ViewMedica Stock Terms of Service

SWARM INTERACTIVE, INC.

LICENSE AGREEMENT FOR STOCK CONTENT

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICES (AS DEFINED BELOW). BY EXECUTING AND SUBMITTING A CREDIT CARD BILLING AUTHORIZATION, OR BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE (EITHER FOR YOURSELF OR ON BEHALF OF YOUR EMPLOYER) TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES, AND DO NOT EXECUTE OR SUBMIT A CREDIT CARD BILLING AUTHORIZATION.

1. Definitions.

"Agreement" means these Terms of Service together with Swarm's Site Terms of Use and Privacy Statement as provided to you on the swarminteractive.com website, as amended from time to time by Swarm.

"Credits" are purchased, then used to download Swarm Licensed Content.

"Registration Data" has the meaning set forth in Section 11.

“Service” or “Services” means the Swarm services to which you are granted access under this Agreement including the stock image Service and the video clip licensing Service.

"Swarm" means Swarm Interactive, Inc. and its successors and assigns.

"Swarm Licensed Content" or "Content" means all information, data, text, software, music, sound, photographs, illustrations, audio or video files, messages or other materials owned or licensed by Swarm, and furnished to you under the terms of this Agreement.

"Term" has the meaning set forth in Section 9.

"we" "our" or "us" means Swarm Interactive, Inc. and its successors and assigns.

"you" or "your" means you, as the end user of the Services, whether you are a natural person, sole proprietorship, partnership, limited liability company, corporation or other legal entity.

2. Governing Terms. Thank you for selecting the Services offered by Swarm. This Agreement governs your use of Services, and constitutes a legally binding agreement between you and Swarm. By accessing or using the Services, or by executing and submitting a credit card billing authorization, you indicate that you understand and agree to this Agreement. If you do not agree to this Agreement, you are not granted any rights to access or use the Services, and you will not be able to access or use the Services. Your access to or use of any Services may also be subject to your acceptance of separate agreements with Swarm. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other Swarm services made available to you through these Services, which may be subject to change from time to time. This Agreement will also govern your continued purchase and use of the Services, including such additional Swarm services made available to you through the Services that you have selected.

3. Uses. Subject to the terms and conditions of this Agreement, Swarm grants to you a non-exclusive, non-transferable, perpetual and worldwide license to use the Content solely as permitted herein. All rights in any Content created by Swarm shall be Swarm's property throughout the universe and in perpetuity. No other, further or different license is granted, and no rights are transferred or assigned by Swarm to you. Swarm reserves all rights not expressly granted herein. If you have any question about if a use is allowed, contact Swarm Interactive. Only use Swarm Licensed Content for these Allowed Uses:

• Promotional products including advertisements, printed ads, packaging, presentations, brochures and other promotional devices that are not for resale or license.
• Books, book covers and illustrations.
• Magazines, newspapers or other editorial uses.
• Broadcast video, film, video products and public performances.
• Electronic publications and online display.
• Educational posters, courtroom visualizations and other printed displays that are not for resale or license.
• You can transfer files containing Licensed Content to clients, printers, or Web developers for Allowed Uses an unlimited number of times.
• Licensed Content must only be saved in one location and you can make one copy of the Licensed Content as a back-up.

4. Restrictions. Except as expressly permitted herein, you must not do, nor allow or assist any third party in doing, any of the following:

• Use Content on items for resale, license or distribution for profit (posters, mugs, t-shirts for example) without purchasing an Extended License.
• Reproduce or allow to be reproduced Licensed Content more than 250,000 times without purchasing an Extended License.
• Use Licensed Content for broadcast video, film, video products or public performances to an audience of more than 250,000 people without purchasing an Extended License.
• License, sublicense, copy, assign, lease, loan, sell, resell, republish, upload, post, transfer, or distribute the Content or Service to any third party.
• Use the Service or Swarm Licensed Content in a way that competes with Swarm's business, including but not limited to the ViewMedica Stock Medical Images Service and ViewMedica Patient Education System.
• Install the Content in more than one location or post to a Web or Network server for use by others.
• Use Content as part of or as a trademark, service mark or logo, or in a way that could be considered by Swarm (acting reasonably) to be an endorsement of any product, service or person.
• Use Content in a manner that Swarm reasonably can consider to be infringing, obscene, pornographic, defamatory, or in violation of any local, state, federal or international law.
• Remove any copyright or other watermarks if found on the Licensed Content.
• Decompile, disassemble, debug, use automated programs or reverse engineer the Services or the Swarm Licensed Content.
• Use the Services, including any Swarm Licensed Content, for any purpose that is unlawful or prohibited by this Agreement.

If you violate any of these terms, your permission to use the Services terminates automatically, with immediate effect.

5. Notification of Use Beyond Standard Limits. When you break the Restriction to printing more than 250,000 copies without purchasing an Extended License, you must notify Swarm. You must declare the number of reproductions made each month above the 250,000 lifetime limit covered by the Standard License. Swarm Interactive will invoice you the royalty cost of excess reproductions at $10.10 per reproduction beyond the standard 250,000. You agree to pay invoices within 30 days of receipt. You may purchase an Extended License to avoid ongoing royalty fees associated with this restriction.

6. Optional Extended License. You may purchase an Extended License to extended rights under this agreement. Extended Licenses are provided on an individual Content item basis. Contact Swarm about purchasing an Extended License before selecting the Content for download. These Extended License rights only apply to how you can use the specific Content item for which you purchased the Extended License:

• Use Content on items for resale, license or distribution for profit (posters, mugs, t-shirts for example).
• Reproduce or allow to be reproduced Licensed Content more than 250,000 times.
• Use Licensed Content for broadcast video, film, video products or public performances to and audience of more than 250,000 people.

7. No Sublicenses, No Transfers. The license granted herein is not sublicensable and may not be transferred or assigned by you to any third party without Swarm's prior written approval by Swarm, which Swarm may withhold in its sole discretion. Any attempted sublicense, and any attempted transfer without the prior approval of Swarm, shall be void from the outset.

8. Payments and Credits. Video clip licensing Service fees are based on your intended use and the length of the clip. The stock image Service is a Credits-bases service. If the Credits are purchased by you on a one-time payment or subscription basis, or if you are given Credits on a promotional basis, the following terms will apply to you.

• All payments must be made in U.S. dollars.
• The payment information you provide must be accurate, current and complete, and you agree to notify us promptly of any change in the payment information.
• The price of Credits will be specified on the Site at the time of purchase.
• Credits are attached to your account, non-refundable and non-transferable.
• Credits must be used within a year after your most recent purchase of Credits or they will expire and be removed from your account.

9. Term And Renewal Term. Unless terminated earlier as expressly provided herein, the initial term of this Agreement shall be for a period of one (1) year commencing as of the date of your acceptance of the Agreement (when you created and saved your account preferences or by commencing use or access to the Services). After the initial Term, this Agreement shall be automatically renewed for successive one (1) year periods ("Renewal Term") until the Agreement is otherwise terminated as expressly provided herein.

10. Cancellation And Termination. Notwithstanding the foregoing or anything elsewhere herein, Swarm may, at its sole election, require you to cease using any Licensed Content upon forty-eight (48) hours' notice to you (which notice, notwithstanding anything to the contrary herein, may be delivered via facsimile, electronic mail or any other effective method of written communication). Within two (2) business days following your receipt of such Notice, you shall immediately cease to use the applicable items of Licensed Content. You and Swarm acknowledge that the purpose of this provision is to defend and protect Swarm's valuable rights in the Licensed Content, and not to otherwise frustrate the purpose of this Agreement or deny you the benefit of the license granted herein under circumstances in which you are without fault or negligence.

Subject to the following, you may request cancellation of the Services at any time. To request cancellation, you must call 1-888-467-9276 from the U.S. or Canada, or (International Access Code) 919-929-2501 from all other countries (note: International calls are not toll-free). Swarm reserves the right to collect fees, surcharges or costs incurred before you cancel your Services. You must provide us with the following information in order make it possible to process any cancellation request: (a) the exact name of the Services that you would like to cancel; (b) your username and password; (c) your email address; (d) your reasons for canceling the Services.

Upon termination: (a) all rights granted to you herein shall immediately terminate; (b) You shall not thereafter have any right to make any use of any Licensed Content; (c) You shall immediately cease to use all Licensed Content; (d) You shall, as instructed by Swarm and at your own expense, delete or destroy all Licensed Content promptly; and (e) all monies then due or to become due to Swarm shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by You.

Termination or expiration of this Agreement for any reason shall not affect obligations that: (a) have accrued as of the date of termination or expiration; (b) arise out of occurrences prior to the termination or expiration date; (c) become effective upon termination or expiration; or (d) by their terms continue after termination or expiration.

11. Registration. Your registration information to use the Services (the "Registration Data") must be accurate, current and complete as prompted in the sign-up process. If you provide any Registration Data that is not accurate, current or complete, and do not promptly update your Registration Data, or Swarm has reasonable grounds to suspect it is not accurate, current or complete, Swarm may, in its sole discretion, suspend or terminate your account and refuse any current or future access and use of the Services or portion thereof. Registration Data provided by You as part of Service registration is subject to our Privacy Policy. You are exclusively responsible for maintaining the confidentiality of your account password, and are responsible for all activities that occur under your account.

12. Feedback. Swarm may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services ("Feedback"). You agree that Swarm may, in its sole discretion, use the Feedback you provide to Swarm in any way, including in future modifications of the Services, Swarm Licensed Content and/or advertising, marketing and promotional materials relating thereto. You hereby grant Swarm a perpetual, worldwide, fully transferable, sublicenseable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to Swarm in the Feedback.

13. Reservation Of Rights And Ownership. The Services and the Swarm Licensed Content are licensed not sold, and Swarm reserves all rights not expressly granted to you in this Agreement. The Services and Swarm Licensed Content are protected by copyright, trade secret and other intellectual property laws. Swarm and its licensors, where applicable, own all right, title and interest in and to the Services and Swarm Licensed Content (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services or Swarm Licensed Content by whomever made. Swarm does not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.

14. Indemnification. You must evaluate and bear all risks associated with, the accuracy, completeness or usefulness of any Licensed Content you download from the Service.

You agree to defend, indemnify and hold Swarm, its Suppliers, its corporate affiliates, officers, directors, employees, subsidiaries and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees) resulting from or arising out of a claim resulting from or arising out of your breach or alleged breach of this Agreement.

You agree that Swarm has the right (but not the obligation) to monitor the Services and Content from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Services properly, or to protect itself or its users. Swarm will not intentionally disclose any private email message unless required by law.

15. Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound.

16. Warranty Disclaimers. THE SERVICES AND THE SWARM LICENSED CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The entire risk as to the quality and performance of the Services and Swarm Licensed Content is with you. Swarm does not warrant that the functions contained in the Services will meet your requirements or operate in the combination that you may select for use, that the operation of the Services will be uninterrupted or error free, or that defects in the Services will be corrected. No oral or written statement by Swarm or by a representative of Swarm shall create a warranty or increase the scope of this warranty.

Swarm makes no warranties and/or representations regarding the accuracy of Licensed Content keywords, meta data and descriptions found within the Service.

SWARM DOES NOT WARRANT THE SERVICES OR THE SWARM LICENSED CONTENT AGAINST INFRINGEMENT OR THE LIKE WITH RESPECT TO ANY COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DOES NOT WARRANT THAT THE SERVICES OR SWARM LICENSED CONTENT IS FREE OF ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE OR DATA, OR TO PERFORM ANY OTHER SUCH ACTIONS.

Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you first access or use the Services.

Swarm is not engaged in rendering legal, or other professional service. If such assistance is required, the service of a competent professional should be sought. Swarm and its suppliers expressly disclaim any representations or warranties that Your use of the services will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations, including but not limited to the Health Insurance Portability and Accountability act of 1996 ("HIPAA"), the Gramm-Leach-Bliley act of 1999, the Sarbanes-Oxley act of 2002, or other federal or state statutes or regulations. You are solely responsible for ensuring that Your use of the services is in accordance with applicable law.

17. Limitation of Liability and Damages. To the maximum extent permitted under applicable law, the entire cumulative liability of Swarm, its affiliates and suppliers, and your exclusive remedy for all matters or claims arising from or relating to this Agreement shall be limited to the amount paid by and/or due from you for the Services within the twelve (12) month period immediately preceding the event giving rise to such claim. To the maximum extent permitted by applicable law, Swarm, its affiliates and its suppliers shall not be liable for any (a) indirect, special, incidental, punitive or consequential damages; and (b) damages relating to telecommunication failures, internet and electronic communications failures, delays or limitations, loss, corruption, security or theft of data, viruses, spyware, loss of business, revenue, profits or investment. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Swarm and You. Swarm would not have provided the Services or the Swarm Licensed Content without such limitations.

You agree that Swarms and its affiliates and suppliers will not be liable for defense or indemnity with respect to any claim against you by any third party arising from your possession or use of the Services or the Swarm Licensed Content.

In no event will Swarm's total liability to you for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed the amount you paid for the Services.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, AND SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

18. Government Restricted Rights. For units of the Department of Defense, use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Contractor/manufacturer is Swarm Interactive, Inc. 1506 E. Franklin St., Suite 101, Chapel Hill, NC 27514.

If the Commercial Computer Software Restricted rights clause at FAR 52.227-19 or its successors apply, the Services and Swarm Licensed Content constitute restricted computer software as defined in that clause and the Government shall not have the license for published software set forth in subparagraph (c)(3) of that clause.

The Services and Swarm Licensed Content (a) were developed at private expense, and no part of it was developed with governmental funds; (b) are a trade secret of Swarm (or its licensor(s)) for all purposes of the Freedom of Information Act; (c) is "restricted computer software" subject to limited utilization as provided in the contract between the vendor and the governmental entity; and (d) in all respects is proprietary data belonging solely to Swarm (or its licensor(s)).

19. Governing Law. This Agreement shall be construed in accordance with the laws of North Carolina. You consent to the exclusive jurisdiction and venue of the courts of North Carolina. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.

20. Attorneys' Fees. In the event an action is filed to enforce this Agreement or for breach of this Agreement, the prevailing party shall be entitled to recover all the costs of such action, including reasonable attorneys' fees, whether before, during, or after trial, or on appeal, or in bankruptcy proceedings.

21. Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by Swarm. In the event of a dispute between the English and any non-English version of this Agreement, the English version of this License shall govern. Swarm may change this Agreement from time to time effective upon posting of the modified Agreement on its website. Please review the Agreement periodically on this website for changes. Swarm has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means Swarm determines in its discretion to be reasonable. Your continued use of the Services after Swarm's publication of any such changes shall constitute your acceptance of this Agreement as modified.