End User License And Membership Agreement
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE FLAT PYRAMID WEB SITE AND/OR ANY OF THE SERVICES OFFERED THROUGH THIS WEBSITE OR AFFILIATE WEBSITES. THESE AGREEMENTS COVER THE USE OF THE FLAT PYRAMID WEBSITE, SYSTEM AND THE LICENSING OF PRODUCTS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS YOU SHOULD NOT USE THE FLATPYRAMID WEB SITE. BY USING THIS WEB SITE, EITHER BY ACCESS, DOWNLOADING FROM, UPLOADING TO, OR OTHERWISE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.
FLAT PYRAMID END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (this “Agreement”) is entered into between FLATPYRAMID (“Company”) and anyone or legal entity that downloads, uploads or uses any of the files of this system and website (User and Collectively “Users”).
For good and valuable consideration, the receipt and sufficiency of which are acknowledged, and intending to be legally bound, Company and User agree as follows:
1.1. “Content” refers to any material published at Company including but not limited to wire files, models, textures, databases, drawings, plug-ins, video games, video game modifications, motion files, collections, packages, materials, scripts, shapes, custom UI skins, tutorials, frequently asked questions, words, music, films, images, and software.
1.2. “Royalty Free” refers to a one-time usage fee as distinguished from a recurring rights fee.
1.3. “For Sale” includes all content that requires a purchase of license rights, as distinguished from content available for free download.
1. 4. “Valid Sale” refers to a sale of license rights in content, or other property via Company. Content for sale via Company which is returned is not an example of a valid sale.
1.5 “Sales ” refers to the sales price(s) paid for the Licensed Product(s) sold or licensed by Company. Reductions to the Sales Revenue shall be made for rebates, refunds, dealer or distributor discounts and the likes. Neither sales taxes nor income taxes or the like shall be included in Sales.
1.6. “Licensed Products” refers to any and all digital content that includes computer files, programs, software, games, two and three dimensional objects, images, wireframe models, motion capture data, textures, databases, drawings and other subject matter related thereto in their configuration, and which are hereby licensed to Company by the Licensor and made subject to the terms and conditions of this Agreement.
1.7 “Licensed Intellectual Property” shall mean any and all patents, trademarks, copyright, trade secrets, trade dress rights, trade names, and any other intellectual property and other rights, which relate to or form any part of the Licensed Products.
1.8 “Seller” shall refer to anyone or legal entity that uploads Contents or sells Content through Company’s website or system.
1.9 “Customer” shall refer to anyone or legal entity that buys content through Company’s website or system.
1.10 “Member” shall refer to anyone that creates a membership account at Company. A Member could be either a Seller or a Customer.
2. REPRESENTATIONS AND WARRANTIES
2.1. Company warrants to you that, to the best of its knowledge, the digital data comprising the Content do not infringe the rights, including patent, copyright and trade secret rights, of any third party, nor was the digital data and Content unlawfully copied or misappropriated from digital data owned by any third party; provided, however, that Company makes no representation or warranty with respect to infringement of any third party’s rights in any image, trademarks, works of authorship or object depicted by such Contents.
2.2. Seller represent and warrant that: (a) the Content is your original work, and contains no copyrighted material of any kind that you are not the exclusive owner of, including but not limited to: music and/or sync rights, images (moving or still) of any kind, writings of any kind, and model clearances/releases; (b) you have full right and power to enter into and perform this agreement, and have secured all third party consents necessary to enter into this agreement; (c) the Content does not and will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, or moral rights; (d) the Content does not and will not violate any law, statute, ordinance or regulation; (e) the Content is not and will not be defamatory, libelous, pornographic, obscene or evocative of racial hatred of any kind; (f) the Content does not and will not contain any viruses or other programming routines that detrimentally interfere with computer systems or data; (g) represents and warrants that no other license relating to any Licensed Products or any Licensed Intellectual Property has been granted to any other person or entity that would contradict, invalidate or constitute a breach of the License; and no such other license will be granted to any third party during the Term hereof (h) all factual assertions that you have made and will make to us are true and complete; (i) the Content is not defective or unusable.
3. INTELLECTUAL PROPERTY
3.1 Seller represents and warrants that: (a) Seller is the sole owner, free and clear, of all Licensed Intellectual Property and the Licensed Products; (b) all of Sellers rights in and to the Licensed Intellectual Property are valid and enforceable; (c) the rights and licenses granted to Company under this Agreement to the Licensed Products and the Licensed Intellectual Property will not, when used or exploited by Company as permitted under this Agreement, infringe, violate, or interfere with any intellectual property or other right of any other person or entity.
3.2 Except as otherwise expressly stated in a separate agreement, nothing in this Agreement constitutes a transfer of ownership of a Seller’s Licensed Intellectual Property. Seller grants Company a perpetual, irrevocable, royalty-free, transferable, world-wide license under Seller’s interest in the Licensed Intellectual Property, with the right to grant sublicenses, to make, have made, use, sell, offer to sell, import, copy, distribute and modify any materials or processes that relate to the scope of any Project.
3.3 As an ongoing covenant under this Agreement, Seller shall promptly inform Company of: (a) any infringement or alleged infringement of any Licensed Intellectual Property; and (b) any claim, suit or threat that may affect any Licensed Product(s) or Company’s rights hereunder.
Ownership of the Licensed Products shall remain vested in Seller. Ownership of the modifications and/or derivative works of the Licensed Products prepared hereunder in accordance with Section 3 above shall be vested in Company. At the request of Company, Seller will execute or cause to be executed all assignments and other instruments and documents as Company may consider necessary or appropriate to carry out the intent of this Agreement.
Each Party agrees: (i) to observe complete confidentiality with respect to, and not to disclose, or permit any third party or entity access to, the other Party’s Confidential Information (or any portion thereof) without prior written permission of the other Party; (ii) not to utilize the other Party’s Confidential Information (or any portion thereof) except as required to perform any obligations under this Agreement; and (iii) to ensure that any of its employees who receive access to the other Party’s Confidential Information are advised of the confidential and proprietary nature thereof, are prohibited from copying, utilizing or disclosing such Confidential Information, except as required to perform any obligations under this Agreement, and are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein.
Without limiting the foregoing, each Party agrees to employ with regard to the other Party’s Confidential Information procedures that are no less restrictive than the procedures used by it to protect its own confidential and proprietary information of similar sensitivity (and that in no event are less restrictive than reasonable procedures).
If a Party is requested to disclose any of the other Party’s Confidential Information pursuant to any judicial or governmental order, that Party will not disclose the Confidential Information without first giving the other Party written notice of the request and sufficient opportunity to contest the order.
The Parties’ respective obligations under this Article 5. will survive any expiration or termination of this Agreement for the longest period permitted under applicable law.
THE SITE IS PROVIDED BY COMPANY “AS IS” AND WITH ALL FAULTS. COMPANY AND ITS SUBSIDIARIES, AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH REGARD TO THE SITE, ITS CONTENTS, ITS FORUMS OR ITS OPERATION. COMPANY SPECIFICALLY STATES THAT THE USE OF THE SITE IS AT YOUR OWN RISK. COMPANY AND ITS SUBSIDIARIES, AND AFFILIATES DISCLAIM ANY WARRANTY WITH REGARD TO THE OPERATION OF THE SITE, THE ACCURACY OR TIMELINESS OF THE SITE, OR ITS CONTENTS OR THE INFORMATION OR MATERIALS CONTAINED THEREIN, ANY WARRANTY THAT THE SITE OR ITS CONTENTS OR THE INFORMATION OR MATERIALS CONTAINED THEREIN WILL BE FREE OF ERRORS, VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY. COMPANY AND ITS SUBSIDIARIES, AND AFFILIATES MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES AS TO THE ACCURACY, TRUTHFULNESS, OR RELIABILITY OF ANY POSTED INFORMATION.
7. COPYRIGHT POLICY.
Company will terminate the accounts of Users under appropriate circumstances that post materials that Company has reason to believe infringes on copyright of others.
Company will withhold any revenue due to a Seller for the sale of Content where any Content has a disputed copyright. The legitimate copyright owner once determined will then be compensated with the witheld revenue. To see exactly what copyright law is and get answers to frequently asked questions, visit:
You may contact Company directly to report an alleged copyright infringement if you are the copyright owner or authorized representative of a copyright owner. You should provide a written notification of the infringement containing the following information:
1. The physical or electronic signature of the copyright owner or the person authorized to act on behalf of the copyright owner.
2. Your contact information – Name, telephone number, address and email address.
3. A description and identification of the copyright work claimed to have been infringed. Including its location or locations on the site.
4. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copy-right owner, its agent, or the law.
5. A statement by you that you have a good faith belief that use of the allegedly infringing material is not authorized by the copyright owner, the copyright owner’s agent, or the law.
6. A statement by you that the information you have provided is accurate and, under the penalty of perjury, that you are the copyright owner or that you are authorized to act on behalf of the copyright owner.
All the information listed above is required for Company to process your complaint.
Also see the DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE.
Company or User may terminate this Agreement for any reason or no reason at all by providing the other party with written notice of termination. Termination of this Agreement ends the Parties’ respective License grant rights, but does not terminate any existing license grants.
8.1 The provisions of Article 1. (“Definitions”), Article 2. (“Representations and Warranties”), Article 3. (“Intellectual Property Rights”), Article 4. (“Ownership”), Article 5. (“Confidentiality”), Article 9. (“Indemnification”), Article 10. (“Miscellaneous Provisions”) and this Section 8.1 will survive the expiration or termination of this Agreement for any reason. The remaining provisions will survive to the extent required for any surviving license grant.
User agrees to indemnify and hold Company and its customers harmless from any and all damages and costs, including reasonable attorney’s fees, arising out of or related to User’s breach of the representations and warranties described in this section. Seller agrees to execute and deliver documents to us, upon our reasonable request, that evidence or effectuate our rights under this agreement.
10. MISCELLANEOUS PROVISIONS
10.1 Notices. A notice under this Agreement is not sufficient unless it is: (i) in writing; (ii) addressed using the contact information listed below for the Party to which the notice is being given (or using updated contact information which that Party has specified by written notice in accordance with this Section); and (iii) sent by email, hand delivery, facsimile transmission, registered or certified mail (return receipt requested), or reputable express delivery service with tracking capabilities (such as Federal Express).
c/o Customer Service
2711 N.Sepulveda #233
Manhattan Beach, CA 90266 USA.
Email: [email protected]
Fax Number: 310-697-3774
All such communication will be deemed to be effective on the earlier of (a) actual receipt or (b) if sent by express delivery service, on the day following the date presented to the service for delivery to the other Party, or (c) if sent by confirmed facsimile transmission, on the date sent (subject to confirmation of receipt in complete, legible form).
10.2 Deep Linking and Framing. User agrees to refrain from the practice commonly referred to as “deep linking” whereby you use the content from Flat Pyramid with any other web site via active linking or data mining. You are permitted to view the Site only in its full presentation form and are prohibited from “framing” the Site.
10.3 Relationship Of The Parties. Each Party is an independent contractor of the other Party. Nothing in this Agreement creates a partnership, joint venture, agency or similar relationship between the Parties.
10.4 Governing Law; Consent to Jurisdiction.This Agreement will be governed by and construed under the laws of the State of California and the laws of the United States of America, without reference to any choice of law rules. Courts of or in the State of California will have nonexclusive jurisdiction over any disputes hereunder, and each Party irrevocably submits to the jurisdiction of those courts. Each Party waives any objections that it may have now or in the future to the jurisdiction of those courts, and also waives any claim that it may have now or in the future that litigation brought in those courts has been brought in an inconvenient forum. The United Nations Convention on the International Sale of Goods will not apply to this Agreement or any transaction between any Party pursuant to this Agreement. The parties have selected the English Language to define, govern, and interpret their rights and obligations under this Agreement.
10.5 Entire Agreement. This Agreement (including any Appendices and Statements of Work) sets forth the entire agreement of the Parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter.
10.6 Assignment. Neither Party may assign any right or obligation under this Agreement unless it has obtained the other Party’s prior, written consent to the assignment; provided that no consent of User shall be required with respect to any such assignment or transfer by Company to an Affiliate of the Company. This Agreement is binding on and inures to the benefit of the Parties and their permitted successors and assigns.
10.7 Agreement Subject to Change. Company reserves the right to change the terms of this agreement with or without notice at any time. Company reserves the right to modify, revise or discontinue its website, or any features functionality or services provided as part of or in connection with the website or Agreement, without prior notice.
10.8 Unenforceable Provisions. If a court of competent jurisdiction holds any provision of this Agreement unenforceable, the other provisions will remain in full force and effect. If legally permitted, the unenforceable provision will be replaced with an enforceable provision that as nearly as possible gives effect to the Parties’ intent.
10.9 Waivers. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving the rights.
10.10 Improper Transmissions. Users are prohibited from posting or transmitting to the Company’s website any unsolicited chain letters or “spam”, or any threatening, harassing, libelous, false, defamatory, offensive, obscene, or pornographic material, or other material that would violate any applicable law or regulation, including but not limited to any federal or state laws or regulations governing equal employment opportunities. However, if such communications do occur, Company will have no liability related to the content of any such communications. You may not post or transmit to the Company’s website any advertising, surveys, promotional materials, contests, or any other commercial or non-commercial solicitations. Users are also prohibited from impersonating any legal person or entity. Membership accounts must be opened using real names or entities and other requested information.
10.11. User FeedBack. Except for personal information, any information received by Company through Company’s website forums or transmitted or provided to Company through any other means including any feedback such as questions, comments, suggestions, or the like (“User Feedback”), such User Feedback shall be deemed to be non-confidential and non-proprietary. Company shall have no obligation of any kind with respect to such User Feedback and shall be free to reproduce, use, disclose, modify, display and distribute the User Feedback to others without limitation. By transmitting such User Feedback to Company, you are deemed to grant to Company a perpetual, worldwide, royalty-free, irrevocable, non-exclusive license (with rights to sublicense) to use any ideas, concepts, know-how or techniques contained in such User Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such User Feedback.
10.12. Layout and Design. The layout, design, look and feel of the site is the property of Company. Elements of the Company’s site, including but not limited to logos, images, sounds and graphics are protected by trademarks, copyright and other laws and may not be copied or imitated unless specifically indicated.
FLATPYRAMID MEMBERSHIP AGREEMENT
I. LICENSE GRANT FROM SELLER TO FLATPYRAMID.
For any Seller who provides FlatPyramid with any type of Content for free distribution or sale, the following terms apply:
Seller hereby grant to FlatPyramid and any of its web properties & portals, partners & affiliates and by the act of delivering content to FlatPyramid, grant a non-exclusive, worldwide, royalty-free license to:
(a) reproduce, file convert, set prices for, sell, and distribute net proceeds from any sale, in whole or in part on my behalf; and to publicly perform, publicly display, digitally perform, or transmit for promotional and commercial purposes;
(b) publish, market, distribute, sell, translate, convert, transfer and sublicense, whether bundled or not bundled with other FlatPyramid products, web properties or services, all Licensed Products and Licensed Intellectual Property;
c) create and use samples of the Content solely for the purpose of demonstrating or promoting your products or services or those of FlatPyramid;
(d) create derivative works, convert or modify the Licensed Products;
(e) use any Licensed Intellectual Property incorporated in the Content in connection with Seller’s material; and
(f) use the name and likeness of any individuals or entities represented in the content only in connection with Seller’s material.
1. Ownership. You retain ownership of the copyrights and all other rights in your content, subject to the non-exclusive rights granted to FlatPyramid under this agreement. You are free to grant similar rights to others of the Licensed Products during and after the term of this agreement provided that such licenses do not conflict with the rights granted to FlatPyramid Hereunder.
2. Termination. The license grant contained in this agreement can be terminated using the guidelines in Section 8 (Termination Clause) above. FlatPyramid reserves the right, notwithstanding the guidelines in Section 8, to terminate this agreement at any time and without notice if any content submitted violates the representations and warranties of Section 2 (Representations and Warranties) above.
3. Modification and Determination of Content. FlatPyramid or Seller may modify, convert, translate or delete the Content submitted on FlatPyramid’s website as part of the general maintenance of such Seller’s account or for whatever reasons. In the event that Seller’s Content is removed from FlatPyramid’s websites/portals, FlatPyramid will not be responsible for removing Seller’s content on other websites placed there for sale or promotional purposes by FlatPyramid or its marketing/affiliate/promotional partners. FlatPyramid may categories Content that is submitted by Seller and make it available in additional file formats for sale on FlatPyramid’s website or on any of its web properties or external portals, partners & affiliates sites. In the event of an error in good faith with the handling, distribution, conversion, translation, sale or categorization of Seller’s Licensed Products or Licensed Intellectual Property by FlatPyramid, Sellers sole and exclusive remedy will be for FlatPyramid to take all reasonable steps to promptly correct the error as soon as notified or become aware of the error.
4. Royalty Payments and Commission. Seller shall be entitled to receive a royalty payment equal to fifty five percent (55%) of the sales revenue of Sellers Licensed Products collected by FlatPyramid in the form of payments made by check/Paypal or any other method distributed at least as often as quarterly. FlatPyramid will be entitled to a commission in the amount of forty five percent (45%) which it will deduct upon receipt. FlatPyramid may at any time implement a program whereby the Seller receives greater or less than 55% in which case royalty payments will reflect those amounts. Seller hereby authorizes FlatPyramid to collect and distribute such royalties and commissions.
5. Chargeback. From time to time chargeback transactions occur by merchant credit card processing services or PayPal. FlatPyramid has no control over this occurrence that results in the reversal of moneys paid for a Sellers Licensed Products for whatever reason. In the event of a chargeback, FlatPyramid will attempt to contest these transactions with the Merchant Services, Skrill/Moneybooker or PayPal. Flat Pyramid offers no guarantee that it will be successful. Seller’s account will be immediately adjusted with the chargeback reversal amount. In the event that Seller has already been paid a commission for Sellers Licensed Products involved in the chargeback transaction, then FlatPyramid shall request an immediate refund from the Seller for commissions paid or a debit will be levied on Sellers account and deducted from future commission payments due to Seller. If Seller terminates their account with FlatPyramid prior to their account becoming current or refunding the commissions paid, then FlatPyramid will be forced to use all necessary means to recover monies owed to FlatPyramid by Seller including collections and legal actions against the Seller.
6. Security. Due to the ever changing nature of security protection on the internet, no one can completely secure data published online. Thus, it is not possible for FlatPyramid to fully guarantee protection of Seller’s content published on site from potential theft or hackers. However, FlatPyramid takes this matter very seriously, and have put in place several countermeasures and security configurations to protect Seller’s content including 3D Models showcased in its WebGL 3D viewer/player. FlatPyramid will continue to try its very best to ensure that Seller’s content and data are secure. As part of its security effort FlatPyramid does not store credit card information of Sellers or Customers.
II. LICENSE AGREEMENT BETWEEN SELLER AND CUSTOMER.
License and Rights Grant:
For any transmission of Content from a Seller to a Customer, whether the transmission was the result of a license or free download, the following terms apply unless more restrictive terms are specified in the text description of the Content:
1. Ownership. Unless explicitly provided for by a separate agreement, the Seller retains, subject to any license agreement between the Seller and FlatPyramid, copyright in content purchased or downloaded by any 3rd party via Flat Pyramid.
2. Valid License. Any license rights relating to content for sale via FlatPyramid are contingent upon the transfer of money from the 3rd party to the Seller. All license rights terminate immediately and without notice if a sale is reversed for any reason.
3. Rights Granted. The Seller grants a non-exclusive, non-transferable, worldwide, royalty-free license to the 3rd party who either purchases license rights to content via a valid sale, or downloads freely available content submitted by the Seller. The license granted will allow the 3rd party to: publicly perform, publicly display, and digitally perform said Content.
4. Rights Not Granted. Absent a written grant of rights greater than that contained in paragraph 3 above, all other rights or sub-divisions of rights generally included in copyrights and trademarks are excluded from this license.
5. Resale. The resale or redistribution by the third party of any content obtained from FlatPyramid, whether for sale or freely available for download, whether part of a valid sale or not, is expressly prohibited.
6. Returned Content. In the event a 3rd party returns any content, whether acquired by valid sale or freely available for download, all license rights granted herein terminate and the 3rd party must immediately destroy any and all copies contained on any type of media under the control or possession of the 3rd party.
III. EDITORIAL USAGE
Content published and tagged with the Editorial label may only be used in an editorial manner, relating to events that are newsworthy or of public interest, and may not be used for any commercial, promotional, advertising or merchandising use. The intellectual property depicted in the 3d model, including the brand “Brand Name”, is not affiliated with or endorsed by the original rights holders. The 3d model products may not be used on any item/product for re-sale, such as a video game or t-shirt. The 3d model product may not be used as part of billboard, trade show or exhibit display. Also they may not be used in any defamatory, libelous or otherwise unlawful manner whether directly or in context or juxtaposition with specific subject matter. The material may not be incorporated into a logo, trademark or service mark. For example, you can’t use Editorial content to create a logo design. Also, the material may not be used for any commercial, non-news related purpose.
However, in certain very limited instances, you may otherwise have the rights to IP in content that is labeled Editorial. For instance, you may be the advertising agency for a brand/IP owner or you may be the brand/IP owner itself purchasing content. If that is the case, you may use the Editorial content commercially, assuming you have the rights clearance through other means. But, you must have all the intellectual property rights necessary from the IP in the content and this is usually only the case for a brand/IP owner vendor or for a brand/IP owner itself. As a rule of thumb, if you wonder if you have these rights, you don’t. It is usually very clearly set forth in a contract. The burden and risk of confirming these rights is on each user individually if they move away from the Editorial Use restrictions.