USEFUL MOCKUPS LLC LICENSE AGREEMENT

THIS LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS THE ACQUISITION AND USE OF THE MOCKUPS OFFERED FOR SALE BY USEFUL MOCKUPS, LLC, A NEW YORK LIMITED LIABILITY COMPANY (THE “COMPANY”), AT WWW.USEFULMOCKUPS.COM (THE “WEBSITE”). BY SUBMITTING AN ORDER ON THE WEBSITE (AN “ORDER”), THE LICENSEE AND ITS AUTHORIZED USERS ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDER AND THIS AGREEMENT, THIS AGREEMENT SHALL PREVAIL UNLESS THE ORDER EXPRESSLY PROVIDES THAT IT IS MODIFYING THIS AGREEMENT AND IDENTIFIES THE SECTION(S) TO BE MODIFIED. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

 

 This Agreement was last updated on July 25, 2023. 

 

1. DEFINITIONS

• “Authorized Users” means Licensee and its employees permitted by the terms of this Agreement to access and use the Mockups.

• “Licensee” means the party purchasing the Mockups pursuant to the Order (whether identified as “licensee”, “customer”, “client” or similar designation in the Order).

• “Mockups” means the video files and pre-built edit files offered by the Company on the Website.

2. LICENSE

• Limited License. Subject to the terms and conditions of this Agreement and the Order, including without limitation Licensee’s payment of the fees specified in the Order, Company grants to Licensee a non-exclusive, non-transferrable, limited license (as further specified in the Order) to access and use the Mockups during the Term. Company offers the following license options:

• Individual. Licensee must be an individual or an entity with no more than three employees. Mockups can be used for portfolios on Licensee’s website, social media accounts, and in .pdf format. Licensee is prohibited from using Mockups for any other form of advertising or for the benefit of any third party including without limitation to promote Licensee’s clients’ products or services.

• Studio. Licensee must be an individual or an entity with no more than 1,000 employees. Mockups can be used for portfolios on Licensee’s website, social media accounts, and in .pdf format. Each Studio license can also be used by Licensee for one project/campaign to promote Licensee’s services via paid advertising or other forms of self-promotion. Licensee is prohibited from using Mockups for the benefit of any third party including without limitation to promote Licensee’s clients’ products or services.

• Corporate. Licensee of its’ client must be an individual or entity with no more than 10,000 employees. Mockups may be used to advertise Licensee or its’ clients’ products and services and for public relations. Mockups may be used for one project/campaign lasting no more than six months from initial publication date.

• Updates. Licensee understands and acknowledges that the Mockups may change over time as they are updated, and that at any given time Licensee has a right to access and use the Mockups to which it is subscribed as it exists at that time. Features and functions of the Mockups are provided “as is” and as they may be modified, supplemented, or removed from time to time in Company’s sole discretion. Company shall have no liability to Licensee for any updates or modification to the Mockups.

• Intellectual Property Ownership. Licensee acknowledges and agrees that, as between Licensee and Company, the Mockups, the video tutorial, the user manual, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Mockups) are the property of Company, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Mockups, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. Subject to the limited rights expressly granted hereunder, Company, its affiliates, and/or its licensors reserve all right, title, and interest in and to the Mockups, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.

• Third-Party Applications. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the Mockups may interoperate, if any. Company is not responsible for and does not endorse any Third-Party Applications. Licensee’s use of Third-Party Applications is subject to the terms and conditions imposed by the providers thereof.

• Availability. Company will use commercially reasonable efforts to make the Mockups available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) unavailability caused by circumstances beyond Company’s reasonable control including without limitation acts of God, acts of government, natural disasters, civil unrest, acts of terrorism or war, strikes or other labor problems, Internet service provider failures or delays, Third-Party Applications, or denial of service attacks. Licensee is encouraged to download the Mockups as soon as they are made available to avoid any issues related to lack of availability.

3. AUTHORIZED USE; RESTRICTIONS

• Authorized Users. Licensee is not permitted to disclose its login credentials except to its Authorized Users. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users including without limitation the restrictions on use of the Mockups set forth herein. Licensee acknowledges and agrees that its Authorized Users must acknowledge and accept the terms of this Agreement in order to access and use the Mockups.

• Qualification of Authorized Users. Authorized Users must be employees of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Company’s prior written consent and provided Licensee takes all necessary measures to ensure such non-employee uses the Mockups only as permitted by this Agreement. If the employment of any Authorized User is terminated, such person’s authorization to access and use the Mockups shall be revoked automatically without any further action by Company. In the event of a termination as described in the previous sentence, Licensee shall take all necessary measures to ensure that such person can no longer access or use the Mockups.

• Unauthorized Uses; Restrictions. Licensee shall not, and shall not permit its’ Authorized Users or any third party acting on Licensee’s behalf to, access or use the Mockups for any purpose except as expressly authorized by this Agreement. Except as expressly permitted by this Agreement, Licensee will not (i) reproduce, modify, create, or prepare derivative works of the Mockups or related documentation; (ii) distribute or display the Mockups or related documentation other than to Authorized Users; (iii) share, sell, sublicense, rent, or lease or otherwise distribute access to the Mockups, or use the Mockups to operate any timesharing, service bureau, or similar business; (iv) create any security interest in the Mockups; or (v) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Mockups or related documentation.

• Unauthorized Access and Use. In the event Company has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Mockups in violation of this Agreement, Company, in its sole discretion, may immediately suspend Licensee’s right to access and use the Mockups until such violation is resolved to Company’s reasonable satisfaction. Company will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the fees specified in the Order. Company’s right to suspend Licensee’s right to access and use the Mockups shall be in addition to all other remedies available to Company at law or in equity; Company reserves all rights and nothing in the Agreement shall prevent or in any way diminish or interfere with any rights or remedies available to Company under applicable law.

4. TERM AND TERMINATION

• Term and Termination. This Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to the terms of the Order (the “Term”).

• Effect of Termination. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its right to use the Mockups will be automatically terminated, and Licensee and its Authorized Users shall immediately cease all use of the Mockups.

5. REPRESENTATIONS AND WARRANTIES

• Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (b) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.

• Licensee’s Representations and Warranties. Licensee represents, warrants, and covenants that it will not and will not permit any third party acting on Licensee’s behalf to, in connection with this Agreement, including its use of or access to the Mockups, engage in, encourage, or permit (a) conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party, or (b) access or use of the Mockups for any unauthorized purpose, including without limitation those unauthorized uses and restrictions set forth in Section 3.3 hereof.

6. DISPUTE RESOLUTION

• Arbitration. Any controversy, claim, or dispute arising out of or relating to this Agreement, or the interpretation or breach thereof, shall be settled by arbitration conducted by the American Arbitration Association in accordance with its Commercial Arbitration Rules (the “Arbitration Rules”) governing at the time a claim is initiated. The arbitration shall be conducted in New York County, NY before a single arbitrator chosen pursuant to the Arbitration Rules. The decision of the arbitrator shall be final and binding upon the parties. Judgment upon the arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing agreement to arbitrate, Licensee recognizes that the breach of this Agreement may cause irreparable harm to Company for which monetary damages may be insufficient and, in such event, Company shall be entitled to equitable or injunctive relief from, and each party irrevocably consents to the personal jurisdiction of, the state and Federal courts serving New York County, NY, without being required to post bond or other security.

• Attorney Fees. In the event of any controversy, claim, or dispute arising out of or relating to this Agreement, or the interpretation or breach thereof, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.

7. INDEMNIFICATION

• Licensee agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (a) Licensee’s access or use of the Mockups in violation of any law, (b) Licensee’s breach or threatened breach of any provision of this Agreement, or (c) use of the Mockups by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its Authorized Users).

8. LIMITATION OF LIABILITY

• COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE TO COMPANY IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, OR GOODWILL), REGARDLESS OF THE CAUSE OF ACTION ALLEGED (INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, TORT, STRICT LIABILITY, INDEMNITY, OR NEGLIGENCE), EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.

9. DISCLAIMER OF WARRANTIES

• EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE MOCKUPS IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.

10. MISCELLANEOUS

• Compliance with Laws. Licensee is solely responsible for ensuring that Licensee’s and its Authorized Users’ use of the Mockups complies with all applicable federal, state, local, and foreign statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of Licensee’s business and that Licensee has filed, obtained, maintained or submitted all necessary licenses, reports, documents, forms, notices, applications, records, submissions and supplements or amendments required by law.

• Governing Law. Any controversy, claim, or dispute arising out of or in in connection with this Agreement shall be governed by the laws of the State of New York, excluding its choice of law rules. Each party irrevocably consents to the personal jurisdiction of the state and Federal courts located in the State of New York for purposes of any lawsuit seeking to enforce this Agreement.

• Assignment. Company may assign this Agreement to a successor-in-interest pursuant to a merger, stock sale, or asset sale. Licensee shall not assign its rights or delegate its obligations under this Agreement without Company’s prior written consent.

• Suggestions and Feedback. Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Mockups any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the Mockups.

• Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Company shall be sent to support@usefulmockups.com. If Licensee fails to provide an email address for notices, Company may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.

• Amendment. Company may propose amendments to this Agreement at any time by providing notice of such proposed amendments via (a) e-mail to the e-mail address provided by Licensee at sign-up or in the Order (as amended from time to time by Licensee) or (b) by displaying such notice when the Licensee signs into the Website. If not earlier accepted by Licensee, such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs Company that it does not accept such amendments. In the event Licensee informs Company that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Company and Licensee.

• Force Majeure. Company and its affiliates will not be liable for any for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including without limitation, acts of God, fire, strikes or labor disputes, electrical or power outages, natural disasters, the elements, epidemics, civil disturbances, acts of terrorism, war, acts or orders of government, internet service provider failure or delay, or denial of service attack.

• Entire Agreement. This Agreement, including the Order which is incorporated herein by reference, constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired license set forth in any Order or agreement between the parties for access to Mockups shall be governed by the terms hereof.