CONTENT SUBMISSION AND LICENSE AGREEMENT - LAST REVISED: SEPTEMBER 1, 2007
PLEASE READ THESE TERMS CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND STORYMASH LLC REGARDING YOUR SUBMISSION OF CONTENT AND OUR USE OF IT.
This Content Submission and License Agreement (the "Agreement") between StoryMash LLC ("StoryMash" or "We") and you ("You") sets forth the terms pursuant to which you may submit certain content (the "User Content") for use by StoryMash as described herein, and for publication by StoryMash, including on the StoryMash website, currently located at http://StoryMash.com (the "StoryMash Site"). Each piece of content submitted by You shall be referred to as a "Chapter".
1. User Content Standards.
You represent and warrant that any and all User Content that you submit:
- does not violate or breach any of the terms of this Agreement or any other StoryMash agreements, policies, or guidelines;
- is either your own original work, or all third party rights therein have been fully cleared for use as contemplated by this Agreement, and that you have the right to grant the rights granted herein without violating the rights of any third party;
- does not infringe any (i) publicity, privacy or personality rights of any third party, (ii) any patent, trademark, trade secret, copyright or other proprietary rights, including those of any third party, or (iii) violate any contractual or fiduciary relationships (such as insider, proprietary, or confidential information);
- does not contain text, graphics, or material that is illegal or violates local or national laws;
- does not contain or attempt to obtain any private or personally identifiable information, including, but not limited to, password, account information, credit card number, address, or other contact information;
- does not contain any material intended to, or reasonably likely to, threaten, disrupt, inflame, intimidate, libel, stalk, defame, or defraud any individual, entity, or group on any basis including but not limited to age, gender, sexual orientation, ethnicity, race, religion or disability or encourage any one else to do so; or
- does not contain material that would support or help any organization designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
Except as set forth below, you shall continue to retain all ownership and copyrights to the User Content you submit to StoryMash; provided, however, you grant to StoryMash the exclusive right to sue any third parties for infringements to the extent any third parties infringe on any User Content as it resides on the StoryMash Site.
3. Rights Granted.
By submitting User Content to StoryMash, you hereby grant StoryMash a non-exclusive, unqualified, irrevocable, perpetual, royalty free, fully sublicensable and transferable right and license to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Content in any manner and in any media now known or hereinafter devised.
For the avoidance of doubt, without limiting the generality of the rights granted to StoryMash, these rights include, without limitation, the right to create derivative works of, distribute and synchronize all or any portion of your User Content in timed relation to any other visual elements; to web cast, pod cast, re-publish, re-broadcast, re-platform, port, syndicate, route, and link to and from all or any portion of your User Content; to encrypt, encode and decode, and compress and decompress all or any portion of your User Content; to edit, mix, combine, merge, distort, superimpose, create or add special effects, illusions and/or other material to or of all or any portion of your User Content; to create composite, stunt, comic or unusual photographs, videos, animations, motion pictures and/or voice reproductions from all or a portion of your User Content; and to excerpt and/or extract portions of your User Content in order to host, store, index, categorize and display your User Content on or through the StoryMash Site or via other media.
StoryMash shall not be obligated to publish or use any User Content that you submit, and reserves the right to not use, reject, refuse to accept, or remove any User Content that it deems, in its sole discretion, to be inappropriate. If StoryMash chooses to publish or use User Content, there shall be no obligation for StoryMash to publish or use User Content for any minimum or certain period of time.
The rights, licenses and privileges described in this Agreement and granted to StoryMash shall commence immediately upon submission of your User Content to StoryMash, and continue thereafter perpetually and indefinitely, regardless of whether you continue or remain a registered user or not, unless and until terminated, in whole or in part, by StoryMash on notice to you.
4. Your Right to Modify User Content.
StoryMash grants you the right to modify User Content submitted by third parties by adding Chapters to such User Content. You may elect to receive revenues under Section 5 for your portion of the revised User Content (i.e., the Chapter(s) which you contribute). Alternatively, you may contact all of the other authors and jointly elect to receive compensation under Section 5 as a group.
If you wish to adapt existing User Content to a different medium or wish to translate User Content, contact us at licensing@StoryMash.com. While you may freely use your own User Content (i.e., the Chapters which you submit) off-line or in any other media, you do not have the right to use any Chapters submitted by others without their express written permission.
Publication and/or use by StoryMash of any User Content submitted by you shall entitle you to compensation as provided herein:
- When your User Content is used by StoryMash on the internet (e.g., on webpages or websites) StoryMash will pay you at least fifty percent (50%) of the Net Advertising Revenue it receives from third parties ("Advertisement Earnings") from advertising on any webpage on which your User Content appears and which is reasonably attributable to your User Content as determined by StoryMash. For purposes of this Agreement, "Net Advertising Revenue" means (i) the amount actually collected by StoryMash from a third party for each page view or impression of an advertisement, (ii) less any allocated overhead costs, commissions, fees paid to third parties, taxes, bad debt, returns, discounts, royalties, credits, and any other costs and expenses arising from the sale and placement of such advertisements.
- When your User Content is used by StoryMash in any other media (in a non-browser based setting) StoryMash will pay you fifty percent (50%) of the Net Revenue it receives from third parties ("General Earnings") on account of the User Content. For purposes of this Agreement, "Net Revenue" means (i) the amount actually collected by StoryMash from a third party with respect to any license to use your User Content (or a pro rata amount, if a license is executed with respect to a collection of User Content which includes your User Content), (ii) less any allocated overhead costs, commissions, fees paid to third parties, taxes, bad debt, returns, discounts, royalties, credits, and any other costs and expenses arising from such licensing or distribution activities.
- StoryMash will maintain sole and absolute discretion with respect to the amount and terms of payments from third parties who purchase advertising space on the StoryMash Site, and shall maintain full discretion as to the placement of any or decision to place, license, distribute, or otherwise monetize the User Content. StoryMash also retains full discretion as to the manner of presentation, and the decision to effect any adaptations, compilations, and derivative works of User Content.
- All Advertisement Earnings and General Earnings (together, the "Earnings") will accrue to your User Account within thirty (30) days after we receive payment from a third party. Payment to you of any accrued Earnings will be made on the last day of each month. However, StoryMash will have no obligation to pay you unless and until your accrued Earnings exceed $30.00.
- All payments will be made in U.S. dollars to a PayPal or similar internet payment account, where possible, or otherwise by check. As a condition of payment, you agree that if you fail to cash any check or otherwise collect any amount payable to you within one hundred eighty (180) days of the date payable, then our obligation to pay such amount shall be void and such amounts shall vest in StoryMash. StoryMash shall be entitled, it its sole discretion, to make payment by alternative methods.
- Only active user accounts are eligible to receive payments. If a user does not log in to his or her account for a year or more, the user account will be terminated and any accrued earnings will be forfeited. If a user terminates his or her account for any reason or if we terminate the account for cause (including violations of the Service and Use Agreement or our Code of Conduct), any accrued earnings that the user has not yet redeemed or requested for redemption will be forfeited. Once an account is terminated, any correlation between the terminated user account and any other existing user account is terminated so no further Earnings will be paid.
- You shall be responsible for any and all taxes due with respect to payment of Earnings you receive.
6. No Agency.
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and StoryMash, and submission of User Content to StoryMash shall not create any such relationship.
7. Limitation of Liability.
IN NO EVENT SHALL STORYMASH OR ANY OF ITS AFFILIATES OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, INFORMATION PROVIDERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (REGARDLESS OF THE FORM OF ACTION) ARISING OUT OF OR RELATING TO THIS AGREEMENT, IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
STORYMASH MAKES NO GUARANTEES OR WARRANTIES OF ANY TYPE REGARDING REVENUES GENERATED WITH RESPECT TO YOUR USER CONTENT. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, STORYMASH AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
You represent and warrant to StoryMash that any User Content submitted by You shall be your own original creation or You shall have obtained rights from the author to submit such User Content as provided herein. Additionally, You represent and warrant to StoryMash that any account/payment information ("Registration Data") You provide to StoryMash is accurate and correct.
Your rights under this Agreement terminate automatically if you fail to comply with any of the terms and conditions of this Agreement or with any other StoryMash policy or rule. No notice is required from StoryMash to effect such termination. Additionally, StoryMash may terminate this Agreement at any time and for any reason and may effect notice of such termination through any means, including but not limited to posting such notice on the StoryMash Site, sending you an email, or otherwise proclaiming such termination. Upon termination, you must immediately stop using the Services. StoryMash has no obligation to return any Content, Registration Data, or other materials you provide to StoryMash in the course of using the Services or the StoryMash Site.
10. Indemnification Obligations.
You agree to hold harmless, defend, and indemnify StoryMash and its licensees, licensors and their officers, directors, employees, subsidiaries, contractors, subcontractors, suppliers, agents, partners and affiliates, successors and assigns from all liabilities, claims, demands and expenses, including attorney's fees, that are due to, or that arise from any infringement by the User Content of any third party rights or any violations of your representations or warranties hereunder. StoryMash may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with StoryMash in such event.
11. Waiver of Moral Rights.
You waive all moral rights with respect to the User Content, including but not limited to any rights provided under the laws of the European Union or any other US or foreign jurisdiction.
12. Entire Agreement.
Except for any agreements or policies referenced herein, this Agreement constitutes the complete and entire agreement between you and StoryMash as it pertains to the subject matter of this Agreement (a license by you to StoryMash of the User Content and the terms of StoryMash's exploitation thereof). StoryMash reserves all rights not granted in this Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
13. Applicable Law and Venue.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA, USA, AS THEY APPLY TO AGREEMENTS MADE AND SOLELY PERFORMED THEREIN. YOU IRREVOCABLY CONSENT TO AND WAIVE ALL OBJECTION TO PERSONAL JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS LOCATED IN CLARK COUNTY, NEVADA, USA. BOTH PARTIES AGREE TO NOT COMMENCE OR PROSECUTE ANY SUIT OR ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR STORYMASH'S USE OF THE USER CONTENT EXCEPT IN THE FOREGOING COURTS.
You agree that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, the rights or obligations of either party or any defenses with respect thereto shall be referred to and finally resolved by arbitration under the rules of the American Arbitration Association with one arbitrator presiding. The arbitration shall take place in Las Vegas, Nevada.
YOU WAIVE YOUR RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE REGARDING THIS AGREEMENTS OR ANY RIGHTS OR OBLIGATIONS HEREUNDER.