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THIS CONTRIBUTOR AGREEMENT (the “Agreement”), which includes the standard terms and conditions attached at Appendix A, is entered into between you (“Contributor”) and MotionElements Private Limited, a Singapore company (“MotionElements”). This Agreement is in addition to the Terms and Conditions of use applicable to the website that all persons providing content to, or downloading content from, have previously accepted. In consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, MotionElements and Contributor hereby agree as follows:

 

1. Definitions

2. Submission and Acceptance of Content

   1. Submission Guidelines: Contributor agrees to abide by the current MotionElements submission guidelines for submitting Content to MotionElements. We may modify or change such guidelines upon written notice and such change shall apply to Content submitted by Contributor after such changes.

   2. Supply of Content: By uploading or submitting Content to us, Contributor hereby agrees to supply content to MotionElements for licensing.

   3. Acceptance: MotionElements may accept or reject any Content submitted to it in its sole and absolute discretion. Contributor acknowledges that some Content may become out of date or not marketable for one reason or another and that we may delete such Content from our Library and will notify Contributor of such action.

   4. Selection and Distribution: For those accepted Content, MotionElements agrees to create digital files of those works, and distribute them on the Website. Subject to Contributor’s right to approve all uses of its name and trademarks, MotionElements reserves the right to determine, in its sole discretion, inventory selection, acceptance, applicability, promotion, packaging and usage of all Content, including using individual components of submitted Content or distributing Content as standalone Royalty-Free works.

   5. Ownership of Content: Content shall at all times be and remain the exclusive property of Contributor to be used by MotionElements solely for the purposes described in this Agreement. The Content shall not be considered assets of MotionElements in the event of a voluntary or involuntary bankruptcy.

   6. Copyright and Crediting:  Contributor retains copyright of their Content. Contributor specifically waives any moral rights with respect to the Content, including: (a) the right to be identified as the author of the Content; and (b) the right to object to the modification of any Content. Notwithstanding the foregoing, Contributor acknowledges that credit may not be given with respect to Content licensed on a Royalty Free basis, and MotionElements name or brand may be the only credit given, if any.

3. Relationship and Duties

   1. Grant of Rights. Subject to this Agreement, Contributor hereby appoints MotionElements as its non-exclusive agent for the Content and grants to MotionElements a non-exclusive, worldwide license to distribute Contributor’s Content throughout the world and all rights to grant sublicenses to Content and to reproduce, distribute, perform, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast or enhance, and otherwise use any Content, alone or in combination with any other material, in any media or embodiment, now known or later developed, as necessary to render the services to Contributor described in this Agreement, including the right to create digitized derivative works and the distribution of selected Content over the Internet, on tape, DVD, film and other media, now known or hereafter developed.

   2. Partial Exclusivity. Contributor can mark selected Content as Exclusive Content. For all Exclusive Content, subject to this agreement, Contributor grants to MotionElements an exclusive, worldwide license to distribute Contributor’s Exclusive Content throughout the world and all rights to grant sublicenses to Content and to reproduce, distribute, perform, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast or enhance, and otherwise use any Content, alone or in combination with any other material, in any media or embodiment, now known or later developed, as necessary to render the services to Contributor described in this Agreement, including the right to create digitized derivative works and the distribution of selected Content over the Internet, on tape, DVD, film and other media, now known or hereafter developed.

      1. Contributor may sell the Exclusive Content:

         1. Via physical delivery (i.e. CD-ROM, DVD, etc.) through a website/s owned and operated by you or a third-party; or

         2. Via download through Supplier’s own personal website.

      2. Contributor may not under any circumstances sell the Exclusive Content or any Content similar to the Exclusive Content:

         1. Via download through any third-party website that is not owned and operated by you; or

         2. Via any third-party marketplace or site similar to our Website.

      3. Contributor can still sell Non-Exclusive Content at our Website.

   3. Reserved Rights. Notwithstanding the grant of rights contained in Paragraph 3, Contributor retains the right to use any Content for personal, non-commercial purposes, such as portfolio, exhibition, personal website and self-promotion. Contributor reserves the right to endorse products and services.

   4. Trademark and Promotion License. Contributor grants MotionElements the right, but not the obligation to use Contributor’s name, the creator’s name(s), logo(s), trademarks and trade names and the right to reproduce, display, transmit, broadcast and adapt any Content to promote, advertise and market MotionElements; and Contributor agrees that no compensation or further consent is due for the use of Content in our promotion, advertising and marketing. MotionElements shall endeavor to credit Contributor where practicable. This trademark license shall automatically terminate upon the termination or expiration of this Agreement.

4. Royalty Payment

   1. Pricing. All prices are set by Contributor except the prices of Image Subscription Content. MotionElements will have no liability for any errors in pricing that are not proved to have been caused directly by our gross negligence or willful misconduct.

   2. Royalties and Statements. For any of your Content sold by MotionElements in accordance with this Agreement, we shall pay to you an amount based on our Royalty Payment Structure specified in Appendix B (“Royalties”). All discounts issued by us and administrative fees by Payment Processors in relation to the processing of sales transactions of Contributor Content will be borne by MotionElements. All administrative fees by Payment Processors in relation to the processing of royalty payment transfer to you will be borne by you. MotionElements will use its best efforts to pay royalties on a monthly basis on or about the 15th day of the month following the month in which the license in the Content is purchased. The following may be deducted or held from royalties that may otherwise be payable: (1) any amounts owed to MotionElements by Contributor; (2) legal and other reasonable fees and expenses incurred in enforcing this Contract or the other contracts contemplated herein, including costs associated with claims threatened relating to any matter which is the subject of a representation, warranty or indemnity under this Contract; and (4) applicable taxes or other withholdings required by applicable law.

   3. Dispute. If MotionElements is prevented in any way from using rights granted under this Contract because those rights (and/or the Content itself) are found or alleged to be an infringement of the rights of a third party, we may refuse to pay royalties until the dispute is resolved to our satisfaction. If MotionElements discovers or determines in its reasonable discretion that the Content provided by Contributor appears for sale or license or free in breach of this Contract, we may refuse to pay royalties.

   4. Royalty Statement. MotionElements shall provide Contributor with a royalty statement setting forth the licensing by MotionElements of the Content during that reporting period.

   5. Credit For Refunds. In the event that a chargeback or refund of a payment received or accrued from a third party is required, MotionElements is specifically authorized to deduct Contributor’s share of this overpayment from any subsequent amount due.

5. Term and Termination

   1. Term. This Agreement will remain in effect from the time of initial content website upload by Contributor to MotionElements until terminated.

   2. Termination. This Agreement can be terminated by Contributor at any time by giving thirty (30) days written notice to MotionElements. This Agreement can be terminated by MotionElements at any time by giving thirty (30) days written notice to Contributor. MotionElements may terminate this Agreement with respect to all or a portion of the content supplied hereunder if such content violates, or in the opinion of MotionElements, may violate the law or the rights of third parties.

   3. Continued Rights. Regardless of Termination of this Agreement, if Content has been paid for in full and sublicensed to a MotionElements Customer, this Agreement and the licenses granted hereunder will survive until the end of the period of any such sublicenses.

   4. Effect of Termination. Upon the termination of this Agreement MotionElements will withdraw all posted Contributor Content from the MotionElements Catalog within ninety (90) days following the effective date of the termination. Upon termination of this Agreement, MotionElements, at its option, may destroy all digitized files of Contributor Content, or retain the file for archival purposes for a period of three (3) years to give Buyers of Content sufficient time to download their purchases.

6. Operation of Website. All Customers must accept the terms and conditions of the MotionElements Website before they are allowed to gain access to the website. The terms and conditions expressly prohibit violation of Republic of Singapore’s intellectual property laws relating to any use of content contained on the Website. MotionElements has adopted security measures consistent with industry standards utilized in the web hosting and online services industries in order to prevent unauthorized access to the Website and to prevent the unauthorized copying or distribution of any content maintained on the Website. MotionElements does not warrant that these security systems and measures will prevent unauthorized access, copying, distribution or other illegal actions from occurring. In the event MotionElements discovers any unauthorized access to its systems, including the Website, or any unauthorized copying, distribution, or other similar actions involving the Contributor Content, MotionElements will provide notice to Contributor as soon as practicable. MotionElements does not have the duty to locate or take legal action against infringers; however, MotionElements will cooperate with Contributor in pursuing perpetrators of such infringement and provide information relevant to the infringement which MotionElements is reasonably capable of providing, including website visits and tracking of the offending party.

7. YouTube Content ID or Similar Service. MotionElements will not make use of YouTube Content ID or any similar service to further monetize the Contributor’s content. Furthermore, MotionElements will not prohibit or hinder buyers of Contributors content from allowed usage, as prescribed by the terms by our Content License Agreement.

8. Subscription Fees. Contributor hereby agrees to allow MotionElements, at any time in the future, to charge a subscription fee to its customers and prospects, for access to the Website or any portion thereof.

APPENDIX A
STANDARD TERMS AND CONDITIONS

The following Standard Terms and Conditions apply to the Contributor Agreement by and between MotionElements and Contributor (the “Agreement”)

1. Confidentiality. During the term of this Agreement and for as long after its expiration or termination as either party possesses any Confidential Information, each party agrees to not disclose any Confidential Information of the other party to any third party or use any of the Confidential Information except as necessary to perform that party's obligations under this Agreement. Confidential information includes but is not limited to information concerning marketing plans, financial results, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by the disclosing party which is not generally known to the public.

2. Proprietary Rights. As between Contributor and MotionElements, and excluding the digitized versions of Contributor Content and enhanced metadata that MotionElements provides, all digital assets provided to MotionElements by Contributor including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights, shall remain the sole and exclusive property of Contributor. All materials relating to the services and products contemplated by this Agreement, including the computer software (in object code and source code), derivative works and digital files created by MotionElements and any copyrights, trademarks, patents, trade secrets and other proprietary rights, know-how, methodologies, and processes related to the foregoing, shall remain the sole and exclusive property of MotionElements. Contributor acknowledges and agrees that MotionElements is in the business of designing and hosting websites and developing other marketing channels to distribute digital assets and shall have the right to provide to third parties services which are the same or similar to those set forth in this Agreement.

3. Contributor Warranties

   1. Contributor represents and warrants that:

      1. Contributor has the power and authority to enter into and perform its obligations under this Agreement;

      2. Contributor is the sole owner or the legal representative of the owner of all Content and has the right to place the Content on the Website;

      3. Contributor has obtained any authorization(s), clearances or license(s) necessary for the transactions, licenses and distribution of the Contributor Content contemplated by this Agreement.

      4. To the best of Contributor’s knowledge, after due investigation, no Content infringes on or violate any applicable law, regulation, or right of any third party, including, without limitation, export laws or any proprietary contract, the rights of privacy or publicity, rights of any statutory or common law copyright, trademark or other intellectual property rights, defames any third party, is pornographic or obscene, or violates any other third party right;

      5. There are no sales restrictions of any kind on any Content except those submitted in writing at time of submission;

      6. The caption, keywords, copyright and all other Content Information provided to MotionElements is accurate and complete and in accordance with our then current submission guidelines;

      7. A valid release, either model/and or property has been obtained where necessary and appropriate for each Content and MotionElements may use such Content without obtaining any additional consents or permissions or the payment of additional fees to third parties. Contributor shall upload true copies of releases for each Content before publishing for them sale.

4. Contributor Warranties (Audio Content)

   1. Contributor represents and warrants that:

      1. Contributor agrees that because the MotionElements License Agreement treats Audio Content that is designated on the Website as being "Available For Musical Works" differently from other Audio Content: Contributor, upon submission or uploading of Audio Content, is required to designate in the Content Information whether the Audio Content is or is not "Available For Musical Works". MotionElements offers two types of Audio Content: a) Audio Content with Standard synchronization license and b) Standard synchronization license and New musical works. If the Contributor leaves the field empty, then MotionElements will through such an action be authorized to make such designation in Contributor's place and Contributor will agree to be bound by any such designation made by us;

      2. Contributor will not submit any Audio Content that is wholly or primarily a recording of a performance of a musical work or a literary or dramatic work (whether Audio Content, an audiovisual work or otherwise) the copyright of which is owned by or licensed on an exclusive basis to another Person unless Contributor has received the written authorization from such owner or exclusive licensee for such submission and the inclusion of all necessary rights in such work in the rights granted to or by MotionElements under Section 3, and Contributor represents and warrants that Contributor has obtained any and all Required Rights and they are included in said license.

   2. In relation to Performing Rights Organizations; YouTube

      1. Without limiting the generality of Section 4.a. above and in addition thereto, except for reports and royalties that may be due to a PRO with regard to performance of Audio Content that Contributor designates as being PRO Audio Content in the Content Information, to the extent permitted by applicable law, (i) Contributor agrees that no license is required from and no payments or reports are required to be made to Contributor or any PRO relating to the license and distribution of the Audio Content to Customers / Content Users by the MotionElements or the use, performance, synchronization or distribution of such Audio Content by Customers / Content Users as permitted by the MotionElements Content License Agreement and (ii) Contributor waives any rights to any such payment or report;

      2. Contributor may not take any action on or with respect to YouTube (or other networks that allow for the so-called "claiming" or "monetization of content") that would interfere with the ability of Customers / Content Users to monetize or collect revenue from any such network with respect to their End Products.

5. MotionElements Warranties

   1. MotionElements represents and warrants that:

      1. It has the full right and authority to execute and perform its obligations under this Agreement according to its terms;

      2. MotionElements’ services under this Agreement shall be performed in a workmanlike manner.

6. Limitation of Liability. IT IS UNDERSTOOD AND AGREED THAT, OTHER THAN ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, MOTIONELEMENTS’ LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE ROYALTIES EARNED BY MOTIONELEMENTS DURING THE TWELVE MONTHS PREVIOUS TO THE TIME THE CAUSE OF ACTION FIRST ACCRUES. NOTWITHSTANDING ANY LIMITS OF LIABILITY, EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CONTRIBUTOR MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF THE CONTENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO PARAGRAPH 8 BELOW.

7. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MOTIONELEMENTS SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF CONTRIBUTOR’S ONLINE CATALOG.

8. Indemnity. Each Party agrees to defend, indemnify and hold the other and its officers, directors, agents, affiliates, distributors, franchisees and employees harmless against any loss, damage, expense, or cost, including reasonable attorneys fees (including allocated costs for in-house legal services) (“Liabilities”) arising out of any claim, demand, proceeding, or lawsuit by a third party relating to a material breach or alleged breach of a representation, covenant or warranty set forth in this Agreement. Each Party will defend, indemnify, save and hold harmless the other Party and its officers, directors, agents, affiliates, distributors, franchisees and employees from any and all Liabilities arising out of any claim, demand, proceeding or lawsuit by a third party resulting from the indemnifying Party’s breach of any duty, representation, or warranty of this Agreement, except where Liabilities result from the gross negligence or knowing and willful misconduct of the Party to be indemnified.

9. Claims. If a Party entitled to indemnification hereunder (the “Indemnified Party”) becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. Such notice will (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party shall control and will be obligated to defend the Action, at its own expense. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

10. Taxes. Each Party shall pay for all sales use or other taxes associated with their respective online catalogs.

11. Public Relations. Each party to this Agreement may issue various public relations statements to the media and other interested parties from time to time concerning the services and transactions that are the subject of this Agreement, provided, any such statements by one party referring specifically to the other party shall be subject to prior written approval by the other party.

12. Binding on Successors and Assigns. Each and all of the provisions hereof shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, and successors.

13. Assignment. This Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without the other party’s consent in the event of a change of control to that party, provided the acquiring company is not a direct competitor of the non-assigning party. In the event of Contributor being acquired by a company MotionElements deems to be a competitor to MotionElements, this agreement between Contributor and MotionElements will automatically dissolve and terminate upon completion of the Contributor acquisition. A “change in control” shall be deemed to occur upon the date the shareholders/members of the either party approves (i) any agreement for a merger or consolidation with another company in which the other company is the surviving entity controlling more than fifty percent (50%) of the outstanding equity securities, or (ii) any sale, exchange or other disposition of all or substantially all of the company’s assets.

14. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed electronic mail or by confirmed facsimile; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five business days after the mailing date, return receipt requested, postage and charges prepaid.

15. Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

16. Amendments and Modifications. No amendment, modification, or supplement to this Agreement shall be binding on any of the parties unless it is in writing and signed by the parties in interest at the time of the modification.

17. Integration. This Agreement and all Exhibits hereto, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the parties. There are no agreements, representations, or warranties between or among the parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement.

18. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

19. Survival. The representations, warranties, covenants, and agreements made in this Agreement shall survive the term of this Agreement.

20. Consent to Jurisdiction and Forum Selection. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated in the Republic of Singapore.

21. Choice of Law. This Agreement shall be governed by and construed under the laws of the Republic of Singapore without consideration of its conflict of laws provisions.

22. Language of the Terms. Where MotionElements has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with MotionElements. If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.

APPENDIX B
ROYALTY PAYMENT STRUCTURE

On Demand Plan

• For any of your Content sold via On Demand Plan, we shall pay to you an amount equal to a) for Non-Exclusive Content, fifty percent (50%) or b) for Exclusive Content, seventy percent (70%) of Net License Fees received by us from the licensing of Content from the previous reporting period for Content licensed on a Royalty Free basis.

Image Subscription Plan

• 50% of the Net License Fees from Image Subscription Plan will be distributed to all the contributors every month according to their respective download percentages of the Image Subscription Plan. The total amount of royalty payment from the Image Subscription Plan that will be paid to you is calculated based on the total percentage of downloads of the content owned by you within the Image Subscription Plan.

• If a customer downloads the same Content more than once, the downloads will be counted once only.