The following Terms of Service (“TOS”) is a legally binding, non-exclusive agreement between you and Audular. Please read the TOS carefully and be sure you understand it fully. The TOS describes and controls your legal relationship with Audular, the rights you are granting to Audular in any photographs, images, vectors, moving images, animations, films, videos, audiovisual works or other media together with any associated keywords, metadata and/or titles submitted by you to Audular (collectively, “Content”), and the uses Audular may make of the Content.
By submitting any Content to Audular, you grant to Audular a worldwide, non-exclusive right to publicly display, sell, advertise and market any Content uploaded by you and accepted by Audular, until this Agreement is terminated as herein provided. You also give permission to Audular to add, modify or remove information related to your Content in order to manage and license such Content.
You are granting Audular the non-exclusive right to license and use your submitted content.
You grant Audular a worldwide, non-exclusive right to use your name, display name and Content in connection with Audular’s marketing and promotional activities without the payment of any compensation to you. Audular, in the exercise of its discretion, may refrain from any or all of the foregoing without any liability to you.
Audular and Black Octopus Agree on the 50% – 50% split between all revenue earned from the sale of any product of theirs on Audular.
Audular will provide Black Octopus Sounds with continuous front page exposure (at least 10 products at one time). Audular will also provide Black Octopus Sounds with consistent features on it’s social media platforms (Instagram, Facebook, Youtube etc.), promotion via ads on the Mainframe, as well as promotional newsletters.
Ownership of Content
The copyrights in all Content remain with the copyright owner, and nothing in the TOS shall be construed as a transfer of copyright to Audular. You always retain ownership in and to your content. If the content you put forth on to Audular contains copyrighted material, Audular is not responsible for any repercussions that may follow.
You agree to provide valid and accurate model releases for all Content you contribute to Audular that, in Audular’s judgment, contains an identifiable face or identifiable human figure or another identifiable attribute including, without limitation, voice, appearance, or likeness. You also agree to provide valid and accurate property releases to Audular for all Content that requires such releases, which determination shall be made in Audular’s sole discretion. All releases shall be electronically delivered to Audular with the Content. Content without a release that depicts an identifiable person and/or requires a property release may be accepted for “Editorial Use Only” by Audular in its sole discretion.
Some content you submit may require releases, which you are responsible for providing.
You agree that you are solely responsible for retaining all original releases and maintaining complete and accurate release records.
The submission of falsified, inaccurate or otherwise defective model releases is a material breach of the TOS. Releases submitted by you shall not contain any terms inconsistent with the TOS or contain any restrictions not contained in the Audular releases located at the Audular Legal Center.
You agree that Audular may furnish copies of releases to customers, as necessary, in order to respond to any potential or actual legal action, to comply with applicable laws, regulations, and/or union reporting requirements, or any other reason Audular deems reasonable in its sole discretion.
You agree that all Content submitted by you for “Editorial Use Only” shall faithfully depict the subject and be accompanied by accurate titles and keywords. You also understand and agree that certain “Editorial Use Only” Content may require an attestation of authority from a third party granting Contributor’s right to record such Content (a “Credential”). You will provide Audular evidence of such Credentials upon request.
If you submit content for “Editorial Use Only”, it may require credentials.
Audular may license Editorial Use Only content for commercial purposes in its discretion.
You agree to provide true and complete information relating to your Audular contributor account and Content, including but not limited to information relating to the date, location and equipment used in connection with creation of the Content;
Please make sure that information relating to your Audular account and content is true and complete.
Audular has the right to refuse to establish an account or to close any existing account, for fraud, intellectual property infringement, violation of a third party’s rights including those of privacy or publicity, artificially inflating downloads, submission of material that is obscene in nature, violent or that might be construed as defamatory, failure to comply with Audular’s guidelines as may be amended from time to time, for any breach of the terms of this or any other agreement that you have with Audular, or for convenience.
Audular will terminate your account no later than ninety (90) days following its receipt of a written request from you. For the sake of clarity, before the termination of your account is made effective by Audular, your Content will remain available for license by Audular customers. Notwithstanding the foregoing, in the event that Audular materially modifies the TOS and does not provide you with prior notice, you may terminate your account within thirty (30) days of the effective date of such modifications.
We may close your account if you are doing something wrong. You can request that we close your account at any time as well, which we will do within 90 days.
You may remove Content from your account at any time, provided that in any ninety (90) day period, you remove no more than (i) 100 items of Content; and (ii) 10% of your Content, whichever is greater.
If your account is terminated for any reason, you must obtain written authorization from Audular prior to establishing another account. You may not have more than one active contributor account at any time without the written consent of Audular in each instance.
You may not hold more than one Audular account, or share content with another Audular account, without permission.
You may not submit identical Content to more than one account without the prior written consent of Audular.
Audular has the right to refuse to accept or to remove Content from the Audular Websites for any reason. Audular will remove Content if Audular believes that such Content may (in Audular’s sole discretion) subject Audular or any of its officers, managers, directors or employees to legal action or if the Content violates the TOS. Notwithstanding the foregoing and subject to Audular’s discretion, Content removed by you or opted out by you for any reason may be available for license to those customers that previously downloaded “comp” versions of the removed Content.
Licenses issued by Audular for any Content that is later removed from the Audular Websites will remain in full force and effect.
If your content is removed from Audular, existing licenses for previously downloaded content will remain in effect.
Audular may advertise and/or market your Content on social media platforms including Facebook, Instagram, Tumblr, Twitter, and similar sites and the applications related thereto.
Your content may be marketed on social media platforms.
Unless you “opt out” (please see “Your Account”), Audular shall have the right to issue an “Enhanced License” with respect to your Content. Customers who purchase an Enhanced License shall have the right to make broader use of your Content. For example, there are no limitations on the number of times an Enhanced License customer can reproduce Content.
We may license your content for sensitive uses unless you opt-out.
Audular will not license Content for use in connection with matter that is pornographic, defamatory or deceptive, or in a manner that could be considered libelous, obscene, or illegal in nature.
We will not license your content in a way that is pornographic, defamatory, deceptive, or in a way that is considered libelous, obscene, or illegal.
Content Submission Guidelines
You agree to follow Audular’s Contributor Guidelines, which are deemed incorporated herein and made a part hereof by this reference. The submission of Content that does not adhere to Audular’s Contributor Guidelines may result in the termination of your Audular account.
Please follow Audular’s Contributor Guidelines when submitting content to Audular.
You agree to follow Audular’s Forum Guidelines. Any activity by you on Audular’s forum (please see “Forum for Contributors”) which does not adhere to Audular’s Forum Guidelines may result in the termination of your Audular account. The terms of Audular’s Forum Guidelines are deemed incorporated into and made a part of the TOS by this reference.
Please follow Audular’s Forum Guidelines when participating in the Audular forum.
Audular shall pay you a royalty for each unique download of Content for which Audular receives payment. The current royalty rates are set forth on the Earnings Schedule, which schedule is incorporated herein by reference. If a customer downloads the same item of Content more than once, you will be paid once only.
We will pay you a royalty for each download of content for which Audular receives payment.
If your account is terminated for a breach of the material terms of the TOS, in addition to its other rights at law or in equity, Audular shall have the right to retain any royalties and/or other compensation otherwise payable to you hereunder as liquidated damages.
Audular may recoup royalties paid to you in connection with refunds issued by Audular by deducting applicable royalties credited to your account. Credit card charge backs will be treated in the same manner as refunded subscriptions. Audular does not deduct the amount credited to your account for refunds and charge backs in connection with any license, but it reserves the right to change this policy at any time. Such change shall not constitute a material modification to the TOS. Audular shall notify you of any such change with an announcement on your login page.
If Audular makes an over payment of royalties or other compensation to you for any reason, Audular shall have the right to deduct the amount of such over payment from your accrued royalties or to demand the immediate repayment of such overpaid royalties or other compensation. Audular will make you aware of any over payment so that the parties may enter into a discussion regarding recouping any such overpayment. In the case of an overpayment or underpayment, the balance will be rectified in the following month.
If you receive your payments through an online payment processing service (e.g., Paypal or Moneybookers) you may not share your online payment processing service account with another Audular contributor. Audular’s obligation to make payment to you hereunder shall be fulfilled by making payment to the online payment processing service designated by you.
Please do not use your account to download your own content, or to transfer content to customers. Also, you may not share your payment processing account (e.g., PayPal, Moneybookers) with another Audular contributor.
You may earn more by referring contributors and customers who identify you as a referral. Please see the Earnings Schedule for more information.
If you refer a customer to Audular and the customer identifies you to Audular as the referring party, your royalty account will be credited as specified on the Earnings Schedule. You will not receive a royalty for any renewals or subsequent purchases by the customer you referred. Any referrer royalties credited to your account from a subscription that is later refunded or charged back to Audular will be deemed to be an overpayment of royalties to you. Audular reserves the right to withhold payments due to you under the Audular referral program for up to 90 days from the date the referred customer establishes its Audular account.
For the purposes of the TOS, the term, “Trademark(s)” means all common law or registered trademarks, logos, service marks, trade names, Internet domain names, or other indications of origin now or in the future used by Audular.
Nothing contained herein grants or shall be construed to grant you any rights to use any Audular Trademarks.
You agree that you will not use Audular’s Trademarks in any manner that might tarnish, disparage, or reflect adversely on such Trademarks or Audular. Nor will you contest or otherwise challenge (e.g., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of any of Audular Trademarks or the Trademark rights claimed by Audular.
You agree that you will not use any Audular Trademarks or any variant thereof including misspellings) as a domain name or as part of a domain name regardless of the top-level domain, as part of a blog name or social media handle or channel, or as a metatag, keyword, or any other type of programming code or data.
You may not at any time, adopt or use, without Audular’s prior written consent any word or mark which is similar to or likely to be confused with Audular’s Trademarks.
The look and feel of the Audular Websites, including all page headers, custom graphics, button icons, and scripts, is the trade dress and/or trademark or service mark of Audular and may not be copied, imitated or used, in whole or in part, without the prior written consent of Audular.
You may not use Audular’s trademarks in any form without permission.
You may not frame or hotlink to the Audular Websites or to any item of Content other than your own without the prior written consent of Audular.
Please do not copy, frame, or hotlink to the Audular websites without permission.
All rights in and to Audular’s Trademarks not expressly granted to you hereunder are reserved by Audular.
Copyright Infringement Claims
You hereby grant Audular the right and authority to take such steps as Audular deems commercially reasonable to protect Audular’s rights in the Content.
In the event that you believe Content has been misused, you shall take no action without providing notice of such misuse to Audular and receiving Audular’s prior written consent to such action.
While Audular takes commercially reasonable steps to ensure that the rights of its Contributors are not violated by customers or other parties, Audular has no obligation to pursue legal action against any alleged infringer of any of your rights in and to any Content.
We respect your rights and may take action to protect your content. If you suspect potential misuse of your content, please contact us with the details before taking any action directly.
Representations and Warranties
You represent and warrant that:
you have the full right, power and authority to enter into this agreement and to fully perform all of your obligations hereunder;
you are under no legal disability or contractual restriction that prevents you from entering into this agreement
you are at least 18 years of age;
the Content and all parts thereof are owned and/or controlled by you, unencumbered and original works and are capable of copyright protection in all countries where copyright or similar protection is available;
if the Content contains sound recordings, music and/or lyrics, you own or have acquired all rights to use such sound recordings, music and/or lyrics from the owner of the copyright in such sound recordings, music and/or lyrics.
if the Content consists in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools and the like that are included in design programs (e.g., Photoshop, Daz, Illustrator), the end user license agreement, terms of service or the equivalent license held by you permits you to incorporate such elements in Content created by you, and to license such Content to Audular for the purposes set forth herein.
the Content is neither obscene nor defamatory, does not violate any applicable laws and/or regulations, and does not infringe the copyright or any other rights of any third party, including, without limitation, trademark rights and the rights of privacy and publicity.
you possess valid Credentials for each item of “Editorial Use Only” Content for which credentials may be required.
there is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect the Content or which might in any way impair the rights granted by you hereunder; and
you will not transmit unsolicited emails or engage in so-called “spamming” to publicize or promote your relationship with Audular or the sale of your Content – nor will you advertise or otherwise publicize your relationship with Audular, nor will you use Audular’s Trademarks through the use of search engine advertising and/or marketing.
You acknowledge that such advertising and/or marketing might infringe on the intellectual property rights of Audular and/or third parties. In addition to its other rights and/or remedies under the TOS, Audular shall be under no obligation to pay you any referral fees or other compensation if you violate the terms of this subparagraph.
Audular represents and warrants that:
it has the power and authority to enter into this agreement and to fully perform all of its obligations hereunder; and
upon making or learning of any claim that is inconsistent with any of the warranties or representations made by you, Audular may send you written notice of such claim, using the email address provided by you to Audular, specifying the details of the claim as then known to Audular.
Pending the determination of such claim, Audular may withhold from royalties and/or other compensation due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by Audular. You will cooperate fully with Audular in the defense of any such claims. You may participate in the defense of any claim through counsel of your selection at your own expense.
You agree that you are legally able to enter into this agreement and that none of the content you submit will violate any laws or infringe any third party’s rights
By submitting any Content to Audular, you acknowledge that you will acquire certain confidential and proprietary information, including but not limited to royalty rates, royalty payments and earnings data (collectively, “Confidential Information”). You agree to keep Confidential Information confidential and to not disclose Confidential Information to any third party other than representatives, agents, attorneys, accountants, auditors and advisors with a bona fide need to know, who shall first agree to keep the terms confidential.
Please do not disclose confidential information about your Audular account.
You agree to indemnify and hold Audular, its subsidiaries, affiliates, directors, officers, and employees harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of any breach or claimed breach of any of your representations or warranties or any of your obligations under the TOS. You will only be liable for any incidental, consequential, or special damages in the case of third party claims.
If a claim arises due to your breach of your representations in this agreement, you agree to cover Audular for its loss. If a claim arises due to Audular’s breach of its representations in this agreement, Audular agrees to cover you for your loss.
The party seeking indemnification agrees to notify the other party as soon as possible.
Audular shall indemnify and hold you harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of any breach or claimed breach of any of Audular’s representations or warranties or any of Audular’s obligations pursuant to the TOS. Audular will only be liable for incidental, consequential, or special damages in the case of third party claims.
If Audular is the indemnifying party, it shall defend such claims, control litigation, and settle claims in its sole discretion. If a settlement creates a financial obligation for you, it shall require your written consent, which you will not unreasonably withhold or delay. If you are the indemnifying party, Audular shall have the right but not the obligation to assume control of any litigation.
When indemnification is sought due to a legal claim by a third party, the indemnified party shall:
promptly notify the indemnifying party of the claim. If the indemnified party does not notify the indemnifying party, the indemnifying party must still meet its indemnification obligations under the TOS, unless the failure to notify causes material prejudice to the indemnifying party; and
give the indemnifying party the opportunity to defend the claim with counsel reasonably acceptable to the indemnified party. Counsel that is acceptable to indemnifying party’s errors and omissions insurance carrier shall be deemed to be acceptable to indemnified party. The indemnified party agrees to cooperate with the indemnifying party in the defense of any claim, at the indemnified party’s expense. If for any reason the indemnifying party does not elect to or fails to defend a claim, the indemnified party may do so at the indemnifying party’s sole expense
The relationship of the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
The TOS contains the entire understanding of the parties with respect to the subject matter covered herein and supersede any prior agreements with respect to such subject matter.
The validity, interpretation and enforcement of the TOS, matters arising out of or related to the TOS or its making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). Any legal action or proceeding concerning the validity, interpretation and enforcement of the TOS, matters arising out of or related to this TOS or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues.
If any individual term of the TOS is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of the TOS, so that the TOS shall otherwise remain in full force and effect. The TOS shall be binding upon and shall inure to the benefit of each party and their respective legal representatives, successors in interest and permitted assigns.
Audular will not be liable for any damages, including actual, indirect, special, or consequential damages arising from the submission or use of your Content or the termination of your Contributor Account.
Please note that Audular reserves the right to modify these terms at any time by an announcement on your login page. You agree to be bound by all such changes. If you do not agree with any of the changes, please remove from Audular, pursuant to the terms herein, all or that portion of your Content to which you do not wish the changes to apply.
In the event that you breach any of the terms of this or any other agreement with Audular, Audular shall have the right to terminate your account without further notice, in addition to Audular’s other rights at law and/or equity.
It is expressly understood and agreed that this TOS is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended by this TOS as to third parties.
Audular is engaged in the business of distributing, marketing and selling your products. Audular intends to sell the products to industrial and individual customers for personal and industrial use.
FOR CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, Audular and you agree as follows:
- Web Site Advertisement Placement. Audular is authorized to place your advertisements on their web site. You shall make no representations, warranties, statements or agreements which are untrue or inconsistent with the terms of this Agreement or information contained on Audulars web site.
- Payment of Sales Commission. Audular shall pay to you a sales commission (a Regular Commission) equal to 93% of the retail sales price paid by customer for your products ordered (Product Sales). The retail sales price shall exclude: taxes, shipping and handling and any other special charges paid by customer. Audular may aggregate all sales commissions owed to you for sales made and collected in the most recent billing period. Commission payments shall be made to you instantly (Unless other payment intervals are requested). If you are to provide educational courses they will be commissions payments on a monthly basis for that specific course, while still receiving instant payments for products on Audular.
- Independent Contractor Status. Audular has no input or control over the amount of time spent by Contractor in selling your products, and the relationship between the parties shall be that of independent contractor and not as an employer/employee, principal/agent or any other similar relationship. When paying you under this Agreement, Audular shall withhold no taxes or other deductions except with the specific written agreement of the parties. Audular shall report all payments made to you under this Agreement to appropriate taxing authorities.
By submitting any Content to Audular, you grant to Audular a worldwide, non-exclusive right to publicly display, sublicense, sell, advertise and market any Content uploaded by you and accepted by Audular, until this Agreement is terminated as herein provided.