The Dwelling Light Licensing Terms
(revised 25th October 2021)
This License Agreement governs The Dwelling Light Content that you Download. Please read this Agreement carefully. By clicking "I agree" or otherwise signifying your acceptance of this Agreement or by Downloading or using any Content, you are agreeing to be legally bound by this Agreement.
Definitions.
As used in this Agreement:
a. "Content" means any work, including video footage, a photograph, an illustration, an After Effects or Photoshop PSD template, a music or sound effects track, an animation, a 3D model or other digital media work, that is Downloaded pursuant to this Agreement.
b. "Download" and variations thereof means downloading, obtaining or copying Content (i) from the Website, (ii) through thedwellinglight.com
c. "Item Page" means the specific Content item and item detail pages at the Website where item previews and information about the particular Content is made available for The Dwelling Light Users.
d. "License" means the license granted to you under this Agreement.
e. "The Dwelling Light User" means an individual who is a registered The Dwelling Light user or account holder.
f. "Single Project" means edited versions of the same Production or Digital Production, including the related promotional material that complies with this Agreement for that Production or Digital Production.
g. "Website" means our internet site at www.Thedwellinglight.com, and any other The Dwelling Light branded internet sites of The Dwelling Light and its Affiliates.
Grant of Digital License and Additional Restrictions on Digital License Only.
a. If you have purchased a Digital License: We hereby grant you a non-exclusive, worldwide, perpetual right and license (the "Digital License") on the terms and subject to the conditions and limitations set out in this Agreement, to:
i. use, copy, edit, modify, manipulate, couple and synchronize the Content in a purely digital Production which incorporates or combines the Content together with other substantial independently created works, and is created by or for you or on your behalf or for one of your clients (a "Digital Production");
ii. publicly display and perform ("Distribute") the Content within such Digital Production(s) by means of – and only by means of - digital streaming through the internet; and
iii. use the Content Information internally to facilitate the foregoing with regard to the Content.
b. Restrictions: In addition to the other restrictions contained in this Agreement, use of Content under the Digital License is subject to the following:
i. Print, Film and Physical Media Excluded: You may not use of the Content in or on any printed media or work, film or physical media (e.g., CD or DVD) or merchandise.
ii. Only Digital Streaming Permitted: For avoidance of doubt, theatrical, broadcast, telecast or cable or satellite distribution, performance or display of the Digital Production or Content is prohibited.
iii. Permitted Distribution Channels: Distribution of the Content within or with a Digital Production(s) is permitted only by means of digital streaming through one of the following digital channels:
1. Over-The-Top (OTT) Video On Demand apps;
2. YouTube;
3. Facebook;
4. Instagram;
5. Snapchat;
6. Twitter;
7. Tik Tok;
8. podcasts
9. Your website or mobile app; and/or
10. New/emerging social media platforms that are excluded from this list
Music and other Audio Content.
a. Types of Audio Content: We offer various kinds of music and other audio recording Content without video, pictures or other visual works ("Audio Content"), which may be designated on the applicable Item Page, among other things, as "Music" or "Music Tracks" (music, with or without lyrics) or "Sound FX" or "SFX" (sound effects).
b. Restrictions on All Audio Content: In addition to the other restrictions in this Agreement, you may not do any of the following regarding any Audio Content:
i. use it in whole or part to manufacture, distribute or sell records, CDs, jukeboxes, mp3s or any other predominantly audio product embodying it, in whole or in part, that is not synchronized or combined with other audio or musical content to create a derivative work as permitted in this Agreement (for example, you cannot use it to create a CD or other music compilation to give away or sell);
ii. place it on or in any product or platform that makes it available in a manner such that a person can without extraordinary effort extract or access or reproduce it as an electronic file;
iii. use or display it in whole or part in an electronic format that enables it to be accessed or distributed or shared in any peer-to-peer or similar file sharing arrangement;
iv. resell it in whole or part as backgrounds, "hold" music or ringtones; or
v. incorporate it in whole or part in any product or platform that results in its re-distribution or re-sale (such as music download sites, stock music CDs, electronic greeting card web sites, web templates and the like).
Representations, Warranties and Disclaimers.
a. Our Warranties: We warrant that we have the right and authority to enter into and grant the rights in the Content granted to you in this Agreement, subject to all applicable limitations, disclaimers and exclusions in this Agreement.
b. Limited Warranty: We warrant that there are no material defects in the Content which would prevent it from being downloaded from the Website and used as permitted herein. If there are material defects in the Content, your exclusive remedy under this paragraph will be as follows: (i) upon request to us within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Website or used as permitted herein successfully, we will refund the fee actually paid by you for such Content.
c. Warranty Disclaimer: OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 10(a), THE WEBSITE, OUR SERVICES, THE CONTENT AND THE CONTENT INFORMATION ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE POND5 PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OR THE CONTENT INFORMATION WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. We only have model or property releases where expressly indicated on the Item Page.
d. Content Information Disclaimer: While we have made reasonable efforts to correctly categorize, keyword, caption, description and title the Content, we do not warrant the accuracy of such information.
e. Representation about You: If you are an individual, you represent and warrant that you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement.
f. Representation About Your Information: You represent that all information provided to us by you or under your account is accurate and true, including all information relating to the Licensee and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
g. Representation of Individual the dwelling light User: If you are the individual who is Downloading the Content, you represent that you are the the dwelling light User under whose user ID you are doing so. If the individual who is entering into this Agreement is doing so on behalf of his/her employer, the Licensee and/or any other Person, such individual represents and warrants that (i) he/she has the full right and authority to execute, deliver and perform this Agreement on behalf such Person, and (ii) this Agreement is a binding Agreement of such Person, enforceable against such Person in accordance with its terms. In the event that such individual does not have such right, power and authority, such individual agrees that in addition to all rights and remedies available against such Person or anyone else relating to violation or infringement of intellectual rights, he/she will be personally liable to us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Content by such individual, such Person and its Representatives.
Indemnification.
a. Our Indemnity: Subject to the limitations outlined in this agreement we will defend, indemnify and hold you harmless from any actual or threatened third party lawsuit, claim, or legal proceeding (each, a "Claim") alleging a breach or facts that if true would constitute a breach of any of our express representations and warranties in this Agreement or that the distribution or use of Content downloaded and used by you pursuant to this Agreement would result in the breach of any of such representations and warranties, together with any liability for direct damages arising therefrom and reasonable attorneys' fees connected therewith, provided in each case that you have paid all amounts due to us and have not otherwise materially breached the terms of the Agreement.
b. Indemnity Conditions: Our obligations under paragraph (a) above are conditioned upon you complying with the requirements of this paragraph: (i) You must notify us in writing of the Claim as soon as is practical, but in any case no later than ten (10) business days from the date you know or reasonably should have known of the same. Such notification must include all details of the Claim then known to you. The notification must be sent to us via email [email protected]. (ii) You must allow us to assume and control the investigation, handling, settlement and defense of the Claim, and you must cooperate reasonably therewith.
c. Your Indemnity: You agree to indemnify and hold The Dwelling Light, our Affiliates, the applicable Content contributor, our Resellers and our and their respective Representatives, shareholders and partners and the Content contributors harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any Use Related Claim; provided that this indemnity shall not apply to the dwelling light Parties to the extent that the Claim arises from a breach by us of a warranty set forth in this agreement above or to a Content contributor to the extent that the claim arises from a breach by the contributor of a certification, representation or warranty made to us.
Limitations of Liability.
a. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11(a), The DWELLING LIGHT PARTIES AND THE CONTENT CONTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS OR, IN THE CASE OF US OR THE OTHER THE DWELLING LIGHT PARTIES, ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING THE COST OF COVER, ARISING UNDER THIS AGREEMENT OR OUT OF OR RELATED TO THE LICENSE, YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OR EXPLOITATION OF CONTENT, THE WEBSITE OR THE CONTENT INFORMATION, ANY SERVICES PROVIDED BY US OR THE RESULTS FROM THE USE THEREOF OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
Term and Termination.
a. Material Breach by You: The License will terminate automatically without notice from us if you fail to cure a material breach or other material failure to comply with any provision of this Agreement within 14 days of written notice from us of the same. Upon termination, to the extent reasonably practical, you must yourself and must cause your Representatives to immediately: (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) where applicable, ensure your Representatives and licensees do the same.
b. you must cease use of music if you do not have an active subscription. You can continue to use music purchased with a single track license, but cannot use any music paid for with an active subscription in future projects if you do not have an active subscription.
Payments & Taxes.
a. Sale of License Final: All sales of Licenses are final, and we are under no obligation to refund any fees paid by you for Content under any circumstances, except upon a material breach of one of our express representations and warranties set forth herein for such Content. However, if you request a refund, and we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.
b. Taxes: You are responsible for promptly paying any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License or any use of the Content.
c. No Set-Off, Withholdings or Deductions: You must pay all amounts due to us in a payment currency approved on the Website without any set off, deduction or withholding of any kind, including tax withholdings or amounts charged for currency conversion. To the extent that you determine that you are required under law (e.g., under a tax law) to withhold any amount from payments due to us or a financial institution or other intermediary deducts any amount for currency conversion or other services from your payment to us, the price for the applicable License is hereby increased by the amount that would cause the net amount actually received by us to equal the price that would otherwise apply for the sale of the License.
Parties.
a. You: As used in this Agreement, the term, "Licensee", "you" and "your" refer to the person designated as "Licensee" when the Content is downloaded from the Website or otherwise first Downloaded. A Person may not Download Content unless he or she is the Licensee or has authority to and does in fact bind the designated Licensee to this Agreement.
b. Us: the dwelling light
Miscellaneous Provisions.
a. Consent to Electronic Communications: You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
b. Unless the context requires otherwise, in any part of this Agreement: (i) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; (ii) "must not", "should not", "shall not" and "may not" are expressions of prohibition, and "will", "must", "should" and "shall" are expressions of command, and not merely expressions of future intent or expectation; (iii) use of the singular imports the plural and vice versa; (iv) references to one or no gender include the other or no gender; "(v) when applied to a company, "Affiliate(s)" means any/all companies that from time to time directly or indirectly are owned or controlled by such company, under common ownership or control with such company or own or control such company; (vi) "Person" means an individual or legal entity, including a company or a governmental agency or instrumentality; and (vi) the headings in this Agreement are for ease of reference only and shall not affect its interpretation.
c. This Agreement is in addition to the Website Terms of Use, the Privacy Policy, and the other terms, disclaimers, restrictions contained on the applicable Item Page at the time of Download of the Content item (collectively, the "Website Terms"), (which are all incorporated by reference into this Agreement), all of which together with this Agreement embody the parties' entire agreement and supersedes and cancels any prior or implied agreement with respect to its subject matter; provided that in the event of any inconsistency between this Agreement and such Website Terms, the terms of this Agreement shall govern.
d. Notwithstanding anything else in this or any other agreement, (i) we reserve the right to make changes to this Agreement at any time and without notice to you, and (ii) you will be subject to the terms of the same in force at the time that the Content was first Downloaded for or by you. For avoidance of doubt, a change to any of the same will not apply to Content that was first Downloaded for or by you prior to the change. No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
e. If you learn that any Content is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim. If we learn of such a claim from any source and we, in our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Content from your computer systems and storage devices (electronic or physical), and (ii) cease any future use of the Content at your own expense if possible. If you do remove and cease use of the Content, we will either refund your license fees for the applicable Content or without charge provide you with other content that we determine with your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.
f. The parties to this Agreement are independent contractors, and nothing in this Agreement or the License shall create a joint venture, partnership or franchise or fiduciary relationship between the parties.
g. If any provision, or portion thereof, of this Agreement, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, or such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
h. Any dispute relating to or arising from this Agreement, the License, the Content or the use thereof will be resolved exclusively by a State or Federal court in NSW, Australia. You hereby waive any objection to venue, or to the inconvenience of the forum, of any such court or right to trial by jury to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
i. You will promptly reimburse us for any costs (including reasonable attorneys' fees and court costs) that are incurred by us in collecting any License fees due to us.
j. All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns.
k. If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement. Your obligations, the limitations and our rights and remedies set out in this Agreement are cumulative and are in addition to the copyright owner’s rights and remedies at law or in equity.
l. This Agreement and the License are non-transferable without the dwelling light’s prior written consent. This means that except as permitted herein, you may not resell, sublicense, rent, loan, assign or transfer the Content to any third Person, provided that no restriction on transferability in this Agreement applies to your Productions or Merchandise that incorporate Content pursuant to the License.