POND5 CONTRIBUTOR AGREEMENT
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 our Affiliates, "Pond5", "we" or "us") for distribution and licensing through the Pond5 websites (the "Website") 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 to us ("Content") and any tags, captions, metadata, annotations, information or releases you provide to us relating to the Content ("Content Information") that you submit to us.
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 your Content or Content Information and remove the same from the Website.
2. Rights You Grant Us
You hereby grant us the world-wide, non-exclusive right and license throughout the world, to directly and/or indirectly copy, market, promote, distribute, sell and/or grant non-exclusive licenses to your 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, restriction and/or other terms of the Pond5 Content License Agreement, as modified by us from time to time in our sole discretion, and/or any variations thereof.
You, or if different, the owner of the copyright in your Content, will retain ownership of your Content and the copyright thereto. No copyright ownership or title will be transferred to us.
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 your Content Information or for purposes of facilitating the marketing, distributing, sale and licensing of your 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 your Content in any kind of works now known or hereafter devised and use, copy, transmit, broadcast, telecast, stream, and publicly display, perform worldwide your Content, and derivative works thereof, your Content Information, and your, and if different, your Content creator's, name and biographical information for purposes of promoting, advertising, marketing and distributing your 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 your Content, including the right to be identified as the author of your 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.
A Pond5 License Agreement may include enhanced, premium or custom license options for your Content which provide the customers broader rights to the Content, fewer restrictions and/or greater legal protection than our standard license in the Pond5 License Agreement (an "Extended License").
Except as expressly provided below, we will pay you 50% of all license fees collected by us from customers and resellers and other redistributors for your Content, and we will deduct and retain 50% of such license fees as compensation to us (both such portions, collectively "Net License Revenue").
You have the option of selecting the item price charged by us for your Content, or you may request that we price your Content on your behalf. However,
we will have discretion to increase the price of your Content to maximize your overall performance (e.g., to round up) or comply with our minimum pricing guidelines,
we will have discretion to charge additional amounts for premium, enhanced and other Extended Licenses,
we will have discretion to offer discounts to the item price as part of special promotions or to customers who we believe will make volume purchases or commitments or to help secure additional revenue on your behalf,
we may temporarily or in select markets charge higher or lower prices to test pricing levels in an effort to maximize sales or revenue on your behalf, and
this Section 3(b) does not apply to licenses granted under our Global Partner Program (see Section 6 below).
In cases where a customer purchases an Extended License, we will deduct 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 50% of the net Extended License fees collected by us after such Legal Guarantee Fee is deducted. Refer to the Payments Policy for further details.
Notwithstanding the foregoing, we may also exclude or deduct any of the following from the calculation of the Net License Revenue and the net amount payable to you: (i) taxes or other withholdings paid by the customer or that we determine are required by applicable law; (ii) refunds, chargebacks and uncollectible sums; and (iii) 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.
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 Payments Policy set forth in the Contributor Guidelines posted by us on the Website as modified or supplemented by us from time to time, the terms of which are incorporated by this reference herein.
4. Content Standards; Releases
You must provide us with a copy of every release that you possess regarding your Content.
These release 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 property that is contained or depicted in the Content that might disclose the identity of or be required by the owner of such property; or
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 the Pond5 License Agreement, (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 Contributor Guidelines.
If the Content depicts Third Party IP, you will so designate for each item when uploading to our site.
You must designate the Content on the upload page of the Website as "Editorial Use" if the Content
documents a news event, or
contains or depicts recognizable people or property for which releases have not been secured and provided to us in accordance with this Agreement and the Contributor Guidelines.
We may permit Content designated "Editorial Use" or as depicting Third Party IP to be used for commercial purposes if the Licensee is obligated to obtain the necessary rights and clearances for such use.
Where your Content is identified by you as news, documentary or editorial content, the Content has not been manipulated, modified or processed in any manner that might distort the contextual integrity of your Content. For greater clarity, cropping and brightness/contrast corrections or blurring of faces are permissible where the integrity of your 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 recording of such work or have received the written authorization from all of the owners or the authorized transferees or licensees thereof for such submission and the inclusion of all such rights in your license to us and the licenses granted by us under Section 2, and 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, you need not obtain rights to such composition, provided that you so designate for each item when uploading to our site but by doing so, you will be representing and warranting that the composition is in the public domain in the United States.
You will comply with the applicable specifications set forth in the Contributor Guidelines posted by us on the Website, as modified or supplemented by us from time to time, the provisions of which are incorporated herein by this reference.
You will maintain and preserve all original releases and records relating to the creation of your Content, including all clearances or releases that have been obtained for your Content, and/or licenses, agreements or instruments relating to ownership of, or rights to your 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 resellers and other redistributors providing any of the same to actual and prospective licensees of your Content and their Representatives ("Content Users").
5. Audio Content
Because the Pond5 License Agreement treats Content that is a music file (with or without lyrics) (a "Music Track") or other audio file (together with Music Tracks, "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 your 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 of Audio Content that you designate on the Website at the time of upload of the 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 your Content by us or the use, performance, synchronization or distribution of such Content by Content Users as permitted by the Pond5 License Agreement and (ii) you waive any rights to any such payment or report.
You may not take any action on or with respect to YouTube (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.
6. Global Partner Program
Pond5 has created a Global Partner Program with the aim of promoting your content in geographies, markets and to customers and resellers or other redistributors that our traditional marketplace may not reach as optimally. While we believe that participation in this program will generate additional revenue opportunities for your Content, your participation is optional and you may opt out at any time on our Website Opt Out page.
Your license to us includes the right and license throughout the world to market, promote and distribute your Content indirectly through resellers and other redistributors and authorize such resellers and other redistributors to grant perpetual and term non-exclusive licenses to your Content to their customers under the resellers’ or other redistributor’s own license agreements, which may include some or all of the rights that may be granted in a Pond5 License Agreement.
We will pay you 50% of Net License Revenue we receive from customers, resellers and other redistributors for Content licensed under the Global Partner Program as provided and subject to the provisions of Section 3 “Compensation”; provided that as part of our Global Partner Program, we will have discretion to (i) set the price of your Content and/or agree to compensation structures with the aim of maximizing overall sales of content and revenue to our contributors, and (ii) license your 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 your Content and the other works licensed to the customer on a basis that we in our sole good faith discretion determine is fair.
You hereby represent and warrant as of the date you accept this Agreement and the date of each submission of Content as follows:
Your Content represents original creations and expressions of subject matter, and your Content and your 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 your 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 the license to your Content granted to us hereunder, including the full legal right, power and authority to grant us the right to sublicense such Content as contemplated under the Pond5 License Agreement and the Content Users to use your 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 the Pond5 License Agreement.
If you are an individual, you are of sufficient legal age to grant the rights and to 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 Content or comply with legal requirements.
If your 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 your Content and to grant the licenses to such Content set forth in this Agreement.
No portion of your Content contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement or the Pond5 License 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 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 your Content.
Your Content has not 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 your Content from the Website.
If the Person who is uploading or otherwise providing your Content to us is doing so as your Representative, then both you and such Person represent and warrant that the individual who is providing your Content to us is the registered user of the Website under whose user ID your 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, OUR 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 OUR 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.
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) arising out of or relating to any claim, action or proceeding by a third Person 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, shareholders, officers, directors and employees (collectively,"Pond5 Parties"), our resellers and other redistributors and the Content Users harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any claim, action or proceeding by a third Person 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.
If Pond5 is the indemnifying party, it shall have the right to defend and control the defense or settlement of the claim or action, provided Pond5 will not enter into any settlement agreement that creates a financial obligation for you that is not reimbursed or assumed by Pond5 without your written consent, which will not be unreasonably withheld or delayed by you. 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, the indemnified party may do so at the indemnifying party's sole expense.
We will have no responsibility whatsoever for the compliance by Content Users, resellers, other redistributors 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 the Pond5 License Agreement and/or an infringement or claimed infringement of any of intellectual property or other rights in or relating to your 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 your Content. Upon our request, you will provide any information, assistance and cooperation that we reasonable 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 the Compensation section above.
We recommend that you register your copyrights in your 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/.
We may at any time and for any reason (including your submission to us of infringing Content) remove any or all of your Content from the Website and cease offering sub-licenses to the same (the "Terminated Content").
Except 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 firstname.lastname@example.org 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 resellers and other redistributors 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 resellers and other redistributors 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 of your Content is in a customer's cart at the time of the removal, expiration or termination, we will not be required to remove your Content from the cart and we may allow the customer to purchase a license to such Content under the Pond5 License Agreement for a period of 90 days after such removal or termination, and (iii) after removal of any Content or termination or expiration of this Agreement, we may continue availability of the Content for license under the Pond5 License Agreement to those customers that have downloaded "comp" versions of the item prior to its removal from the site.
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 resellers and other redistributors shall survive termination or expiration of this Agreement for any reason.
THE POND5 PARTIES AND OUR RESELLERS OR OTHER REDISTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR (i) 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 OR OUR 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. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THE EXTENT LIMITED BY APPLICABLE LAW, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 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 OUR 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 THIS LIMITATION WILL NOT APPLY TO AMOUNTS THAT ARE EXPRESSLY PAYABLE TO YOU HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT (i) THE AMOUNTS PAYABLE HEREUNDER REFLECT AND IS 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 OUR SERVICES AND THE WEBSITE, INCLUDING ANY OF YOUR 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.
Content 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.
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 are owned or controlled by such company, under common ownership or control with such company or own or control 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 your Content to Pond5 and granting Pond5 the rights to your 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" does not include resellers or other redistributors; and (xi) 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 Guidelines) do anything shall imply the assumption of any obligation or impose any obligation on Pond5 to do the thing or any other thing 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 your Content, or (B) two (2) weeks after the date we send or otherwise provide notice of a change, whichever is earlier. You will have the right to opt out of the modified version of this Agreement by both removing your 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 your 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 site.
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 and we acknowledge that our compensation and fees under Section 3 and 6 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 your 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 laws of the United States and 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 this Agreement, the rights granted herein, any upload or submission of Content, any license granted by us or access to and use of the Website will be resolved exclusively by a State or Federal court in New York City in the United States. We and you hereby waive any objection to venue, or to the inconvenience of the forum, of any such court or right to trial by jury to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
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 logons 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.
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 email@example.com; or to you at the email address or contact information provided by the registered user of the Website under whose user ID your 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.
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.