Snapixel

Snapixel Content Submission Agreement

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Flixya Entertainment, LLC, d/b/a Snapixel (“Snapixel”) and you (“You” or “Licensor”) enter into this Content Submission Agreement (“Agreement”) for Snapixel to distribute Licensor’s photographs, data files, and other materials (“Content”) on the date you agree to this Agreement and upload the files to (the “Effective Date”). This Agreement is incorporated into Snapixel’s Terms of Service. In the event of any inconsistency between this Agreement and the Terms of Service, the terms of this Agreement will govern.

By clicking on the “Yes” or “Accept” button below or otherwise completing the submission process, You acknowledge that You are of the age of majority and have read this Agreement, understand it, and agree to be bound by it. If You do not agree to any of the terms below, then Snapixel is unwilling to license your Content, and You should click on the “No” or “Do Not Accept” button below or otherwise discontinue the submission process.

1. Ownership. Except as otherwise mutually agreed upon, Licensor will remain the exclusive owner of all rights, titles and interests, including copyright, in and to all Contents. Except as otherwise provided in this Agreement, no title or copyright is granted or transferred to Snapixel or any third party. Snapixel shall obtain Licensor’s prior written approval before Snapixel distribute the Content for the purposes of resale or re-license.

2. Licenses.

2.1 Licensor hereby grants to Snapixel the non-exclusive, worldwide sub-licensable right and license, with respect to all intellectual property rights, to make, use, sell, copy, market, distribute, modify, create derivative works, and publicly perform and display all Content uploaded by Licensor through any and all modes of distribution now known or hereafter existing. Licensor further grants to Snapixel a non-exclusive, worldwide, royalty-free and sub-licensable license to use Licensor’s trademarks, names, and likeliness along with associated goodwill in connection with the Content and its promotion; such usage shall inure to Licensor’s benefit.

2.2 Snapixel may delete, title, resize, modify and edit the Content and related assets as it deems appropriate to exercise its rights under this Agreement. Licensor shall make reasonable revisions to the Content as requested by Snapixel.

2.3 Snapixel shall have control over how to use, display, distribute and promote the Content including by associating advertising with the Content or whether to use or distribute the Content at all, provided Snapixel complies with commercially reasonable written trademark usage guidelines.

2.4 Snapixel may use the Content for its own business purposes relating to the promotion and marketing of Snapixel’s web sites and its distribution programs. No compensation shall be due to Licensor for use of Content for such business purposes.

2.5 Licensor shall be solely responsible for the Content. Without limitation, Licensor represents and warrants that the Content is not subject to any third-party obligations (such as exclusive agreements) that would interfere with Snapixel’s exercise of its rights and licenses granted herein. Licensor shall not cause the Content to be subject to an exclusive agreement with a third party during the Term of this Agreement. Licensor shall also notify Snapixel in writing if the Content has been made available or is available through a Creative Commons license or an open source license.

3. Compensation.

3.1 Subject to Licensor’s compliance with the terms herein, Snapixel shall pay to Licensor the Revenue Share rate set forth in Exhibit A for Content that Snapixel actually distributes. “Revenue Share” shall be the payment owed to Licensor, if any, for the distribution of Content, as defined in Exhibit A.

3.2 Payment Terms. All payments shall be issued via a transaction service, such as Paypal. Payments will be issued when royalties exceed an amount as indicated in the credit guide available at Snapixel Credit Guidelines. Snapixel shall owe no additional payments and Snapixel makes no representation as to the amount of Revenue Share, if any, that will be earned.

3.3 Reporting. Snapixel shall provide Licensor with a report that shall include at least the following information broken out separately for the Content: (a) the number of units distributed and (b) the Revenue Share owed.

3.4 Taxes. Licensor will be responsible for, and will indemnify and hold Snapixel harmless from, payment of all taxes and other governmental charges, and any related penalties and interest, arising from the payment to Licensor under this Agreement.

4. Intellectual Property. Licensor represents and warrants that it owns all rights to the Content necessary for Snapixel to exercise the rights and licenses granted herein. To the extent that the Content contains images, trademarks, names, and likeliness of a person, corporation, organization, third-party product, or third-party intellectual properties, Licensor agrees to provide the names or other identifiable information of such person, corporation, organization, third-party product, or third-party intellectual properties to Snapixel in writing. Licensor shall obtain all necessary releases in order for Snapixel to exercise its rights and licenses as granted herein. Licensor agrees that Snapixel shall not be liable for any damages related to the Content pursuant to Section 6 and shall indemnify Snapixel pursuant to Section 9 of the Agreement.

5. Warranties.

5.1 Licensor represents and warrants that Licensor has full corporate power and authority to enter into this Agreement, to grant the rights granted herein, and to carry out the provisions hereof.

5.2 Licensor represents and warrants that Licensor and its Contents will not infringe or misappropriate any intellectual property right or other right, including with respect to data privacy, and the Contents and other materials will be provided to Snapixel fully cleared from any third party obligations for all contemplated uses.

5.3 Licensor represents and warrants that Licensor owns all intellectual property rights, including without limitation copyright, trademarks, and rights of privacy, in the Content. To the extent that the Content contains images, names, or likeliness of persons, Licensor represents and warrants that it has obtained a valid and binding model release from all required parties in substantially the same form as Model Release Form (PDF) that will allow Licensor to exercise its rights and licenses as granted in this Agreement.

5.4 To the extent that the Content contains identifiable third-party properties, Licensor represents and warrants that it has obtained a valid and binding release form from all required parties in substantially the same form as Property Release Form (PDF) that will allow Licensor to exercise its rights and licenses as granted in this Agreement.

5.5 To the extent that the Content is identified as available for editorial or commentary use, Licensor represents and warrants that (a) it will not modify the Content to distort the reality as seen through your camera lens (except the standard brightness/contrast adjustments), (b) it has not obtained the Content in unlawful ways or otherwise incur civil or criminal liabilities, and (c) it will indemnify Snapixel of any claims related to the Content (including activities in obtaining the Content) pursuant to Section 9 of this Agreement.

5.6 Licensor represents and warrants that all Content will perform in substantial accordance with any documentation, representations to Snapixel, and any additional specifications set forth in any exhibit hereto and that no Content will contain any trap door, Trojan horse, virus, worm, spy-ware, or other harmful code or disabling device.

5.7 Licensor represents and warrants that Licensor shall not collect any user information from the Content.

5.8 All other warranties, express or implied, are disclaimed.

6. Limitation of Liability. Except as provided in this Section, in no event shall either party be liable to the other for any indirect, special, punitive or consequential damages, even if such party has been advised of the possibility thereof. In the event that any liability is imposed on either party for any reason whatsoever, the aggregate amounts payable by the liable party shall not exceed the total amount paid to licensor during the preceding twelve (12) month period. However, nothing in the foregoing shall apply to claims for breach of confidentiality or warranty, or for indemnification. Each party acknowledges that the foregoing limitations are an essential element of this Agreement between the parties and that in the absence of such limitations the terms set forth in this Agreement would be substantially different.

7. Term and Termination of Agreement.

7.1. Term. This Agreement becomes effective on the Effective Date and it shall continue in full force and effect until the Agreement is terminated. Either Party may terminate the Agreement in its entirety or with respect to any Content upon thirty (30) days written notification to the other party.

7.2 Effect of Termination. Upon any termination or expiration of this Agreement, Snapixel may (a) for a limited wind-down period of sixty (60) days after the date of expiration or termination, continue to distribute electronic versions of the Content, and (b) sell off any inventory it has already produced or committed to produce without any obligation to recall Contents already distributed. All Content license agreements to end users shall continue in accordance with their terms and all provisions which by their nature survive, including warranties, indemnification, and confidentiality obligations, shall survive. Notwithstanding anything to the contrary, Snapixel may keep copies of the Contents and associated documentations for internal and customer support purposes. All end users who purchased the Content prior to termination or expiration of the Agreement may re-download the Content after termination or expiration of the Agreement.

8. Confidential Information.

8.1 “Confidential Information” means any confidential or proprietary information, or other information relating to research projects, work in process, future development, scientific, engineering, manufacturing, marketing, or business plans or financial or personnel matter relating to either party.

8.2 Confidentiality. Each party hereto will maintain in confidence all Confidential Information disclosed by the other party. Neither party will use, disclose or grant use of such Confidential Information except as necessary to exercise its rights and obligations hereunder. Each party will use at least the same standard of care as it uses to protect its own most confidential information to ensure that such employees, agents or consultants do not disclose or make any unauthorized use of the Confidential Information, which in no case will be less than reasonable care. Each party will promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section shall survive any termination or expiration of this Agreement in perpetuity.

8.3 Exceptions. The obligations of confidentiality contained in Section 8.2 will not apply to the extent that it can be established by the receiving party by competent proof that such Confidential Information: (a) was already known to the receiving party, other than under an obligation of confidentiality, prior to the time of disclosure by the other party; (b) was generally available to the public in a single source or otherwise part of the public domain at the time of its disclosure to the other party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of this Agreement; or (d) was disclosed to the receiving party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others. Receiving party shall have the right to disclose disclosing party’s Confidential Information to (i) legal and financial professionals required to maintain the Confidential Information in confidence and (ii) to the extent required by order or requirement of a court, administrative agency or other governmental body, provided that the receiving party gives the disclosing party written notice of such order or requirement, as soon as practicable after receipt of such order or requirement, and provides reasonable cooperation in opposing or limiting such order or requirement if requested.

9. Indemnification.

Licensor shall defend, indemnify and hold Snapixel (including without limitation its directors, officers, employees, partners, affiliates or agents) harmless from and against any and all liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) and damages in connection with any action, suit, proceeding, demand, assessment, settlement, or judgment arising out of or related to any claims by third parties based on (a) any breach of a warranty by Licensor, or (b) any allegation of violation, infringement or misappropriation by the Content or Licensor’s trademarks, names, or likeliness of any rights of any other person or entity, including with respect to intellectual property and data privacy, provided that (i) Snapixel promptly notifies Licensor of such action, claim or proceeding; (ii) Licensor shall have the sole right to compromise, settle or defend any such action, claim or proceeding (provided that Licensor will not compromise or settle without Snapixel’s consent, not to be unreasonably refused; and (iii) Snapixel provides Licensor reasonable assistance, at Licensor’s expense, in the defense of such action, claim or proceeding.

10. General Provisions.

10.1 This Agreement (including exhibits and attachments hereto) constitutes the entire agreement between the parties and supersedes any prior agreements or understandings of the parties.

10.2 Failure or delay by either party in exercising any rights shall not operate as a waiver. This Agreement may only be changed or terminated by a written document signed by both parties.

10.3 This is a negotiated Agreement and the doctrine of interpretation against the drafting party shall not apply.

All notices shall be in writing, and shall be deemed given when actually sent or confirmed receipt as stated.

10.4 Nothing herein shall be deemed to create an agency, joint venture or partnership relation between the parties hereto. Nothing herein shall be construed as granting to one party any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of the other, or to bind the other party in any way or manner whatsoever.

10.5 Either party may assign this Agreement only to a successor of all or substantially all of its business by giving written notice to the other party. Any unauthorized assignment or transfer shall be null and void and of no force or effect.

10.6 This Agreement is made in accordance with and shall be governed and construed in accordance with the laws of the State of California, without giving effect to any principles that only provide for the application of the law of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement shall be determined by arbitration in front of the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes. The language of the arbitration shall be English. The arbitration shall take place in San Francisco, California. Notwithstanding the foregoing, the parties agree that all disputes arising out of or related to Section 8 of this Agreement may be adjudicated under the laws of California and U.S. federal law, as applicable, in the state and federal courts having jurisdiction over disputes arising in San Francisco, CA, and the parties hereby agree to consent to the personal jurisdiction of such courts. The U. N. Convention on the International Sale of Goods shall not apply to this Agreement.

10.7 In the event any proceeding or lawsuit is brought by Snapixel or Licensor in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal.

10.8 If any provision of this Agreement is held to be prohibited by or invalid under applicable law, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

snapixel

Snapixel Content Submission Agreement