VFX Horde Publisher Agreement
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This is a legally binding agreement between (“you”) and VFX Horde regarding use of the Site to publish Digital Media Products for Purchase through VFX Horde.com. “You” refers to the publishing entity, whether that is a natural person who must be at least 18 years of age, or a corporate entity.
In addition to the responsibilities and obligations set forth in this document, all other VFX Horde terms and policies still apply, including but not limited to, the Terms of Use Agreement and the Privacy Policy. Defined terms shall have the meaning set forth herein or as previously defined in the Terms of Use.
I. Introduction & Definitions
This agreement is intended to be easy to understand, and to provide clarity to you about the requirements and obligations for publishing Digital Media Product on the Site, as well as the rights you authorize VFX Horde to grant to those who Purchase Digital Media Product (“Customers”) for use in the work they create (“Creations”).
Some words in this agreement are given specific meanings. Words that appear initially in quotations, such as “you” and “Creations,” are defined in the text preceding the word. Other capitalized words are defined below:
“Digital Media Product” is the collection of one or more digital files, images, or videos, packaged in the form of a product on the Site that can be identified by a product ID, and that is uploaded by you, or otherwise made available to you, for Purchase on the Site.
“Site” refers to the VFX Horde website, API’s, software, or any approved means or utility either currently in existence or in the future; the software and source code used by VFX Horde to provide such services; user interface layouts, designs, images, text, knowledge base articles, program offers; site information provided in reports (such as popular keyword searches); and all other intellectual property protected under copyright, trademark, patent, publicity, or any other proprietary right.
“Product Page” is the product page or interface that displays the Digital Media Product available for Purchase, on the website www.vfxhorde.com.
“Product Price” is the price of Digital Media Product as displayed within the Site’s product management interface. The Product Price varies according to the Digital Media Product resolution and scope of rights Purchased by the Customer.
“Purchase” is the acquisition of Digital Media Product by a Customer, whether by the purchase of Digital Media Product made available at a Product Price of greater than $0, or by the download of Digital Media Product made available at no charge (i.e. a Product Price of $0 that is downloaded for free).
“Customer” is a person who uses the Site to Purchase Digital Media Product.
“Enterprise Customer” is a corporate entity that requires special legal or accounting terms for Purchases that VFX Horde may grant as appropriate after a review by VFX Horde on a case-by-case basis.
“VFX Horde” includes the VFX Horde brand by the Artistic Independence Project LLC. and all licensed affiliates and partners that distribute Digital Media Product on behalf of VFX Horde.
“Intellectual Property” means, copyright, patent, trademark, trade secret, right of publicity, or any other proprietary right throughout the world.
To make reading this agreement easier and less repetitive, the following constructions are used:
“Include,” including,” and “such as” are considered to be followed with “but not limited to.” Examples are used in this agreement to illustrate, rather than limit, the scope of the terms.
“The following restrictions,” “the foregoing restrictions,” and “subject to the restrictions” are considered to be followed with “in addition to all other restrictions applicable within this agreement.”
II. Ownership & Library
1. Ownership. You retain all ownership, title, right, and interest in Digital Media Product, except as expressly licensed to VFX Horde, its Customers, and other licensees as set forth herein.
2. Exclusivity and Time Commitment. You agree to host all Digital Media Products exclusively on the Site and permit VFX Horde to retain all Digital Media Product for a Time Commitment of at least four (4) years from the date published (“Time Commitment”). You may NOT post any copy of Digital Media Product at an online stock media clearinghouse outside of the Site. To clarify, the word “copy” refers to any substantial part of Digital Media Product, at any camera angle, including derivatives and modified versions of Digital Media Product.
You may NOT submit to the Site any Digital Media Product that exists at an online stock media clearinghouse not affiliated with VFX Horde (unless such Digital Media Product was published there prior to the Effective Date), and must disable any copy of Digital Media Product from any outside clearinghouses before submitting the Digital Media Product. VFX Horde may retain, market, license, and distribute any Digital Media Product during the Time Commitment, and for additional time as long as you retain the Digital Media Product on the Site.
III. Royalties, Withholdings, Payments, and Pricing
1. Royalties. For valid Purchases that are not reversed for any reason, you are entitled to a royalty of 60% (“Royalty Amount”).
a. Purchase Reversal. If a Purchase is reversed, such as for a Customer return or a fraudulent credit card charge, you acknowledge that subject to the Site’s policies, any Royalty Amount may be reversed on your account by VFX Horde such that no money will be owed to you for that Purchase. In such case, the Customer license to the Digital Media Product is terminated.
b. Customer Promotions. Without notice to you, as part of its marketing efforts or promotions, VFX Horde may grant Digital Media Product to Customers at a reduced or free Product Price. An example of such a promotion is an incentive for Customers to create user accounts with VFX Horde in a given time period. In such reduced Product Price promotions, VFX Horde will provide the customary Royalty Amount to which you are entitled, based upon the same percentage but at the lower Product Price. If Digital Media Product is granted for free, there will be no Royalty Amount provided. VFX Horde will not select your Digital Media Product to make specifically free, such as an “Image of the Week” promotion, without first negotiating such a promotion with you.
c. Monthly Subscription Royalty Rates. Monthly subscription revenue will be paid out to you on a prorated basis at the end of the month. The Royalty Amount is 60% of all VFX Horde monthly subscription revenue related to your Purchases. The royalty payment will be based on the percentage of total Purchases that came from your Digital Media Product.
2. Tax Withholding. If you are not a citizen, permanent resident, or corporate entity of the United States, and your Purchase is by a Customer who is a citizen, permanent resident, or corporate entity of the United States, VFX Horde is required by the United States Internal Revenue Service to withhold some portion of your Royalty Amount for payment to the United States Treasury. In such case, if your country has a tax treaty with the United States, and you have a United States Tax ID number (“TIN”), you may reduce or even eliminate such withholdings depending on the tax treaty rate for your country. If you do not have a TIN, VFX Horde royalty payments will have 30% withheld and paid by VFX Horde to the United States Treasury. You may elect not to be paid until you obtain a TIN if you desire to claim the tax treaty rates. Alternatively, if you are paid by VFX Horde without a TIN, if you receive a TIN you may recover any excess tax payments made the calendar year you received the TIN, and VFX Horde will assist you to recover such tax withholdings.
3. Purchase and Payment Processing.
a. You authorize VFX Horde to collect money from the Customer and distribute payment amounts to you such as you are entitled, retain the remainder of the proceeds of your Purchase, and distribute portions of Purchases to VFX Horde licensees, tax authorities, or other entities as the case requires under: (i) this agreement, (ii) standard Site policies, and (iii) in compliance with legal regulations.
b. Every calendar month by the fifteenth (15) day, or the following business day if the fifteenth occurs on a weekend or holiday, VFX Horde will process your royalty payments according to your account settings. VFX Horde reserves the right to withhold requested payments in the following cases: (i) the amount is below the minimum amount allowed for a monthly royalty payment (as set by standard Site policies), (ii) your payments are on hold because a previous payment to you failed to be received, (iii) you have provided inaccurate payment information, (iv) you have provided a W-8BEN form and it has expired, or (v) there is violation of Site policies that must be reconciled before any payment is made.
c. If VFX Horde discovers and verifies, either on its own or after a notification by you, that you were paid less than your owed Royalty Amount (“Underpayment”), VFX Horde agrees to provide accounting documentation to you and to correct such Underpayment in an expedited manner.
d. If a Purchase is reversed after you have been paid your Royalty Amount, or if for any reason VFX Horde has already paid to you a Royalty Amount in excess of the correct royalty payment for such Purchase (“Overpayment”), you acknowledge that such Overpayment is due from you to VFX Horde, and authorize VFX Horde to deduct from your future payments to settle any Overpayment, and agree to maintain all Digital Media Product on VFX Horde at reasonable and historical Product Prices until such Overpayment is corrected. If you discover or become aware of any Overpayment, you agree to notify VFX Horde of such Overpayment in an expedited manner for each occurrence.
4. Digital Media Product Product Prices.
a. Control: VFX Horde controls Product Prices. Product Prices will be set in denominations of the United States Dollar.
b. Basic Uses. VFX Horde may grant Basic Uses of Digital Media Product for Purchase by Customers at a Product Price of $0. The scope of rights granted in a Purchase of Basic Uses, which is set forth in the VFX Horde Royalty Free License, is more restricted than the standard grant of rights available through the VFX Horde Royalty Free License. Such Basic Uses will typically be made available as jpeg images of lower resolution.
c. Extended Uses. Extended Uses of Digital Media Product are available for Purchase by Customers at a Product Price above $0. The scope of Extended Uses, which is set forth in the VFX Horde Royalty Free License, is similar to the standard grant of rights available through the VFX Horde Royalty Free License. The Product Price of Extended Uses may be set to vary between image file formats or resolutions of the Digital Media Product.
d. Currency: VFX Horde may sell Digital Media Product denominated in any foreign currency, at pricing that is either above or below the current exchange rates of that currency to the United States Dollar. VFX Horde will set such pricing in its sole judgment to optimize for pricing stability in foreign currencies, round prices to pre-determined incremental tiers in that particular currency, and reduce the risk of currency losses when exchange rates fluctuate. In all such cases, VFX Horde will pay you the entitled royalty as if the Purchase had been originally denominated in United States Dollars and assume all losses or gains due to Purchases in foreign currency.
IV. License Grants
License Grant to VFX Horde . In all media now in existence or that may in the future be introduced, you authorize VFX Horde to do the following:
1. License to Customers. To distribute and grant worldwide, irrevocable and perpetual license rights in Digital Media Product to Customers, according to the following license options:
a. VFX Horde Royalty Free License. To fulfill the license grant terms detailed in the VFX Horde Royalty Free License, as made publicly available on the Site and incorporated herein by reference. You understand that VFX Horde may reasonably edit and amend the scope of Basic Uses and Extended Uses available for Purchase by customers, and you agree that notice by email is sufficient notice of any such change.
b. Enterprise License. To negotiate an individual agreement and license grant in Digital Media Product for qualified Enterprise Customers who require individualized agreements, procurement processes, or special indemnities and guarantees. VFX Horde will remit the normal Royalty Amount entitled to you for each Purchase of Digital Media Product under such license, and will make commercially reasonable efforts to retain the terms of the VFX Horde Royalty Free License in such negotiations. You understand such agreements are confidential to Enterprise Customers and will not be disclosed to you.
c. New Uses. While VFX Horde has tried to explicitly allow or prohibit every known type of Creation by a Customer in the VFX Horde Royalty Free License, Customers may request approval for a Creation that is not explicitly described (“New Use”), for example a Creation in a new medium not yet invented. You authorize VFX Horde to decide whether to allow the New Use, determined in VFX Horde’s reasonable discretion that the New Use will not diminish your future Royalty Amounts and is reasonably or conceptually similar to existing uses. VFX Horde will notify you on each case that a New Use was authorized for a given Customer, and may not notify you in advance of a Purchase for a New Use. If you inform VFX Horde that you object to the New Use, VFX Horde will note your objection for your account and will not approve the New Use again for your Digital Media Product. You acknowledge that the New Use may be added to the VFX Horde Royalty Free License in the future, whether to allow or prohibit the New Use, and that if the New Use is allowed in the VFX Horde Royalty Free License, this will apply to your Digital Media Product and supersede your previous objection. You hereby fully release VFX Horde from any liability associated with its decisions based on any New Use.
2. Re-license Customer After License Transfer. To process additional Purchases to a past Customer of Digital Media Product that is no longer available on the Site if the following conditions are met: (i) there was a past Purchase of the Digital Media Product to the Customer, (ii) the Customer does not require digital files, only an additional license, and (iii) the Customer transferred the original license to another party (such as a client of the Customer), and the Customer requires another license to the Digital Media Product to be legally compliant, and (iv) the Digital Media Product is not software sold under a Custom License. For any such case (“Re-License”), the Purchase will be under the same license terms and Product Price as at the time of the Customer’s most recent purchase of the Digital Media Product. VFX Horde will notify you of such Re-License and waive any commissions to VFX Horde, but will retain amounts otherwise required for taxes and similar obligations. This right survives termination of this agreement, and in the case of a Re-License after termination of this agreement, VFX Horde will notify you of the Re-License, and facilitate your payment using the Royalty Amount you were entitled to at the time of termination. Subject to the exception under this section, your removal of any Digital Media Product from the Site extinguishes VFX Horde’s right to grant licenses to such Digital Media Product.
3. Trial Basis Use. To grant Enterprise Customers access to Digital Media Product without cost (“Trial Basis Use”) where they may test Digital Media Product for suitability in their Creations. For Trial Basis Use, a Purchase is required before any commercial use, and Enterprise Customers must account for Trial Basis Use on a timely basis. Any instances of Trial Basis Use, should they occur, will be indicated to you within the Site’s interface, including the state of the Trial Basis Use and whether it resulted in a Purchase. In your account settings, you may opt out of Trial Basis use.
4. General VFX Horde Use and Digital Media Product Maintenance. VFX Horde may:
a. Use Digital Media Product for the benefit of VFX Horde’s business, including: (i) to market, promote, publicly perform, publicly display, digitally perform; (ii) use any trademarks, service marks or trade names incorporated in connection with Digital Media Product, and (iii) to incorporate Digital Media Product into various parts of the the Site’s user interface (such as category icons).
b. Provide Customer support, including (i) downloading files within Digital Media Product to perform compatibility checks, (ii) performing file format conversions, and (iii) after a Purchase, performing various artistic or technical services for Customers for free or for a fee, as VFX Horde deems appropriate based on the nature of the services requested by Customers. Please note that if you aid VFX Horde in providing Customer support, VFX Horde will charge no fee associated with your Customer support efforts.
c. Update metadata for Digital Media Product, including processing and modify images.
d. Refuse any Digital Media Product for distribution on the Site. For any reason in its sole discretion, VFX Horde may deny, reject, and remove Digital Media Product from the Site at any time.
5. Promotional Use. To license and distribute Digital Media Product without cost to VFX Horde partners for any use that as deemed by VFX Horde provides value to the VFX Horde business, including for industry experts, beta testers, image application developers, journalists and publications. You understand that there is no opt-out provided for such uses and that no royalty will be provided.
V. Warranties
You covenant, represent, and warrant that:
1. You have authority to enter into and perform this agreement, to sell Digital Media Product under this agreement, that all Digital Media Product are your original work and contain no intellectual property or other rights of any kind that you are not the exclusive owner of (unless you have secured any third-party consents needed to do so in writing), and that prior to publishing Digital Media Product had an opportunity to seek independent legal counsel.
2. Your Digital Media Product do not and will not infringe on any third party’s copyright, trademark, trade dress, patent, trade secret, right of publicity, right of privacy, moral right, or any other proprietary right, and that you will not remove any notice of any such right.
3. Your Digital Media Product are not and will not be defamatory, pornographic, obscene, libelous, and does not further racial hatred.
4. Your Digital Media Product do not and will not violate any statute, law, regulation, or ordinance.
5. Your Digital Media Product do not and will not contain any computer viruses or other malicious software.
6. You will read and comply with the Site’s publishing policies and general requirements that are made available to you, including: (i) you will represent all facts about Digital Media Product accurately and truthfully, without deception, including the descriptions and other metadata related to your products, and (ii) you will use keyword tags and categorization only as they are legitimately related to your product, and not “spam” or attempt to alter search results to cause Digital Media Product to display when they are not relevant. An example of such prohibited behavior is to publish Digital Media Product that is a “banana” and add tags or description appropriate for “oranges” such that a Customer searching for oranges might see the Digital Media Product of a banana.
7. You will provide accurate, complete, and valid member information, including contact and payment information.
8. You will notify VFX Horde if you become aware or suspect any unauthorized use of Digital Media Product by a Customer before contacting the Customer, either by contacting VFX Horde support or sending an email to admin@VFX Horde.com. You agree to submit to the Limited Arbitration rules set out in the VFX Horde Royalty Free License.
9. You will execute and provide written or electronic documents to VFX Horde, upon VFX Horde’s reasonable request, to reflect VFX Horde’s rights under this agreement.
10. You will not engage with VFX Horde Customers directly or use metadata, product files, or any other mechanism for such purposes. If you are contacted directly by a Customer, you must refer the Customer to the VFX Horde Site.
VI: Limitation of Liability
1. To the fullest extent permitted by law, VFX Horde shall not be liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including loss of business, revenue, profits, goodwill, use, data, electronically transmitted orders, or other economic advantage) arising out of or in connection with Digital Media Product, even if VFX Horde has previously been advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract or in tort (including negligence). To the extent that any jurisdiction does not allow the exclusion or limitation of direct, incidental, or consequential damages, portions of the preceding limitation or exclusion may not apply, but should be construed to the greatest extent applicable in such jurisdictions.
2. You agree to indemnify and hold VFX Horde and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives (“VFX Horde Parties”) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of Digital Media Product, Creations, or otherwise caused by or related to your use of the Site.
3. VFX Horde implements and maintains business practices to accurately categorize Digital Media Product and otherwise process any and all metadata related to Digital Media Product. If VFX Horde makes any error in processing, handling, or other managing of Digital Media Product, your sole and exclusive remedy will be for VFX Horde to take all reasonable steps to promptly correct the error as soon as VFX Horde becomes aware of the error.
4. In any event, VFX Horde’s total maximum aggregate liability under this agreement or in respect to the use or exploitation of any Digital Media Product shall be limited to the lesser of the fees collected by VFX Horde for the Digital Media Product giving rise to the claim or one thousand United States dollars ($1,000). Some jurisdictions do not allow for the limitation or exclusion of liability set forth herein, and in those jurisdictions, VFX Horde shall be entitled to the greatest limitation of liability permissible by law.
VII: License Term and Termination
Termination and Consequences of Termination . This agreement may be terminated by closing your account on the Site by VFX Horde Support, and, subject to the Time Commitment, removing your Digital Media Product from the Site. VFX Horde can terminate this agreement and your account for a violation of this agreement or any other agreement incorporated by reference, including the Site Policies as judged by VFX Horde in its reasonable discretion. For avoidance of doubt, after this agreement is terminated by you, the Digital Media Product will remain available and you will receive any payments due to you until the expiration of the Time Commitment.
This agreement is in effect as of 2017-01-20.
