Delightfully Designing Commercial License
This License Agreement contains important legal terms, and Licensee acknowledges that by completing the purchase process and/or checking “agree”, Licensee has read the entire License Agreement and agrees to the terms herein, including, without limitation Section 9 (Important General Legal Provisions). Delightfully Designing offer different types of license agreements and the one selected at the time of purchase applies to Licensee’s use of the Licensed Asset.
This License Agreement states the terms and conditions of Licensee’s non-exclusive and limited copyright license with respect to the digital content (“Licensed Asset”) made available on Brand-Kits.com, KimberlyCosta.com, and DelightfullyDesigning.com and purchased by Licensee. This License Agreement may also apply to digital content that Brand Kits makes available at no charge (e.g., for promotional purposes) only if expressly indicated during the initial download for that digital content.
1. PARTIES TO THE LICENSE AGREEMENT; NUMBER OF USERS (OR SEATS)
1.1 – This License Agreement is an agreement between:(a) The “Licensee” who is the individual person indicated as the licensee during the purchase process or that person’s employer if that person is acting on the employer’s behalf and with the employer’s authorization
(b) Delightfully Designing, LLC, parent company to Brand Kits & Kimberly Costa. (“Delightfully Designing”) as licensor.
If you are purchasing on behalf of your employer, then only your employer is the “Licensee” and can use the Licensed Asset subject to the terms of this License Agreement; in that case you represent and warrant that you have full legal authority to bind your employer, as the Licensee, to the terms of this License Agreement.
1.2 – The number of individual users permitted to access and use the Licensed Asset (as permitted in this Licensee Agreement) is the number of users (or seats) selected and paid for at the time of purchase. If Licensee requires additional users (or seats), additional licenses to the Licensed Asset must be purchased.
2. ASSET MANAGEMENT
Licensee may only upload the Licensed Asset to (i) a server owned and controlled by Licensee or (ii) a cloud storage service, cloud-based design app, or digital asset manager, account controlled by Licensee, in each case for use of the Licensed Asset by Licensee only, as permitted herein.
3. THIS LICENSE AGREEMENT PERMITS BOTH COMMERCIAL USE AND NON-COMMERCIAL USE; COMMERCIAL USE AND NON-COMMERCIAL USE DEFINED
This License Agreement permits Non-commercial use and Commercial use of the Licensed Asset, as expressly specified in Section 4 (Permitted Uses and Quantity/Impression Limitations).
3.1 – Commercial Use“Commercial” use is any use: (i) that involves an exchange of money or other consideration, (ii) that promotes a business (e.g., sole proprietorship, corporation, or partnership), product, or service or (iii) where financial gain or other consideration is either sought or a result, directly or indirectly, of Licensee’s use of the Licensed Asset. If any one or more of the criteria in (i), (ii), and (iii) is met, then the use is deemed “Commercial”.
3.2 – Non-Commercial Use (Personal)“Non-commercial” use is use for solely personal purposes; any use that meets the definition of “Commercial use” can not be a Non-commercial use.
4. PERMITTED USES AND QUANTITY/IMPRESSION LIMITATIONS
An “End Use” of a Licensed Asset means use of the Licensed Asset only as expressly permitted below:
4.1 – End Products✓ Physical Products for Commercial Use or Non-commercial Use: Licensee may create physical end products such as, but not limited to, clothing, cards, invitations, stickers, mugs, stamps, candles, posters, signs, home decor, etc. for Commercial use or Non-commercial use.
✓ Product Packaging for Commercial Use of Non-commercial Use: Licensee may create physical or digital end packaging products used for resale or wholesale such as, but not limited to, boxes, labels, stickers, or containers, etc., for Commercial use or Non-commercial use.
✓ Digital Products for Commercial Use or Non-Commercial Use: Licensee may create digital end products for resale such as static designs, static website elements for Commercial use or Non-commercial use.
✓ PLR (Private Label Rights) for Commercial Use or Non-commercial Use: Licensee may create digital end products for resale such as digital planners, templates, printables, printable planners, wall art, printable art, calendars, journals, workbooks, e-books, printable stickers, digital stickers, etc. for Commercial use or Non-commercial use.
NOTE: Licensee can use clip art in any end product. Clip art will be editable for the end user. However, the end user MAY NOT use clip art anywhere other than the product the licensee included it with.
✓ Digital or Print Publication for Commercial Use or Non-commercial Use: Licensee may use the Licensed Asset in digital or print publications such as magazines, cards, invitations, photo albums, and scrap books, e-books or e-publications, for Commercial use or Non-commercial use.
Quantity Limitations on End Products for Commercial Use: No more than 350,000 lifetime combined individual end products or packaging (digital or physical) sales, instances, impressions, or installations (as applicable) that incorporate the Licensed Asset is permitted for Commercial use. Contact Delightfully Designing for a custom license if Licensee requires greater quantities for Commercial use.
4.2 – Social Media, Marketing, and Advertisements ✓ Personal Social Media for Non-Commercial Use: If applicable (e.g., for an individual), one (1) personal or individual social media accounts for Non-commercial use.
✓ Company Social Media for Commercial Use: If applicable (e.g., to a business), all Licensee owned and managed company social media accounts are allowed for Commercial use. No limit on accounts and pages owned and managed by the Licensee for Commercial use.
✓ Physical (Printed) Advertisements for Commercial Use: Such as billboards, signage, printed advertisement, etc. for Commercial use in Local markets, National markets, and Global markets. “Local” market means that all display or distribution of these permitted advertisements must be within a 200 mile radius within the borders of a single nation/country. “National” market means any distribution or display of advertisements beyond a 200 mile radius within a single nation/country. “Global” market means any distribution of display of advertisements in more than one nation/country.
✓ Digital Advertisements for Commercial Use: Internet advertisements such as advertisements served by Google Ads, Bings Ads, Facebook Ads, Linkedin Ad, etc. for Commercial use.
Quantity Limitations on Promotion and Advertisements: No limit on the number of impressions of social media posts or advertisements incorporating the Licensed Asset for Commercial use or Non-commercial use (where Non-commercial use is applicable).
4.3 – Broadcast and Streaming of Motion Picture and Audiovisual Content✓ Broadcast and Streaming: Broadcast and streaming via network, cable, internet, satellite, pay-per-view, video on demand or Streaming of motion picture and audio visual works, including advertisements
Quantity Limitations on Broadcast and Streaming: No limit on the lifetime viewers for Commercial use or Non-commercial use.
4.4 – Digital Development✓ Website Software Development, Mobile App Development, Desktop Application Development, and Video Game Development for Commercial use or Non-commercial use: Licensee may use the Licensed Asset in one (1) title for Commercial use or Non-commercial use.
Quantity Limitations on Digital Development: The Licensed Asset may be used in a single website, application, video game (each additional website, application, or video game including (without limitation) successor products, (requires a separate license) and the license is additionally subject to the limitation in 4.1 (End Products). For example, Licensee may use the Licensed Asset in 1 mobile app title which may be downloaded or sold up to 250,000 times in total (pursuant to the limitation in Section 4.1), but Licensee may not use the Licensed Asset in 1 mobile app title and 1 website title that each sell 250,000 times (for this a separate license must be purchased for the mobile app title and the website title). These quantity restrictions are on a per purchase basis, so Licensee may purchase two licenses for the same Licensed Asset to increase the permitted quantity (subject to the terms of each applicable license).
5. PROHIBITED USES (these uses may be available with a custom license, contact Delightfully Designing to find out more):
5.1 – End Products ✗ On-Demand Applications (Such as Print-on-Demand and Create-on-Demand Services). Any use that allows anyone other than the Licensee, such as an end user, to customize a digital or physical end product is prohibited, whether for Commercial use or Non-commercial use. This includes, but is not limited to, “print on demand”, or “made to order” application.
5.2 – Trademark and Copyright ✗ Trademark: Licensed Asset may not be used as part of a trademark, service mark, design mark, trade-name, or similar use unless (1) the Licensed Asset is significantly altered and (2) not the predominant element of the End Use. In no event does this License Agreement allow Licensee to—and Licensee shall not seek to—register, protect, or enforce any trademark or similar rights in the Licensed Asset itself which must be disclaimed in any trademark registration. Contact Kimberly Costa for a custom license if these rights are desired.
✗ Copyright: Licensee may not claim the Licensed Asset (or a modification thereof) as its own copyrighted work (the original Licensed Asset must be disclaimed in any copyright registration).
5.3 – Future Technologies ✗ The license is limited to the expressly permitted uses stated in this License Agreement: future-existing technologies and uses are expressly reserved and not included within the scope of the license.
6. STRICTLY PROHIBITED USES. Nothing in this License Agreement grants Licensee any of the following rights, all of which rights are expressly retained:
6.1 – ✗ Resale or Sub-Licensing the Licensed Asset or any modification of it in source file form is strictly prohibited.
6.2 – ✗ Resale or Sub-Licensing of the Licensed Asset or any modification of it in a way that is directly competitive with the original Licensed Asset is strictly prohibited (e.g., as a stock asset or template).
6.3 – ✗ Making public or sharing the Licensed Asset in any way that allows others to download, extract, or redistribute Licensed Asset as a standalone file (meaning just the content file itself, separate from the project or end use that is expressly permitted) is strictly prohibited.
6.4 – ✗ Use the Licensed Asset in pornographic, fraudulent, immoral, infringing, illegal, harassing, offensive, or defamatory material, is strictly prohibited, including, without limitation, any use of the Licensed Asset that:
(i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
(ii) may create a risk of any other loss or damage to any person or property;
(iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
(iv) may constitute or contribute to a crime or tort;
(v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable;
(vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
(vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(viii) contains any information or content that you know is not correct and current; or
(ix) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual.
6.5 – ✗ Falsely representing authorship and/or ownership of the Licensed Asset is strictly prohibited.
6.6 – ✗ Any other use that is not expressly permitted in Section 4 (Permitted Uses and Quantity/Impression Limitations) is strictly prohibited.
7. SUBLICENSING TO THIRD PARTIES IS PROHIBITED WITH LIMITED EXCEPTIONS FOR CLIENTS AND SERVICE PROVIDERS (Third party use requires the third party to obtain its own license unless a custom or MRR license is purchased)
7.1 – Third Party Use Requires Separate License. This License Agreement does not permit sublicensing except for the limited rights to sublicense described below in Section 7.2.
7.2 – Limited Sublicensing Is Permitted. Licensee may sublicense Licensee’s rights to third parties in only three situations:
(a) to manufacture, market, or distribute completed End Uses (defined above) that use the Licensed Asset (as expressly permitted herein) when done on behalf of Licensee, provided that the sublicense may only be granted on condition that the sublicensee is prohibited from extracting, reproducing or using the Licensed Asset in any other way and Licensee shall at all times ensure compliance with the terms of this License Agreement by the sublicensee and remain liable hereunder for any non-compliance. For example, Licensee may use distributors to manufacture or distribute physical products for resale or product packaging; similarly, Licensee may use third party providers, such as hosting providers to host a completed website or website publishers to display completed digital advertisements;
(b) to a service provider serving as Licensee’s subcontractor to provide services to Licensee provided that (i) Licensee shall at all times ensure compliance with the terms of this License Agreement by the sublicensee and remain liable hereunder for any non-compliance and (ii) Licensee has purchased a sufficient number of seats for the Licensed Asset Licensee (e.g., each individual person requires a license as stated above); and
(c) to a client of Licensee where Licensee transfers to that client a completed End Use (defined above, such as a completed website, advertisement, product, or product packaging). In this instance, the sublicense may only be granted on condition that the sublicensee is prohibited from extracting, reproducing or using the Licensed Asset in any way other than is necessary in order to exploit the End Use that Licensee provides to the client. Licensee shall at all times ensure compliance with the terms of this License Agreement by the sublicensee and remain liable hereunder for any non-compliance.
8.1 – When credit is required: All editorial use requires a credit; however for non-editorial use a credit is only required where credits are accorded to other providers of licensed material. Credits, when required, shall be legible and in close proximity to the Licensed Assets and, where applicable, substantially similar in placement and prominence to other credits.
8.2 – How to provide credit: “[Licensed asset product type] copyright Kimberly Costa”
9. IMPORTANT GENERAL LEGAL PROVISIONS
9.1 – Intellectual PropertyAll digital content available on Brand-Kits.com, KimberlyCosta.com, and/or DelightfullyDesigning.com, including, without limitation, the Licensed Asset, is protected by United States and international copyright and other laws and treaties. As between you and Brand Kits, Brand Kits retains ownership of the Licensed Asset, but grants to Licensee the limited, non-exclusive, non-transferrable, and non-sublicensable (except as expressly allowed above), copyright to use the Licensed Asset as expressly set forth above on the terms herein. All other rights, as between Licensee and Delightfully Designing are reserved by Delightfully Designing. Licensee may not assert any ownership in the Licensed Asset itself nor any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the Licensed Asset. Any reference to the “purchase” or “sale” (or similar terms) of the Licensed Asset refers to the purchase of a limited license only and not the purchase of the underlying copyright or work itself. As a licensee, Licensee’s ownership of the media and/or device on which the Licensed Asset is recorded, if any, is distinct from and does not grant any ownership right, title or interest in and to the design of the Licensed Asset itself. This Licensee Agreement does not grant Licensee any rights to trademark or any other intellectual property rights (aside from copyright) in the Licensed Asset.
9.2 – Termination. Delightfully Designing may terminate this License Agreement at any time if Licensee breaches any of the terms of this or any other agreement with Delightfully Designing, in which case Licensee must immediately: cease using the Licensed Asset; delete or destroy any copies; and, if requested, confirm to Delightfully Designing in writing that Licensee has complied with these requirements. If Licensee uses the Licensed Asset on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the Licensed Asset for its own purpose or in a way that is contrary to this License Agreement, the rights granted for such use shall immediately terminate, and in that event, upon Delightfully Designing’s request, Licensee agrees to remove any content from such platform or website.
9.3 – Content Withdrawal. Delightfully Designing may discontinue licensing the Licensed Asset at any time in its sole discretion. Upon notice from Delightfully Designing, or upon Licensee’s knowledge, that a Licensed Asset may be subject to a claim of infringement of a third party’s right, Delightfully Designing may require Licensee to immediately, and at Licensee’s own expense: cease using the Licensed Asset, delete or destroy any copies; and ensure that Licensee’s clients, distributors and/or licensees do likewise. Delightfully Designing will provide you with replacement content (determined by Delightfully Designing in its reasonable commercial judgment) free of charge, as its sole obligation, subject to the other terms of this License Agreement.
9.4 – Audit. Upon reasonable notice, Licensee agrees to provide to Delightfully Designing sample copies of projects or end uses that contain Licensed Asset, including by providing Delightfully Designing with free of charge access to any pay-walled or otherwise restricted access website or platform where the Licensed Asset is reproduced. In addition, upon reasonable notice, Delightfully Designing may, at its discretion, either through its own employees or through a third party, audit Licensee’s records directly related to this License Agreement and Licensee’s use of the Licensed Asset in order to verify compliance with the payment and other terms of this License Agreement. If any audit reveals an underpayment by Licensee to Delightfully Designing of five percent (5%) or more of the amount Licensee should have paid, then in addition to paying Delightfully Designing the amount of the underpayment and any other remedies to which Delightfully Designing is entitled, you also agree to reimburse Delightfully Designing for the costs of conducting the audit.
9.5 – Disclaimer of Warranties
LICENSEE’S USE OF THE LICENSED ASSET IS AT LICENSEE’S OWN RISK. THE LICENSED ASSET IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BRAND KITS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9.6 – Limitation on Liability
IN NO EVENT WILL BRAND KITS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE, OR INABILITY TO USE, THE LICENSED ASSET, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF BRAND KITS, ITS AFFILIATES OR THEIR LICENSORS (INCLUDING, WITHOUT LIMITATION, THE SHOP OWNERS), SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE, OR INABILITY TO USE, THE LICENSED ASSET, EXCEED THE FEES THAT LICENSEE PAID FOR THE LICENSED ASSET. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9.7 – IndemnificationLicensee agrees to defend, indemnify and hold harmless Delightfully Designing, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including but not limited to reasonable attorneys’ fees) arising out of or relating to Licensee’s (or anyone acting on Licensee’s behalf, including, without limitation, service providers) (i) violation of this License Agreement, (ii) use of the Licensed Asset in violation of law, rules or regulations, or (iii) use of the Licensed Asset violation of third party rights where such violation is due to the modification of the Licensed Asset.
9.8 – Limitation on Time to File Claims
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE LICENSED ASSET OR THIS LICENSE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9.9 – Choice of Law and Forum. All matters relating to Licensed Asset and the License Agreement and any dispute or claim arising therefrom or related thereto (in each case, including, without limitation, non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, the Licensed Asset or this License Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida and although we retain the right to bring any suit, action or proceeding against Licensee for breach of this License Agreement in Licensee’s country of residence or any other relevant country. Licensee waives any and all objections to the exercise of jurisdiction over Licensee by such courts and to venue in such courts to the maximum extent permitted by law.
9.10 – Arbitration
AT DELIGHTFULLY DESIGNING’S SOLE DISCRETION, EXCEPT TO THE EXTENT PROHIBITED BY LAW, DELIGHTFULLY DESIGNING MAY REQUIRE LICENSEE TO SUBMIT ANY DISPUTES ARISING FROM THE USE OF THE LICENSED ASSET AND THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION DISPUTES ARISING FROM OR CONCERNING THEIR INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION, TO FINAL AND BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION APPLYING Florida, USA LAW.
9.11 – Waiver and Severability. No waiver of by Delightfully Designing of any term or condition set forth in this License Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Delightfully Designing to assert a right or provision under this License Agreement shall not constitute a waiver of such right or provision.
9.13 – Notices. All notices required to be sent to Delightfully Designing under this License Agreement should be sent via email to email@example.com All notices to Licensee will be sent via email to the address provided by Licensee during account creation or purchase.
9.14 – Modifications. Delightfully Designing may modify this License Agreement by posting an updated version on the KimberlyCosta.com website. The then current version of the License Agreement posted at the time of purchase shall apply to purchases (even if the Licensed Asset is downloaded after the License Agreement is updated). Updated versions of the License Agreement shall not apply retroactively to prior purchases unless either (1) Licensee is notified of its option to apply the updated terms to prior purchases and expressly agrees (e.g., via clicking “Agree”) or (2) such modification (i) does not adversely affect any rights of Licensee and (ii) Delightfully Designing notifies Licensee of the changes and that they will apply retroactively (e.g., via email to the address on file).
9.15 – Interpretation. Unless the context requires otherwise, in any part of this License Agreement: (i) “including” (and any of its derivative forms, e.g. “includes”), “e.g.” and “for example” means “including but not limited to”; and (ii) use of the singular imports the plural and vice versa. This License Agreement shall not be interpreted against the drafting party.