KIRBY STOCK EXCHANGE
LAST UPDATED: January 17, 2018
Kirby Stock Exchange LLC (“Kirby”) operates a marketplace for stock photographs and video footage located at www.kirbystockexchange.com (the “Site”).
This contributor agreement (the “Agreement”) describes the rights that you are granting to Kirby in all photographs, illustrations, images, moving images, video animations, videos or other pictorial or graphic works, together with any associated keywords, descriptions, credits, metadata and/or titles, that you upload to the Site or otherwise submit by to Kirby (collectively, “Works”). If you are submitting Works on behalf of your employer or company (either, your “Company”), then this Agreement also applies to your Company. References to the terms “you” or “your” in the remainder of this Agreement refer collectively to both you and, if applicable, your Company.
THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND KIRBY. PLEASE READ THIS AGREEMENT CAREFULLY AND BE SURE YOU FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. BY SUBMITTING WORKS TO KIRBY, YOU AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT.
You represent and warrant that: (i) you have read, understood and agreed to be bound by this Agreement; (ii) you have the power, authority and legal right to submit Works in accordance with this Agreement; (iii) if you are submitting Works on behalf of Company, such action has been duly authorized by all requisite action, corporate or otherwise; and (iv) this Agreement is a valid, legal and binding obligation of you, enforceable in accordance with its terms. If you do not agree to this Agreement, you cannot submit any Works to Kirby.
Kirby may amend this Agreement from time to time, without prior notice, which amendments will be posted on the Site and will become effective upon posting. It is your responsibility to review this Agreement to determine if there have been any changes, which will be indicated by a revision to the “last updated” date posted above. Your continued submission of Works after posting shall constitute your acceptance of and agreement to be bound by the amended Agreement.
1. License Grants.
(a) By submitting any Works to Kirby, you grant to Kirby a worldwide, perpetual, nonexclusive, royalty-free right and license to reproduce, distribute, prepare derivative works of, publicly display, publicly perform, index, sublicense, sell, advertise and market any and all Works submitted by you and accepted by Kirby. For the avoidance of doubt, and without limiting the foregoing, you are granting Kirby a license to further sublicense your Works to Kirby customers pursuant to a written or electronic license agreement between Kirby and a customer (a “License”).
(b) The License may include, without limitation, the right to modify and create derivative works based upon your Works and the right to sell and distribute your Works, or any reproductions thereof, if incorporated into any work of authorship, in any media or format now or hereafter known. Please read and familiarize yourself with the terms of Kirby’s standard License, currently available at https://www.kirbystockexchange.com/content-license-agreement/. Kirby reserves the right to modify or alter the terms of the standard License or any individual License at any time without notice. Kirby will not license Works for use in connection with matter that is pornographic, obscene, defamatory or deceptive, or in a manner that unlawful.
(c) Kirby may add, modify or remove information related to your Works in order to manage and license your Works. Kirby shall not be liable for any non-compliance with the terms of License or for any misuse of Works by Kirby customers or other third party.
(d) Kirby may also use your Works for the purpose of operating, marketing and promoting the Site and Kirby’s business, without the payment of any additional compensation to you. Without limiting the foregoing, Kirby will have the right to advertise and market your works via the Site and Kirby’s social media channels. You grant Kirby the right, but not the obligation, to use your display name, trademarks and trade names in connection with Kirby’s marketing and promotional activities and Kirby’s license to your Works under this Agreement.
2. Intellectual Property Rights.
(a) You retain ownership of the copyrights in the Works you submit to Kirby and nothing in this Agreement will be construed as a transfer of copyright to Kirby. Notwithstanding the foregoing, by submitting Works to Kirby, you expressly, irrevocably and unconditionally waive any and all moral and like rights that you may have in the Works (and any performances embodied therein), and you hereby agree not to make any claim against Kirby or any Kirby customer based on such rights so that Kirby and Kirby’s customers may use the Works in accordance with this Agreement and the Licenses issued by Kirby.
(b) By submitting any Work to Kirby, you represent and warrant that (i) you own all rights, title and interest in and to such Work, including, without limitation, all copyrights, trademarks, patents, rights of privacy, rights of publicity, moral rights and other proprietary rights (collectively, “Rights”) or you have all necessary rights and licenses to grant Kirby the licenses herein granted to Kirby and its customers; (ii) such Work will not infringe the Rights of any third party or contain false or misleading information or any illegal, obscene or defamatory content; and (iii) you will comply with all applicable laws, regulations, policies and terms and conditions in connection with your use of the Site and your submission of Works to Kirby. You grant Kirby the right to enforce your Rights in Works submitted to Kirby against infringers, provided that Kirby shall have no obligation to do so. In the event that you believe your Works have been misused, you shall provide immediate written notice of such misuse to Kirby.
(a) If a Work contains an image of an identifiable face, human figure, voice, appearance, likeness or other identifiable attribute, a trademark or logo, or certain distinctive property that is protected by Rights, you represent and warrant that you have obtained all necessary and valid releases or agreements. You agree to provide valid and accurate model and property releases to Kirby for all Works that require such releases, which determination shall be made in Kirby’s sole discretion.
(b) You agree that you are solely responsible for retaining all original releases and for maintaining complete and accurate release records. Releases submitted by you shall not contain any terms inconsistent with the terms of this Agreement. You agree that Kirby may furnish copies of your releases to Kirby customers, for any reason, including, without limitation in order to respond to any potential or actual legal action, and to comply with applicable laws, regulations, and/or union reporting requirements.
4. Submitting Works and Account Management.
(a) You will deliver your Works in the format(s) and via the delivery method(s) requested by Kirby, as specified on the Site and/or via email. You will submit each Work for review by Kirby in accordance with any and all guidelines on the Site or which may be provided by Kirby to you via email.
(b) Kirby may accept or reject any Work that you submit to Kirby for any reason, in Kirby’s sole and absolute discretion. Kirby may also remove any or all of your Works from the Site and terminate your account at any time without notice and without any liability. Without limiting the foregoing, Kirby will remove your Work is Kirby believes that such Work may, as determined in Kirby’s sole discretion, subject Kirby to liability or violates this Agreement.
(c) You may request that Kirby remove any Work previously submitted by you from the Site and Kirby will use reasonable efforts to cause such Work to be removed from the Site within one hundred and twenty (120) days of Kirby’s receipt of such request; provided, however, that any Licenses issued by Kirby for any Work prior to the removal of such Work from the Site will remain in full force and effect.
5. Pricing and Payment.
(a) Kirby will pay you as described in the pricing and payment section of the Site, currently located at www.kirbystockexchange.com/pricingandpayment (the “Pricing and Payment Section”) and incorporated herein by reference, for each unique download of your Works for which Kirby receives payment, less cancellations, returns and refunds. Credit card chargebacks will be treated in the same manner as refunds. Kirby reserves the right to modify the Pricing and Payment Section at any time and you should review it regularly. By continuing to submit Works to Kirby you are agreeing to the Pricing and Payment Section in effect as of the date of submission. Except as specified in this Agreement, Kirby shall have no payment obligations to you whatsoever.
(b) If a customer downloads the same Work twice, you will be paid only once. There may be reporting delays for customer downloads reflected in your contributor account. Further, there may also be a minimum threshold for payment, as specified in the Pricing and Payment Section. If you cancel your account prior to accrued earnings in your contributor account reaching any applicable payment threshold, you thereby forfeit such payments. If your account is terminated for a breach of the material terms of this Agreement, in addition to Kirby’s other rights and remedies at law and in equity, Kirby shall have the right to retain any compensation otherwise payable to you hereunder.
(c) Kirby may, but will not be obligated to, use a third-party payment processor such as PayPal to facilitate payments to you. Kirby’s obligation to make payment to you hereunder shall be fulfilled by making payment to the online payment processing service designated by Kirby, if any. Kirby shall not be liable for any act or omission of a third-party payment processor.
(d) Kirby shall have the right to establish customer pricing for your Works in its sole and absolute discretion. Additionally, Kirby may modify customer pricing for your Works at any time and from time to time. By submitting Works to the Site, you are agreeing to the customer pricing in effect as of the date of purchase.
(a) You are responsible for completing any and all necessary Internal Revenue Service (“IRS”), forms in order to receive payment. If you are a U.S. Person (as defined by the IRS), a signed and completed IRS Form W-9 must be submitted to Kirby for Kirby to make payments to you.
(b) Foreign persons may be subject to U.S. income tax on income they receive from U.S. sources. If you are a Foreign Person (as defined by the IRS), a signed and completed IRS Form W-8 must be submitted to Kirby in order for you to claim a reduced rate of, or exemption from, withholding as a resident of a foreign country with which the United States has an income tax treaty. If any amount payable to you is subject to tax withholding or other tax collected at the source by any taxing authority, Kirby will deduct such tax from the amount payable to you.
7. Kirby Trademarks.
(a) Nothing contained herein grants or shall be construed to grant you any rights to use any common law or registered trademarks, logos, service marks, trade names, Internet domain names, trade dress or other indications of origin now or in the future used by Kirby (collectively, “Kirby Trademarks”). You agree that you will not use Kirby Trademarks in any manner that might tarnish, disparage, or reflect adversely on the Kirby Trademarks or Kirby. Nor will you contest or otherwise challenge or assist or encourage any other person or entity to contest or challenge, the validity of any of the Kirby Trademarks. You may not use the Kirby Trademarks in any form without prior written consent from Kirby.
(b) You agree that you will not use any Kirby Trademarks or any variant thereof as a domain name or as part of a domain name regardless of the top-level domain, as part of a social media handle or channel, or as a metatag or keyword.
(c) You may not frame or hotlink to the Site or to any Work on the Site without the prior written consent of Kirby.
8. Representations and Warranties.
(a) 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;
- if you are an individual, you are of sufficient legal age and have legal capacity to create binding legal obligations set out in this Agreement;
- if you are submitting Works on behalf of your Company, such use has been duly authorized by all requisite action, corporate or otherwise;
- all information provided to Kirby by you is accurate and true, including, without limitation all payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete;
- your Works and all parts thereof are owned and/or controlled by you, and are unencumbered and original works capable of copyright protection in all countries where copyright or similar protection is available;
- if the Works contain 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;
- none of your Works are obscene or defamatory, nor do they violate any applicable laws or regulations;
- none of your Works infringe the Rights or any other rights of any third party, including, without limitation, copyrights, trademark rights and the rights of privacy and publicity;
- as of the date of submission, there is no suit action or claim or other legal or administrative proceeding pending or threatened which might directly or indirectly affect the Works or which might in any way impair the rights granted by you hereunder; and
- you will not advertise or otherwise publicize your relationship with Kirby, nor will you use Kirby’s Trademarks through the use of search engine advertising and/or marketing.
Upon making or learning of any claim that is inconsistent with any of the warranties or representations made by you in this Agreement, Kirby may send you written notice of such claim, using the email address provided by you to Kirby in your contributor account. Pending the determination of such claim, Kirby may withhold from payments due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by Kirby in its sole discretion.
(b) Kirby represents and warrants that Kirby has the power and authority to enter into this Agreement and to fully perform its obligations hereunder.
(a) You will indemnify and hold harmless Kirby, its members, managers, officers, affiliates, representatives, and licensees from and against any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorney’s fees) of any kind arising from or relating to (i) your use of the Site, (ii) any Works submitted to Kirby by you, and (iii) any breach of this Agreement by you.
(b) Kirby has the right to control the defense of any claim subject to indemnification by you with counsel of Kirby’s choosing. You will cooperate fully with Kirby in the defense of any such claim. Any amount this is or may be owed to your hereunder may be offset and reduced by any amount owed by you pursuant to your indemnity obligations hereunder, without demand or notice to you.
All notices to be given to Kirby hereunder shall be in writing and shall be sent to the following address:
Kirby Stock Exchange LLC
P.O. Box 468
Rutherford, NJ 07070
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.
(a) You acknowledge and agree that this Agreement shall be a contract made in the United States, State of New Jersey. All questions pertaining to the validity, construction, execution and performance of this Agreement shall be construed and governed in accordance with the domestic laws of the State of Jersey, without giving effect to principles of (i) comity of nations or (ii) conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
(b) This Agreement, together with any and all other terms and conditions and policies posted on the Site, constitutes and contains the entire agreement between Kirby and you with respect to your access and use of the Site submission of Works to Kirby, and supersedes and replaces all prior agreements, whether written or oral, with respect to same. The terms of this Agreement may not be modified or amended except in a writing signed by both parties or unilaterally by Kirby as permitted herein.
(c) This Agreement is not assignable by you without Kirby’s express prior written consent. Kirby may assign this Agreement to any third party at any time, without notice or consent.
(d) If one or more of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be aﬀected. Such provisions should be revised only to the extent necessary to make them enforceable.
(e) The parties to this Agreement are independent contractors, and nothing in this Agreement shall create a joint venture, partnership or franchise or fiduciary relationship between the parties.
(f) All of the covenants, terms and provisions 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.
(g) Kirby will not be liable for any damages, including actual, indirect, special, or consequential damages arising from the submission or use of your Works or the termination of your contributor account.
(h) No action of Kirby, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
(i) Kirby’s rights and remedies set out in this Agreement are cumulative and are in addition to Kirby’s rights and remedies at law or in equity.