Member Agreement

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Terms Version Date: April 14, 2015

License Information

This page provides information about the types of license rights available for Evrmrk products and the member agreements pertaining to those products and rights.

The Member Agreement allows Members to download or purchase the permitted number of Product authorized under the membership plan purchased by Member. Each membership includes a single user license, which may not be shared. During the term of your membership, you can use products that you download multiple times for multiple projects. The membership rights granted to you are non-exclusive and non-transferable and are personal to you. There are additional restrictions on your use of designs downloaded through your membership, which are set out in further detail in the Member Agreement section below.

Member Agreement

These terms and conditions are effective immediately.

THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN MEMBER, PURCHASER (IF ANY) AND A SUBSIDIARY OF EVRMRK AS IDENTIFIED IN SECTION 13.9 BELOW (“COMPANY”). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF ALL PRODUCTS. BY ORDERING A LICENSE, MEMBER AND, IF APPLICABLE, PURCHASER, IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.

1. Definitions.In this Agreement the following definitions apply:

1.1 “Invoice” means the computer-generated or pre-printed standard form invoice provided by Evrmrk that shall include, without limitation, the Evrmrk licensing company, the Licensed Material selected and the corresponding price for the license of such Licensed Material (“License Fee”). The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.

1.2 “Licensed Material” means any still image or visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any copies thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Member by Evrmrk under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material as a whole.

1.3 “Member” means the entity purchasing a license hereunder or, if there is a separate Purchaser, the entity specifically designated as Member during the purchase process and set forth as such in the Invoice.

1.4 “Member Work” means an end product, service, campaign or publication that has been created by or on behalf of Member using independent skill and effort and that incorporates a Reproduction of the Licensed Material as well as other material.

1.5 “Purchaser” means the entity purchasing the license hereunder on behalf of a third-party Member.

1.6 “Reproduction” and “Reproduce” mean any form of copying or publication of the whole or a part of any Licensed Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Licensed Material, and the creation of any derivative work from, or that incorporates, the Licensed Material.

1.7 “User” means any employee or subcontractor of Member who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Licensed Material; (ii) is otherwise directly involved in the creative process utilizing the Licensed Material; or (iii) incorporates the Licensed Material within any derivative work.

2. Grant of Rights.Subject to the terms of this Agreement:

2.1 Evrmrk grants to Member a non-exclusive, non-transferable, non-sublicensable, worldwide right to access the Evrmrk membership and Reproduce the Licensed Material made available to Member through the membership an unlimited number of times during the term of the Evrmrk membership purchased as identified in the Invoice (“Term”) in any and all media for all purposes other than those uses prohibited under Section 3 of this Agreement.

2.2 MEMBER IS GRANTED A ONE (1) PERSON MEMBERSHIP FOR USE OF THE LICENSED MATERIAL FOR EACH USER SEAT PURCHASED. THIS IS NOT A SIMULTANEOUS USE LICENSE. ONLY ONE (1) USER MAY ACCESS THE EVRMRK MEMBERSHIP OR USE LICENSED MATERIAL, AS APPLICABLE. EACH USER SHALL BE REQUIRED TO HAVE A MEMBERSHIP. A User may not download Licensed Material and share such Licensed Material with a non-User or act as a designated downloader who shares Licensed Material with non-Users. Member must purchase additional memberships if there is more than one (1) User before such additional use begins.

2.3 Following expiration of the Term, Member may continue to use any Licensed Material incorporated into a Member Work during the Term in the same or different Member Work in accordance with the terms of this Agreement. If the individual entering into this Agreement is an agent entering into this Agreement, accessing the membership and using the Licensed Material on behalf of a single client, this continued use may be exercised by the client and such individual solely to the extent the individual who entered into this Agreement is doing work authorized by and on behalf of that client.

2.4 Member may have the Licensed Material Reproduced by subcontractors of Member (including Purchaser) for preparation of the Member Work, provided that such subcontractors agree to abide by the provisions of this Agreement.

2.5 Member may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of Member, so long as there is no more than one (1) User.

3. Restrictions.

3.1 Member may not share or disclose any password to any other user or third party other than as specifically provided for herein and Member agrees to hold all passwords for any membership in the strictest of confidence. If Member breaches any provision of this section, Evrmrk shall be entitled to (i) terminate this Agreement immediately, (ii) retain all payments paid pursuant to this Agreement and, (iii) seek any legal or equitable remedies.

3.2 Member may not download more than the permitted number of downloads of Licensed Material authorized under the membership plan purchased by Member. Member shall not stockpile, download, or otherwise store Licensed Material not used during the Term for future use. Evrmrk may (a) monitor, as frequently as Evrmrk determines, anything Member downloads from the Evrmrk Web site, (b) track any abuse of Member’s username(s) and password(s), (c) suspend or terminate Member’s Evrmrk membership, without notice, if Evrmrk believes there is a violation of this Agreement and/or any abuse or sharing of Member’s username and password.

3.3 Member may not: (i) make the Licensed Material available (separate from the Member Work) in any medium accessible by persons other than authorized Users; or (ii) make the Licensed Material in a manner intended to allow or invite a third party to download, extract, redistribute or access the Licensed Material as a standalone file.

3.4 Member may not, without obtaining the prior written consent of Evrmrk and the payment of additional License Fees: (i) use the Licensed Material in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit: (ii) include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products; (iii) use or display the Licensed Material on websites or in any other medium designed to induce or involving the sale, license or other distribution of “on demand” products, including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items; (iv) sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Licensed Material or the rights granted under this Agreement; (v) Reproduce a single item of Licensed Material, or an element of the Licensed Material, in excess of 500,000 times in physical (i.e. hard-copy) prints; (vi) use or display the Licensed Material in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement.

3.5 To the extent that source code is contained within the Licensed Material, Member may not reverse engineer, decompile, or disassemble any part of such source code.

3.6 Member may not falsely represent, expressly or impliedly, that Member is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material, nor may it make the Licensed Material available in the form of fine art prints.

3.7 Licensed Material shall not be incorporated into a logo, corporate ID, trademark or service mark, without obtaining the prior written consent of Evrmrk.

3.8 If any Licensed Material featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, Member must accompany each such use with a statement that indicates that: (i) the Licensed Material is being used for illustrative purposes only; and (ii) any person depicted in the Licensed Material, if any, is a model.

3.9 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited, whether directly or in context or juxtaposition with specific subject matter. Member shall also comply with any applicable regulations and/or industry codes.

3.10 While efforts have been made to correctly caption the subject matter of, and to provide other information (including metadata) related to, the Licensed Material, Evrmrk does not warrant the accuracy of such information.

3.11 Where Purchaser is licensing Licensed Material on behalf of a Member, Purchaser hereby represents and warrants that: (i) Purchaser is authorized to act as an agent on behalf of Member and has full power and authority to bind Member to this Agreement; and (ii) if Member subsequently disputes such power or authority, Purchaser shall be bound and liable for any failure of Member to comply with the terms of this Agreement. Nothing in this Section 3.11 shall serve to excuse Purchaser’s obligation to make payment to Evrmrk of the License Fee.

3.12 If the Licensed Material is Reproduced on a website, Member shall post terms and conditions on the website that include restrictions on downloading the Licensed Material for other than personal use, and prohibit republication, retransmission, reproduction or other use of the Licensed Material.

3.13 If the Licensed Material is Reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked in the event that the platform or website seeks to exploit purported rights to the Licensed Material contrary to the terms of this Agreement, and (ii) in such event, upon Evrmrk’s request, Member shall remove any Licensed Material from such platform or website.

3.14 Licensed Material identified as “Editorial use only”, may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial use only” of Content means use relating to events that are newsworthy or of general interest.

4. Memberships.

4.1. User Accounts. Evrmrk will provide Member with a one (1) User accounts as specified in the Invoice, to access Licensed Material on the Evrmrk website. Member will be responsible for tracking all activity for each User account and shall, furthermore: (a) maintain the security of all passwords and identifications issued in connection with each User account; (b) notify Evrmrk immediately of any unauthorized use of any User account or other breach of security; (c) accept all responsibility for any and all activities that occur under each User account; and (d) accept all risks of unauthorized access to the User accounts by individuals acting or purportedly acting on Member’s behalf.

4.2 Monthly Membership. Your Membership, which may start with a free trial, will continue month-to-month unless and until you cancel your membership or we terminate it. Paid memberships must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) to use the Membership. We will bill the monthly membership fee to your Payment Method. You must cancel your membership before it renews each month in order to avoid billing of the next month’s membership fees to your Payment Method.

4.3 Differing Memberships. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions, limitations, and contract terms. Any materially different terms from those described in these Terms of Use will be disclosed at your sign-up or in other communications made available to you. Some promotional memberships are offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend our offered membership plans.

4.4 Free Trials. Your Membership may start with a free trial. The free trial period of your membership lasts for one month, or as otherwise specified during sign-up. For combinations with other offers, restrictions may apply. Free trials are for new and certain former members only. We reserves the right, in its absolute discretion, to determine your free trial eligibility.

We will begin billing your Payment Method for monthly membership fees at the end of the free trial period of your membership unless you cancel prior to the end of the free trial period. We may authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period.

You will not receive a notice from us that your free trial period has ended or that the paying portion of your membership has begun. We will continue to bill your Payment Method on a monthly basis for your membership fee until you cancel.

5. Credit and Intellectual Property.

5.1 Copyright. No ownership or copyright in any Licensed Material shall pass to Member by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Evrmrk grants Member no right or license, express or implied, to the Licensed Material.

5.2 Trademarks. In connection with the use of “Evrmrk” or any other of Evrmrk’s or its partners’ trade names, trademarks, logos or service marks, including the names of all Licensed Material collections (“Marks”), Member acknowledges and agrees that (i) such Marks are and shall remain the sole property of Evrmrk or its partners; (ii) except as expressly required in order to satisfy credit obligations under this Agreement, nothing shall confer upon Member any right of use in or to the Marks; and (iii) Member shall not now or in the future contest the validity of Evrmrk’s Marks.

5.3 Photo Credit. All Licensed Material used in an editorial context, must include the following credit line adjacent to the Licensed Material: “[Photographer’s Name]/[Collection Name]/Evrmrk” or as otherwise shown on the Evrmrk website. If Member omits the credit, an additional fee in an amount up to one hundred percent (100%) of the License Fee may be payable by Member, at Evrmrk’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Evrmrk may have at law or in equity.

5.4 Audio/Visual Production Credit. If Licensed Material is used in an audio/visual production in either an editorial context or a non-editorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such other credit(s), substantially in the form “[Imagery] supplied by [Collection Name]/Evrmrk”.

5.5 Notice of Violations. Member will immediately notify Evrmrk if it becomes aware or suspects that any third party that has gained access to the Licensed Material through Member is wrongfully using the Licensed Material, in whole or in part, or is violating any of Evrmrk’s intellectual property rights, including, but not limited to, Marks and copyrights.

5.6 No Removal of Notices. Member shall not remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Licensed Material;

6. Warranty and Limitation of Liability.

6.1 Evrmrk warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Member’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Member’s use of the Licensed Material in accordance with this Agreement and in the form delivered by Evrmrk (i.e., excluding any modifications, Member overlays or re-focusing by Member), will not infringe on: (A) any copyright or moral right; or (B) except in respect of Licensed Material identified as “Editorial use only,” trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iv) except in respect of Licensed Material identified as “Editorial use only,” all necessary model and/or property releases for use of the Licensed Material authorized under this Agreement have been obtained. Member shall be responsible for payment of any amounts that may be due, and compliance with any other terms of, any applicable collective bargaining agreement(s) such as Screen Actors Guild in the US as a result of its use of the License Material. Member acknowledges that no releases are obtained for Licensed Material that is identified as “Editorial use only” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. For Licensed Material identified as “Editorial use only”, Evrmrk does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted therein. In such cases, you shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of the Licensed Material identified as “Editorial use only”, and shall be responsible for obtaining such release(s) or for failure to obtain any necessary release(s).

6.2 EVRMRK DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVRMRK SHALL NOT BE LIABLE TO MEMBER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF EVRMRK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF MEMBER OR PURCHASER MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. WITHOUT LIMITING ANY OTHER TERM HEREIN, EVRMRK SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY MEMBER OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A MEMBER WORK.

6.3 All websites of Evrmrk and its divisions and subsidiary companies as well as editorial feed(s) and similar electronically-delivered Evrmrk products will be provided by Evrmrk on an “as is” and “as available” basis. Member acknowledges that websites and products may be subject to temporary shutdowns from time to time for maintenance or due to causes beyond reasonable control and that Evrmrk shall not have any liability to Member by reason of such shutdowns. Under no circumstances shall Evrmrk or any party involved in creating, producing, or distributing such websites or products be liable for any damages whatsoever resulting from Member’s use or inability to use the same, including, but not limited to, the results from mistakes, omissions, interruptions, deletion of files or electronic mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access thereto.

7. Indemnification.

7.1 Member shall defend, indemnify and hold harmless Evrmrk and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys’ fees), arising out of or as a result of claims by third parties relating to Member’s use of any Licensed Material outside the scope of this Agreement or any other actual or alleged breach by Member of this Agreement.

7.2 Provided Licensed Material is only used in accordance with this Agreement and Member is not otherwise in breach of this Agreement or any payment obligations to Evrmrk and as Member’s sole and exclusive remedy for any breach of the representations and warranties set forth in Section 6.1(ii)-(iv) above Evrmrk shall, subject to the terms of Section 6.2 above, defend, indemnify and hold harmless Member and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from damages, liabilities and expenses (including reasonable outside attorney’s fees), arising out of or connected with any actual lawsuit or legal proceeding alleging that Evrmrk is in breach of its warranties set forth in Section 6.1(ii)-(iv) above. The total maximum aggregate liability of Evrmrk under this Agreement and any other agreement with Evrmrk pursuant to 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 and the obligation of Evrmrk under this Section shall be limited to an aggregate of ten thousand ($10,000) US dollars per item of Licensed Material. For greater clarity, Evrmrk’s liability to you in respect of the content shall not exceed ten thousand ($10,000) US dollars per item of Licensed Material regardless of the number of times that you license the same content from Evrmrk. The foregoing states Evrmrk’s entire indemnification obligation under this Agreement.

8. Condition of Licensed Material.Member should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to Section 6.1(i) above, Evrmrk shall not be liable for any loss or damage suffered by Member or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

9. Fees and Renewal.

9.1 Recurring Billing. By starting a paid Membership and providing or designating a Payment Method, you authorize us to charge you a monthly membership fee at the then current rate and/or established monthly fee, and any other charges you may incur in connection with your use of the Company services to your Payment Method. You acknowledge that the amount billed each month may vary from month to month for reasons that may include differing amounts due to promotional offers, including promotional code redemption, and/or changing a plan, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges. Member agrees to pay all fees and associated taxes incurred in connection with the Member’s membership account at the rate applicable when the fees and taxes were incurred. A membership may only be cancelled as specified in Section 12, and all membership fees and charges are nonrefundable except as in Section 12. Evrmrk may deactivate Member’s account without prior notice if Evrmrk is unable to process payment through the credit card provided by the Member.

IF MEMBER’S MEMBERSHIP IS SET TO AUTO RENEW, MEMBER UNDERSTANDS ITS MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND MEMBER AUTHORIZES EVRMRK (WITHOUT NOTICE TO MEMBER, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING THE CREDIT CARD EVRMRK HAS ON RECORD FOR MEMBER. THE MEMBERSHIP WILL CONTINUE UNLESS AND UNTIL THE MEMBERSHIP TERMINATES, MEMBER TERMINATES AUTO-RENEWAL AND/OR CANCELS ITS MEMBERSHIP IN ACCORDANCE WITH SECTION 12.

9.2 Price Changes. We reserve the right to adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms of Use, any price changes to your service will take effect following email notice to you.

9.3 Billing Cycle. The membership fee for our service will be billed at the beginning of the paying portion of your membership and each month thereafter unless and until you cancel your membership. We automatically bill your Payment Method each month on the calendar day corresponding to the commencement of your paying membership. Membership fees are fully earned upon payment. We reserve the right to change the timing of our billing, in particular, as indicated below, if your Payment Method has not successfully settled. In the event your paying membership began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Membership or become a paying member on January 31st, your next payment date is likely to be February 28th, and your Payment Method would be billed on that date. Your renewal date may change due to changes in your Membership. We may authorize your Payment Method in anticipation of membership or service-related charges. As used in these Terms of Use, “billing” shall indicate a charge, debit or other payment clearance, as applicable, against your Payment Method. Unless otherwise stated differently, month or monthly refers to your billing cycle.

9.4 Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, you will not continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our members (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.

9.5 Payment Methods. You may edit your Payment Method information by visiting “My Account on the Website. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not request changes to your Payment Method information or cancel your account (see, “Cancellation” below), you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Check with your Payment Method service provider for details.

10. Interest on Overdue Invoices.If Member fails to pay the Invoice in full within the time specified in the Invoice, Evrmrk may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.

11. Unauthorized Use and Termination.Any use of Licensed Material in a manner not expressly authorized by this Agreement (including, without limitation, access to the Evrmrk membership and use of Licensed Material by more than one (1) User per membership, constitutes copyright infringement, entitling Evrmrk to exercise all rights and remedies available to it under copyright laws around the world. Member shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Evrmrk’s other remedies under this Agreement, Evrmrk reserves the right to charge and Member agrees to pay a fee equal to greater of five (5) times Evrmrk’s standard license or seat fee for the unauthorized use of the Licensed Material. Evrmrk may charge Member and Member agrees to pay the single-image list price for each Licensed Material on Evrmrk that Member obtains through unauthorized or abusive use of its Evrmrk membership, including, without limitation, Licensed Material obtained through unauthorized sharing of usernames and passwords, unauthorized sharing of Licensed Material or failure to obtain the necessary number of memberships. Evrmrk reserves the right to terminate this Agreement in the event Member: (i) enters the Agreement after having received notice of unauthorized use from Evrmrk relating to the Licensed Material; (ii) fails to pay the License Fee in full within the time specified in the Invoice; or (iii) otherwise breaches the terms of this Agreement. Upon termination, Member must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Evrmrk, return to Evrmrk the Licensed Material and, in the case of termination by Evrmrk for cause, the Member Work in the possession or control of Member.

12. Term and Termination.

12.1 This Agreement shall continue in full force until the earlier to occur of a) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Membership), or b) Our choice to terminate Your access to the Membership, with or without notice (the “Term”). For purposes of clarity, You are entitled to terminate Your Membership at any time. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Membership or any other non-public portions of the Website. In addition to the foregoing, in the event that we determine, in our sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any Company policy in effect from time to time or otherwise failed to perform to the standards required, defined by these Terms, we shall be entitled, at our discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Membership, in each of the foregoing cases at any time and for any period of time. We shall not be responsible for the return of any User Contributions of any kind to You upon any termination of this Agreement or suspension of Your access to the Membership, including without limitation any information input into the Website by You.

12.2 Upgrade or Downgrade. Modifications to this Agreement, including upgrades and downgrades, are not permitted and will be treated as cancellation requests.

12.3 Membership Cancellation. You may cancel your Membership at any time. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH MEMBERSHIP PERIODS. Cancellation requests must be submitted in writing and emailed to sadface@evrmrk.com. Cancellation requests take 24-48 business hours to process. Following any cancellation, you will not continue to have access to the service through the end of your current billing period. This Agreement may be terminated by Us, at any time, in our sole discretion, upon any breach by You of this Agreement that remains uncured ten (10) days after We deliver written notice to You of such breach. If you signed up for Your Membership using your account with a third party as a Payment Method, and wish to cancel your membership at any time, including during your free trial, you may need to do so through such third party, including by visiting your account with the applicable third party and turning off auto-renew, or unsubscribing from, the our service through that third party.

12.4 Licensed Material after Cancellation. In the event of such cancellation, the Grant of Rights under Section 2 shall be revoked, and Member shall immediately delete and/or remove the Licensed Material from its premises, computer systems and storage (electronic or physical). Any use of Licensed Material acquired pursuant to a membership that has been cancelled shall constitute unauthorized use and shall be subject to the terms set forth in Section 11.

13. Miscellaneous Terms.

13.1 Audit/Certificate of Compliance. Upon reasonable notice, Member shall provide sample copies of Reproductions containing Licensed Material to Evrmrk. In addition, upon reasonable notice, Evrmrk may, at its discretion, either through its own employees or through a third party, audit Member’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by Member to Evrmrk of five percent (5%) or more of the amount Member should have paid for the time period that is the subject of the audit, in addition to paying Evrmrk the amount of such underpayment, Member shall also reimburse Evrmrk for the costs of conducting such audit. Where Evrmrk reasonably believes that Licensed Material is being used by more than the authorized number of Users, or that Licensed Material is being used outside of the scope of the license granted under this Agreement, Member shall, at Evrmrk’s request, provide a certificate of compliance signed by an officer of Member, in a form to be approved by Evrmrk.

13.2 Electronic Storage. For all Licensed Material that Member takes delivery of in electronic form, Member must retain the copyright symbol, the name of Evrmrk, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material. Member shall maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material.

13.3 Withdrawal. Evrmrk makes no representations or warranties that all Licensed Material and/or Licensed Material collections will be available for use during the Agreement Term. Evrmrk may discontinue licensing certain Licensed Material and/or Licensed Material collections in its sole discretion. Upon notice from Evrmrk, or upon Member’s knowledge that any Licensed Material is subject to a threatened, potential or actual claim of infringement of another’s right for which Evrmrk may be liable, Member must immediately and at its own expense (i) stop using the Licensed Material; (ii) delete or remove the Licensed Material from its premises, computer systems and storage (electronic or physical); and (iii) ensure that its clients do likewise. Evrmrk shall provide Member with comparable Licensed Material (which comparability will be determined by Evrmrk in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

13.4 Governing Law. All matters relating to the Website, the Company and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted newly in the federal courts of the United States or the courts of the State of Colorado in each case located in the State of Colorado, City of Denver and County of Denver. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

13.5 Severability. If one or more of the 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 revised only to the extent necessary to make them enforceable.

13.6 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

13.7 Entire Agreement. This Agreement is intended for business customers of Evrmrk and contains all the terms of the license agreement. No terms or conditions may be added or deleted unless made in writing and either signed by an authorized representative of Evrmrk or issued electronically by Evrmrk and signed by its authorized representative. Notwithstanding the foregoing, Evrmrk reserves the right to change any of the terms of this Agreement at any time, and you agree to be bound by such changes. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Member, the terms of this Agreement shall govern.

13.8 Taxes. All Membership Fees are exclusive of any applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Member or Purchaser (if any).