The following Contributor Agreement (or "Agreement") constitutes an agreement between you ("you" or "Contributor") and Pond5 Inc. ("Pond5"), operator of www.pond5.com (the "Site"). In order to submit video, motion picture footage, music, sound effects, photographs, media project files and/or other audio, audiovisual, or visual works (collectively, "Content") for licensing, you must read and agree to the terms of this Agreement. Following the text of this Agreement, you will be prompted to actively agree to the terms herein, after which this Agreement will remain in full force and effect until terminated in accordance with its terms.
Please read this Agreement carefully. This Agreement limits Pond5's liability and may substantively affect your rights. We encourage you to print a copy of this Agreement for your records.
2) Offer of License by Submission
By submitting Content to Pond5, you are offering Pond5 a worldwide, non-exclusive license to the Content pursuant to the terms of this Agreement. If Pond5 accepts your offer, Pond5 will obtain a non-exclusive license to the accepted Content; however, you will retain full ownership of your Content, and no copyright or title will be transferred. For purposes of clarity, you will retain all right, title, and interest in all Content except to the extent you have granted these rights to Pond5 under this Agreement for the purpose of distributing, marketing, and licensing the Content accepted by Pond5.
You acknowledge and accept that Pond5 has the right but not the obligation to sublicense your submitted Content to end users ("Sub-Licensees") under the terms of the Pond5's Royalty Free License Agreement and any other such agreement as you may have authorized Pond5 to use, and that Sub-Licensees may make broad use of licensed Content and are under no obligation to inform you or Pond5 of any usage thereof. Further, you waive (or have procured a valid and enforceable waiver of) the following "moral rights" relating to the Content: (i) the right to be identified as the author of the Content; and (ii) the right to object to the modification of any Content.
You acknowledge and agree that you will be responsible for each and every access to the Site that occurs in conjunction with your member name and corresponding password, including access via FTP, API, or other non-web based modalities, and that Pond5 is authorized to accept your member name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. Pond5 shall have no liability or responsibility to monitor the provision of Content under your member name and password.
3) Submissions Process
Once you have agreed to the terms of this Agreement and provided all information as required by Pond5, you may upload or mail in Content to the Site in accordance with the Contributor guidelines provided by Pond5. You must then tag your Content and submit it to Pond5 curatorial staff for review.
Pond5 has the right but not the obligation to accept or refuse any offered Content at its discretion for any reason, and will notify you of its decision via the Site or by email. In the event that Pond5 refuses your submission, your offer of license will terminate, and Pond5 will obtain no rights in the refused Content. In the event that Pond5 accepts your submission, the license granted hereunder will become effective.
Pond5 reserves the right to delete, move, refuse to accept or edit any communication or Content that Pond5 may determine, in its sole discretion, violates or may violate this Agreement, the law, the intellectual, proprietary rights or any other rights of others, or any of Pond5's policies. You hereby agree to forfeit any fees payable in respect of such violating or illegal Content to Pond5 or as it may direct. Pond5 shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Pond5 to determine accepted Content is done as a courtesy only, and Pond5 shall have no liability therefore. You acknowledge that Pond5 is not providing legal advice to you.
4) Scope of License
The license granted hereunder shall permit Pond5 to sublicense the Content to Sub-Licensees under the terms of Pond5's Royalty Free License Agreement and any other such agreement as you may from time to time authorize Pond5 to use. You acknowledge that Pond5 is not responsible for the compliance by purchasers and licensees of the terms of the License Agreement and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Royalty Free License. You also agree that, notwithstanding any rights you may have to pursue the licensees of such Content at law, Pond5 shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting the accepted Content. In addition, you acknowledge that Pond5 may grant sublicenses throughout the term of this Agreement, and that the terms of such sublicenses are perpetual.
The license granted hereunder shall further permit Pond5 to utilize the Content for purposes of advertising, marketing and promoting the Site ("Promotional Uses"), including but not limited to use of the Content and derivative works thereof on the Site. Such Promotional Uses shall not entitle you to any compensation nor create any additional relationship or responsibilities between you and Pond5.
The license granted hereunder shall further permit Pond5 to edit, resize, resample, convert, color correct, crop or otherwise composite the Content, for purposes of sub-licensing such Content to Sub-Licensees under the terms of this Contributor Agreement.
You give Pond5 the right to use your name and biographical information in connection with the promotion, marketing or advertising of your Content, you, or Pond5. Pond5 will use reasonable efforts to identify you as the creator of the Content, and will advise, but not obligate Sub-licensees to credit you when in the Sub-licensee's judgment doing so is appropriate and feasible. Any such credit may include a reference to Pond5 as licensor of the Content.
5) Pricing and Payment of Contributor's Fees
You shall have the option of setting prices for your Content, or may request that Pond5 price Content on your behalf. Pond5 shall make best efforts to sell Content at the price set, but shall not be held liable for any errors or omissions that result in the sale of Content for a price other than the price set.
Pond5 shall pay you fifty percent (50%) of the license fees received from Sub-Licensees for your Content and derivative works thereof licensed to such Sub-Licensees ("Contributor's Fees"). Pond5 will pay you on or about the 15th of each calendar month for Contributor's Fees accrued prior to the last day of the previous month. At Pond5's sole discretion, Pond5 may make payment to you including Contributor's Fees accrued through the 15th, however such early payments shall have no precedential value, and Pond5 may change any early payment policy at any time. No payment of Contributor's Fees will be issued unless a minimum payment of $25, after deductions, is due to you.
In all cases, payment of Contributor's Fees will be net of: (i) taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Agreement; (iv) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, e-check or alternative payment method; (v) refunded payments for Content; and (vi) any amounts owing by you to Pond5 under this Agreement or otherwise. Without limiting the generality of the foregoing, Pond5 is entitled to set-off against any amount owing to you, all amounts to which Pond5 is or may be entitled under this Agreement or otherwise at law, including withholding 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.
6) Clearances, Indemnification and Warranties
Each party represents and warrants that it has full power and authority to enter into this Agreement and carry out its obligations hereunder.
You represent and warrant that:
the information provided to Pond5 in connection with your submission is true and correct;
you have sufficient rights in the Content to grant to Pond5 the license contained in this Agreement, including but not limited to any necessary approval, consent, authorization, clearance, release, or license of any third party;
no portion of the Content as delivered to Pond5 contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
the Content will include all necessary descriptive information to enable its effective marketing on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata, including metadata intended to or which has the effect of keyword "doping" or improperly altering search results that would otherwise be applicable to such Content; and
the Content delivered to Pond5 hereunder represents original creations and expressions of subject matter, and no Content infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
It is your responsibility to obtain all clearances and releases, including but not limited to property and model releases which conform substantially to the model and property releases provided by Pond5, musician and vocalist releases, master use and synchronization licenses, and any other releases necessary for the grant of license contained in this Agreement and for the subsequent use by Sub-Licensees of your Content pursuant to Pond5's Royalty Free License.
You agree to indemnify, defend and hold Pond5 and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees) incurred by Pond5 arising out of the Content or its use, including but not limited to claims resulting from: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement.
7) Term and Termination
Pond5 reserves the right to modify this Agreement from time to time, and will notify you by email at the email address you have provided upon modification at least one (1) week in advance of any such modification. You shall have the right to opt out of the modified Agreement during this notice period.
Pond5 may terminate this Agreement in connection with any specific Content (the "Terminated Content") at any time by providing you with written notice including: (i) a statement of its intent to terminate; (ii) the effective date of such termination; and (iii) an identification of the Terminated Content. Pond5 will remove from the Site the Terminated Content no later than the effective date of termination. Notwithstanding the foregoing, any licenses granted by Pond5 to any Sub-Licensee in the Terminated Content under this Agreement shall remain in full force and effect after the effective date of termination, such termination affecting only Pond5's prospective rights to sublicense the Terminated Content under this Agreement.
You may terminate the license granted hereunder in connection with any Content upon no less than fifteen (15) days notice to Pond5 of your intent to terminate. Such notice must be communicated by email to legalpond5.com or such other means of written notice acceptable to Pond5 which enables confirmation of your identity and your intention to terminate. Upon the effective date of such termination, Pond5 will cease offering the terminated Content to Sub-licensees. Pond5 may continue to utilize the terminated Content for purposes of advertising, marketing and promoting the Site, including but not limited to use of the Content and derivative works thereof on the Site, for a period of one (1) year from the effective date of such termination. Your termination of license granted to Pond5 hereunder shall not act to terminate any sublicenses granted to Sub-Licensees under the terms of Pond5's Royalty Free License prior to the effective date of such termination, such Sub-Licenses to continue in perpetuity.
Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt
If either party alleges that the other is in breach of this Agreement, the other party shall have thirty (30) days to cure such breach if the breach is capable of remedy, and if not cured, the non-breaching party may terminate immediately.
8) DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ALL CONTENT AND SERVICES PROVIDED THEREIN, ARE PROVIDED BY POND5 ON AN "AS IS" BASIS, WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
POND5 DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT OR SERVICES PROVIDED THEREIN WILL MEET YOUR REQUIREMENTS, ALWAYS BE AVAILABLE, SECURE, FREE OF VIRUSES OR SIMILAR CONTAMINATION, OR OPERATE WITHOUT ERROR; THAT INFORMATION OR MATERIALS INCLUDED ON THE SITE WILL BE ACCURATE; OR THAT USERS WILL PERFORM THEIR OBLIGATIONS AS PROMISED.
9) LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN. YOU AGREE THAT POND5 IS NOT LIABLE FOR ANY LOSS OR DAMAGE TO CONTENT OR MATERIAL SUBMITTED TO THE SITE AND YOU ARE REQUIRED TO MAINTAIN YOUR OWN BACKUP FILES FOR ANY CONTENT SUBMITTED TO POND5
IN NO EVENT SHALL POND5 OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF POND5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, POND5'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO POND5's SHARE OF THE FEES COLLECTED BY POND5 FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF POND5 OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10) Miscellaneous Provisions
Relationship of the Parties - The parties to this Agreement are independent contractors, and nothing in this Agreement shall create a joint venture, partnership, employment relationship, franchise relationship or taxable entity between the parties.
Notification - Except as otherwise set forth herein, any notice required or permitted to be given under this Agreement shall be in writing, delivered by hand, by email or by a nationally recognized overnight courier service (if you are sending such notice from the United States), or registered or certified mail, addressed to the receiving party at the address indicated below. Such notice shall be deemed to have been given on the date delivered by hand or by email, one (1) business day after deposit with an overnight courier service, if applicable, and three (3) business days after being deposited in the United States mail or seven (7) days after being deposited in the mail of any foreign country. To Pond5: Pond5 Inc., 80 Fifth Avenue, 18th floor, New York, NY 10011. Email: legalpond5.com. Any notifications to you will be by email or by mail at the address provided by you.
Entire Agreement - This Agreement embodies the parties' entire agreement and supersedes and cancels any prior agreement, express or implied, written or oral, with respect to its subject matter. No modification, deletion, amendment of any provision is binding unless in writing signed by each party's authorized representative.
No Waiver - No waiver of any default under this Agreement will apply to any subsequent default, whether of a similar nature or not, nor will any such waiver be construed as a waiver of any other provision of this Agreement.
Severability - 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.
Jurisdiction and Choice of Law - This Agreement shall be construed in accordance with the laws of the State of New York without regard to its choice of law provisions. The parties hereby consent to the jurisdiction of the state and federal courts of the State of New York, located in the City of New York
Construction - Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the neuter gender shall include the feminine and masculine genders and vice versa. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.
Successors and Assigns - 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 assigns.