Last updated on March 23, 2010
1. Acceptance of Terms
CrashedToys, Inc. and its subsidiaries and affiliates (“CrashedToys”) is the owner of certain rights to certain Licensed Materials, as such terms are hereinafter defined and CrashedToys wishes to grant to each registered CrashedToys member in good standing (“Licensee”) a license to use the Licensed Materials in accordance with terms of this Image and Data License Agreement (“Agreement”), which may be updated by us from time to time without notice to you. In addition, when using particular CrashedToys services, you shall be subject to any posted guidelines, rules, Member Terms and Conditions, CrashedToys Website Terms of Service and/or policies and procedures applicable to such services, which may be posted from time to time. All such items are hereby incorporated by reference into this Agreement. CrashedToys’s Member Terms and Conditions can be viewed by clicking here. CrashedToys’s Website Terms of Service can be viewed by clicking here.
2. Definitions
2.1 The term “CrashedToys’s Website” shall mean the internet site at www.CrashedToys.com.
2.2 The term “CrashedToys Vehicles” shall mean all items posted for sale on CrashedToys’s Website (including but not limited to cars, trucks, motorcycles, boats, jet skis, industrial equipment, homeowners salvage, trailers, RV’s, and any other items).
2.3 The term “Licensed Materials” shall mean:
2.3.1 The “Photographs,” which shall mean digital images of CrashedToys Vehicles posted for sale on CrashedToys’s Website; and
2.3.2 The “Data,” which shall mean written information regarding CrashedToys Vehicles posted for sale on CrashedToys’s Website.
3. License Grant
3.1 CrashedToys does hereby grant to Licensee a limited, non-exclusive, revocable license to use the Licensed Materials on Licensee’s website.
3.2 The license granted shall not include the right to grant sublicenses. The license shall be specifically limited to the following uses (“Permitted Uses”):
3.2.1 The right to download the Licensed Materials from CrashedToys’s Website and display the Licensed Materials on Licensee’s website for the purpose of marketing the purchase, brokering, import/export, and/or transportation of CrashedToys Vehicles in the condition shown in the Photographs; and
3.2.2 The right to email downloaded Licensed Materials for specific CrashedToys Vehicles to Licensee’s customers where requested by a customer of Licensee for the purpose of marketing the purchase, brokering, import/export, and/or transportation of CrashedToys Vehicles in the condition shown in the Photographs.
3.3 Notwithstanding the foregoing, the license granted in Section 3.2 shall not include the right to download, upload or transmit any trademarks, service marks, trade names, domain names, trade dress, designs, graphics, colors and other indicia, including website designs, used or intended to be used in connection with CrashedToys’s business. The appearance of CrashedToys marks or other indicia used or intended to be used in connection with CrashedToys’s business in Photographs or Data does not imply any rights thereto; the license granted is strictly limited to the rights expressly provided herein.
3.4 Licensee shall take all reasonable steps necessary to prevent the reproduction and/or further transmission of the Licensed Materials by third parties.
3.5 Except as otherwise provided herein, Licensee shall not enable or cause any third party to use the Licensed Materials.
3.6 Licensee shall download the Data from CrashedToys’s Website solely by downloading the Sales Data .csv file available to Licensee on CrashedToys’s Website through “Get New CSV Sales Data”. Photographs may only be downloaded by following the directions set forth in Subsections
3.6.1 and 3.6.2 below. Licensee shall not use data scraping, page spidering, web crawling, data extraction, web scraping, page scraping, web page wrapping, HTML scraping, or any other method to obtain the Licensed Materials for a Permitted Use.
3.6.1 CrashedToys uses a standard naming convention for the Photographs. There are typically ten (10) large Photographs, and ten (10) thumbnail Photographs for each item offered at CrashedToys. Large Photographs end in _AX, _1X, _2X, …_9X; thumbnails end in _A, _1, _2, …_9.
3.6.2 Links to any Photographs may be embedded in Licensee’s website for a Permitted Use using the following process:
a) Take the Photograph link provided for the desired vehicle from the .csv file downloaded from CrashedToys’s Website and strip off all characters starting with the underscore (_) to the end. (Example: images.CrashedToys.com/website/data/pix/20061226/05292538);
b) Copy this link, appending _A, _1, …_9, and then _AX, _1X, …_9X. (Example: images.CrashedToys.com/website/data/pix/20061226/05292538_1 and images.CrashedToys.com/website/data/pix/20061226/05292538_1X). This will enable Licensee to embed any or all of the large and/or thumbnail Photographs into Licensee’s website.
4. Termination
4.1 CrashedToys shall have the right to immediately terminate the license granted herein and/or this Agreement, in its sole and absolute discretion, at any time, upon notice to Licensee. In no event shall CrashedToys be deemed to have any obligation to make available the Photographs and/or Data to Licensee or otherwise. The license granted herein shall automatically and immediately terminate, without notice, upon failure of Licensee to maintain good standing as a registered CrashedToys member.
4.2 Termination of the license granted herein and/or this Agreement, for any reason, shall be without prejudice to any rights CrashedToys may have against Licensee, which may have accrued before the date of such termination.
4.3 Upon termination of the license granted herein and/or this Agreement, Licensee shall immediately discontinue use of the Licensed Materials, and shall destroy any copies of thereof. Any use by Licensee of the Licensed Materials following such termination shall constitute an intentional and willful infringement of CrashedToys’s intellectual property rights.
5. Quality Control
Licensee shall undertake to ensure that any and all data contained within Licensee’s website(s): (i) does not infringe upon the copyright, trademark, design, patent or other intellectual property rights of any third party; (ii) does not contain material which is obscene, offensive, upsetting, defamatory, personally offensive, or in violation of any third party’s privacy or publicity rights or in any way unsuitable for the purposes and intended uses of the website, and (iii) does not compromise and cannot be used for any purpose or activity of an illegal, fraudulent, or defamatory nature.
6. Acknowledgement of Ownership
6.1 Licensee recognizes and acknowledges that CrashedToys is the owner of the Licensed Materials. Licensee agrees not to challenge the validity of or CrashedToys’s title to the Licensed Materials, and not to oppose, petition to cancel or otherwise challenge any applications filed or registrations, patents, grants or other rights received in respect of such Licensed Materials.
6.2 All rights created by or arising from use of the Licensed Materials by Licensee shall be and remain the sole and exclusive property of CrashedToys, and Licensee does hereby waive and renounce any and all claims to such rights.
6.3 Licensee shall not attempt to register or claim rights in the Licensed Materials, including domain names, alone or as part of its own marks or URLs, in the United States or in jurisdictions foreign thereto.
6.4 Licensee expressly agrees not to use CrashedToys’s marks or logos, and further expressly agrees not to use CrashedToys’s name in any domain name Licensee applies for or registers.
7. Representations and Warranties
7.1 Licensee acknowledges, understands, represents and warrants that: (i) it is in possession of the full right, power and authority to enter into this Agreement; (ii) all activities conducted by Licensee and its employees, officers, directors, agents, affiliates, contractors and the like, shall be in full compliance with this Agreement and shall not violate any laws, rules, regulations, policies, requirements, third-party rights and the like of such parties or federal, state, local or other governmental, administrative or judicial authorities; (iii) it is the owner of Licensee’s website(s); and (iv) that its contact information on file with CrashedToys is accurate and up-to-date.
7.2 Notwithstanding any other provision hereof, CrashedToys MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, expressed or implied, by operation of law, or otherwise, including, but not limited to:
ANY WARRANTIES OR REPRESENTATIONS OF: (i) merchantability; (ii) fitness for a particular purpose; (iii) quality, operation or performance; (iv) suitability for customers; or (v) non-infringement of the rights of third parties, including, but not limited to, any trademark or other intellectual property rights; WITH RESPECT TO: (a) the Licensed Materials; (b) the use of the Licensed Materials by Licensee, CrashedToys or others; (c) CrashedToys Vehicles, or (d) other products, services, equipment, information, tangible or intangible property, or activities used, developed, provided or performed by Licensee, CrashedToys or third parties, unless otherwise agreed upon in writing by CrashedToys.
8. Indemnification and Hold Harmless
8.1 CrashedToys and its officers, directors, employees, agents, attorneys, subsidiaries, and affiliates. (“CrashedToys Indemnities”) shall have no obligation to indemnify or hold Licensee harmless from and against, and shall not be responsible or liable for, any claims, demands, liabilities, damages, losses, costs, expenses, counsel fees and settlements (“Claims”), with respect to any action, inaction or activities by Licensee, CrashedToys Indemnities, and/or one or more third parties concerning, either directly or indirectly, the subject matter of this Agreement.
8.2 Licensee shall be solely responsible and liable for, with no liability or responsibility on the part of CrashedToys Indemnities or any third party engaged by CrashedToys Indemnities, and shall indemnify, defend and hold CrashedToys Indemnities harmless from and against any and all Claims, which CrashedToys Indemnities may sustain: (i) arising from Licensee’s use, publication and/or transmission of the Licensed Materials and/or the sale or brokering of CrashedToys Vehicles by or through Licensee and/or its affiliates and end-users; (ii) resulting from any inaccurate representations or warranties of Licensee made in this Agreement; (iii) resulting from any breach or default in the performance or observance of any of the covenants or obligations of Licensee hereunder; and (iv) arising from any of Licensee’s obligations or liabilities. Licensee’s obligations under this Section shall survive termination of this Agreement.
9. Enforcement and Protection
Licensee shall immediately notify CrashedToys of any unauthorized use or misuse of the Licensed Materials. Licensee shall provide CrashedToys with written notice of any claim of infringement, misuse or the like commenced or threatened to be commenced against Licensee with respect to the Licensed Materials.]
10. Miscellaneous
10.1 Relationship of the Parties. Nothing in this Agreement shall be construed to place the parties in the relationship of partners, joint venturers or franchisor/franchisee. Licensee shall not have the power to obligate or bind CrashedToys. Licensee shall neither state nor imply, either directly or indirectly, that Licensee, or its activities, other than pursuant to exercise of the license granted herein, are supported, endorsed or sponsored by CrashedToys and, upon request by CrashedToys, shall issue express disclaimers to such effect. Licensee shall place an express disclaimer at bottom of Licensee’s website(s) stating Licensee is not affiliated with or endorsed by CrashedToys, Inc.
10.2 Applicable Law; Venue. This Agreement shall be construed in accordance with and governed exclusively by the laws of the State of California applicable to agreements made among California residents and to be performed wholly within such jurisdiction, regardless of such parties’ actual domiciles. Both parties submit to personal jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought and litigated exclusively in a federal or state court located in California. In the event of any action between the parties to enforce this Agreement, the unsuccessful party shall pay to the other party all costs and expenses, including reasonable attorneys’ fees, incurred by such other party.
10.3 Assignment and Novation. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective officers, directors, representatives, agents, employees, affiliates, successors, assigns, personal and legal representatives and heirs; provided, however, that this Agreement is personal to Licensee, whereby Licensee shall not assign or otherwise transfer this Agreement or any portion thereof to any third party without the prior written consent of CrashedToys. This Agreement shall be binding upon Licensee in the event CrashedToys merges or consolidates in any fashion or is sold to any third party. Such third party shall have the same rights as CrashedToys hereunder. Further, CrashedToys may assign, hypothecate, pledge or use this Agreement as collateral in any fashion.
10.4 Integration. This Agreement supercedes and cancels any and all previous agreements and understandings between the parties pertaining to the subject matter hereof, and this instrument comprises the complete and final expression of the rights, obligations, duties and undertakings of the parties and sets forth all consideration, covenants, undertakings and inducements pertaining hereto.
10.5 Waiver. The failure of CrashedToys to exercise or enforce any term, covenant or condition of this Agreement shall in no event be deemed to be a waiver of any term, covenant or condition of this Agreement, or any subsequent waiver of the same term, covenant or condition. CrashedToys shall have the right to declare a default or breach under this Agreement regardless of the number of times it has not declared such default or breach although entitled to do so.
10.6 Severability. In the event that any portion of this Agreement shall, for any reason, be held invalid or unenforceable, it is agreed that the same shall not affect any other portion of this Agreement and that remaining portions shall remain in full force and effect, and that if the invalidity or unenforceability is due to the unreasonableness of any provision(s) of this Agreement, the provision(s) shall nevertheless be effective as may be determined to be reasonable by a court of competent jurisdiction.
