Content License Agreement
This License Agreement governs Tyufyakin Konstantin Content that you Download.
As used in this Agreement:
- "Content" means any work, including a music or sound effects track or other digital media work, that is Downloaded pursuant to this Agreement.
- "Download" and variations thereof means downloading, obtaining or copying Content (i) from the Website, (ii) through email.
- "Item Page" means the specific Content item and item detail pages at the Website where item previews and information about the particular Content is made available for Users.
- "License" means the license granted to you under this Agreement.
- "User" means an individual who uses this website
- "Single Project" means edited versions of the same Production or Digital Production, including the related promotional material that complies with this Agreement for that Production or Digital Production.
- "Website" means our internet site at tyufyakin.com.
2. Grant of All Media License.
The License: Unless you have purchased a Digital License (as defined herein), we hereby grant you a non-exclusive, worldwide, perpetual right and license on the terms and subject to the conditions and limitations set out in this Agreement, to:
- use, copy, edit, modify, manipulate, couple and synchronize the Content in any independently authored derivative or other work in any media now known or hereafter devised (including in-context works for advertising and promotion), which incorporates Content together with other substantial independently created works, and is created by or for you or on your behalf as permitted by the terms of this Agreement (a "Production"). For avoidance of doubt "Productions" include books, periodicals and the public display and performance of Content as part of a public event (including performances of the same that are broadcast and/or streamed);
- directly or indirectly copy, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Content within such Production(s) world-wide and by any means now known or hereafter devised and allow others to do so; and
- use the tags, meta data, designations, disclaimers, restrictions, annotations, information and documentation that are available on the Website or otherwise provided by us to you with, in or otherwise relating to Content (the "Content Information") internally to facilitate the foregoing with regard to the Content.
3. Grant of Digital License and Additional Restrictions on Digital License Only.
If you have purchased a Digital License: We hereby grant you a non-exclusive, worldwide, perpetual right and license (the "Digital License") on the terms and subject to the conditions and limitations set out in this Agreement, to:
- use, copy, edit, modify, manipulate, couple and synchronize the Content in a purely digital Production which incorporates or combines the Content together with other substantial independently created works, and is created by or for you or on your behalf or for one of your clients (a "Digital Production");
- publicly display and perform ("Distribute") the Content within such Digital Production(s) by means of – and only by means of - digital streaming through the internet; and
- use the Content Information internally to facilitate the foregoing with regard to the Content.
- Single Project: you may only use the Content in a Single Project
- Print, Film and Physical Media Excluded: You may not use of the Content in or on any printed media or work, film or physical media (e.g., CD or DVD) or merchandise.
- Only Digital Streaming Permitted: For avoidance of doubt, theatrical, broadcast, telecast or cable or satellite distribution, performance or display of the Digital Production or Content is prohibited.
Permitted Distribution Channels: Distribution of the Content within or with a Digital Production(s) is permitted only by means of digital streaming through one of the following digital channels:
- Over-The-Top (OTT) Video On Demand apps;
- Pinterest; and/or
- Your website or mobile app.
4. License Tiers
- License Tiers: If you purchased a "Business License" or a "Premium License" for the specified Content, the License granted to you for such Content will be on the terms and conditions of this Agreement with the variations and additions that this Agreement states apply to such License. Otherwise, the License will be an "Individual License". For information about Business Licenses or Premium Licenses, contact us at firstname.lastname@example.org.
Number of Seats:
- If we have granted you an Individual License, you may allow access to or use of raw Content on your behalf to no more than 1 individual. The individual who Downloaded the Content through the Website will be deemed to be that person.
- If we have granted you our Business License for the Content, you may allow access to or use of raw Content on your behalf to no more than a total of 5 natural persons over time.
- If we have granted you our Premium License for the Content, you may allow access to or use of raw Content on your behalf to an unlimited number of natural persons.
- If we have granted you an Individual License for visual Content, the License is limited to a Print Run of 100,000.
- If we have granted you a Business License for visual Content, the License is limited to a Print Run of 500,000.
- If we have granted you a Premium License for visual Content, the License includes the right to an unlimited number of such copies.
- The "Print Run" is the number of physical printed copies of the Content as part of a Production or packaging of or printed material accompanying a Production, counted by the lesser of the number of physical analog printed (non-digital) copies or the circulation total for any individual edition containing the Content. Electronic copies are not counted, even if in a physical medium (e.g., a DVD).
If we have granted you an Individual License for the Content or a Digital License, the License does not include a right to use the Content in Merchandise.
- What is included in "Merchandise": Items of physical products sold or distributed by or for you, including toys, games, physical electronic products, and paper goods, such as greeting or post cards, business cards, product packaging, product tags, calendars, posters, stationary, novelty goods, trading cards, tickets, payment cards, bank checks, or apparel. For the avoidance of doubt, using Content in Merchandise includes the right to install the Content on a computer, cell phone or other electronic device located in a retail establishment where the Content is included for the purpose of demonstrating the capabilities of the device if the device does not permit transmission or storage of the Content or Productions containing the Content outside the device.
- What is not included in "Merchandise": (i) books or periodicals, or (ii) music, video or audiovisual Productions that are in physical media (e.g., in a CD, DVD), or (iii) packaging or informational or promotional collateral that accompanies such a Production containing the Content where the Content is not sold separately from the Production – all of which are deemed to be included in the term "Production" described in and covered by the license in Section 2 (All Media License), rather than "Merchandise".
5. License Terms and Restrictions.
- Item Page: In addition to the terms and conditions of this Agreement, the License to the Content is subject to any special terms that are contained or linked to in the Item Page for that particular Content, if any, including restrictions on the number or type of Productions or Merchandise in which the Content may be used.
- You must Limit Access to and Distribution of Raw Content: You may not allow access to raw Content, except for the purpose of creation, reproduction or distribution of Productions or Merchandise made by or for the Licensee as permitted by this Agreement. If you become aware of any unauthorized access to or duplication of any Content, you should promptly notify us via the Website. Except as expressly permitted by Section 2, you may not (i) distribute, transmit or publicly display Content as a template, a standalone file or to others for consumption, reproduction or re-sale, or (ii) superficially modify any raw Content and sell or license it to others.
- No Use in Trademarks or Logos: You may not incorporate any Content into a logo, trademark or service mark.
- Sensitive Use: Unless we have granted you a Premium License for the Content, you may not use any Content in any context that would be unflattering or unduly controversial to a reasonable person, including use related to the promotion, advertisement or endorsement of any political party, candidate, or elected official, or in connection with any political policy or viewpoint, or as suffering from, or medicating for, a physical or mental ailment (each of the foregoing, "Sensitive Use"). For avoidance of doubt, use of Content that is not Editorial Content in an obviously satirical Production or use of Editorial Content in accordance with Section 7 would not be prohibited by this section.
- No Unlawful Use: You may not use any Content in, a pornographic, unlawful or defamatory context or manner, including use (i) in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like; (ii) in connection with the advertisement or promotion of tobacco products; or (iii) depicting a person in the Content as engaging in acts of moral turpitude or criminal activity.
- Retention of Rights to the Content: You will not acquire, and we and/or the Content contributor will retain, all right, title, and interest in and to all of the copyrights, trademarks, trade secrets and other proprietary rights in the Content or Content Information that are not expressly granted to you by the terms of this Agreement. The License does not include the right to record a new performance of the composition reflected by the Content.
- License Conditioned on Compliance: The License is conditioned upon material compliance by you and your personnel and contractors (each a "Representative") with this Agreement and our receipt of full payment of the applicable price for the License and Content.
- Contact Us If You Need Rights for Use Not Permitted By this Agreement: If you need to use any Content in a manner that is not permitted by this Agreement, contact at email@example.com
6. Music and other Audio Content.
- Types of Audio Content: We offer various kinds of music and other audio recording Content without video, pictures or other visual works ("Audio Content"), which may be designated on the applicable Item Page, among other things, as "Music" or "Music Tracks" (music, with or without lyrics) or "Sound FX" or "SFX" (sound effects).
- PRO Content: If the PRO box adjacent to a Music Track on the Item Page is checked or the Music Track is otherwise designated as a PRO Track, then it is considered to be "PRO Track". "PRO" means a performing rights organization or other similar organization (including ASCAP, BMI, SOCAN, SESAC, PRS, MCPS, SACEM, SDRM or JASRAC, GEMA). For PRO Tracks, notwithstanding anything else in this Agreement, the License does not include the right to public performance of the composition of the Music, there is no waiver of any PRO royalties or cue sheet obligations, and our warranties do not cover such performance rights. The foregoing may also apply to other Music Tracks created in a country (e.g., certain EU countries) where application of PRO rights may be considered to be mandatory under applicable law, even though the Content contributor has granted us sub-licensable performance rights.
Restrictions on All Audio Content: In addition to the other restrictions in this Agreement, you may not do any of the following regarding any Audio Content:
- use it in whole or part to manufacture, distribute or sell records, CDs, jukeboxes, mp3s or any other predominantly audio product embodying it, in whole or in part, that is not synchronized or combined with other audio or musical content to create a derivative work as permitted in this Agreement (for example, you cannot use it to create a CD or other music compilation to give away or sell);
- place it on or in any product or platform that makes it available in a manner such that a person can without extraordinary effort extract or access or reproduce it as an electronic file;
- use or display it in whole or part in an electronic format that enables it to be accessed or distributed or shared in any peer-to-peer or similar file sharing arrangement;
- resell it in whole or part as backgrounds, "hold" music or ringtones; or
- incorporate it in whole or part in any product or platform that results in its re-distribution or re-sale (such as music download sites, stock music CDs, electronic greeting card web sites, web templates and the like).
- edit, modify, or alter it;
- use it in whole or part with other original work(s) of authorship so that the combination constitutes a Production;
- use it, in whole or in part, as an element of a new musical work (e.g., by combining the Audio Content with other work so that a copyright can be claimed in the resulting song); or
- modify it, in whole or in part, so that a copyright can be claimed in the resulting song other than as part of a Production that consists of an audio visual work, computer or mobile device application or an internet page.
7. Credit Attribution.
- In case of non-commercial use and free track download, you will accompany the Production with a credit line that attributes the Content to Konstantin Tyufyakin, and if the Production is posted online, you will use your commercially reasonable efforts to make the credit line include a hyperlink to tyufyakin.com.
- For all other Content, where crediting is customary or where other such credits are provided, you will use your reasonable commercial efforts to accompany the Production with a credit line.
- The unintentional omission of credit attribution provided for above will not be considered to be a breach of this Agreement, and the omission of credit attribution will not be considered to be a material breach of this Agreement.
8. Representations, Warranties and Disclaimers.
Our Warranties: We warrant that:
- We have the right and authority to enter into and grant the rights in the Content granted to you in this Agreement, subject to all applicable limitations, disclaimers and exclusions in this Agreement.
Subject to Sections 6, 7 and 8 above, unaltered Content when Downloaded and used in compliance with this Agreement and applicable law and with respect to which you have fulfilled your responsibilities and obligations under this Agreement, including your payment of all applicable fees,
- will not infringe any copyright, trademark or other intellectual property right, and
- will not violate any third parties' rights of privacy or publicity rights.
- Limited Warranty: We warrant that there are no material defects in the Content which would prevent it from being downloaded from the Website and used as permitted herein. If there are material defects in the Content, your exclusive remedy under this paragraph will be as follows: (i) upon request to us within 30 days of the download of such Content, you will be permitted to download the Content again to obtain a replacement copy of the Content; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Website or used as permitted herein successfully, we will refund the fee actually paid by you for such Content.
- Warranty Disclaimer: OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 8 (a), THE WEBSITE, OUR SERVICES, THE CONTENT AND THE CONTENT INFORMATION ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE WEBSITE PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OR THE CONTENT INFORMATION WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. We only have model or property releases where expressly indicated on the Item Page.
- Content Information Disclaimer: While we have made reasonable efforts to correctly categorize, keyword, caption, description and title the Content, we do not warrant the accuracy of such information.
- Representation about You: If you are an individual, you represent and warrant that you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement.
- Representation About Your Information: You represent that all information provided to us by you or under your account is accurate and true, including all information relating to the Website User and the Licensee and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.
9. Limitations of Liability.
- THE CONTENT CONTRIBUTORS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOST PROFITS OR, IN THE CASE OF US OR THE OTHER POND5 PARTIES, ANY OTHER DAMAGES, COSTS OR LOSSES, INCLUDING THE COST OF COVER, ARISING UNDER THIS AGREEMENT OR OUT OF OR RELATED TO THE LICENSE, YOUR OR ANY OF YOUR REPRESENTATIVES’ USE OR EXPLOITATION OF CONTENT, THE WEBSITE OR THE CONTENT INFORMATION, ANY SERVICES PROVIDED BY US OR THE RESULTS FROM THE USE THEREOF OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
- No action, regardless of form, arising out of the License, or under this Agreement may be brought by you more than one month after the cause of action has accrued.
10. Payments & Taxes.
- Sale of License Final: All sales of Licenses are final, and we are under no obligation to refund any fees paid by you for Content under any circumstances, except upon a material breach of one of our express representations and warranties set forth herein for such Content. However, if you request a refund, and we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Content will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.
- Taxes: You are responsible for assessment and remittance of any and all applicable sales taxes, use taxes, value added taxes, property tax, customs, duties and any related interest or penalties imposed by any jurisdiction as a result of the License or any use of the Content.
- No Set-Off, Withholdings or Deductions: You must pay all amounts due to us in a payment currency approved on the Website without any set off, deduction or withholding of any kind, including tax withholdings or amounts charged for currency conversion. To the extent that you determine that you are required under law (e.g., under a tax law) to withhold any amount from payments due to us or a financial institution or other intermediary deducts any amount for currency conversion or other services from your payment to us, the price for the applicable License is hereby increased by the amount that would cause the net amount actually received by us to equal the price that would otherwise apply for the sale of the License.
- You: As used in this Agreement, the term, "Licensee", "you" and "your" refer to the person designated as "Licensee" when the Content is downloaded from the Website or otherwise first Downloaded. A Person may not Download Content unless he or she is the Licensee or has authority to and does in fact bind the designated Licensee to this Agreement.
- Us: The party with whom you are contracting is the author of the work, and the terms "website", "we", "us" and "our" as used in this document refer to the author of the work. The term "our" is the possessive form of the above, as applicable.
12. Miscellaneous Provisions.
- Consent to Electronic Communications: You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- You Consent to Us Processing Your Data in Different Countries: You consent to your personal information being shared with and processed in the course of our business by us and in some cases less privacy protection than your country.
- Unless the context requires otherwise, in any part of this Agreement: (i) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; (ii) "must not", "should not", "shall not" and "may not" are expressions of prohibition, and "will", "must", "should" and "shall" are expressions of command, and not merely expressions of future intent or expectation; (iii) use of the singular imports the plural and vice versa; (iv) references to one or no gender include the other or no gender.
- Notwithstanding anything else in this or any other agreement, (i) we reserve the right to make changes to this Agreement at any time and without notice to you, and (ii) you will be subject to the terms of the same in force at the time that the Content was first Downloaded for or by you. For avoidance of doubt, a change to any of the same will not apply to Content that was first Downloaded for or by you prior to the change. No modification, deletion, amendment of any provision is binding on us unless in writing signed by our authorized representative or posted by us on the Website.
- If you learn that any Content is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim. If we learn of such a claim from any source and we, in our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Content from your computer systems and storage devices (electronic or physical), and (ii) cease any future use of the Content at your own expense if possible. If you do remove and cease use of the Content, we will either refund your license fees for the applicable Content or without charge provide you with other content that we determine with your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.
- The parties to this Agreement are independent contractors, and nothing in this Agreement or the License shall create a joint venture, partnership or franchise or fiduciary relationship between the parties.
- If any provision, or portion thereof, of this Agreement, or its application to any person or circumstance, shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement, or such provision and their application shall not be affected thereby, but shall be interpreted without such unenforceable provision or portion thereof so as to give effect, insofar as is possible, to the original intent of the parties, and shall otherwise be enforceable to the fullest extent permitted by law.
- Any disputes related to or arising from this Agreement, the License, the Content or their use or their use will be resolved exclusively by the court in the city of Moscow, Russia. You hereby waive any objection as to the venue or inconvenience of the jurisdiction of any such court or the right to a jury trial to resolve any such dispute. The parties hereby consent to the jurisdiction of such courts.
- You will promptly reimburse us for any costs (including reasonable attorneys' fees and court costs) that are incurred by us in collecting any License fees due to us.
- All of the covenants, terms, provisions and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and permitted assigns.
- Nothing in this Agreement, express or implied, is intended to or shall confer upon any other third Person any rights, benefits or remedies of any nature whatsoever.
- Except as otherwise set forth herein, any notice required or permitted to be given under this Agreement shall be in writing, delivered by hand, nationally recognized overnight courier service, email or registered or certified mail, addressed (i) to email to firstname.lastname@example.org; or (ii) to you at the email address.
- If you breach any provision of this Agreement and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement. Your obligations, the limitations and our rights and remedies set out in this Agreement are cumulative and are in addition to the copyright owner’s rights and remedies at law or in equity.
- This Agreement and the License are non-transferable without Website’s prior written consent. However, if we have granted you a Premium License for the Content, you may one-time assign the License on the condition that the assignee agrees to the terms of this Agreement and you provide us with prompt written notice of the assignment. This means that except as permitted herein, you may not resell, sublicense, rent, loan, assign or transfer the Content to any third Person, provided that no restriction on transferability in this Agreement applies to your Productions or Merchandise that incorporate Content pursuant to the License. Website may assign this Agreement without your consent to an Affiliate as part of a corporate reorganization or any other Person as part of a merger or asset or business sale so long as such Person agrees to be bound by its terms.