Paragraphs 1-13 cover everything that apply to anyone who uses YuVue - that includes contributors who upload content as well as any customers (i.e., brands, broadcasters, print and Web publishers) who want to use it.
1. Your Acceptance
C. The Service may contain links to third party websites that are not owned or controlled by Company. Company assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Company will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve Company from any and all liability arising from your use of any third-party website.
2. YuVue Account
A. In order to access some features of the Service, you will have to create a YuVue account. You may never use another's YuVue account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Company immediately of any breach of security or unauthorized use of your account.
B. Although Company will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Company or others due to such unauthorized use.
3. General Use of the Service—Permissions and Restrictions
A. You agree not to distribute in any medium any part of the Service or the Content (as defined herein) without Company’s prior written authorization, unless Company makes available the means for such distribution through functionality offered by the Service. This Agreement will apply to the following types of content accepted by Company at its sole discretion for exploitation (the “ Content ”): (a) photographs or other still visual representations (“ Still Image(s) ”); (b) moving visual content in any form including, film, video tape, digital files, animation and clips (“ Footage ”); and (c) font, audio file and any other work protected by copyright, in all cases, generated by any means and in any format or medium, including any reproductions and any modifications and derivative works thereof.
B. You agree not to alter or modify any part of the Service.
C. You agree not to access Content through any technology or means other than those provided by Company or other explicitly authorized means Company may designate.
D. You agree not to use the Service for any of the following commercial uses without Company’s’ prior written approval:
- the sale of access to the Service;
- the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
- the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service.
E. Prohibited commercial uses do not include:
- uploading an original video to Service, or maintaining an original channel on or through Service, to promote your business or artistic enterprise;
- showing Company’s Content through an embeddable player on an ad-enabled blog or website made available by Company as authorized by Company (the “Authorized Player”), or
- any use that Company expressly authorizes in writing.
F. If you use an Authorized Player on your website, you may not modify, build upon, or block any portion or functionality of the Authorized Player, including but not limited to links back to the Website.
G. If you use the Company mobile or Web uploader app (the “Uploader”), you agree that it may automatically download and install updates from time to time from Company. These updates are designed to improve, enhance and further develop the Uploader and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates and permit Company to deliver these to you as part of your use of the Uploader.
H. If you have linked your YuVue account with any of your social media accounts, including but not limited to Twitter and Instagram, or if you use your social media accounts to deliver content to the Company by using the hashtag #yuvue or any variants thereof (the “YuVue Hashtag”), you agree that Company may treat any content on these accounts or delivered using the YuVue Hashtag as Content as defined hereunder.
To get access to all of YuVue's features, you need to become a member and set up an account. This applies not only to customers (i.e., brand, broadcaster, print or Web publishers) who wish to view and license photos and videos, but also contributors uploading content using our website, mobile app or social media. In order to GET PAID when we license your content, you need to set up a Stripe account.
I. You agree not to use or launch any automated systems, including without limitation, robots, spiders, or offline readers, that access the Service in a manner that sends more request messages to the Company server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line Web browser. Notwithstanding the foregoing, Company grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Company reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
J. In your use of the Service, you will comply with all applicable laws.
K. Company reserves the right to discontinue any aspect of the Service at any time.
4. Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
A. The Content on the Service, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to Company, subject to copyright and other intellectual property rights under the law.
C. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
D. You understand that when using the Service, you will be exposed to Content from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Company with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Company, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
5. Your Content and Conduct
A. As a YuVue account holder you may submit Content to the Service. You understand that Company does not guarantee any confidentiality with respect to any Content you submit.
You can only submit photos and videos that you have created, own, or have the required rights to publish and license. Seriously. Also, please don’t submit anything that anything that is offensive or illegal.
C. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Company all of the license rights granted herein.
D. You further agree that you will not submit to the Service any Content or other material that is contrary to Company’s Community Guidelines, which may be published or updated from time to time, or contrary to applicable local, national, and international laws and regulations.
E. You understand that Company does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and that Company expressly disclaims any and all liability in connection with Content. Company does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Company will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Company reserves the right to remove Content without prior notice.
6. Account Termination Policy
A. Company will terminate a user's access to the Service at its sole discretion if, under appropriate circumstances, the user is determined to be a repeat infringer.
We play fair and ask you to do the same. That means we will remove content you uploaded if it goes against these rules. If you do this repeatedly, we have to shut down your account. You'd do the same if you were in our shoes!
7. Digital Millennium Copyright Act
A. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our copyright agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as a valid email address and telephone number;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company’s designated method to receive notifications of claimed infringement is by emailing the copyright agent at info@yuvue. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
If you notice that someone has improperly uploaded content that’s yours, let us know and we will remove it.
B.If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the copyright agent:
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York, NY, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the copyright agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion.
8. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (VI) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
9. Limitation of Liability
IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (V) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (VI) ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Company, its parent corporation, officers, directors, members, shareholders, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
11. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.
You are at least 18 years old. You’re using our service at your own risk and will be held responsible if you break any of these rules.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction.
Section II. Contributor Standard Terms & Conditions includes the additional terms and conditions that apply just to contributors uploading content.
II. CONTRIBUTOR STANDARD TERMS & CONDITIONS (“The Agreement”)
SECTION 1. GRANT OF LICENSE, DEFINITIONS.
1.1 License Grant to Company: By submitting your Content to Company you grant Company a worldwide, non-exclusive right to market and license, sublicense, the right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content that you submit to Company . These rights may be exercised via any analog or digital means of communication now known or hereafter devised including without limitation via print, websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films. Company may license, sublicense or authorize any third parties (“ Distributors ”), and their customers to exercise the rights described in this Section 1 . Company and Distributors will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by third parties. Company and Distributors may determine how Content may be marketed and may stop marketing or licensing it at any time. If Company notifies you that it has permanently stopped marketing and licensing any Content, the Agreement will be deemed to be terminated only with regard to that Content.
1.2 Types of Content: This Agreement will apply to Content accepted by Company at its sole discretion for exploitation under the License granted to under Section 1.1, above.
1.3 License Models, A La Carte Licenses, Auctions, Subscription Feeds, and Advertiser-Supported Syndication: Content may be licensed individually (“A La Carte Licenses”), included in one or more of Company’s auctions (each an “Auction”), current or future subscription-based editorial feeds (the “Subscription Feeds”), or in an advertiser-supported syndication environment (“Syndication”) made available by Company or its Distributors (each a “License Model” and collectively the “License Models”). Company will at its sole discretion determine the License Model(s) through which Content will be licensed, and may subsequently move and license Content through any of the License Models. For Content that moves into a new License Model, the Revenue Share for the new license model will apply going forward.
You are allowing us to license content you upload in any way possible - this could be through direct licensing, subscription licensing or even selling ads placed within or around your content. We will be setting all prices based on market rates.
1.4 Revenue Share.“ Revenue” refers to Gross License Fees actually received by Company for Content, irrespective of License Model through which Content is actually licensed. “ Gross License Fees ” means: (a) the amount actually received by Company for licensing of the Content (b) the amount recovered from a third party infringer in connection with a Claim (as defined in Section 1.11 ); or (c) the amount of revenue actually received from consumer products/services that is allocated to the Content pursuant to Section 1.8 . The allocable Revenue Share shall be: 1.) for A La Carte Licences and Auctions: 50% (fifty percent) of Revenues to you; 2.) for Subscription Feeds and Syndication: your pro-rated share of 50% (fifty percent) of Revenues to you, whereby your pro-rated share shall be based on the following formula: a.) for Subscription Feeds: x.) the number of times your Content was actually downloaded by licensees or Distributors in a Subscription Feed during a Sales Month (as defined in Section 1.6 below) divided by y.) the total number of downloads of all Content in a Subscription Feed during a Sales Month; and 3.) for Syndication: x.) the number of items of your Content that actually generated Revenue through syndication in a Sales Month divided by y.) the total number of items of all Content that actually generated Revenue through syndication in a Sales Month. In all cases, the following deductions shall be made from Gross License Fees before Revenue is calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by 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 Company or any Distributor; and (b) any withholding taxes imposed on remittances to Company from countries outside of the United States); (ii) unauthorized use detection/enforcement fees and expenses; and (iii) service fees such as, for example, special formatting requests and technology delivery/access services, in all cases arising out of or resulting from any license of the same Content.
Our customers will be paying to use your work, and we will share half (yes, that's 50%) of license fees and any ad revenue we receive with you. These payments will be deposited into your Stripe account as we receive them.
1.5 Deductions . In addition to the Deductions set forth Section 1.4, above Company may deduct the following amounts from the Revenue Share payable to you (collectively the “ Deductions ”): (a) cancellations, partial refunds or other sales incentive rebates in respect of a license where the original sale has been reported in a current or past sales report (“ Sales Report ”) including where due to a fraudulent transaction; (b) overpayment of Revenue Share in a prior period; (c) payment processing or administration fees charged by third parties on remittances made to you and (d) amounts that may be deducted or withheld in accordance with Section 2.2 Indemnification. Company will notify you of any Deductions in a Sales Report before deducting amounts from payments to you. Other than Revenue Share for Content that is improperly credited to you or any cancellations under (b), if Company has not notified you of any Deduction within 1 year after it has been incurred, Company waives the right to recoup it.
1.6 Reporting and Payment. Company will issue Revenue Share reports and make appropriate payments monthly, within 30 days after the end of each calendar month, using the third party payment gateway Stripe, and will report to you all transactions together with any Deductions, transaction identifier, date, and, where appropriate, the rights granted by a license. In order to be paid by the Company, you must set up an account with Stripe and agree to their terms and conditions. In any month where your Revenue Share is less than US$20 (Twenty US Dollars), Company will carry such Revenue Share forward and disburse it to you in the month where your Revenue Share is greater than or equal to US$20 (Twenty US Dollars).
1.7 Marketing Use of Content. Company and Distributors may use your Content for non-commercial purpose, including to market you, your work, Company, or Distributors, including use in composites that include Content supplied by a third party. No Revenue Share will be paid on these non-commercial marketing uses.
1.8 Right to Control Claims. Company shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Content. You authorize Company and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Company and Distributors and not unreasonably to withhold or delay your cooperation in these Claims. Company will not enter into any settlement that will compromise your ownership of the copyright in Content or that prohibits your future conduct with respect to Content without your prior written consent. Company will pay you the Revenue Share on any settlements it receives from Claims. If Company elects not to pursue a Claim, you have the right to pursue it independently.
1.9 Use of Content by You. You may use Content for promoting or documenting you and your work, provided that these uses do not compete with or limit the rights granted to Company under the Agreement. In the event that you have submitted Content exclusively to Company, you must obtain Company’s prior written consent to use Content on the cover of a self-promotional book to ensure that your use does not conflict with any licenses that Company may have previously issued.
1.10 Copyright to Content and other Works. Subject to the rights granted in this Agreement, you will retain all right, title and interest, including copyright, in all Content including when it is incorporated in a derivative work created by others. Company will own all right, title and interest, including all copyrights that arise apart from the copyright in your Content, to all types of derivative works created by or for Company that contain multiple items of Content and/or other Content. Either you or Company on behalf of you may register the copyright in any Content with the relevant copyright authority.
You always hold the copyright to all content that you upload to YuVue. We'll do our best to make sure you're credited where appropriate.
1.11 Credit and Moral Rights. Using the credit line supplied by you, Company shall use commercially reasonable efforts to credit you as the source of Content, but shall have no liability for lack of credit. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of Content that are automatically conferred by legislation to varying degrees in different countries, which shall include the following rights and all rights of a similar nature: (a) the right to be identified as the creator; (b) the right to object to misrepresentative modification of Content; and (c) the right to withdraw Content from the market (except pursuant to the termination provisions of this Agreement). To the extent allowed by law, you waive all your Moral Rights relating to Content. To the extent such waivers are not permitted by applicable law, you agree not to enforce such moral rights against Company, Distributors or licensees. Where you are not the owner of any Moral Rights, you confirm that all Moral Rights have been waived to this same extent or that you have obtained the same commitments not to enforce Moral Rights. Further, you acknowledge and accept that it is common business practice for commercial uses that the creator of Content is not credited and that Content may be modified.
SECTION 2. REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION & LIMITS ON LIABILITY
2.1 Representations and Warranties. (a) Each Party represents and warrants to each other that it has the full power and authority to enter into the Agreement and perform its obligations hereunder and that it will comply with all applicable laws, including without limitation to the Foreign Corrupt Practices Act; (b) you represent and warrant to Company that: (i) you are either the sole and exclusive owner of the Content submitted to Company or are the authorized representative of the applicable copyright owner(s) of such Content; (ii) Content submitted to Company , to the best of your knowledge after due investigation and prior to modification or re-captioning by Company , will not infringe the copyright of any third party, and will not contain any matter which violates any applicable law or regulation; and (iii) you are not on the US Department of Treasury’s List of Specially Designated Nationals.
2.2 Indemnification. Each party (an “Indemnitor”) agrees to defend, indemnify and hold harmless the other party and its affiliates, licensees, officers, directors, employees and agents (each an “Indemnitee”) from and against any and all actual or alleged third-party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable external attorneys’ fees arising out of or in connection with, any actual or alleged breach of the Agreement by the Indemnitor or any duty, representation, or warranty contained herein by, or any actual or alleged act or material omission of the Indemnitor or its employees or agents. Indemnitor may at its option defend such claim at Indemnitor’s expense, and Indemnitee shall cooperate fully in defending or settling such claim, provided that Indemnitor may not settle without Indemnitee’s prior written consent, which shall not be unreasonably withheld. You agree that Company may retain any amounts due to you under the Agreement or any other agreement you may have with Company to the extent Company is owed any sum under this Section 2.2.
2.3 Limitation of Liability. Company shall not be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if it has been advised of the possibility of such. In addition, Company shall not be liable to you under any circumstances arising out of the misuse of Content by any third party. Company shall not be liable for any loss or damage to any Content, storage device or other materials submitted to Company , and you are required to provide or maintain your own backup files for any Content submitted. You shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of Content or other materials submitted to Company . If, despite the above limitations, liability is imposed on Company for any of these reasons, in no event shall Company’s liability exceed US$10,000 in the aggregate.
SECTION 3. TERMINATION & SURVIVAL OF LICENSING RIGHTS
3.1 Termination. Either Party may terminate the Agreement immediately upon notice if the other Party: (a) breaches any material term or condition of the Agreement and, if capable of remedy, fails to remedy such breach within 60 days after being given notice thereof by the non-breaching Party; or (b) becomes insolvent or suffers any act of insolvency.
3.2 Effect of Termination. Upon termination and subject to Section 5.5 and Section 6.2, Company will use commercially reasonable efforts in relation to all Content subject to termination to inactivate digital Content in its inventory within 90 days. During all wind-down periods under Section 3.2(a), Company may continue to process licenses of Content so long as Company pays the Revenue Share to you as required under this Agreement.
3.3 Survival of Unexpired Licenses. Following termination of the Agreement, all unexpired licenses of Content will remain in effect.
3.4 Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. Sections 1.13 , 1.14 , 2 to 6 and the Commercial Terms as may be appropriate, will survive termination of the Agreement, as will any matter arising under the Agreement either expressly or that by its nature is required to be performed or apply after the Term of the Agreement, including the residual right of Company to continue exploiting certain Content.
SECTION 4. MISCELLANEOUS
4.1 Entire Agreement; Severability; Waiver. This Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except in writing by an authorized representative of each Party. If a Party waives any provision of this Agreement, the waiver in such an instance shall not be deemed to be a continuing waiver, and no waiver by either Party shall prevent such Party from enforcing any and all other provisions of this Agreement.
4.3 Nature of Relationship. You agree that you are an independent contractor. The Parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, or any other legal identity, and that Company has no obligation to find or offer employment to you.
4.4 Governing Law and Arbitration. The Agreement will be construed and enforced in accordance with the laws of the State of New York, excluding its laws relating to conflict of laws. Any dispute arising out of or in connection with the Agreement shall be settled before a single arbitrator under the Commercial Rules of the American Arbitration Association (“AAA”) or International Chamber of Commerce (“ICC”) in: New York, New York, U.S.A. The substantially prevailing Party will be entitled to recover its reasonable legal costs. If both Parties prevail on particular claims, or defenses of a claim, then each Party will be entitled to recover its reasonable legal costs for those claims it successfully asserts or defends, and the awards will be offset.
4.5 No Class Actions. You and Company agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
4.6 Personal Data Transfer. You understand and agree that information relating to you may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of your home country. Company, as data controller and processor, may use this information in connection with the performance of this Agreement, including for contacting you, and may disclose this information to necessary service providers, to provide the services they contract for. These third parties will have no right to use your information for secondary purposes. Any personal information you do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. Company reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distributors and their employees, customers or the public.