONAL MATERIALS in print, film, broadcast productions, or video products, you shall provide 4PM with a copyright attribution in substantially the following form:
“Film EDUCATIONAL MATERIALS courtesy of 4PM, Inc., Used by Permission”
17. “Non-transferable” as used herein means that except as specifically provided in this agreement, you may not sell, rent, load, give, sub-license, or otherwise transfer to anyone, the EDUCATIONAL MATERIALS or the right to use the EDUCATIONAL MATERIALS In addition, the work you produce with the EDUCATIONAL MATERIALS must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially responsible steps to prevent third parties from duplicating any EDUCATIONAL MATERIALS.
18. You agree to indemnify and hold 4PM, Inc., its officers, employees, shareholders, directors and suppliers harmless against any damages or liability of any kind arising from any use of the EDUCATIONAL MATERIALS other than the uses expressly permitted by this agreement. You further agree to indemnify 4PM for all costs and expenses that 4PM incurs in the event that you breach any of the terms of this or any other agreement between you and 4PM.
19. Except as specifically provided herein, neither 4PM or any of its directors, officers, employees, partners, licensors, or agents shall be liable for any damages, whether direct, indirect, consequential, or incidental, arising out of the use of, or the inability to use, any EDUCATIONAL MATERIALS.
20. This contract will be governed by and construed in accordance with the laws of the State of Texas. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these TOS. You hereby consent to the personal jurisdiction of the state and federal courts located within such state. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State of Colorado, County and City of Denver and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to this agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall limit the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of either of the parties, but rather in accordance with the fair meaning thereof.
21. If you are unsure of your rights under this agreement please contact 4PM Support at EDUCATIONAL MATERIALS@4pm.com.
22. 4PM warrants and represents that unaltered EDUCATIONAL MATERIALS downloaded and used in full compliance with these TOS and applicable law:
a. will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered EDUCATIONAL MATERIALS violate any third parties’ rights of privacy or publicity;
b. (i) will not violate any US law, statute, ordinance, or regulation; (ii) will not be defamatory or libelous; and (iii) will not be pornographic or obscene.
c. While 4PM makes commercially reasonable efforts to ensure the accuracy of EDUCATIONAL MATERIALS keywords and descriptions, as well as the integrity of our Editorial EDUCATIONAL MATERIALS, 4PM makes no warranties and/or representations regarding such keywords, descriptions or integrity.
23. Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with 4PM, 4PM shall defend, indemnify, and hold you harmless up to the “Limits of Liability” (as hereinafter defined). Such indemnification shall only apply to claims for direct damages directly attributable to 4PM’s breach of the foregoing warranties and representations, together with the expenses (including reasonable attorneys’ fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of EDUCATIONAL MATERIALS downloaded and used by you pursuant to these TOS violate 4PM’s warranties contained herein. This indemnification is conditioned upon you notifying 4PM, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., 4PM EDUCATIONAL MATERIALS ID Number, a link to the EDUCATIONAL MATERIALS as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be faxed to 4PM at 1-303-756-4247 with a hard copy to 4PM, 3547 South Ivanhoe Street Denver, Colorado 80237, USA, Attention: General Counsel, via Certified Mail, Return Receipt Requested, or overnight courier, recipient’s signature required. 4PM shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with 4PM in the defense of any such claim and shall have the right to participate in any litigation at your own expense. 4PM shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
24. Notwithstanding any thing to the contrary contained herein, 4PM shall not be liable for any damages, costs or losses arising as a result of modifications made to EDUCATIONAL MATERIALS or the context in which the EDUCATIONAL MATERIALS is used by you.
25. 4PM’s total maximum aggregate obligation and liability to any one subscriber for all claims shall be limited to Ten Thousand United States Dollars – US$10,000.00 – (the “Limits of Liability”).
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH 4PM, 4PM SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO 4PM’S OTHER RIGHTS AT LAW AND/OR EQUITY. YOUR RIGHTS UNDER THIS AGREEMENT SHALL IMMEDIATELY TERMINATE UPON YOUR CESSATION OF BUSINESS, INSOLVENCY, ASSIGNMENT OF ASSETS FOR THE BENEFIT OF CREDITORS, BANKRUPTCY OR APPOINTMENT OF A TRUSTEE FOR ALL OR A PORTION OF YOUR ASSETS. UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, YOU SHALL IMMEDIATELY CEASE ALL USE OF THE EDUCATIONAL MATERIALS IN ANY FORM AND IMMEDIATELY RETURN OR DESTROY ALL COPIES OF EDUCATIONAL MATERIALS IN YOUR POSSESSION OR CONTROL. ANY PROVISIONS IN THIS AGREEMENT THAT BY THEIR SENSE AND CONTEXT ARE INTENDED TO SURVIVE THE TERMINATION OF THIS AGREEMENT SHALL SURVIVE SUCH TERMINATION. ANY CAUSE OF ACTION THAT 4PM MAY HAVE AGAINST YOU FOR BREACH OF THIS AGREEMENT PRIOR TO THE DATE OF TERMINATION SHALL SURVIVE SUCH TERMINATION.
4PM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AS TO THE LEGALITY OR VALIDITY OF ANY RELEASE ASSOCIATED WITH ANY EDUCATIONAL MATERIALS EXCEPT AS PROVIDED ABOVE. THE STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOUR RIGHTS UNDER THIS AGREEMENT MAY VARY FROM STATE TO STATE.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, 4PM GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, LOGOTYPES, MUSIC, LIKENESSES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED OR OTHERWISE INCORPORATED IN ANY EDUCATIONAL MATERIALS MARKED EDITORIAL. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED FOR YOUR USE OF ANY EDUCATIONAL MATERIALS ARE OBTAINED.
4PM DOES NOT WARRANT THAT THE 4PM WEBSITES WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING ANY EDUCATIONAL MATERIALS FOR ANY COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, 4PM SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE EDUCATIONAL MATERIALS, OR OTHERWISE, EVEN IF 4PM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL 4PM’S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE 4PM WEBSITE AND/OR EDUCATIONAL MATERIALS CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
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