Drone Pals Contributor License Agreement
DRONE PALS CONTRIBUTOR LICENSE AGREEMENT
This Drone Pals Contributor License Agreement (“Agreement”) is between Drone Pals LLC (“Drone Pals”) and the other individual or entity signing (including by electronic signature or clicking “I agree” or taking a similar action) this Agreement (“you”) (collectively, the “Parties). This Agreement applies to all content that you have previously submitted and, in the future, will submit, that is accepted for distribution by Drone Pals (“User Content”). This Agreement supersedes and cancels all previous agreements you have entered into with Drone Pals related to the distribution of User Content, other than the Drone Pals Terms of Service, and the Drone Pals Privacy Notice.
SECTION 1. RIGHTS AND ROYALTIES
1.1 License Grant to Drone Pals. By submitting any User Content to Drone Pals, you grant Drone Pals a worldwide, perpetual, irrevocable, non-exclusive, sublicensable right to use, copy, reproduce, rebrand, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any User Content (as defined below) that you submit to Drone Pals. These rights may be exercised via any analog or digital means of communication now known or hereafter devised including without limitation via print, websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films. Drone Pals may sublicense or authorize any third party distributors (“Distributors”), any customer who licenses User Content from Drone Pals or a Distributor (“Customers”) and their customers to exercise the rights described in this Section 1. Drone Pals and Distributors will determine the terms and conditions of all licenses of User Content granted by them, but will not knowingly use or license User Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by Customers brought to their attention. Drone Pals and Distributors may determine how User Content may be marketed and may stop marketing or licensing it at any time. If Drone Pals notifies you that it has permanently stopped marketing and licensing any particular User Content, the Agreement will be deemed to be terminated only with regards to that User Content.
1.2 Types of Content. As used in this Agreement, User Content means any message, comment, data, information, text, music, sound, photos, graphics, code or other material you submit to us, including but not limited to (a) photographs, illustrations, or other still visual representations (“Still Image(s)”); (b) moving visual content in any form including, film, video tape, digital files, animations, and clips (“Footage”); and (c) font, audio file and any other work protected by copyright but not included as part of a Still Image or Footage (“Other User Content”), in all cases, generated by any means and in any format or medium, including any reproductions and any modifications and derivative works thereof.
1.3 Acceptance or Rejection of Your User Content. Drone Pals is under no obligation to accept any submission from you of any User Content. Drone Pals will use commercially reasonable efforts to accept or reject User Content that you submit within 30 days. Drone Pals may reject any submitted User Content at any time in its sole discretion. Any User Content submitted from your email address and/or using a username/password issued to you shall be taken by Drone Pals as evidence that such Content has been submitted by you.
1.4 Collections and Movement of User Content. User Content may be included in one or more of Drone Pals’ current or future Drone Pals Content collections (“Collections”) made available for licensing or distribution by Drone Pals or Distributors. When you submit Content you will be asked to specify, where appropriate, the license model(s) through which the Content is available to be licensed. Drone Pals will determine the Collection and may subsequently move and license User Content through any other license models and/or Collections.
1.5 Royalties. In consideration for the license grant from you pursuant to Section 1.1 of this Agreement, Drone Pals will pay to you (or in the case of Combined Works or Aggregated Works, to all Contributors as a group, divided in Drone Pals’ reasonable discretion) a royalty based on a percentage of either Gross License Fees or Net License Fees as follows:
|Type of User Content||Percent of Gross License Fees||Percent of Net License Fees|
|Still Images: digital delivery to Customer||50%||Not Applicable|
|Still Images: physical delivery to Customer||Not Applicable||50%|
|Other User Content||Custom: as may be agreed between Customer and Drone Pals|
“Gross License Fees” means the revenue actually received from Customers for the license from Drone Pals of your User Content, but excluding any (i) applicable taxes, duties or levies of any nature required to be withheld, deducted or paid by Drone Pals from any current or future sums due to you by any law, regulation, or treaty.
“Net License Fees” means Gross License Fees minus any shipping charges, insurance charges and service fees (including but not limited to special formatting requests, printing/framing costs and technology delivery/access services (“License Fee Deductions”).
A “Combined Work” is any content which includes the User Content of two or more Contributors merged into a work which Drone Pals licenses as a single work.
An “Aggregated Work” is a license to Drone Pals Content which may be offered to a Customer on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined in Drone Pals’ sole discretion, taking into account the ratio of the number of individual items of your User Content to the total number of individual items of Content licensed together, ; or the relative value of your User Content compared to all other User Content licensed together with it. In addition, the frequency and methodology for reporting and paying Royalties may also vary in order to facilitate such high-volume licensing.
1.6 Royalty Deductions. Despite any other provision to the contrary, Drone Pals may deduct the following amounts from any royalties payable to you (together the “Royalty Deductions”): (a) cancellations, partial refunds or other sales incentive rebates in respect of a license where the original sale has been reported in a current or past sales report (“Sales Report”) including where due to a fraudulent transaction; (b) overpayment of royalties in a prior royalty period; and (c) amounts that may be deducted or withheld in accordance with the Section titled Indemnification. Drone Pals will notify you of any Royalty Deductions in a Sales Report before deducting amounts from payments to you. Other than Royalties for Content that is improperly credited to you or any cancellations under (a), if Drone Pals has not notified you of any Royalty Deduction within 1 year after it has been incurred, Drone Pals waives the right to recoup it.
1.7 Reporting and Payment. Drone Pals will use reasonable commercial efforts to, within 30 days after the end of each calendar month (the “Sales Month”), make available to you a Sales Report for transactions reported during the Sales Month. The Sales Report will state the Royalties due to you, and any Royalty Deductions. Drone Pals will make royalty payments monthly, within 30 days after the end of each Sales Month, by check or electronic funds transfer. No payment will be made unless a minimum of US$50.00, after Royalty Deductions, is due to you.
1.8 Marketing Use of User Content. Drone Pals and Distributors may use User Content to market you, your work, Drone Pals, or Distributors, including use in composites that include Content supplied by a third party. No royalties will be paid on these marketing uses.
1.9 Right to Control Claims. Drone Pals shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of User Content. You authorize Drone Pals and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the User Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Drone Pals and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Drone Pals will not enter into any settlement that will compromise your ownership of the copyright in User Content or that prohibits your future conduct with respect to User Content without your prior written consent. Drone Pals will pay you Royalties on any settlements it receives from Claims. If Drone Pals elects not to pursue a Claim, you will have the right to pursue it.
1.10 Copyright Ownership; Use of User Content by You. Except for the license granted to Drone Pals in this Agreement, you reserve all right, title, and interest in and to your User Content, including when it is incorporated in a derivative work created by others. That means that you can keep doing whatever you want with your User Content, and you can license it to anyone else under any terms you want, except that that license must not conflict with the rights you have licensed to Drone Pals under this Agreement. Drone Pals will own all right, title and interest, including all copyrights that arise apart from the copyright in your User Content, to all types of derivative works created by or for Drone Pals that contain multiple items of User Content and/or other Content. Either you or Drone Pals on behalf of you may register the copyright in any User Content with the relevant copyright authority.
1.11 Credit and Moral Rights. Using the credit line supplied by you, Drone Pals shall use commercially reasonable efforts to credit you as the source of User Content, but shall have no liability for lack of credit. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of User Content that are automatically conferred by legislation to varying degrees in different countries, which shall include the following rights and all rights of a similar nature: (a) the right to be identified as the creator; (b) the right to object to misrepresentative modification of User Content; and (c) the right to withdraw User Content from the market (except pursuant to the termination provisions of this Agreement). To the extent allowed by law, you waive all your Moral Rights relating to User Content. To the extent such waivers are not permitted by applicable law, you agree not to enforce such moral rights against Drone Pals, Distributors or Customers. Where you are not the owner of any Moral Rights, you confirm that all Moral Rights have been waived to this same extent or that you have obtained the same commitments not to enforce Moral Rights. Further, you acknowledge and accept that it is common business practice for commercial uses that the creator of Content is not credited and that Content may be modified.
SECTION 2. REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION & LIMITS ON LIABILITY
2.1 Representations and Warranties.
(a) Each Party represents and warrants to each other that it has the full power and authority to enter into the Agreement and perform its obligations hereunder and that it will comply with all applicable laws, and in particular with all Applicable Privacy Laws. “Applicable Privacy Laws” means, in relation to any Personal Data that is processed in the provision of the Services, the applicable legislation on the protection of identifiable individuals in effect where the Personal Data subject resides, including where applicable the California Consumer Privacy Act, the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4), and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statues, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities.
(b) You represent and warrant to Drone Pals that: (i) you are the sole and exclusive owner of the User Content submitted by you to Drone Pals or are the authorized representative of the applicable copyright owner(s) of such User Content; (ii) the User Content submitted by you to Drone Pals, to the best of your knowledge after due investigation and prior to modification or re-captioning by Drone Pals, will not infringe the copyright of any third party, and will not contain any matter which violates any applicable law or regulation and, if released, will not defame, violate the right of privacy or publicity, or infringe the trademark or other personal or property interests of the parties signing such release; (iii) all caption information provided by you will be accurate; (iv) you have obtained valid model and property releases where necessary in accordance with all Drone Pals submission requirements at the time of submission and you will keep the original release and provide a copy to Drone Pals and (v) all content was captured in compliance with all applicable laws, including but not limited to (A) capturing data in violation of applicable law or regulations regarding airports, restricted airspace, prohibited airspace, temporary flight restriction areas, power plants, critical infrastructure, government property, stadiums and prisons, (B) operating at safe and legal distances from manned and unmanned aircraft traffic, structures, vehicles, ground hazards, infrastructure, emergency personnel and people on the ground.
2.2 Indemnification. You agree to defend, indemnify and hold harmless Drone Pals and its affiliates, licensees, officers, directors, employees and agents (each an “Indemnitee”) from and against any and all actual or alleged third-party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable external attorneys’ fees arising out of or in connection with, any actual or alleged breach of this Agreement by you, or any duty, representation, or warranty contained herein by, or any actual or alleged act or material omission of you or your agents. You may at your option defend such claim at your expense, and Drone Pals shall cooperate fully in defending or settling such claim, provided that you may not settle without our prior written consent, which shall not be unreasonably withheld. You agree that Drone Pals may retain any amounts due to you under this Agreement or any other agreement you may have with Drone Pals to the extent Drone Pals is owed any sum under this Section.
2.3 Limitation of Liability. Drone Pals shall not be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if it has been advised of the possibility of such. In addition, Drone Pals shall not be liable to you under any circumstances arising out of (i) the misuse of User Content by any third party or (ii) breach of any of your representations or warranties. YOU ACKNOWLEDGE THAT THE NATURE OF INTERNET-BASED SERVICE IS SUCH THAT CONFIDENTIALITY, SECURITY AND PERFORMANCE CANNOT BE COMPLETELY ASSURED. DRONE PALS SHALL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS, USE, CORRUPTION OR LOSS OF ANY OF CONTENT, EXCEPT TO THE EXTENT THAT SUCH UNAUTHORIZED ACCESS, USE, CORRUPTION, OR LOSS IS DUE SOLELY TO DRONE PAL’S GROSS NEGLECT OR INTENTIONAL MISCONDUCT. Drone Pals shall not be liable for any loss or damage to any User Content, storage device or other materials submitted to Drone Pals, and you are required to provide or maintain your own backup files for any User Content submitted. You shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of Content or other materials submitted to Drone Pals. If, despite the above limitations, liability is imposed on Drone Pals for any reason, in no event shall Drone Pals’ liability exceed US$100.00 in the aggregate.
SECTION 3. TERMINATION & SURVIVAL OF LICENSING RIGHTS
3.1 Termination. Either Party may terminate this Agreement upon written notice if the other Party breaches any material term or condition of the Agreement and, if capable of remedy, fails to remedy such breach within 60 days after being given notice thereof by the non-breaching Party.
3.2 Effect of Termination; Survival of Unexpired Licenses. After any termination of the Agreement, all unexpired licenses of User Content granted by Drone Pals to Customers will remain in effect. Drone Pals and Distributors will have a one-time only (or up to five times only in the case of licenses for educational uses) right to renew unexpired licenses on substantially the same terms, provided that there is no break in the licensing period. In addition, if you have received an advance on Royalties that has not been fully recouped by Drone Pals at the time of termination, Drone Pals will have the right to continue licensing any or all User Content submitted under this Agreement until the advance has been fully recouped.
3.3 Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. Sections 1.1, 1.2, 1.4-1.11, 2, 3.2, 3.3 and 4, all associated definitions and all accrued rights to payment shall survive expiration or termination of this Agreement.
SECTION 4. MISCELLANEOUS
4.1 Entire Agreement; Severability; Waiver. This Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except in writing signed by an authorized representative of each Party. If a Party waives any provision of this Agreement, the waiver in such an instance shall not be deemed to be a continuing waiver, and no waiver by either Party shall prevent such Party from enforcing any and all other provisions of this Agreement.
4.2 Assignment. You may not assign your rights or obligations and under this Agreement without the prior approval of Drone Pals, which will not be unreasonably withheld and shall not be unreasonably withheld in the case of an assignment to a corporation or to a trust controlled by you or for the sole benefit of you or your immediate family. Drone Pals may assign its rights, obligations and duties under this Agreement, in whole or in part, to any entity controlling, controlled by, or under common control with Drone Pals as part of a merger, reorganization or sale of assets by Drone Pals.
4 .3 Nature of Relationship. You agree that you are an independent contractor. The Parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, or any other legal identity, and that Drone Pals has no obligation to find or offer employment to you.
4.4 Governing Law and Arbitration. The Agreement will be construed and enforced in accordance with the laws of the State of Wisconsin, excluding its laws relating to conflict of laws. Any dispute arising out of or in connection with the Agreement shall be settled before a single arbitrator under the Commercial Rules of the American Arbitration Association (“AAA”) in La Crosse County, Wisconsin. The substantially prevailing Party will be entitled to recover its reasonable legal costs. If both Parties prevail on particular claims, or defenses of a claim, then each Party will be entitled to recover its reasonable legal costs for those claims it successfully asserts or defends, and the awards will be offset.
4.5 Further Assurances. Each Party will, and will use its reasonable efforts to cause any third party to, execute and perform such further acts, deeds and documents as may from time to time be required to give full legal and practical effect to the Agreement.
4.6 Notices. Parties shall provide all notices in writing via mail and/or email. Notices to you will be sent to the current mail or email address and notices to Drone Pals should be sent to: 1840 East Main Street, Suite 1, Onalaska, WI 54560, U.S.A.
4.7 Personal Data Transfer. You understand and agree that information relating to you or any other person such as a model that you may provide to Drone Pals may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of your home country. Drone Pals, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting you, and may disclose this information to necessary service providers, to provide the services they contract for. These third parties will have no right to use your information for secondary purposes. Any personal information you do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. Drone Pals reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distributors and their employees, customers or the public.
4.8 Submission of Content as an Authorized Representative. If and to the extent you are submitting Content to Drone Pals as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.