POND5 CONTRIBUTOR AGREEMENT
This agreement is effective as of 2023-02-22.
This Contributor Agreement ("Agreement") governs the terms by which you make your media works available to Pond5 Media Ireland Limited, a limited liability company organized under the laws of Ireland (together with its Affiliates "Pond5", "we" or "us") for distribution and licensing through the Pond5 website at www.pond5.com (the "Website"), other geographic and language versions thereof and/or otherwise. Please read this Agreement carefully.
1. What this Agreement Covers
This Agreement applies to any works, including video footage, audio visual works, photographs, illustrations, music and other audio files, animations, 3D models, motion graphics, VR 360, data files, program templates and other audiovisual and digital media works submitted by or for you to us (individually and collectively, "Content") and any tags, captions, metadata, annotations, information or releases provided by or for you to us relating to Content ("Content Information").
We have the right, in our sole discretion, and for any reason to accept or reject any Content or Content Information, or at any time revoke any acceptance of Content or Content Information and remove the same from the Website.
2. Rights You Grant Us
You hereby grant us the world-wide, right and license, to directly and/or indirectly copy, market, promote, perform, display, distribute, sell and/or grant licenses to the Content. The licenses granted by us (each a "Pond5 License Agreement") may, as we determine to be appropriate, include some or all of the rights, restrictions and/or other terms of the Pond5 Content License Agreement available on the Website, as modified by us from time to time in our sole discretion, and/or any variations thereof, including versions that provide broader rights to any Content, fewer restrictions and/or greater legal protection (an "Extended License") or that provide narrower rights to any Content, greater restrictions and/or lesser legal protection.
Except as provided below under Exclusivity Program for Video, your license to us and the licenses granted by us under Pond5 License Agreements will be non-exclusive licenses.
You, or if different, the owner of the copyright in the Content, will retain ownership of the Content and the copyright thereto, and no copyright ownership or title will be transferred to us, except if you enroll in the Music Publishing Service described below, as provided in the Music Publishing Terms.
We also will have the right to edit, resize, resample, convert, color correct, watermark, crop or otherwise composite any Content or edit or supplement any Content Information to correct what we determine in our sole discretion to be an error, misleading statement or omission in Content Information or for purposes of facilitating the marketing, distributing, sale and licensing of Content; provided that any screening, review, correction and/or editing of any Content or Content Information performed by us is done as a courtesy only, and we will have no liability whatsoever therefor or for any failure to perform the same.
Your license to us also includes the right to, and authorize others to, use any Content in any kind of works now known or hereafter devised and use, copy, transmit, broadcast, telecast, stream, and publicly display, perform worldwide the Content, and derivative works thereof, Content Information, and your, and if different, Content creator's, name and biographical information for purposes of promoting, advertising, marketing and distributing the Content, you, the Website, us and/or our business (collectively, "Promotional Uses"). Promotional Uses will not entitle you to any compensation nor create any additional relationship or responsibilities between you and us.
You hereby forever waive any "moral rights" related to the Content, including the right to be identified as the author of the Content or to object to the modification of any Content, and if you are not the creator, you have obtained such a waiver from the creator.
3. Pricing and Your Share of Net License Revenue
You have the option to set the price of your Content. However,
we will have sole discretion to adjust the price of any Content to maximize your overall revenue performance or comply with our minimum pricing guidelines;
we will have discretion to charge additional amounts for Extended Licenses;
we will have discretion to offer flexible subscription plans and/or discounts, at prices determined solely by us, in connection with special promotions or to optimize total revenue on your behalf by targeting customers who we believe will make high volume purchases or commitments with short duration, digital/social formats, small audience, ad-supported models and/or other needs to which we will offer more narrow license rights or collections of limited content for materially reduced pricing;
we will have discretion to (A) market, promote, and distribute any Content in geographies, markets, and to customers and Distributors (as defined herein) that our traditional marketplace may not reach as optimally and in such instances your license to us includes the right and license throughout the world to do all of the foregoing and to authorize such Distributors (as defined below) to grant perpetual and term non-exclusive licenses to the Content to their customers under the Distributor’s own license agreements, which may include some or all of the rights that may be granted in the Website form of the Pond5 Content License Agreement and (B) facilitate all of the foregoing we may set the price of Content and/or agree to compensation structures in an effort to maximize overall sales of Content and revenue to our contributors and license Content to customers as part of a pool of works, in which case, we will have sole discretion to allocate the amounts paid by the customer among Content and the other works licensed to the customer on a basis that we in our sole good faith discretion determine is fair; and
notwithstanding anything to the contrary provided in this Section 3.a., you shall not set the price for an item of Content that is higher than the lowest price for which the same (or substantially the same) Content item is offered by or on any other media marketplace, agency or other redistribution arrangement (each an "Other Marketplace"), and if we discover that the Content item is offered at a lower price by or on any Other Marketplace, we may lower the price in our marketplace to match or beat that price.
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Except as expressly provided below, we will pay you the following percentages of all Net License Revenue (as defined herein) and we will deduct and retain the remainder of Net License Revenue:
For video, if you are enrolled in the Exclusivity Program described below, your share of Net License Revenue will be 60%.
For video, if you are not enrolled in the Exclusivity Program, your share of Net License Revenue will be 40%.
For Music Tracks and Sound Effects, your share of Net License Revenue will be 35%,
For photographs, illustrations, 3D models, After Effects and other templates, your share of Net License Revenue will be 50%.
"Net License Revenue" are license fees collected by us from resellers and other redistributors (collectively, "Distributors") and customers for Content accepted by us, subject to the following:
We may also exclude or deduct any of the following from the calculation of Net License Revenue and the net amount payable to you: (A) taxes or other withholdings paid by the customer or that we determine are required by applicable law; (B) refunds, chargebacks and uncollectible sums; and (C) fees, charges and/or costs payable to or deducted by financial institutions for the processing of any credit card, debit card, e-check or alternative payment method and/or currency conversion for payments received by us or paid to you in a currency other than U.S. Dollars.
In cases where a customer purchases an Extended License, we will deduct from Net License Revenue and retain a portion of the additional fees charged for the Extended License as a "Legal Guarantee Fee" to cover our self-insurance costs as determined by us in our sole discretion for providing the customer with additional legal protection. For avoidance of doubt, you will be paid your share of the net Extended License fees collected by us after such Legal Guarantee Fee is deducted. Refer to the Website Contributor Portal Payout Overview for further details.
We may from time to time offer you participation in one of our free download promotions. If you opt in on the Website to be part of such promotion and we include your Content in the promotion, the terms on the Website regarding the promotion will apply thereto.
Payments by us are subject to the Website Contributor Portal Payout Overview as modified or supplemented by us from time to time, the terms of which are incorporated herein by reference.
4. Exclusivity Program for Video
For video footage Content, you may enroll in our Exclusivity Program on the Website exclusivity program landing page.
If you are enrolled in the Exclusivity Program, for each item of video Content, your license to us will be an exclusive license for stock media distribution and other license and redistribution arrangements.
Upon your enrollment in this Program, it and your exclusive license to us will apply to all video footage Content accepted by us. Your obligations under this Section 4 will apply to all such Content and all "Similar Footage", which for purposes of this Agreement means all video containing such Content, and all video that could be derived from the same shoot or that is similar to such Content or a portion thereof.
As of the start of and during the entire period of your enrollment in the Exclusivity Program, you must have completed removal of all video Content and all Similar Footage from all Other Marketplaces by the date that you enroll in the Exclusivity Program. If you need some time to achieve this, the Website exclusivity program landing page allows you the option of delaying your enrollment in the Exclusivity Program for a two week grace period; if you choose that option, your enrollment in the Program and this removal obligation will be delayed until the end of such grace period.
All video Content accepted by us will be deemed to be subject to the Exclusivity Program terms from the date of your enrollment in the Program until you terminate your enrollment in the Program by providing us with at least 180 days written notice (may by email to exclusive@pond5.com) of such termination (the "Exclusive Period").
Unless and until the Exclusive Period is terminated under the prior paragraph e., you will not offer, market, license or provide any video Content or any Similar Footage to, on or through any Other Marketplace.
If we believe that you are violating or have violated the exclusivity terms above, then we may pursue any and all rights and/or remedies available to us.
5. Content Standards; Releases
You must provide us with a copy of every release that you possess regarding any Content.
These releases should include:
model releases from any persons whose recognizable name, voice, or likeness is contained or depicted in the Content;
property releases from the owner of any recognizable prominent property that is contained or depicted in the Content; and
property releases from the owner of any third party trademark, trade dress, logo, copyrighted audio, design, art, architecture or other works (collectively "Third Party IP") that is contained or depicted in the Content.
You represent that each release (i) is valid and binding, (ii) is in substantially the form and substance as the applicable form release maintained by us on the Website, (iii) grants all rights and permissions that would have been granted, and does not contain any restriction that would not have been contained, in the form of applicable release maintained by us on the Website, (iv) permits all uses for such Content permitted by this Agreement and all Pond5 License Agreements and/or Extended Licenses, (v) was signed by the person depicted, in the case of a model release, or owner of the property, in the case of a property release, or if the person was under the age of 18, the parent or legal guardian of such person, and (vi) otherwise meets the requirements of the Website Contributor Portal.
If the Content depicts Third Party IP, you will so designate such Content when uploading it to the Website.
You hereby consent to us designating the Content you upload to the Website as “Editorial” or for "Editorial Use" in our sole discretion.
We may permit Content designated as "Editorial" or for "Editorial Use" or as depicting Third Party IP to be used for commercial purposes as we determine is appropriate.
When you upload Content depicting events or topics that are newsworthy, of general public interest, or documentary and/or editorial content, you represent and warrant to us that as of the time of your upload the Content has not been manipulated, modified or processed in any manner that might distort the contextual integrity of Content. For greater clarity, cropping and brightness/contrast corrections or blurring of faces are permissible where the integrity of Content has not been distorted.
You may not submit any Content that contains a recording of a performance of a musical, choreographic, literary or dramatic work unless you own all rights in such work and the performance and the recording of such work or have received the written authorization from the copyright owners or the authorized licensees thereof for such submission and the inclusion of all such rights in your license to us and the licenses granted by us under Pond5 License Agreements and/or Extended Licenses. You represent and warrant as of the date of each submission of Content that you have obtained all such rights and authorizations and they are included in your license to us. However, if the underlying composition of the Content is in the public domain in the United States and the EU, you need not obtain rights to such composition, provided that you so designate for each item when uploading to the Website but by doing so, you will be representing and warranting that the composition is in the public domain in the United States and the EU.
You will comply with the applicable specifications set forth in the Website Contributor Portal posted by us on the Website, as modified or supplemented by us from time to time, the provisions of which are incorporated herein by reference.
You will maintain and preserve all original releases and records relating to the creation of Content, including all clearances or releases that have been obtained for Content, and/or licenses, agreements or instruments relating to ownership of, or rights to Content. Upon reasonable notice, you will promptly allow us to inspect and provide us with all such releases and records and information relating to the creation of the Content or such releases and records requested by us. You also consent to us and our Distributors providing any of the same to Content Users (as defined herein).
6. Audio Content
When a music file (with or without lyrics) (a "Music Track") or other audio file (together with Music Tracks, "Audio Content") is submitted by or for you to us, the Audio Content and your license to us includes the composition, lyrics and recording of the performance of the Audio Content.
Because Pond5 License Agreements and/or Extended Licenses will treat Audio Content that is designated on the Website as being "Cleared for Sampling" differently from other Audio Content, when you submit or upload Audio Content you are required to designate in Content Information whether the Audio Content is or is not "Cleared for Sampling". If you do not, then you authorize us to make such designation in your place and you agree to be bound by any such designation made by us.
Except for reports and royalties that may be due to a performing rights or other similar organizations (including ASCAP, BMI, SOCAN, SESAC, PRS, MCPS, SACEM, SDRM, JASRAC or GEMA) (each a "PRO") with regard to public performance or broadcast of Audio Content that you designate on the Website at the time of upload of same to the Website as being PRO Audio Content, to the extent permitted by applicable law, (i) you agree that no license is required from and no payments or reports are required to be made to you or any PRO or other Person relating to the license and distribution of Content by us or the use, duplication, performance, synchronization, modification, or distribution of such Content by Content Users as permitted by Pond5 License Agreements and/or Extended Licenses and (ii) you waive any rights to any such payment or report.
You may not take any action on or with respect to YouTube, Vimeo (or other networks that allow for the so-called "claiming" or "monetization of content") that would interfere with the ability of Content Users to monetize or collect revenue from any such network with respect to their works.
Pond5 Music Publishing and Administration. Pond5 Publishing Limited ("Pond5 Publishing") offers a music publishing and administration service for Audio Content submitted to us by Contributors who enroll in this service on the Website Music Publishing landing page (the "Music Publishing Service"). If you enroll on the Website Music Publishing landing page, the terms of this Agreement as supplemented by the terms and conditions set forth or linked to in the landing page will apply to the Music Publishing Service (the "Music Publishing Terms").
7. Representations, Warranties and Disclaimer
You hereby represent and warrant as of the date you accept this Agreement and the date of each submission of Content as follows:
The Content represents original creations and expressions of subject matter, and the Content and Content Information do not infringe or violate any copyright, trademark, right of privacy or right of publicity, moral right or other proprietary right of any third party, or defame any third party.
You (A) have the legal capacity and authority to enter into this Agreement, grant your license to us and perform your obligations under this Agreement, (B) are the sole and exclusive owner of the Content, all parts thereof and the copyright(s) thereof or otherwise have obtained from such owner and have the full legal right, power and authority to grant your license to us hereunder, including the full legal right, power and authority to grant us the right to sublicense such Content as contemplated under Pond5 License Agreements and/or Extended Licenses and the Content Users to use the Content as permitted therein, and (C) have not granted any rights or licenses to any Content or any other intellectual property or technology or entered into any other agreement or commitment that would conflict with your representations, warranties, rights granted or obligations under this Agreement or the rights granted by us in Pond5 License Agreements and/or Extended Licenses.
No person whose image is depicted or voice is included in the Content is a SAG-AFTRA member.
If you are an individual, you are of sufficient legal age to grant the rights and create binding legal obligations set out in this Agreement.
All information provided to us by you or under your Pond5 account or user ID is accurate and complete, including all information relating to you and your payment account, and you agree to update such information as is necessary for such information to continue to be accurate and complete. We may withhold any payment to you until we have received the information and documentation that we reasonably determine is needed to verify your identifying information or resolve any open question raised regarding your rights in or to any Content or comply with legal requirements.
If any Content consists in whole or in part of elements that are provided by a third party design or other software program, the license agreement or other legal terms governing the use of such program allows you to incorporate such elements in such Content and to grant the licenses to such Content set forth in this Agreement.
No portion of any Content contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, Pond5 License Agreements, and/or Extended Licenses, and all Content will be free of any virus, worm, code, lock, or other mechanism or device that may be used to access, modify, delete, damage or disable the Website or any other hardware or computer system or software, or which would otherwise render inaccessible or impair the use of any of the same in any way.
All Content Information provided to us is accurate, complete and not misleading in any material respect and does not include any false, misleading or inapplicable metadata intended to or which has the effect of keyword "doping" or improperly altering search results that would otherwise be applicable to any Content.
No Content has been created, obtained or submitted to us under this Agreement in violation of any law or contract terms.
If after the submission to us of any Content, you receive any notice or otherwise learn in any way that any representation made by you in this Agreement was not, or is no longer, complete or accurate, or was, or is now, misleading in any material respects, or of any claim by a third party to the effect of the foregoing, you will promptly provide us with written notice all relevant facts regarding the same, and if appropriate, remove the Content from the Website.
Unless otherwise communicated or disclosed with a valid US tax form, by way of this Agreement as a Pond5 Contributor, you are affirming that the address you have provided is your permanent resident address for tax purposes.
If the Person who is uploading or otherwise providing Content to us is doing so as your Representative, then both you and such Person represent and warrant that the individual who is providing Content to us is the registered user of the Website under whose user ID Content is provided to us, and such Person has full legal right, power and authority to act on your behalf, bind you to this Agreement and grant your license to us on your behalf.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE MUSIC PUBLISHING SERVICE AND OUR OTHER SERVICES AND THE WEBSITE ARE PROVIDED BY US ON AN AS-IS BASIS, WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE MUSIC PUBLISHING SERVICE AND OUR OTHER SERVICES, THE WEBSITE OR ANY SERVICES PROVIDED THEREIN WILL MEET YOUR REQUIREMENTS, ALWAYS BE AVAILABLE, WILL BE UNINTERRUPTED, SECURE, FREE OF VIRUSES OR SIMILAR CONTAMINATION, OR OPERATE WITHOUT ERROR; THAT INFORMATION OR MATERIALS INCLUDED ON THE WEBSITE WILL BE ACCURATE.
8. Indemnification
We agree to defend, indemnify and hold you harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees and costs) (collectively, "Losses") arising out of or relating to any claim, action or proceeding by a third Person (each, a "Claim") relating to or arising directly or indirectly out of (i) a claim that if proven would constitute a breach by us or any of our Representatives of this Agreement or any express representation, warranty, or obligation of us contained herein, or (ii) a claim that if proven would constitute a failure to fulfill any express responsibility or obligation assumed by us under this Agreement.
You agree to defend, indemnify and hold us, our Affiliates, and our and their respective Representatives and shareholders (collectively,"Pond5 Parties"), our Distributors and the Content Users harmless from and against any and all Losses arising out of or relating to any Claim, relating to or arising directly or indirectly out of (i) a claim that if proven would constitute a breach by you or any of your Representatives of this Agreement or any express representation, warranty, or obligation contained herein, or (ii) a claim that if proven would constitute a failure to fulfill any express responsibility or obligation assumed by you under this Agreement. We may withhold amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity under this Agreement and amounts that we determine are required to be withheld by law.
The indemnified party shall (i) promptly notify the indemnifying party of the Claim (provided that the failure to do so will not excuse the indemnity obligation unless the failure to notify causes material prejudice to the indemnifying party); and (ii) cooperate with the indemnifying party in the defense of any Claim, at the indemnified party's expense. The indemnifying party will have the opportunity to defend the Claim with counsel reasonably acceptable to the indemnified party. Counsel that is acceptable to indemnifying party's errors and omissions insurance carrier shall be deemed to be acceptable to indemnified party. If for any reason the indemnifying party does not timely elect to or fails to timely defend a Claim as provided herein, the indemnified party may do so at the indemnifying party's sole expense. Notwithstanding the foregoing, (A) unless your insurance carrier agrees to indemnify Pond5 and assumes the defense of a Claim, Pond5 shall have the right to defend and control the defense or settlement of the Claim, and (B) the party controlling the defense of the Claim will not enter into any settlement agreement that creates a financial obligation on the other party to the Person making the Claim that is not reimbursed or assumed by controlling party without the other party's written consent, which will not be unreasonably withheld or delayed.
9. Claims against Content Users and Third Parties
We will have no responsibility whatsoever for the compliance by Content Users, Distributors or any other Person with the terms of any Pond5 License Agreement, nor any liability whatsoever for any breach, infringement or wrongful conduct or other acts or omissions by any such Person.
You grant us the right and authority, but we have no obligation, to make any claim, bring any lawsuit or take any action regarding a breach or claimed breach by a Content User of a Pond5 License Agreement and/or an infringement or claimed infringement of any intellectual property or other rights in or relating to any Content by such Person or any other third Person (each, an "Enforcement Action") that we deem to be commercially reasonable to protect our rights in the Content. Upon our request, you will provide any information, assistance and cooperation that we reasonably request in connection therewith. Any monetary recovery received as a result of any Enforcement Action by us, to the extent such monies are intended to compensate for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses (including reasonable attorneys' fees and costs) incurred by us in connection with such action, be divided between you and us pursuant to the provisions of Section 3 above.
We recommend that you register your copyrights in Content, as such registration is generally required in order to bring an action for copyright infringement. More information on registering your copyrights in the U.S. can be found at http://www.copyright.gov.
10. Termination
We may at any time and for any reason (including your submission to us of infringing Content) remove any or all Content from the Website and cease offering sub-licenses to the same (the "Terminated Content").
Except as provided above for Content in the Exclusivity Program or as you and we may agree in writing, you may for any or no reason remove any or all Content from the Website or deliver to us written notice of your request that we remove any or all Content from the Website. Such notice must be communicated by email to legal@pond5.com or such other means of written notice acceptable to us which enables us to confirm your identity. After we are able to reasonably confirm your identity and the authority of the individual who sent the notice, we will use our reasonable efforts to as soon as is practical cease offering such Content to Distributors and Content Users and remove the same from the Website. Subject to the next sentence and paragraph, upon such removal our right hereunder to grant licenses to the specified Content will terminate. We and the Distributors may continue Promotional Uses of the terminated Content for a period of one (1) year from the effective date of such termination.
Notwithstanding any other provision in this Agreement: (i) removal of any Content from the Website and/or the termination or expiration of this Agreement or any rights granted to us hereunder will not terminate, alter or otherwise affect any license granted to a Content User prior to the effective date of such removal, termination or expiration; (ii) if any Content is in a customer's cart at the time of the removal, expiration or termination, we will not be required to remove such Content from the cart and we may allow the customer to purchase a license to such Content under a Pond5 License Agreement for a period of 90 days after such removal or termination, (iii) after removal of any Content or termination or expiration of this Agreement, we may continue availability of the Content for license under a Pond5 License Agreement to those customers that have downloaded "comp" versions of the item prior to its removal from the Website, and (iv) we may continue Promotional Uses of the Content for a period of one (1) year from the effective date of any removal, termination or expiration.
Upon termination, we will be entitled to retain all amounts owing to you for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
The terms and provisions of Sections 3 through 14 and any license granted by us or any of our Distributors shall survive termination or expiration of this Agreement for any reason.
11. LIMITATION OF LIABILITY
THE POND5 PARTIES AND OUR DISTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST ROYALTIES OR PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES OR PROCEEDING ARISING UNDER THIS AGREEMENT OR RELATING TO OR ARISING OUT OF YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OF THE WEBSITE, THE MUSIC PUBLISHING SERVICE AND OUR OTHER SERVICES OR SUBMISSION OF ANY CONTENT OR ANY ENFORCEMENT ACTION, IN EACH CASE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF THE POND5 PARTIES ARISING UNDER THIS AGREEMENT OR RELATING TO OR ARISING OUT OF YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OF THE WEBSITE OR THE MUSIC PUBLISHING SERVICE AND OUR OTHER SERVICES OR SUBMISSION OF ANY CONTENT OR ANY OTHER AGREEMENT (REGARDLESS OF THE AMOUNT OF CONTENT YOU SUBMIT TO US), SHALL BE LIMITED TO AN AGGREGATE OF ONE THOUSAND ($1,000) U.S. DOLLARS, EVEN IF WE OR ANOTHER POND5 PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED THAT THE LIMITATIONS OF DIRECT DAMAGES IN THIS PARAGRAPH WILL NOT APPLY TO AMOUNTS THAT ARE EXPRESSLY PAYABLE TO YOU HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT (i) THE AMOUNTS PAYABLE HEREUNDER REFLECT AND ARE SET IN RELIANCE UPON THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, AND (ii) THE LIMITATIONS OF LIABILITY HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE MUSIC PUBLISHING SERVICE AND OUR OTHER SERVICES AND THE WEBSITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN. YOU AGREE THAT THE POND5 PARTIES ARE NOT LIABLE FOR ANY ERRORS IN PRICING OR ANY LOSS OR DAMAGE TO CONTENT OR MATERIAL SUBMITTED TO THE WEBSITE AND YOU ARE REQUIRED TO MAINTAIN YOUR OWN BACKUP FILES FOR ANY CONTENT SUBMITTED TO US. We will not be held responsible for any delay or failure to comply with our obligations under this Agreement if the delay or failure arises from any utility, communications, technical, hardware, software issues or failure, any acts or omissions of a third party, acts of government, God, war or terrorism or any cause which is beyond our reasonable control.
12. Consent to Electronic Communications; Your Personal Data
Consent to Electronic Communications. We may send any notice to you by an email to the registered Website user account at the email address that has been provided to us on your Website user registration page. You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Location of Your Personal Information. You consent to your and models' personal information being shared with and processed in the course of our business by (i) us and our Affiliates, which are located in various different countries, including the U.S., which provide varying and in some cases less privacy protection than your country, and (ii) a current or prospective Content User in case of questions about clearances, infringement or legal rights.
13. Miscellaneous
Unless the context requires otherwise, in any part of this Agreement: (i) when applied to a company, "Affiliate" means any company that from time to time directly or indirectly is owned or controlled by such company, under common ownership or control with such company or directly or indirectly owns or controls such company; (ii) "Person" means an individual or legal entity, including a company or a governmental agency or instrumentality; (iii) "Representative" means a Person's officer, director, employee, agent or contractor; (iv) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; (v) "must not", "should not", "shall not" and "may not" are expressions of prohibition, "may" is an expression of the right, but not the obligation, to do something and carries with it the right to sole discretion about whether or not to do the thing, and "will", "must", "should" and "shall" are expressions of command, and not merely expressions of future intent or expectation; (vi) "you" refers to the person or entity who is submitting Content to Pond5 and granting Pond5 the rights to Content set forth herein, (vii) use of the singular imports the plural and vice versa; (d) references to one or no gender include the other or no gender; (viii) references to the terms "herein" or "hereto" refer to this Agreement (including any terms incorporated by reference herein); (ix) references to "in each case" refers to each case referred to prior to such phrase in the same sentence; (x) the term "Content User" means actual and prospective licensees of any Content and their Representatives, but does not include Distributors; (xi) "Pond5", "we", or "us" includes Shutterstock, Inc. and the Shutterstock group of companies; and (xii) the headings in this Agreement are for ease of reference only and shall not affect its interpretation.
For avoidance of doubt, no grant of rights to Pond5 herein or in any Website Terms (including the Contributor Portal) shall imply the assumption of any obligation or impose any obligation on Pond5 to do anything in absence of an express obligation in this Agreement to do the thing.
Notwithstanding anything else in this or any other agreement, (i) we will have the right, in our sole discretion, to make changes to this Agreement and any other agreements or terms which may be referred to or incorporated by reference herein at any time and for any reason, and (ii) you will be subject to the terms of this Agreement and any such other agreement and/or terms, in force (A) at the time that you upload or otherwise submit Content, or (B) two (2) weeks after the date we send or otherwise provide notice of a change, whichever is earlier. Subject to Section 4, you will have the right to opt out of the modified version of this Agreement by both removing all Content from the Website and providing us with written notice of your opt out during this notice period, provided that no such opt-out will in any way affect any license granted by us before Content is removed from the Website. No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
The parties to this Agreement are independent contractors, and nothing in this Agreement or the rights granted herein, any upload or submission of Content or access to or use of the Website shall create a joint venture, partnership, employment relationship, or franchise or fiduciary relationship between the parties.
You acknowledge that (i) we allow selected customers to download full resolution unwatermarked versions of content items for "comp" or evaluation purposes without any fee unless and until converted to full license for public use, and (ii) we allow customers who purchase a license to a Content item to later download the item again from the Website multiple times without any further payment, and you consent to the foregoing as related to the Content.
You and we acknowledge that our compensation and fees under Sections 3 and 4 above are intended to compensate us for our services and reimburse us for our costs and expenses associated with operating our stock media marketplace and carrying out the marketing and sale of licenses to Content.
If any provision, or portion thereof, of this Agreement, or its application to any Person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
This Agreement shall be construed in accordance with the copyright laws of the United States and the laws of the State of New York without regard to its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The rights granted herein, any upload or submission of Content, access to and use of the Website and the entering into this Agreement will be deemed to take place in the United States.
Any dispute regarding or arising from this Agreement (including any upload, submission, distribution or use of Content, any license granted by or to us or access to or use of the Website), that the parties are unable to resolve after good faith negotiations will be submitted to binding, confidential arbitration carried out under the applicable dispute resolution rules and procedures of the Judicial Arbitration and Mediation Service ("JAMS"). The arbitration proceeding will be conducted in New York City in English by a single arbitrator, who must be familiar with stock media licensing and copyright law, and all documentation shall be presented and filed in English. Each party will contribute equally to the arbitrator and arbitration forum fees and expenses, and, except as expressly provided herein, will bear its own legal costs and fees. The decision of the arbitrator will be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. Nothing in this section shall be deemed to prohibit or restrict our right to seek injunctive relief from a court of competent jurisdiction in the case of any actual or threatened breach of any provision of this Agreement that would cause irreparable harm. The parties agree that, notwithstanding any otherwise applicable statute of limitation, any arbitration proceeding shall be commenced within two (2) years of the acts, events or occurrences giving rise to the claim.
Where permitted by applicable law, you and Pond5 agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless both you and Pond5 agree, no arbitrator shall have power to consolidate more than one person's claims or otherwise preside over any form or a representative or class proceeding or multiply actual damages or award punitive damages, and each party hereby irrevocably waives any claim to such damages.
You acknowledge and agree that you will be solely responsible (and we will have no responsibility whatsoever) for (i) each and every access to the Website that occurs in conjunction with your registered Pond5 user name or user ID and corresponding password (including access to the Website via FTP, API, or other modalities) or the registered Website user name or user ID and corresponding password of a Person who is your Representative and who we reasonably believe has been authorized by you to access the Website or submit Content and/or Content Information, or who is accessing the Website or submitting Content and/or Content Information to us on your behalf, (ii) monitoring or supervising any log-ons and activity under your or any such Person's Pond5 User name, including the uploading of Content and Content Information, and (iii) the consequences of any of the foregoing. You furthermore acknowledge and agree that we are authorized to accept your registered Website user name or any such Person's registered Website user name or user ID and password as conclusive evidence that you wish to upload and submit Content and Content Information pursuant to this Agreement.
If we learn that you are or appear to be violating or have violated the terms of Section 4 above related to any video Content item(s), then the violation shall be deemed to have occurred and be occurring during the entire Exclusivity Period unless and until you provide us with documentary evidence proving that the violation has not occurred or of a different period. In addition, without limitation of any other remedies available to us, we will be entitled to set-off from payments of amounts payable to you hereunder an amount equal to 20% of the Net Revenue attributed to such Content item(s) for the deemed or proven period of violation.
You will promptly reimburse us for any reasonable attorneys' fees and court costs that are incurred by us in enforcing this Agreement. We are also entitled to set-off from payments of the amounts payable to you any amounts owed by you to us and reasonable legal fees and other expenses incurred in enforcing this Agreement.
The Pond5 Parties, the Persons indemnified hereunder and with respect to the Representations and Warranties set forth above, the applicable Content Users are third party beneficiaries of this Agreement. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other third Persons any rights, benefits or remedies of any nature whatsoever. Without limiting the generality of the foregoing, no provision herein shall be for the benefit of or enforceable by any creditor of any party hereto.
Except as otherwise set forth herein, any notice required or permitted to be given under this Agreement shall be in writing, delivered by hand, nationally recognized overnight courier service, email or registered or certified mail, addressed to Pond5 at: Pond5 Inc., our address set forth on the Website, www.pond5.com/legal, with a copy by email to legal@pond5.com; or to you at the email address or contact information provided by the registered user of the Website under whose user ID Content is provided to us.
This Agreement is personal to you and is not assignable by you without our prior written consent. We may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
This Agreement is in addition to our Website Terms of Use, privacy policy, guidelines, and restrictions contained at the Website where you upload Content, as modified by us from time to time in our sole discretion (collectively, the "Website Terms") and the Website form of Pond5 Content License Agreement (all of which are all incorporated by reference into this Agreement, except to the extent that they conflict with the express terms of this Agreement), all of which together embody the parties' entire agreement and supersedes and cancels any prior agreement, express or implied, written or oral, with respect to its subject matter; provided that in the event of any inconsistency between this Agreement and any such Website Terms, the terms of this Agreement shall govern. All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns. Your representations, warranties and obligations and our rights and remedies set out in this Agreement are cumulative and are in addition to your obligations and our rights and remedies at law or in equity. If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement.
14. Acceptance of this Agreement
By clicking "I Agree" or otherwise signifying acceptance, the individual doing so accepts and agrees to be bound by this Agreement for him/herself and on behalf of you and, if different, his/her employer or other Person that is identified as the registered Website user, and agree to be bound by its provisions. If the Person accepting this Agreement is accepting on behalf of his employer and/or other Person, and such employer and/or other Person (including the Website User) claims that the accepting Person does not have such right, power and authority, notwithstanding anything else in this Agreement, in addition to all rights and remedies available against such employer and/or other Person, the accepting Person will be personally jointly and severally liable to us under the provisions of Sections 7 and 8 above whether or not such Person is otherwise considered to be "you" hereunder. If such Person does not have such right, power and authority or you do not agree with these terms, do not accept the Agreement and do not upload or otherwise submit anything to the Website or us.
You acknowledge that you have read this Agreement and any other agreements or terms which may be incorporated by reference herein, understand it, and have had an opportunity to seek independent legal advice prior to agreeing to it.
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