Membership as a Service Agreement
(Last Revised: May 2021)
This Membership as a Service Agreement (“Agreement”) is between GraphicsFlow, LLC (“GFL”) and the person or entity that has clicked on the “AGREE” button at the end of this Agreement (“you,” “your” or “yours”). This Agreement describes the terms under which you may receive and use certain digital art content, and obtain certain services and benefits from GFL under the terms of this Agreement. You hereby represent to GFL that you are a business, not a consumer, and that you are entering into this Agreement to prepare products for resale or distribution to third parties in the normal course of your business. By clicking on the “AGREE” box at the bottom of this Agreement, you are agreeing to comply with and be bound by all the terms of this Agreement.
YOU REPRESENT THAT YOU ARE AT LEAST THE AGE OF MAJORITY (e.g., EIGHTEEN (18) YEARS OF AGE), IN THE JURISDICTION IN WHICH YOU RESIDE, THAT YOU ARE A RESIDENT OF THE UNITED STATES OR CANADA, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, THAT YOU OR YOUR AFFILIATES DO NOT AND SHALL NOT PROVIDE GOODS OR SERVICES THAT ARE COMPETITIVE WITH OR WOULD REASONABLY BE SEEN AS A SUBSTITUTE FOR ANY GOODS OR SERVICES PROVIDED BY GFL, AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
A. Description. Subject to your timely performance under this Agreement, including without limitation payment of Fees (as described below), GFL shall make available to you the following services and products (collectively, “Benefits”) during the term of this Agreement, and subject to the provisions of Section 3 (“License Grant”):
(i) Content. GFL will make available to you a collection of stock images and illustrations that are owned by GFL or its licensors (“Content”) and consisting of some or all of the following: (a) “Clipart” consisting of images or illustrations that do not contain text; (b) “Templates” consisting of images or illustrations that do contain text; and (c) ”Fonts” consisting of typefaces for text, and in all cases made available to you from cloud storage owned or controlled by GFL (“Cloud Storage”). You will be able to download from the Cloud Storage the volume of Image Files (as defined in Exhibit A (“Use of Content”)) for which you have paid corresponding Fees as set forth on the GFL website at: http://www.graphicsflow.com/pricing/ or such other location as designated by GFL from time to time.
(ii) New Content. From time to time, GFL shall provide to you via digital download to the Cloud Storage, a new collection of Content (“New Content”). The volume and kinds of New Content that GFL shall provide shall be determined solely by GFL. For the elimination of doubt, New Content shall be considered Content for purposes of this Agreement and the licenses granted herein.
(iii) Customer Artwork Storage. You will have the ability to upload images and illustrations that are owned by you, or as to which you have the permission of the owner (collectively, “Customer Artwork”), to cloud storage owned or controlled by GFL (“Cloud Storage”), and to organize and access such Customer Artwork as permitted by this Agreement.
(iv) Artwork Approvals. You will also have the ability to communicate with your own end user customers about the artwork you are preparing for them using the Content under this Agreement, and to collaborate on corresponding product designs and appearance, subject to the volume of Cloud Storage for which you have paid corresponding Fees.
B. New and Changed Benefits. Benefits may change over time, as determined by GFL, and so the foregoing Benefits may be added to, subtracted from, or otherwise modified. GFL encourages you to visit the www.graphicsflow.com website to stay informed about the Benefits offered under this Agreement. For the elimination of doubt, the parties understand and agree that the terms of this Agreement shall apply to all future Benefits, including Content, without any additional agreement of the parties with respect thereto.
In order to obtain Benefits, you must first register with GFL through access to the GFL online portal (the “Portal”) located at https://app.graphicsflow.com. You may register with GFL at the Portal and create a business account (“Account”) by fully and accurately completing the sign-up page and providing to GFL such fully accurate information as GFL may reasonably require, including without limitation your name, your email address, a password (selected by you, subject to GFL’s security and other requirements), your zip code or postal code, and payment information (collectively, “Account Information”). You agree to keep all Account Information updated and correct. Your Account is associated with you, and you may not share it or allow it to be used by anyone other than you. You agree to indemnify GFL and defend GFL from and against any losses or liabilities arising from any disclosure or misuse of your Account Information.
3. License Grant.
3.1 Content. Subject to your timely performance under this Agreement, including without limitation payment of Fees, GFL hereby grants you a worldwide, non-exclusive, non-transferable license, without the right to grant sublicenses, to use the Content with any third party design program you wish, but solely for the Permitted Uses as described in Exhibit A (“Use of Content”). All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights, are retained by GFL or its licensors. After the end of the term of this Agreement, and where this Agreement has not been terminated by GFL for your material breach, the foregoing license shall permit you to continue to make copies and sell products containing Content (subject to all terms hereof, other than payment of Fees), but solely as to those products that were created and sold by you during the term of this Agreement, and not as to any new products or new Content. For the elimination of doubt, you may not further modify any Content after the end of the term of this Agreement, nor may you at any time use Content as a consumer or to prepare products other than for resale or distribution to third parties in the normal course of your business.
3.2 Editor Software. Where the object code version of any editor software (“Editor Software”) is made available to you as part of Benefits, you may use such Editor Software for its normal purpose and as hosted by or on behalf of GFL, subject to all other terms hereof and together with Content, solely during the term of this Agreement. You may not reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Editor Software or any part thereof.
You and any of your Users (as defined in Exhibit A (“Use of Content”)) shall not (and shall not permit any third party to): (a) remove, obscure or alter any proprietary notices or labels on the Content, or any component thereof; or (b) attempt to gain unauthorized access to the Content or related systems or networks. The Content is and shall remain the sole property of GFL and its licensors.
The Fees are calculated and shall be paid by you in U.S. dollars. Such payments shall be made via STRIPE® or such other third party payment system as directed by GFL, via your Account and through the Portal. Sales and use tax, VAT or GST are your sole responsibility, and you hereby acknowledge and agree that the Fees are exclusive of all such taxes. Any failure to pay Fees on time shall be deemed a material breach of this Agreement, and any late payment of Fees shall bear interest at a rate of one and one-half percent (1.5%) per month or any partial month during which Fees are owed and unpaid. GFL RESERVES THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCESS TO THE CONTENT IN THE EVENT OF YOUR FAILURE TO MAKE ANY FEE PAYMENT TO GFL WHEN SUCH PAYMENT IS DUE.
6. Warranty Disclaimer.
GFL PROVIDES THE CONTENT, CLOUD STORAGE AND ANY OTHER GOODS AND SERVICES ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY. GFL AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING FROM COURSE OF DEALING, USAGE OR TRADE OR OTHERWISE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR TITLE. Some jurisdictions do not allow certain warranty disclaimers, so the foregoing may not apply to you.
7. Limitation of Liability, Indemnity and Enforcement.
A. Limitation of Liability. IN NO EVENT SHALL GFL OR ITS LICENSORS BE LIABLE TO YOU OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING, AND INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING FROM OR IN CONNECTION WITH ANY SECURITY BREACH OR HACKING INCIDENT REGARDING CLOUD STORAGE OR CUSTOMER ARTWORK. IN NO EVENT SHALL THE TOTAL LIABILITY OF GFL OR ITS LICENSORS UNDER THIS AGREEMENT OR REGARDING THE CONTENT OR CLOUD STORAGE EXCEED ONE HUNDRED DOLLARS ($100). Some jurisdictions do not allow certain limitations of damages, so the foregoing may not apply to you.
B. Indemnity. You hereby agree to indemnify, defend and hold harmless GFL, its licensors, and their respective officers, directors, owners, agents and affiliates from and against any losses, costs, or damages (including reasonable attorneys’ fees) resulting from or in connection with any claims alleging any injuries or damages to persons or property, any losses or liability arising from or in connection with your acts or omissions under this Agreement, any damage to GFL’s or its licensors’ good name or reputation, or any willful or negligent conduct by you. Without limiting the foregoing, and for the elimination of doubt, the foregoing obligation shall apply to any trademark, copyright or other infringement or alleged infringement by Customer Content or any other materials or information provided by you or on your behalf.
C. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, any breach of this Agreement by you will cause GFL irreparable damage for which recovery of money damages would be inadequate, and that accordingly GFL shall be entitled to timely injunctive relief to protect GFL’s rights under this Agreement in addition to any and all remedies available at law.
D. Enforcement. YOU UNDERSTAND AND AGREE THAT CONTENT AND THE EDITOR SOFTWARE ARE THE VALUABLE, COPYRIGHTED WORK OF GFL AND ITS LICENSORS. GFL AND ITS AGENTS REGULARLY MONITOR INTERNET TRAFFIC AND WEBSITES FOR COPYRIGHT INFRINGING ITEMS, AND GFL ENFORCES ITS RIGHTS TO THE FULL EXTENT OF THE LAW.
8. Term and Termination.
A. Term. This Agreement will commence on the date you clicked on the “AGREE” button at the end of this Agreement, and shall continue until terminated by either party upon fifteen (15) days’ written notice to the other party. Where you are the terminating party, you must provide such written notice to firstname.lastname@example.org, and provide telephone confirmation to (800) 959-7627 promptly thereafter.
B. Termination. Either party may also terminate this Agreement effective immediately upon written notice to the other party if the other party materially breaches any provision of this Agreement and does not cure the breach within ten (10) days after receiving written notice thereof.
C. Money Back Guarantee. If for any reason you are dissatisfied with the Benefits or this Agreement, you may terminate this Agreement immediately upon written notice given to GFL within fifteen (15) days of the date upon which you clicked on the “Agree” button below and paid the corresponding Fees, and in such case GFL shall promptly refund all such Fees already paid by you under this Agreement.
D. Effect. Upon expiration or termination of this Agreement for any reason all rights granted to you herein will immediately cease (other than as provided in Section 3 (“License Grant”)), and GFL will cease to provide any future Benefits. Upon any expiration or termination of this Agreement: (i) you must immediately delete from Cloud Storage all copies of Customer Content, and destroy all copies of Content that you have downloaded; and (ii) GFL shall no longer permit you to access your Account.
9. Jurisdiction and Venue.
This Agreement shall be subject to the laws of the state of Arizona as apply to contracts entered into and performed in Arizona between Arizona residents and without regard to conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, before a single arbitrator who shall be selected in accordance with such rules. The location of the arbitration shall be Phoenix, Arizona, and the fee of the arbitrator shall be shared equally by the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Subject to the foregoing, the state and federal courts located in Phoenix, Arizona, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby irrevocably consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
10. Modifications to Agreement.
GFL may amend this Agreement upon notice to you upon not less than thirty (30) days’ notice. If you do not accept such amendment, you may terminate this Agreement as permitted by Section 8 (“Term and Termination”), and any pre-paid Fees shall be refunded to you. Otherwise, this Agreement may not be amended other than in writing, and any purported oral amendment hereto shall have no effect.
11. Notices and Permissions.
If you have any questions or comments about GFL or this Agreement, or if you wish to request any special permissions from GFL, you may contact GFL at the street and email addresses appearing at the bottom of this Agreement.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of GFL. Any purported assignment without such permission shall be void. This Agreement, including corresponding access to your Account Information, may be assigned by GFL in whole or in part without notice. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement. Any waiver of any rights of GFL under this Agreement must be in writing, signed by GFL, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Content shall at all times comply with all applicable laws, rules and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. YOU AND GFL AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Copyright © 2021
All Rights Reserved
If you have any questions or comments about GFL or this Agreement, or if you wish to request any special permissions from GFL, you may contact GFL at:
1830 West University Drive
Tempe, AZ 85281
Use of Content
“Image File” means any electronic file that contains Content.
“Modified Content” shall have the meaning assigned to it in Subsection 2(A) of this Exhibit A (“Use of Content”).
“Permitted Uses” shall have the meaning assigned to it in Subsection 2(E) (“Permitted Uses”) of this Exhibit A (“Use of Content”).
“Prohibited Uses” shall have the meaning assigned to it in Subsection 2(F) (“Prohibited Uses”) of this Exhibit A (“Use of Content”).
“User” shall mean you or any of your regular employees who uses the Content on your behalf as permitted by this Agreement, and who has registered at the Portal.
2. Limitations. As a condition to the license granted in Section 3 (“License Grant”) of the body of the Agreement, you agree as follows:
A. You must materially modify the Content before any use or distribution thereof. Without limiting the generality of the foregoing, in carrying out such modifications, you may add additional images or text, and you may change colors, shapes or the design of the Content, which shall thereupon be deemed “Modified Content.” You will own only the modifications you make, and the underlying Content shall at all times belong solely to GFL or its licensors, subject only to the licenses expressly granted herein.
B. You must incorporate Modified Content into another tangible product prior to distribution. Such product may include, without limitation: T-shirts, hoodies and other clothing; personal accessory items; glasses, plates and other food and drink related items; posters and printed materials; promotional products, banners, signs, awards, vehicle graphics, cases, containers and covers; hobby items; and stationery.
C. Any presentation of such products bearing Modified Content on any website shall be displayed with a resolution no greater than seventy-two (72) dots per inch at an absolute size of four hundred (400) pixels in any one (1) direction.
D. You may sell pre-manufactured products bearing Modified Content through a website, a “bricks-and-mortar” retail store, or any other sales channel, including without limitation home-based businesses.
E. Permitted Uses. The following are the only “Permitted Uses” under this Agreement:
(i) advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards;
(ii) production, design, resale and distribution of imprinted or decorated products or surfaces; and
(iii) any other uses approved beforehand and in writing by GFL.
F. Prohibited Uses. Any use of the Content that is not a Permitted Use is not permitted, and hence is a “Prohibited Use.” Without limiting the generality of the foregoing, the following are examples of Prohibited Uses:
(i) using any Content as part of a trademark, trade name, business name, service mark, or logo;
(ii) reselling or redistributing the Content in the form of an Image File as part of a design application, website, clipart collection, or digital image collection, whether online or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, brochure design templates; or making Content otherwise available in a manner such that allows extracting, accessing or reproducing the Content as an Image File;
(iii) using any Content in a web-based software application or webpage that enables a user to select Clipart, Templates or Fonts and create a unique graphic by submitting text and design changes;
(iv) using any Content in a webpage that enables the submission of design changes or a webpage that enables the selection of a Template or Clipart and contains a form that enables the submission of design changes or the placement of an order;
(v) using any Content in a web-based software application or webpage that enables a user to select Content and create a product rendering or product sample;
(vi) using the Content: (a) to produce a heat transfer that will be sold as a standalone heat transfer without being placed on a decorated product; or (b) to produce an embroidery file that will be sold as a standalone embroidery file without being placed on a decorated product;
(vii) displaying Content in a password-protected area of a website;
(viii) using Content in any context that is pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
(ix) removing any notice of copyright, trademark, patent or other proprietary right from any of the Content, or adding any such notice;
(x) sublicensing, selling, renting, lending, assigning, or otherwise transferring the Content or the rights granted under this Agreement without the express written permission of GFL;
(xi) installing or using the Content on more than two (2) computers at a time without having purchased an additional license from GFL; or posting Content on a network server or web server for use by others;
(xii) using, displaying or distributing the Content in an electronic format to be downloaded or distributed via file servers or shared in any peer-to-peer or similar file sharing arrangement;
(xiii) distributing Content embedded in an electronic document such as a PDF file as a downloadable file from a website unless the PDF file contains document security that prohibits editing and printing;
(xiv) copying or creating any derivative work based on the Content, other than as permitted by this Agreement; or
(xv) renting, leasing or granting any security interest in the Content.