9.1 - Intellectual Property
All digital content available on Kzara Visual (www.kzaravisual.com), including, without limitation, the Licensed Asset, is protected by Switzerland and International Copyright and other Laws and Treaties. Between you and the Shop Owner, the Shop Owner retains ownership of the Licensed Asset, but grants to the 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 the Licensee, the Shop Owner, and Kzara Visual are reserved by the Shop Owner and Kzara Visual.
The 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, the 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 the Licensee any rights to trademark or any other intellectual property rights (aside from copyright) in the Licensed Asset.
9.2 - Termination
Kzara Visual reserves the right to terminate this License Agreement at any time if the Licensee breaches any of the terms of this or any other agreement with Kzara Visual, in which case the Licensee must immediately: cease using the License Asset; delete or destroy any copies; and, if requested, confirm to Kzara Visual in writing that the 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 Kzara Visual’s request, the Licensee agrees to remove any content from such platform or website.
9.3 - Content Withdrawal
Kzara Visual may discontinue licensing the Licensed Asset at any time in its sole discretion. Upon notice from Kzara Visual, or upon the Licensee’s knowledge, that a Licensed Asset may be subject to a claim of infringement of a third party’s right, Kzara Visual may require the Licensee to immediately, and at the Licensee’s own expense: cease using the Licensed Asset, delete or destroy any copies; and ensure that the Licensee’s clients, distributors and/or licensees do likewise.
Kzara Visual will provide you with replacement content (determined by Kzara Visual 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, The Licensee agrees to provide to Kzara Visual sample copies of projects or end uses that contain the Licensed Asset, including by providing Kzara Visual with free of charge access to any pay-walled or otherwise restricted access to the website or platform where the Licensed Asset is reproduced. In addition, upon reasonable notice, Kzara Visual may, at its discretion, either through its own employees or through a third party, audit the Licensee’s records directly related to this License Agreement and the 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 the Licensee to Kzara Visual of five percent (5%) or more of the amount the Licensee should have paid, then in addition to paying Kzara Visual the amount of the underpayment and any other remedies to which Kzara Visual is entitled, you also agree to reimburse Kzara Visual for the costs of conducting the audit.
9.5 - Disclaimer of Warranties
Licensee’s use of the Licensed Asset is at the 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. Kzara Visual and the Shop Owner herby disclaim all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantablity, 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 Kzara Visual, its Affiliates or their Licensors (including, without limitation, the Shop Owners), Service Providers, Employees, Agents, Officers or Directors be held 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 Kzara Visual, its Affiliates or their Licensors (including, without limitation, the Shop Owners), Service Providers, Employees, Agents, Officers or Directors be held 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 the Licensee paid for the Licensed Asset. The foregoing does not affect any liability which cannot be excluded or limited under applicable law.
9.7 - Indemnification
Licensee agrees to defend, indemnify and hold harmless Kzara Visual, its affiliates, licensors (including, without limitation, Shop Owners) and service providers, 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 the 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 the 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 laws of Switzerland without giving effect to any choice or conflict of law provision or rule. 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 Switzerland although we retain the right to bring any suit, action or proceeding against the Licensee for breach of this License Agreement in the Licensee’s country of residence or any other relevant country. Licensee waives any and all objections to the exercise of jurisdiction over the Licensee by such courts and to venue in such courts to the maximum extent permitted by law.
9.10 - Arbitration
At Kzara Visual’s sole discretion, except to the extent prohibited by law, Kzara Visual may require licensee to submit any disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the rules of arbitration under the rules of the Swiss Arbitration Association (ASA) applying Switzerland law.
9.11 - Waiver and Severability
No waiver by Kzara Visual 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 Kzara Visual to assert a right or provision under this License Agreement shall not constitute a waiver of such right or provision.
If any provision of this License Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the License Agreement, including the Terms of Use, will continue in full force and effect.
9.12 - Entire Agreement
This License Agreement, together with the Kzara Visual Terms and Conditions Policy (“Terms and Conditions”) constitutes the sole and entire agreement between the Licensee on the one hand and Kzara Visual and the Shop Owner on the other hand with respect to the Licensed Asset and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Licensed Asset. This License Agreement supersedes any conflicting terms set forth in the Terms and Conditions Policy with respect to the Licensed Asset.
9.13 - Notices
All notices required to be sent to Kzara Visual under this License Agreement should be sent via email to hello@kzaravisual.ch. All notices to the Licensee will be sent via email to the address provided by Licensee during account creation or at purchase.
9.14 - Modifications
Kzara Visual reserves the right to modify this License Agreement at any time and will post an updated version on the Kzara Visual Platform. 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) Kzara Visual 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.