Content License Agreement

This Content License Agreement (“Agreement”) governs the terms by which you obtain the right to use photographic and other media content provided by Dietitians of Canada through the web site located at www.foodphoto.ca (the “Site”).

The Site is owned and operated by Dietitians of Canada (“Dietitians of Canada”).

BY CREATING AN ACCOUNT OR USING THE SITE TO DOWNLOAD CONTENT, , YOU REPRESENT THAT YOU ARE 14 YEARS OLD OR OLDER, HAVE READ AND UNDERSTOOD THIS CONTENT LICENSE AGREEMENT, AND AGREE TO BE BOUND BY IT.

1. Definitions    
  In this Agreement: “you” means you or, if you are accepting on behalf of your employer or some other entity, then “you” means that employer or entity and its affiliates; and “Content” means any photographic image, illustration, animation, Flash file, film or video footage, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from the Site, together with any accompanying material, which is expressly made available for download by Dietitians of Canada.
2. Standard License Terms  
  2.1 License. We hereby grant to you a perpetual, non-exclusive, non-transferable, worldwide license to use the Content solely for the Permitted Uses (as defined below). You cannot do anything with the Content other than as expressly described in this Agreement. All other rights in and to the Content, including, without limitation, all intellectual property rights relating to the Content, are retained by Dietitians of Canada or its licensors.
  2.2 Seat Restrictions. Only you are permitted to use the Content. You may transfer files containing the Content to your clients, printers, or internet service provider solely for the purpose of reproduction for Permitted Uses. You may install and use the Content in more than one location at a time. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location for your personal use, you may download it again from the Site at no additional cost. You may make one copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
  2.3 Resale. You may not resell the Content, and may not license or distribute the Content except as expressly permitted as a Permitted Use (as defined below).
  2.4 Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:
    (a) advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (i.e. not for resale or license);
    (b) non-commercial uses, including in educational material to be used in courses, provided that such educational material is provided at cost or free, and is not commercially published;
    (c) entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations;
    (d) prints, posters (i.e. a hardcopy) and other physical reproductions for personal use; but not for resale, license or other distribution; and
    (e) any other uses approved in writing by Dietitians of Canada.
  2.5 If there is any doubt that a proposed use is a Permitted Use, you should contact Dietitians of Canada for guidance.
3. Standard License Prohibitions  
  3.1 Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:
    (a) use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
    (b) use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items;
    (c) use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
    (d) use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
    (e) incorporate the Content in any product that results in a re-distribution or re-use of the Content;
    (f) make the Content available electronically in a manner such that a third person can extract or access the Content as an electronic file;
    (g) use the Content in a fashion that is considered by Dietitians of Canada (acting reasonably) as or under applicable law is considered 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;
    (h) use or display any Content that features a model or person in a manner (i) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (ii) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;
    (i) use or display the Content in a context or within print, online, software or other media in a manner that competes with Dietitians of Canada or the services or products that it offers;
    (j) remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content; or
    (k) use the Content for editorial purposes without including the following credit adjacent to the Content or in audio/visual production credits: “©Dietitians of Canada”.
4. Term of Agreement  
  4.1 This Agreement is in force until it is terminated.
    (a) You can terminate this Agreement by destroying the Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose.
    (b) The Agreement also terminates without notice from Dietitians of Canada if at any time you fail to comply with any of its terms. Upon termination by Dietitians of Canada, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Dietitians of Canada in writing that you have complied with these requirements
  4.2 Dietitians of Canada reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content for future products and to take all reasonable steps to discontinue use of the replaced Content in products that already exist.
  4.3 Upon notice from Dietitians of Canada, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which Dietitians of Canada may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or internet service providers do the same. Dietitians of Canada shall provide you with replacement Content (which shall be determined by Dietitians of Canada in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
5. Dietitians of Canada Representations and Warranties  
  5.1 Dietitians of Canada warrants that: (i) your use of the Content in accordance with this Agreement and in the form delivered by Dietitians of Canada will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained.
  5.2 While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, Dietitians of Canada does not warrant the accuracy of such information. Additionally, Dietitians of Canada does not warrant the accuracy of any metadata that may be provided with the Content, including without limitation the file size, type and time of Content creation.
  5.3 OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 5.1, THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DIETITIANS OF CANADA DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT DIETITIANS OF CANADA) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
6. Dietitians of Canada Indemnification and Limitation of Liability  
  6.1 Subject to the terms of Sections 6.2, 6.3, 6.4 and 6.5, and provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement, as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 5.1 above, Dietitians of Canada shall pay any amounts awarded against you in a claim or proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 5.1 above, up to the maximum set out in Section 6.5 below. The foregoing states Dietitians of Canada’s entire indemnification obligation under this Agreement.
  6.2 The indemnification set out in Section 6.1 above is conditioned on your prompt notification in writing to Dietitians of Canada of such claim and our right to assume the handling, settlement or defence of any claim or litigation. You agree to cooperate with Dietitians of Canada in the defence of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Dietitians of Canada shall not be liable for your legal fees and other costs
  6.3 IN NO EVENT SHALL DIETITIANS OF CANADA OR ANY OF ITS AFFILIATES OR CONTENT LICENSORS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
  6.4 NOTWITHSTANDING ANY OTHER TERM HEREIN, DIETITIANS OF CANADA SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
  6.5 NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF DIETITIANS OF CANADA UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO AN AGGREGATE OF ONE THOUSAND ($1,000) CANADIAN DOLLARS, INCLUDING WITHOUT LIMITATION DIETITIANS OF CANADA’S OBLGIATIONS TO YOU UNDER SECTION 6.1. FOR GREATER CLARITY, DIETITIANS OF CANADA’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED ONE THOUSAND ($1,000) CANADIAN DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM DIETITIANS OF CANADA.
7. Your Indemnification  
  7.1 You agree to indemnify, defend and hold Dietitians of Canada, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Dietitians of Canada Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Dietitians of Canada Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
8. General Provisions  
  8.1 This Content License Agreement is in addition to the Terms of Use applicable to the Site that all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement and the Terms of Use (both of which are incorporated into this Agreement by reference), the terms of this Agreement shall govern.
  8.2 You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
  8.3 Dietitians of Canada’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
  8.4 This Agreement is personal to you and is not assignable by you without Dietitians of Canada’s prior written consent. Dietitians of Canada may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
  8.5 If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
  8.6 You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
  8.7 This Agreement will be governed under the laws of the Province of Ontario and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
  8.8 Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Toronto, Ontario, and shall be conducted in the English language.
  8.9 The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s’y rattachent soient en anglais.
9. Contact  
  9.1 If you have concerns relating to this Agreement, please contact Dietitians of Canada at contactus@dietitians.ca.