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Eyekons Gallery | Stock Image Bank License Agreement
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Eyekons Stock Image Bank License Agreement
 
This section contains the license agreement for Eyekons.com ("Eyekons") images.
If you have questions about the Stock Image Bank License Agreement or would like to know more about how to license and purchase images, please contact us at amy@eyekons.com or 616-235-2929.
 
Licensing Overview
Here are some examples of image uses for which you will need an image license:
   -  Website, online and multimedia designs
   -  Advertising and promotional campaigns, presentations and brochures
   -  Book covers, jackets and interior pages
   -  Packaging for software, music albums, CDs, cassettes and videotapes
   -  Calendars, greeting cards and posters
   -  Trade show displays, billboards and exhibits
   -  Products for resale in any quantity
 
Images are not licensed for use in a downloadable or FTP format.
 
Pornographic use, use that would be defamatory or libelous absent the consent of the model, or use that is otherwise unlawful is prohibited.  If an image featuring a person is used in a manner that implies endorsement, use of, or a connection to a product or service by that model, or a potentially unflattering or controversial subject, you must print a statement along with the image, which indicates that the person is a model and is used for illustrative purposes only.
 
Here is a brief overview of the two kinds of license agreements that we offer.
 
Rights-Managed License
A Rights-Managed License shall be limited to the purpose specified by you at the time that you purchase the license.  Any use of an image beyond such specified purpose will require you to obtain an additional license for such use. Rights-managed images are licensed by calculating several factors, including size, placement, duration of use and geographic distribution of the image(s). 
 
Royalty-Free License
A Royalty-Free License contains only a limitation upon the size of the image(s) that can be used, with no limitations upon the placement, duration of use or geographic location.  Royalty-free images can be used for multiple projects across a broad range of media over an unlimited period of time, but also require that you agree to the terms of the License Agreement. 
 
I.  Rights-Managed License Agreement
When you purchase a "rights-managed" license for an image from our collection, the invoice associated with the purchase will describe the exact scope of the permitted use of the image, and will be accompanied by and subject to the following terms and conditions. 
 
A.  ESSENTIAL INFORMATION - PLEASE READ
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. YOUR PURCHASE OR USE OF THIS PRODUCT SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
 
THIS IS A LEGAL AGREEMENTBETWEEN YOU ("LICENSEE") AND EYEKONS.COM ("LICENSOR").  BY CHECKING THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES' AND CLICKING THE 'COMPLETE PURCHASE' BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE IMAGES USAGE SPECIFICATIONS SET FORTH HEREIN.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES'.  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 IMAGES.  THEREFORE, CERTAIN TERMS MAY BE INAPPLICABLE, DEPENDING UPON THE MANNER IN WHICH YOU ARE PURCHASING THE IMAGES.  IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT YOUR LOCAL SALES REPRESENTATIVE.
 
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, THE LICENSE GRANTED AND RESTRICTIONS AND LIMITATIONS RECITED HEREIN APPLY TO YOUR EMPLOYER AND TO YOU AS A REPRESENTATIVE OF YOUR EMPLOYER.
 
B.  Definitions
In this Agreement the following definitions apply:
 
1.  "Images" means any illustration, photograph or fine art piece generated optically, electronically, digitally or by any other means, including any negatives, transparencies, prints, original digital files or any reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by Licensor under the terms of this Agreement.
 
2.  "Invoice" means the computer-generated or pre-printed invoice provided by Licensor that sets forth, without limitation, the specific party contracting as Licensor, the specific areas of use for the Images selected, grants Licensee the Reproduction rights chosen, sets forth limitations on the license (if any) and states the corresponding price(s) for the license of such Images.  The invoice shall be made a part of this Agreement and shall be incorporated by reference in its entirety, and together with this Agreement and Licensor's Site Usage Agreement shall constitute the entire agreement between Licensor and Licensee regarding the Images.  All references to this Agreement shall include the Invoice.
 
3.  "Reproduction" and "Reproduce" include any form of copying or publication of the whole or a part of any Images, whether by printing, photography, photocopying, slide projection (whether or not to an audience), layout or presentation, use in a production process, electronic, digital or mechanical means, use as a reference by an artist or in an artist's illustration or by any other means.  Reproduction further includes the distortion or manipulation of the whole or a part of the Images (for example, by computer, electronically, digitally by an artist or by any other means), even though the resulting Images may not appear to a reasonable person to be derived from the original Images.  Reproduction also includes distribution in whole or in part of any Images via television, cable, and telecommunications network or internet transmission.
 
C.  Grant of Rights
1.  Unless stated otherwise in the Invoice, Licensor grants to Licensee a non-exclusive, non-sublicensable, non-transferable and non-assignable right to use and Reproduce the Images identified in the Invoice to the extent explicitly stated in the Invoice.  Licensor further grants to Licensee the right to have the Images Reproduced, solely to the extent explicitly stated in the Invoice, by subcontractors of Licensee, provided that such subcontractors agree to abide by the restrictions of this Agreement. 
 
2.  The Images is strictly limited to the use, medium, period of time, print run, placement, size of image, territory, and any other restrictions specified in the Invoice.  Licensor grants Licensee the right to utilize the Images in the sales and production process in a manner that may be necessary for the intended use specified on the Invoice.  The terms specified in the Invoice, or in this Agreement, shall not be modified without the express written consent of Licensor, and any attempt to modify this Agreement without such express written consent, or any attempted deviation from the terms thereof of this Agreement, shall nullify Licensor's indemnity obligations, and the representations and warranties made by Licensor hereunder.  Fees assessed for Licensee's use of the Images depend on the nature of the rights granted.  Licensee shall not undertake any expanded use of the Images without the prior approval of Licensor and the payment of any additional license fee required by Licensor for such expanded use.  Licensee shall promptly notify Licensor of any expanded use of the Images for which Licensee has not received Licensor's prior approval, and shall pay to Licensor any additional license fee required by Licensor for such expanded use.  The rights and remedies of Licensor hereunder shall be in addition to, and not in lieu of, any other rights or remedies that Licensor may have at law or in equity.
 
3.  To Licensor's knowledge, the Images does not infringe upon the intellectual property rights of another person or entity.  Beyond this limited representation Licensor makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Images.
 
4.  Use of Images in a manner not expressly authorized by the Invoice and this Agreement  LISTNUM  NumberDefault \l 5  (a) may constitute an infringement of the proprietary rights of Licensor or a third party and  LISTNUM  NumberDefault \l 5  (b) may result in Licensee incurring or being responsible for any damages resulting from any such use, including any damages resulting from any claims for infringement of the intellectual property or proprietary rights of Licensor or a third party.
 
5.  If any Images featuring a model is used in an authorized manner that implies endorsement of, use of, or a connection to a product or service by that model or a potentially unflattering or controversial subject, Licensee must accompany each such use with a statement that indicates that the person is a model and is used for illustrative purposes only.  Licensor's grant of rights regarding use of Images on or in a product does not grant Licensee the right to use that Images in any manner, directly or indirectly (such as, without limitation, in any image or illustration of such product) in the advertising of such product unless that right is also specifically granted.
 
6.  While Licensor makes efforts to correctly caption the subject matter of the Images, Licensor does not warrant that such information is accurate.
 
7.  Pornographic, defamatory, libelous or otherwise unlawful use of Images is strictly prohibited whether directly or in context or juxtaposition with specific subject matter.
 
 
II.  Royalty-Free License Agreement
When you purchase a "royalty-free" license for an image from our collection, the invoice associated with the purchase (the "Invoice") will be accompanied by and subject to the following terms and conditions.
 
A.  ESSENTIAL INFORMATION-PLEASE READ
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. YOUR PURCHASE OR USE OF THIS PRODUCT SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
 
THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND EYEKONS.COM ("LICENSOR").  BY CHECKING THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES' AND CLICKING THE 'COMPLETE PURCHASE' BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE IMAGES USAGE SPECIFICATIONS SET FORTH HEREIN.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX NEXT TO 'I ACCEPT THE LICENSE(S) FOR THE ABOVE IMAGES'.  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 IMAGES.  THEREFORE, CERTAIN TERMS MAY BE INAPPLICABLE, DEPENDING UPON THE MANNER IN WHICH YOU ARE PURCHASING THE IMAGES.  IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT YOUR LOCAL SALES REPRESENTATIVE.
 
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, THE LICENSE GRANTED AND RESTRICTIONS AND LIMITATIONS RECITED HEREIN APPLY TO YOUR EMPLOYER AND TO YOU AS A REPRESENTATIVE OF YOUR EMPLOYER.
 
B.  Grant of Rights
 
1.  Geographic Limits
This License Agreement governs Licensee's use of Licensor's Royalty Free Image(s) ("the Image(s)"), provided by Licensor.  Licensor licenses to Licensee the use of the Image(s) only as provided below in the United States and other approved countries on a non-exclusive and non-transferable basis.  All other rights to the Image(s) and accompanying materials (if applicable), including without limitation, copyright and all other rights, are retained by Licensor.
 
2.  Number of Users
THIS IS A TEN (10) PERSON MULTI-LICENSE AGREEMENT.  You and nine (9) other designated people are permitted to use the Image(s). THIS IS NOT A SIMULTANEOUS USE LICENSE. Licensee may not allow more than ten designated people, whether employees or contractors, access to or use of the Image(s), even if only ten people are using the Image(s) at the same time. Licensee may not use the Image(s) on a server or create any other image library that permits access to more than ten designated people.  Additional Seat Licenses are available for more than the ten permitted users.  To obtain additional seat licenses please call Eyekons at 616-235-2929.
 
3.  Permitted Uses:  Licensee may:
 
(a)  Back up, copy, or archive the Image(s) as necessary for internal use, and only as necessary for that use. Any copy or archive you make must include the Images copyright information.
 
(b)  Use the Image(s) in any electronic or print media, including advertising and editorial use, and consumer merchandise.
 
(c)  Use the Image(s) for any items for resale, including book covers and consumer merchandise, provided these products are not intended to allow the re-distribution or re-use of the Image(s).
 
(d)  Modify or alter the Image(s) as necessary for your use, as allowed for elsewhere in these terms and conditions, provided that the rights to any derivative work shall belong to Licensor. You may use such derivative work only as permitted in accordance with these terms and conditions. All copyrights with respect to such derivative work are assigned to Licensor, which assignment the parties hereby agree is valid under the U.S. Copyright Law. If requested by Licensor, Licensee agrees to execute a written assignment of any such copyrights with respect to such derivative work.
 
(e)  In the normal course of workflow, convey to a third party (such as a printer) temporary copies of the Image(s) that are integral to your work product and without which the product could not be completed.
 
4.  Prohibited Uses:  Licensee may not:
 
(a)  Transfer the rights to the Image(s) or accompanying materials (if applicable), except as specifically provided for elsewhere in this Agreement. All other rights are reserved by Licensor.
 
(b)  Reverse engineer, decompile, or disassemble any part of the Image(s) or accompanying materials (if applicable), subject to applicable law.
 
(c)  Remove any copyright or trademark from any place where it appears on the Image(s) or its accompanying materials.
 
(d)  USE THE IMAGE(S) IN ANY WAY THAT COULD BE CONSIDERED DEFAMATORY, LIBELOUS, PORNOGRAPHIC, OBSCENE, IMMORAL, OR FRAUDULENT.
 
(e)  Display the Image(s) in any digital format or for any digital use at a resolution greater than 640x480 pixels, except in editorial or preliminary design work. Doing so will be viewed as an attempt to distribute the Image(s) in violation of this Agreement. We are specifying this so that no one can steal the Image(s) from you, even if that was not your intention.
 
(f)  Use the Image(s) or any part of it as part of a trademark, service mark, or logo. Licensor retains the full rights to the Image(s), and therefore you cannot establish your own rights over any part of it.
 
(g)  Re-sell, distribute, or sub-license the Image(s), CD-ROM (if applicable), or the rights to use the Image(s) to anyone for any purpose, except as specifically provided for elsewhere in this agreement. Licensor is in the business of licensing images to its customers. It is the specific intent of this provision to prohibit a purchaser or licensee of Eyekons' images from using the Image(s) to enter, either directly or indirectly, a similar or competing business. It is also prohibited to use the Image(s) in a product whereby the purchaser or licensee of that product can then use the Image(s) for its own purposes.
 
All Licensed Images:
 
C.  Copyright
No ownership or copyright in any Images shall pass to Licensee by the issuance of the License contained in this Agreement.  Except as expressly set forth in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Images.  Licensee shall provide applicable copyright notice and/or protection.  Upon demand, Licensee shall immediately assign to Licensor (or Licensor's designee) any copyright of or to the Images arising out of the publication of the Images.  No copyright information shall be removed from any digital file.
 
Copyright information must appear with the image in print, digital media, on websites or any other use. The copyright information is embedded in the image and can be accessed under File Info. No copyright information shall be removed from any digital file. The following credit line must appear adjacent to any licensed Image that is used in print, digital media, online, or any other use:
Image Title   © Year   Artist Name  |  Eyekons
 
Unless otherwise agreed in writing, if any Images reproduced by Licensee for any of these purposes (i.e., for any non-promotional purpose) omits the credit line specified in this paragraph, or any other credit line specified by Licensor, an additional fee equal to twenty percent (20%) of the original amount invoiced shall be payable by Licensee at Licensor's discretion.  The foregoing fee shall be in addition to, and not in lieu of, any other rights or remedies that Licensor may have at law or in equity.
 
D.  Warranty and Limitation of Liability
THE REPRESENTATIONS AND WARRANTIES OF LICENSOR MADE HEREIN WILL HAVE NO FORCE OR EFFECT IF THE IMAGES ARE USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
 
1.  Licensor warrants to Licensee that the digital or analog copy of the Images in the form downloaded by Licensee or delivered by Licensor by any means to Licensee will be free from defects in material and workmanship (not including "artifacts" or other flaws inherent in prints of the particular vintage) for 30 days from the date of delivery.  The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the digital or analog copy of the Images or refund of the fee paid by Licensee, at Licensors' option.
 
2.  Licensor represents and warrants to Licensee that to Licensor's knowledge:
 
(a)  It has all necessary rights and authority to enter into and perform this Agreement in accordance with its terms, including, but not limited to, the right and authority to license the use of any Images as expressly set forth in the Invoice, including the rights to license the copyrights in and to the Images on the terms and conditions set forth in this Agreement; and
 
(b)  the rights granted hereunder do not infringe on any copyrights to the Images or moral rights of any person or entity.
 
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION III, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL LOST PROFITS OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT, THE INVOICE OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
 
E.  Indemnification
1.  If Licensor is required to commence or threaten legal proceedings against Licensee to enforce any of the terms and conditions of this Agreement, whether a lawsuit is filed or not, Licensee shall indemnify and hold harmless Licensor and its affiliates, and Licensor's and its affiliates' officers, directors, owners, managers, employees, agents, successors or assigns (the "Indemnified Parties") for the reasonable legal fees and costs incurred by any of the Indemnified Parties.
 
2.  Where Licensor has used the Images in a way which is defamatory or inconsistent with the terms of this Agreement in any manner or context, Licensee shall defend, indemnify and hold the Indemnified Parties harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of such Images by Licensee results in an invasion or infringement of the proprietary rights of any third party, including, but not limited to, any of the following:
 
-  Invasion or infringement of the right of privacy or publicity, including but not limited to, the torts of intrusion into one's private affairs, public disclosure of private facts, false light, misappropriation of the name or likeness arising as prescribed by applicable law;
 
-  Copyright infringement; and
 
-  Product disparagement, trade libel, dilution or infringement of title, slogan or trademark, trade name, service mark or service name as prescribed by applicable law.
 
F.  Parties' Obligation
Upon notice from Licensor, or upon Licensee's knowledge, that any Images is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, or if Licensor retires any Images for any reason, Licensee will physically remove the Images from its network, if possible, and cease any future use at its own expense.  Licensor shall provide Licensee with comparable Images (which comparability will be determined by Licensor in its reasonable commercial judgment) free of additional charge, but subject to the other terms and conditions of this Agreement.
 
Licensor's indemnification obligation shall continue for use of any Images that occurred prior to the date on which Licensor notified Licensee of, or Licensee became aware of, any threatened or actual claim involving the Images.
 
G.  Electronic Storage
For all Images that Licensee takes delivery of via download, Licensee must provide the copyright symbol, the name of Licensor and the Images identification number as part of the electronic file.  In addition, Licensee may only use a single copy of the Images on a single computer.  Licensee may only download the Images onto one (1) computer hard drive or other computer medium and may not otherwise make, use or distribute copies of the Images for any purpose except as otherwise provided in this Agreement and the Invoice.  Notwithstanding the foregoing, Licensee shall be allowed to make one (1) backup copy for security reasons only.  Licensee may not use the Images on any image storage jukebox, network configuration or similar computer network arrangement.  Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Images from its computer or other electronic storage system.
 
H.  Payment Terms
No rights are granted until our invoice is paid in full. Our invoice terms are net, thirty (30) days. A service charge of two percent (2%) per month, or such lesser amount allowed by law, will be charged thereafter on any unpaid balance. Any claims for adjustment or rejection of terms must be made to us within five (5) days of receipt of the invoice.
 
I.  License Cancellation Fee
1.  If Licensee requests in writing to cancel this Agreement regarding the licensing of Images within fifteen (15) days of the date of downloading or otherwise taking delivery of the Images, Licensor may cancel this Agreement and issue a credit to Licensee's account or credit card equal to one hundred percent (100%) of the Reproduction or license fee.
 
2.  If Licensee requests in writing to cancel this Agreement regarding the licensing of Images more than fifteen (15) days, but less than sixty (60) days from the date of downloading or otherwise taking delivery of the Images, Licensor may cancel this Agreement and issue a credit to Licensee's account or credit card equal to fifty percent (50%) of the Reproduction or license fee.
 
3.  No refund or credit to Licensee's account or credit card will be given after sixty (60) days of the date of downloading or otherwise taking delivery of the Images.
 
J.  Condition of Images
Licensee should examine all Images for possible defects (whether digital or otherwise) before sending any Images for Reproduction.  Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Images or its caption or in any way from its Reproduction.
 
K.  Unauthorized Use of Images
Licensee agrees to indemnify and hold the Indemnified Parties harmless against any claim for damages, losses or any costs, including attorneys' fees, arising in any manner whatsoever from the unauthorized use of any Images or for Licensee's breach of any of the terms of this Agreement.
 
L.  Use of Images in Final Elements
For purposes of this paragraph, final elements shall mean any end product produced by Licensee pursuant to this Agreement, including but not limited to use in magazines, books, feature films, television productions, commercials and print advertisements ("Final Elements").  Licensee grants to Licensor the irrevocable, perpetual, royalty-free, non-exclusive right and license to use Final Elements solely for the promotion of Eyekons.com or any of its subsidiaries.
 
M.  Right to Information
Licensor may at any time inspect any records, accounts and books relating to the Reproduction of any Images to ensure that the Images is being used in accordance with this Agreement.
 
N.  Miscellaneous
No variation of any of the terms in this Agreement shall be effective unless agreed to in writing by an authorized representative of Licensor and Licensee.  No part of the content of Licensor's catalogs or other advertising materials shall form a part of this Agreement.  No action of Licensor, other than an express written waiver, may be construed as a waiver of any term 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 a 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 those rights or remedies on any other occasion.  Should any clause of this Agreement be found unenforceable, that will not affect any other clause and each will remain in full force and effect.  In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order sent by Licensee, the terms of this Agreement shall govern.  This Agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of Michigan, U.S.A., without reference to its laws relating to conflicts of law.  Except as otherwise set forth herein, venue for all disputes arising under this Agreement shall lie exclusively in the Courts in the State of Michigan or the Federal District Court for the Western District of Michigan (as permitted by law), and each party agrees not to contest the personal jurisdiction of these courts.
 
Entire Contract
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THIS AGREEMENT BETWEEN YOU AND EYEKONS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND EYEKONS RELATING TO THE SUBJECT OF THIS AGREEMENT. THE EXPLANATIONS TO FAQ'S AND OTHER EXPLANATIONS AND CONTENT PROVIDED IN EYEKONS' WEBSITE ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS AGREEMENT.