Terms and Conditions - The Butchart Gardens

Images and Simple Trademark Use Terms and "Conditions".

The Butchart Gardens Ltd. ("The Gardens") is pleased to offer you, on the terms and conditions hereinafter set out, a selection of Photographic Images and use of a simple trade mark, limited to the English words "The Butchart Gardens” (the "Butchart Materials"), for use in articles or commentary published in print or electronic media and/or promotional material promoting visits to the Butchart  Gardens (the "Permitted Uses") at no cost to the User.  Please note that use of The Gardens’ graphical logo is not authorized by this agreement and requires approval in a separate Graphical Trademark Agreement.             

IMPORTANT NOTICE

This Notice and the TERMS and CONDITIONS below (together, this "Agreement") govern the use of the Butchart Materials made available by The Butchart Gardens by whatever means, including any website, FTP site, or by delivery of the Materials to you.

You may not use the Butchart Materials unless you agree to be bound by this Agreement.

If you are using any Butchart Materials on behalf of your employer or any other person, corporation or entity that you represent (your "Represented Party"), agreement to be bound by this Agreement is binding on both you and your Represented Party, and you represent and warrant to The Butchart Gardens Ltd. that you have the power and authority to bind your Represented Party to this Agreement. If you do not have the power and authority to bind your Represented Party, you must have someone with the requisite power and authority agree to be bound by the Agreement by completing, signing and returning the Acknowledgement before you can use any Butchart Materials.

LICENCE TERMS AND CONDITIONS

  1. Butchart Materials.You acknowledge and agree that, as between The Gardens and you, The Gardens is the exclusive owner of the Butchart Materials, including all copyright in the Butchart Materials. You will not use any Butchart Materials except as expressly permitted by this Agreement.

 

  1. Credit:You agree to identify the images used and credit them as "Courtesy of the Butchart Gardens Ltd., Victoria, BC Canada" whenever possible.

 

  1. Manner of Use: You may use the Photographic Images within your articles and commentary alone or in combination with other tourism-related images provided that The Butchart Gardens Photographic images are clearly identified as stated in Paragraph 2. Your right to use the Butchart  Materials includes the right to reproduce (tangibly or electronically), print, publish, distribute and communicate to the public by telecommunication and broadcast for the permitted purposes set out in this Agreement.

 

  1. Resolution of Use Dispute: In the event of any dispute about whether a particular use of any Butchart Materials is for a purpose permitted by the Agreement, the decision of The Gardens will be final and binding on you, and you will not use any Butchart  Materials in any manner that The Gardens determines to be a use that is not permitted by the Agreement purpose.

 

  1. Your Obligations: You are responsible to ensure that your use of any Butchart  Materials complies with all laws applicable in jurisdictions in which you will use those Butchart  Materials and does not infringe or violate the intellectual property, privacy or other rights of any person. You will not use any Butchart Materials in any way that is deceptive, misleading, defamatory or discriminatory or that may discredit or reflect negatively on Butchart or their respective directors, officers, employees, representatives and agents.

 

  1. Personal Licence: The license granted to you under this Agreement is solely for your benefit and the benefit of your Represented Party, and you may not transfer, assign or sublicense this Agreement, the license or any Butchart  Materials to any other person without the prior written authorization of The Gardens. You may engage others to assist you in exercising your rights under the license granted to you under this Agreement, but you are responsible to ensure that they comply with the terms of this Agreement, and you are responsible and liable to Butchart if they fail to do so.

 

  1. Alteration Not Permitted: Any change, alteration or manipulation, by computer or otherwise, of the Photographic images is not permitted. 

 

  1. Use of "The Butchart Gardens": You agree not to use the English words "The Butchart Gardens" (the simple trademark) in a manner that would imply affiliation or endorsement of your business. The "Butchart Gardens" may be used to describe images as noted above or to describe the destination of 800 Benvenuto Avenue, Brentwood Bay, British Columbia.

 

  1. Termination. If you use any Butchart Materials other than as permitted by this Agreement, or if you commit any other default under this Agreement, The Gardens  may terminate your license to use all Butchart Materials effective immediately upon notice to you. Upon termination of your license to use any Butchart Materials, you will cease all use of all Butchart Materials, remove all Butchart Materials from all of your systems, storage devices, and return to The Gardens or destroy all Butchart  Materials in your possession. If requested by The Gardens, you will provide written certification of your compliance with this section.

 

  1. Limitations and Exclusions.
  2. The Gardens makes the Butchart Materials available free of charge and therefore makes no representations, warranties, covenants or conditions with respect to the Butchart  Materials, all of which are disclaimed to the fullest extent permitted by law.

 

  1. You assume all risk and liability relating to your use of the Butchart Materials, including risk and liability that may result from, or be caused by your combination of the Butchart Material into your material or any modifications to the Butchart Materials.

 

  1. If The Gardens determines, in its sole discretion, that the Butchart Material infringes the intellectual property rights of any person, then The Gardens will require you to discontinue use of the Butchart Material and will replace the Butchart  Material with material that is similar in nature.

 

  1. If any person makes any claim against The Gardens arising out of your use of any Butchart Materials, your breach of this Agreement or any ac t or omission of you or anyone for whom you are in law responsible, you will defend The Gardens against that claim and indemnify The Gardens  against all liabilities, obligations and costs arising out of or relating to that claim.

 

  1. You agree that if, notwithstanding the foregoing provisions, The Gardens ever has any liability or obligation to you in respect of any matter referred to in this section, The Gardens’ maximum liability is limited to CAN $10.00.

 

  1. In this section all references to The Gardens include The Gardens and its affiliates and their respective directors, officers, employees, representatives, agents and any other person for whom The Gardens or any of its affiliates may be responsible in law.

 

  1. You agree that this section contains a fair and reasonable allocation of liability and risk as between you and The Gardens.

 

  1. Enurement and Assignment: The provisions of this Agreement will enure to the benefit of and be binding upon The Gardens and its successors, assigns and related persons, and you and your heirs, executors, administrators, successors, permitted assigns and personal representatives, and all persons you represent and their respective successors, assigns and related persons. The Gardens may assign this Agreement and its rights and obligations under this Agreement without your consent or the consent of any persons you represent. You may not, by operation of law or otherwise, assign, transfer, delegate, sub license or grant all or any part of this Agreement or your entitlements, rights, duties or obligations under this Agreement to any other person.

 

  1. No Waiver: No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by both parties.

 

  1. Remedies:Except as specifically provided herein, the specific rights and remedies of either party under this Agreement are cumulative and not exclusive of any other rights or remedies to which either party may be lawfully entitled under this Agreement or at law or equity, and the parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.

 

  1. Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.

 

  1. Governing Law: This Agreement and all related matters will be governed by, and construed in accordance with, the laws of British Columbia, Canada and the laws of Canada applicable in British Columbia, which law is the proper law of this Agreement.

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  1. Dispute Resolution. All disputes between the parties arising from, connected with, or relating to the Butchart Materials or this Agreement (the "Disputes") will be determined by the courts of British Columbia, Canada sitting in the City of Victoria, British Columbia, Canada, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those courts in respect of all Disputes.

 

  1. Complete Agreement: This Agreement sets forth the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement.

 

  1. Interpretation. In this Agreement: (a) a reference to "this Agreement" and other similar terms refers to this Agreement as a whole, and not just to the particular provision in which those words appear; (b) headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) words importing persons include individuals, partnerships associations, trusts, unincorporated organizations, societies, and corporations; (d) words importing the singular number include the plural and vice versa; and (e) words importing any gender include all genders.

 

  1. Language. The parties have expressly requested and required that this Agreement be drawn up in the English language.