Effective 15th of March 2021
This Agreement governs the terms by which content creators provide VIDEOPLASTY SRL, a company registered and operating in accordance with the laws of Romania with content ("Digital Assets"), through its website www.videoplasty.com ("the Site"), on a non-exclusive basis, in order for the Company to make them available for purchase to its clients.
1. Nature and scope of Agreement
By confirming your acceptance of this Agreement it becomes a legally binding contract between any contributor intending to upload digital assets (in this Agreement referred to as "you", whether you are a legal or a natural person) and the Company.
We recommend that you carefully read this Agreement before you enter into it. Should you have any questions regarding the present Agreement contact us at email@example.com .
By confirming your acceptance of this Agreement you grant the Company the non-exclusive right to license and distribute Digital Assets under the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, you may make Digital Assets available to the Company through the means put at your disposal on the Site by following the "upload" procedure. Each and any upload of Digital Assets will be governed by the terms and conditions of this Agreement in the version available at the time of upload.
2. Provision of Digital Assets
The Company, at its sole discretion, reserves the right to determine which of the Digital Assets you upload is suitable for purchase on the Site and only such Digital Assets as it deems suitable will be considered "Accepted Digital Assets" for the purposes of applicable provisions of this Agreement.
The Company also reserves the right to review and update the present Agreement from time to time as it sees fit, and without prior notification. Any such change will have ex nunc effects (only for the future), as such you are required to read the available version before you upload.
Your ability to submit further Digital Assets under this Agreement shall be subject to policies and procedures outlined by the Company from time to time. You acknowledge that the Company, at its sole discretion is able to delete at any time the Digital Assets you created, and thus terminating this Agreement unilaterally.
The Contributor is advised that no one legal document of the Company applies only individually, all legal documents apply within relevant limits and any breach of the rules relating to the Digital Assets will be deemed to be a breach of this Agreement.
3. Grant of Authority
You hereby appoint the Company as your non-exclusive distributor to sell, license or sublicense the Digital Assets to third parties worldwide and to collect and remit funds in connection with those endeavors on the terms set forth in this Agreement. Explicitly, by uploading your Digital Assets to the Company, through its Site, you also grant the Company:
- The worldwide right to sell, market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage the Digital Assets:
- through the Company's Site;
- through other venues owned or operated by the Company or its affiliates from time to time;
- The right to grant perpetual, worldwide, licenses and/or sublicenses to end-users. The Company has the sole right to determine the terms and conditions of all licenses of Digital Assets granted by them, but will not use or license the Digital Content for uses that the Company knows to be defamatory, pornographic or otherwise illegal.
In addition to the foregoing grant the Company may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Digital Assets for their own business purposes relating to the promotion of the Site, the Digital Assets and their distribution programs, and promote the licensing of Accepted Digital Assets (including, without limitation, the use of the Accepted Digital Assets and your registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties).
For the scope of clarity, you are not entitled to any compensation for use of Accepted Content for such business purposes as above.
The Parties agree that all rights, including title and copyright, in and to the Accepted Digital Content will be retained by you, and no title or copyright is transferred or granted in any way to the Company or any third party except as provided in this Agreement.
4. Intellectual Property Matters
You acknowledge that the Company prohibits any content and/or Digital Assets or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded under this Agreement.
By uploading Digital Assets, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such content, including copyright, in and to the content with full power to grant the rights contemplated in this Agreement.
You agree that neither the Company nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Digital Assets.
Using the name identified by you in your contributor account profile, the Company shall use commercially reasonable efforts to credit you as the source of Accepted Digital Assets but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Digital Assets is not credited, that Digital Assets may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial, unflattering or to which, you as a contributor may not agree with.
5. Compensation. Withholding tax.
5.1. The Company agrees to pay you a commission by the 15 of the next month, for Digital Assets in which the license or sale was made in the previous month, by electronic funds transfer or such other method as may be agreed by the parties.
Commissions are paid on license fees which are the amount charged by the Company to each of their clients/users.
You are hereby made aware, acknowledge and agree to the possibility that the Company, in its scope of generating as much revenue as possible, as it sees fit to grow the marketplace, might sparingly exercise its right of offering discounts/promotions or any other such reductions from time to time to its clients/users, without prior notice to you and as a result your commission might be lower than the sum you were initially due.
For the scope of clarity, the following deductions are made from license fees before contributor's commissions are calculated (if applicable):
- applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by the Company from any current or future sums due to you by any law, regulation, or treaty (excluding: (A) any taxes on the net profits of the Company; and (B) any withholding taxes imposed on remittances to the Company;
- unauthorized use detection/enforcement fees and expenses;
- currency hedging fees and costs; and
- shipping charges, insurance charges, fees for materials, and service fees.
The Company may deduct the following amounts from the commission payable to you:
- cancellations of a license where the original sale has been reported to you including where the cancellation is due to a fraudulent transaction;
- overpayment of commission in the previous month;
- amounts that may be deducted or withheld in accordance with the Section 10 Indemnity; and
- withholding taxes as per section 5.2. below.
5.2. Bearing the information submitted by a Contributor when contracting with the Company - for which Contributor is solely responsible – if Contributor is a natural person the Company is obligated under Romanian fiscal law to withhold income tax due to be paid to the government from the commission that Contributor is due in the amount of:
- 10% in case Contributor is an EU resident of the resident of a country with which Romania has concluded a treaty for the avoidance of double taxation. You can find the full list of such treaties here;
- 16% in case Contributor is a resident of a country outside of the EU and that has not concluded a treaty with Romania for the avoidance of double taxation.
For clarity, a Contributor that is a natural person will receive its commission in a net amount, after the deduction of the withholding tax as per the above.
The Company will use its best efforts to provide real time reporting of downloads of Accepted Content for your information. Please note that the official report of licenses of Accepted Content and corresponding commission shall be the sales report.
Without limiting the generality of the foregoing, the Company is entitled to compensate any amount it owes you with all amounts that the Company is or may be entitled under this Agreement or otherwise at law.
You hereby agree that the Company shall not be required to pay or to fully pay your commission to you if the Company is restrained or otherwise prevented from using rights granted under this Agreement relating to Digital Assets because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
You acknowledge and agree that you will be solely responsible for each and every access or use of the contributor account you will register with the Company through its Site, as well as any tool or application that occurs in conjunction with your account and such passwords, and that the Company is authorized to accept your login and password as conclusive evidence that you wish to upload Digital Assets pursuant to this Agreement. The Company shall have no liability or responsibility to monitor the provision of the content under your login and password.
7. Managing Content
The Company may develop policies which must be adhered to prior to Digital Assets being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, the Company does not and cannot review all content/Digital Assets uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such content/Digital Assets.
Notwithstanding the foregoing, the Company reserves the right to delete, move, refuse to accept or edit any communication/content/Digital Asset that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such undertaking by the Company.
The Company shall have the right but not the obligation to correct any errors or omissions in any Digital Assets, as it may determine at its sole discretion. You acknowledge that any screening of Digital Assets performed by the Company to determine Accepted Content is done as a courtesy only.
Notwithstanding the foregoing, given the nature of this business and the prevalence of royalty-free content, the Company cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Digital Assets might be used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Digital Assets at law, the Company 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 Accepted Content.
8. Confidential Information
You acknowledge that the Confidential Information (defined below) that you may obtain through the entering into of this Agreement and the provision of Digital Assets constitutes valuable, confidential, proprietary information of the Company, and you agree that during the term of this Agreement and thereafter you shall not, without the express written consent of the Company, use or disclose to any other person or entity any such Confidential Information, except as specifically authorized under this Agreement.
For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of the Company, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, the Site and content belonging to others and other intellectual property.
For the purposes of the above, the manner in which you come to obtain the Confidential Information is irrelevant, whether it is through direct/indirect means, irrespective of format or even of the intention and/or omission of the discloser as to the disclosing of the Confidential Information.
9. Representations and Warranties
You hereby represent and warrant as follows:
- You have the legal capacity and authority to enter into this Agreement and perform your obligations hereunder and that you will comply with all applicable laws, are the sole and exclusive owner of the Digital Assets or are the authorized representative of the applicable copyright owner(s) of such Digital Assets, have the right to grant all of the license rights contemplated to be provided under this Agreement, and have not granted any rights or licenses to any content and/or Digital Assets or any other intellectual property or technology that would conflict with this Agreement;
- no portion of the Digital Assets as delivered to the Company, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Digital Assets will be free of any virus, malware, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Digital Assets or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Digital Assets or the Site in any way;
- the Digital Assets will include all necessary descriptive information, if such is necessary to enable its effective marketing on the Site, in which case the descriptive information will be complete and accurate in all material respects, and will not include false or misleading data;
- the Digital Assets delivered to the Company hereunder represents original creations and expressions of subject matter, and no content or descriptive information 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; and
- the Digital Asset has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the it being used by the Company or its customers.
You agree to indemnify, defend and hold the Company and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Digital Assets (collectively, the "Company Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees) incurred by any Company Party as a result of or in connection with:
- any use or alleged use of the Site under your account by any person, whether or not authorized by you;
- or resulting from any communication made or Digital Assets uploaded under your account;
- any breach by you of this Agreement; or
- any claim threatened or asserted against any Company Party to the extent such claim is based upon a contention that any of the Digital Assets used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, rights of privacy, rights of publicity or other intellectual or other property rights of any third party.
The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with the Company's defense of such claim.
You agree that the Company shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of a license agreement or alleged infringement of any other of your rights.
You hereby release the Company from any and all claims you might have, either directly or indirectly, arising out of or in connection with a determination by the Company to proceed or not to proceed against any Infringer in any instance. The Company hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer shall, after deduction of any and all costs and expenses incurred in gaining such recovery incurred by or on behalf of the Company in connection with such action, be divided between you and the Company pursuant to the provisions of Section 5 (Compensation). Same will happen if the Company elects not to proceed against an Infringer and you undertake such proceedings yourself.
11. Term and Termination
This Agreement is effective until terminated, as follows:
You may terminate this Agreement with respect to the whole or part of the content you provide to the Company at any time by giving thirty (30) days written notice specifying the Digital Assets to which termination applies if you choose to terminate this Agreement to part of your Digital Assets by filing such a notification through your account.
Be advised that even if you proceed in this manner The Company will reserve the Digital Contents that were purchased and not yet made available to the user/customer, in order to fulfill its obligations towards them. In such cases, you will be entitled to receive your commission as per Section 5 of this Agreement.
- The Company may also terminate this Agreement with respect to any/some/all of your Digital Assets, for any reason by giving you thirty (30) days' notice by e-mail at the last address contained in your account information
- Either party may terminate this Agreement upon written notice effective upon being sent in the manner set forth in the present section, if the other party ceases to exist, or will inevitably cease to exist, irrespective of method or reason or is otherwise unable to conduct business in a material way.
The Company may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been:
- in the reasonable opinion of the Company, any material misrepresentation made as to the capacity, identity or copyright ownership of content or you provided hereunder; or
- no log-in or other activity in the account for 6 months despite reasonable commercial efforts to contact you based on the information provided as part of your account profile.
12. Effect of Termination
Upon the termination of this Agreement with respect to one or more of the Digital Assets, the grant of authority given to the Company shall cease with respect to the relevant category of Digital Assets subject to the following conditions:
- he Company shall remove the respective Accepted Digital Assets from the Site within ninety (90) days of the termination of this Agreement;
- notwithstanding termination, the Company shall have the right to continue licensing Accepted Digital Assets until it is removed from the Company Site or other sites for up to (1) year following termination where such Accepted Digital Content has previously appeared in the Company's promotional materials or marketing programs;
- regardless of the expiration or termination of this Agreement, the Company will continue, in accordance with this Agreement, to pay compensation due to you as per Section 5 of this Agreement corresponding to licenses granted to users/clients during any such transitional period; and
Upon termination, the Company 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.
Notwithstanding any other provision in this Agreement, the termination of this Agreement with respect to a part of the Digital Assets shall not alter or reduce your obligations and that of the Company in respect to the remaining Digital Assets, and in any event, shall not alter or affect the rights granted to licensees by the Company pursuant to this Agreement.
Termination of this Agreement shall operate without prejudice all sections and/or clauses that are designed to survive and produce effects after termination, as they will continue to be in full force and effect.
13. Limitation of liability
In any event, the Company'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 the commissions owed to you by the Company for the content that is the subject matter of the claim, but in any event will not exceed one thousand ($1,000.00) Should a competent jurisdiction not allow for the limitation or exclusion of liability for incidental or consequential damages, in such jurisdiction the liability of the Company or any of its directors, officers, employees, shareholders, partners, agents or licensees shall be limited to the greatest extent permitted by law.
14. Applicable law
This Agreement will be governed in all respects by the laws of Romania.
Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be settled through amiable means and in good faith.
If such amiable means should fail to resolve the dispute, litigation will be brought forward to the competent courts of Bucharest, Romania.
Notwithstanding the foregoing, the Company shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of the Company, such action is necessary or desirable.
The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
All correspondence between the parties shall be conducted in writing using the email addresses and/or physical addresses that can be found on the Site for the Company and for you, those you have provided when registering your account.
You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of all other of the Company's Legal Documents which may be incorporated by reference therein, and to the extent of their incorporation and/or their applicability in this Agreement you agree to be bound by them.
The Company's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without the Company's prior written consent. The Company may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
Should any provisions of this Agreement be deemed unenforceable by a competent court, the parties shall replace them with the appropriate provisions that mostly reflect the will and intent of the parties, as well as the economical sense of the previous provisions.
This Agreement can be amended by the written agreement of the parties or unilaterally by the Company providing you 30 days' notice by email at the address set out in section 11(a) and posting of an updated version of this Agreement on the Site.
Continued provision of Digital Assets or failure to terminate this Agreement within 30 days of such notice will be deemed to be acceptance of the amendment by you and it will be incorporated by reference into this Agreement, following the expiry of the above mentioned period of 30 days.
If you have concerns relating to this Agreement, please contact us firstname.lastname@example.org.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF THE COMPANY AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED DIGITAL ASSETS, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE COMPANY, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THE COMPANY RELATING TO THE SUBJECT OF THIS AGREEMENT.
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