Image Terms Agreement

NYCIA Royalty-Free Digital Media Agreement

This agreement ("Agreement") is between Nycia herein known as ("Nycia") and the "Client", which will be referred to as such ONLY after payment in full for digital image(s); AND payment in U.S. funds have cleared through an appropriate banking institution herein through this Agreement known as ("Client"). Client's use of the Digital Media as defined below constitutes Client's acceptance of the terms of this Agreement.

No contract exists between Client and Nycia for the sale of any goods until Nycia has received and accepted Client's order AND Nycia has received payment in full (in cleared U.S. funds). Once Nycia does so, there is a binding legal contract between Client and Nycia.

By way of clarification, an acknowledgment of Client's order will be sent to Client via e-mail when an order is placed online, but acceptance of Client's offer to buy the goods will not take place until after payment is received and cleared in U.S. Funds and Client receives the order confirmation e-mail. It is at this point that a binding legal contract is created and any contract made between Client and Nycia is subject to these Terms and Conditions.

License Terms

• The photographs, fonts, illustrations, film clips, audio clips, software and any and all other media and content in any form delivered to Client by Nycia, whether via CD-ROM, by download from Nycia's website or otherwise (collectively, the "Digital Media") are sold, not licensed, to Client by Nycia for use pursuant to the terms of this Agreement.
• Client will fully own the media on which the Digital Media are recorded. Nycia does not retain ownership of the Digital Media once the final delivery of the Digital Media has been made.
• Any reference in this Agreement to the Digital Media shall be to each individual item within the Digital Media and also to the Digital Media taken as a whole.
• Nycia Reserves the right to use the original Digital Media in any or all of its promotional materials, which includes, but not limited to; displaying on website, printed collateral, or otherwise, indefinitely. While Nycia does not own the work, it has the right to display it in any media form at any time.

Permitted Uses and Rights

• Client has the exclusive, transferable, sublicensable right to copy, reproduce, transmit and display the Digital Media an unlimited number of times in any and all media for the following purposes.
  • Advertising and promotional materials;
  • Online or Electronic Distribution Systems, including webpage design;
  • Broadcast and Theatrical Exhibitions;
  • Publications and Products; and
  • Any other uses Client deems appropriate.
• Client has the right to have the Digital Media reproduced or altered by subcontractors of Client;
• Client may alter, crop, manipulate and create derivative works of the Digital Media.
• Client's rights to the digital Media are worldwide and perpetual.
• Nycia reserves all rights not expressly granted to Client herein.

Delivery Method

• The Digital Media ordered will be delivered to the email address supplied by Client when Client placed order, except in the case that CD's if ordered are delivered to Client's specified physical address.
• Orders placed before 3:00 pm PST on a working day will be processed that day and will be delivered as per the time schedule stated on the website provided no additional security checks are required.(A working day is any day other than weekends and bank or other public holidays.) or days that Nycia deem as non-working days.
• If delivery cannot be made to Client's address for reasons under the Nycia's control Nycia will inform Client as soon as possible and refund or re-credit for any sum that has been paid or debited from credit card for delivery.
• If Client deliberately fails to take delivery of the goods (otherwise than by reason of circumstances under control of the Nycia) then without prejudice to any other right or remedy available to the Nycia , Nycia may;
  • Store Digital Media until actual delivery and charge reasonable costs of storage.
  • If Client fails to take delivery because of a canceled contract - Nycia shall refund or re-credit Client within 30 days for any sum that has been paid or debited from your credit card.
  • Every effort will be made to deliver the initial designs within 5 working days from clearance of funds. However, Nycia will not be liable for any loss or damage suffered by Client through reasonable or unavoidable delay in delivery. In this case, the Nycia will inform Client of any delay as soon as practically possible.
  • Time for delivery SHALL NOT be of the essence. The goods may be delivered by Nycia in advance of the quoted delivery date.
  • Upon receipt of final order Client will be asked to sign off the order as being completed to Client's satisfaction. Email will constitute as a legal "e-signature".
  • We offer a 5 day delivery service for initial designs or may even give a verbal instruction to any special orders. Therefore, please note that these delivery dates are approximate and, Nycia will not be held responsible for any delays caused due to circumstances beyond our control. We also cannot be held liable for loss or any inconvenience caused as a result of delayed or non delivery. All Digital Media remain the property of Nycia until paid for in full.

Restrictions

• Client MAY sublicense, sell, assign, convey or transfer any of its rights under this Agreement but Client may sell or license derivative works incorporating the Digital Media in accordance with the Permitted Uses.
• Digital Media can be incorporated into a logo, trademark or service mark.
• Client may post the Digital Media online in a downloadable format.
• If any Digital Media featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service (for example, any Digital Media is used in a testimonial advertisement), or if the depiction of the model in the Digital Media is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, Client must accompany each such use with a statement that indicates that the person is a model and the Digital Media is being used for illustrative purposes only.
• The Digital Media may not be used in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other materials.
• While it is not necessary, Client may retain a symbol of Nycia for marketing in such cases as; created by - powered by - or other such terms..
• Nycia grants no rights and makes no warranties with regard to the use of names, trademarks, service marks, trade dress, registered, unregistered or copyrighted designs or works of art or architectural depicted in any Digital Media produced for Client, and Client must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
• Client's right to ownership or possession of the goods shall terminate immediately if:
  • Client has a bankruptcy order made against them or make an arrangement or composition with your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency; or;
  • Client suffers or allows any execution, whether legal or equitable, to be levied on property or obtained against Client or Client is unable to pay debts.

Indemnity

• Client fully agrees and willingly indemnify AND hold Nycia harmless against all claims, direct or indirect, arising out of any breach of this Agreement.

Warranties

• Nycia warrants the Digital Media to be free from defects in material and workmanship for 30 days from delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the Digital Media.
• Nycia's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the goods.
• NYCIA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DIGITAL MEDIA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTEES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NYCIA SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS, OR LOSSES ARISING OUT OF CLIENT'S USE OR NON-USE OF THE DIGITAL MEDIA, THIS AGREEMENT, ANY INVOICE REGARDING THE DIGITAL MEDIA OR OTHERWISE, EVEN IF NYCIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES COSTS OR LOSSES.

Termination and Revocation, and Cancellation

• This Agreement will terminate automatically without notice from Nycia if Client fails to comply with any provision of this Agreement. Upon termination, Client must immediately (i) stop using the Digital Media, (ii) destroy or, upon the request of Nycia, return the Digital Media to Nycia (in the case of the analogue materials), and (iii) delete or remove the Digital Media from Client's premises, computer systems and storage (electronic or physical).
• Nycia reserves the right to revoke the use the Digital Media for good cause and elect to replace such Digital Media with alternative Digital Media. Upon notice of any revocation of Digital Media for any reason and any particular Digital Media, Client shall immediately cease using such Digital Media and shall ensure that its clients and customers do likewise.
• If one or more provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it enforceable.
• Client has the right to cancel the contract at any time up to the end of 7 working days from the date of your order confirmation. To cancel an order Client must:
  • Give written notice to Nycia by letter or e-mail, at e-mail address shown below, giving details of the Order and (where appropriate) their delivery.
  • Notification by phone is not sufficient.
  • If after the goods have been delivered, Client SHALL NOT retain any copyright to the goods supplied and any Digital Media supplied must be destroyed/deleted. Failure to comply with this condition will be considered copyright breach and will be pursued intently to the maximum allowed by law.
  • Once Nycia is notified of the canceled contract, Nycia will refund or re-credit you within 30 days for any sum that has been paid by Client or debited from your credit card.

Law

• This Agreement will be governed in all respects by the laws of the State of California, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in San Jose, California. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
• Notwithstanding the foregoing, Nycia shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Client in the event that, in the opinion of Nycia, such action is necessary or desirable.
• No action of Nycia, other than express written waiver, may be construed as a waiver of any provision of this Agreement.

Contract

• This contract contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties.
• Every effort is made to ensure that prices shown on the Nycia's website (http://www.nycia.com) are accurate at the time Client places order. If an error is found, Nycia will inform Client as soon as possible and offer the option of reconfirming the order at the correct price, or canceling your order. If Nycia does not receive an order confirmation within 14 days of informing you of the error, the order will be canceled automatically. If you cancel, Nycia will refund or re-credit you for any sum that has been paid by you or debited from your credit card.
• We reserve the right to update this Agreement at any time without prior notification to our existing or potential customers (other than those in contract at the moment). The most recent version of this Agreement can be read by following the link from the About Nycia Section of the website: