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This Contributor Agreement (“Agreement”) governs the terms by which photographers, illustrators, filmmakers, writers and other content providers license their photography, illustrations, designs and their digital media content to Big Big Question and its Users via the online marketplace provided by BigBigQuestion.com (the “Site”).
This Agreement is a lengthy document-please read it carefully and be sure you understand it fully. It is a binding legal agreement between any registered User of the Site who desires to upload, distribute, and offer licenses for their digital media (referred to as “you” or “Contributor”) and Big Big Question or “Big Big Question”). For purposes of this Agreement, “Users” will include those who agree to the terms of the Big Big Question User Agreement and any third party individual, partnership, corporation or other entity (whether end users or intermediaries) to whom a sublicense is granted by Big Big Question.
This Agreement also incorporates by reference the Big Big Question User Agreement, the Big Big Question Content License Agreement and information provided during registration. In the event of a conflict between this Contributor Agreement, the Big Big Question User Agreement and the Content License Agreement, the order of preference will be the Content License Agreement, the Contributor Agreement, and the Big Big Question User Agreement.
Submission of Content
A. Big Big Question sublicenses content via the Big Big Question website. In uploading Content (as defined below) to the Site, you authorize Big Big Question to grant licenses to use your Content to Users, in accordance with the terms and conditions of the Content License Agreement.
Big Big Question is the online service provider that provides a platform for Contributors to upload to the Site, the Contributor’s photographs, illustrations, video, audio and video files, animations, flash files, data files, and other digital media content (“Content”) and for Users to view, interact with, sub-license and download such Content. As a Contributor, you may submit any Content to the Site except as prohibited under the Big Big Question User Agreement or this Agreement, or otherwise prohibited by law. You use the Site at your own risk. You understand that Big Big Question is acting only as a Service Provider. Big Big Question operates the site from which Big Big Question may offer and sell your Content and which Users may sub-license Content posted to the site and Big Big Question also processes payments on behalf of Contributors and Users. Big Big Question does not guarantee the quality, title, or legality of the Content, or the truth or accuracy of listings associated with the Content. Accordingly, you hereby irrevocably and unconditionally release and waive any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, that you may have or assert against Big Big Question Inc. and Big Big Question relating to or arising out of the purchase of a sublicense to or the use of the Content.
By uploading Content to the Site, you understand and accept that you no longer own any rights to that content.
Once you have agreed to the terms of this Agreement and provided all required information, and verify that you have met all submission guidelines, you may upload to the Site. All Content submitted must be provided in accordance with the Upload Guidelines or as otherwise directed by Big Big Question.
Responsibility for Content
Big Big Question reserves the right but not the obligation to refuse to accept any Content or communication, or take down from the Site any Content or communication at its discretion, including any Content or communication that is or may be illegal, obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, or that violates or may violate this Agreement, its policies, or violate or infringe upon third party rights, as determined by Big Big Question in its sole discretion, with or without notice to Contributor.
Grant of Rights
You will release copyright ownership of all Content you submit to the Site. Big Big Question, its affiliates and other Contributors retain ownership of any materials provided by it or its other providers to the Site.
You hereby grant to Big Big Question and Big Big Question Inc., during the term of this Agreement, a nonexclusive, royalty-free, worldwide, transferable license to use, reproduce, publish, exhibit, perform, publicly display, distribute, broadcast, transmit, create derivative works of, negotiate the price of any additional rights, and license (with rights of further sublicense) the Content in any manner and medium now existing or hereinafter created, for the following purposes: to
(a) use, reproduce, publish, exhibit, perform, publicly display, distribute, broadcast, transmit, create derivative works of, and sublicense use of the Content uploaded to the Site in promotional print, digital, and online materials and promotional products that promote the Content, your work/website and/or the services of Big Big Question and its affiliates in any and all formats or media (including without limitation online) that exist and are hereafter devised;
(b) rate, price, comment upon, and evaluate Content,
(c) add or amend keywords, titles, descriptions and metadata to Content to enhance the User’s search experience, and
(d) digitally watermark the Content in both a visible and invisible manner. You further acknowledge and agree that Big Big Question and users designated to help by Big Big Question may add tags and keywords to your Content, and add comments to the Content in accordance with the Big Big Question User Agreement.
Big Big Question will have the right, but not the obligation, to grant Users a perpetual, nonexclusive, worldwide, non-transferable sublicense to use, reproduce, publish, exhibit, perform, publicly display, distribute, broadcast and transmit the Content, and to create derivative works of the Content, in accordance with the terms and conditions of the Content License Agreement. Users may exercise all the foregoing rights in any and all formats or media (including without limitation online use), whether now known or hereafter devised, throughout the universe, subject to their agreement with the terms of the Content License Agreement. Any license granted to Users with respect to Content removed from the site will remain in full force and effect and will survive any expiration or termination of this Contributor Agreement.
Big Big Question will also have the right, but not the obligation to grant authorized licensees the nonexclusive, worldwide, transferable license to use, reproduce, publish, exhibit, perform, publicly display, distribute, broadcast, transmit, create derivative works of, and license (with rights of further sublicense) the Content in any and all formats or media (including without limitation online) that exist and are hereafter devised in accordance with the terms of this Agreement. Such arrangements may be subject to custom pricing where Content is licensed for set amounts that vary dependent on usage or volumes of Content Licensed.
Big Big Question will have the right, but not the obligation, to independently pursue any User, for damages or surrender of profits including the obligation to account for such profits in the event of an infringement of copyrights by such User.
You will not receive compensation and no payment will be due you for the use of Content used for promoting the Site, Big Big Question or our affiliates, partners, or sublicensees or for the indirect revenues received by Big Big Question from sponsors or advertisers (including their banner ads) who may advertise, appear or participate in Big Big Question online environments. Additionally, the rights granted herein will include the right to use Content as necessary to test or evaluate any technologies, systems, or processes that Big Big Question or our affiliates, representatives or contractors may use to fulfill our obligations and exercise any rights granted under this Agreement.
You expressly waive any moral rights or artist authorship rights in the Content that you would otherwise have under the United States Copyright Act or similar laws of any jurisdiction.
Representations, Warranties and Covenants
You represent, warrant and covenant to Big Big Question that:
(i) you are the sole owner of the Content and its copyright and/or have the right to grant Big Big Question the licenses in the Content set forth and referenced in this Agreement;
(ii) the Content is original and does not infringe on, violate or misappropriate the statutory copyright or common law rights of privacy, publicity, or moral rights of any third party;
(iii) the Content is not pornographic or obscene, nor does the Content defame any third party;
(iv) the Content does not contain any illegal material or promote illegal activities;
(v) the Content does not contain material which denigrates or attacks any persons based on race, religion, national origin, or sexual orientation;
(vi) you have the full legal capacity, authority and power to enter into this Agreement and perform your obligations hereunder and you and do not hold membership in any trade group or collective society that would otherwise impair your obligations or impose additional requirements on Big Big Question;
(vii) any caption information that you may submit for the Content is relevant, accurate and complete, and does not contain false or misleading information;
(viii) Big Big Question and its affiliates may use the Content as provided herein without obtaining any additional consents or permissions or the payment of additional fees to third parties;
(ix) the Content contains no viruses, spyware, Trojan horses, time bombs, or other similar harmful or deleterious programming routines or code; and
(x) the Content meets the requirements set forth in the Upload Guidelines.
You also warrant that for any Content you submit to Big Big Question Inc. that contains recognizable persons and/or depict property with unique intellectual property rights, that you have obtained and have provided Big Big Question Inc. with fully-executed, valid and binding model and/or property releases from all parties in substantially the same form as Big Big Question then-current authorized model and/or property release form. You will provide to Big Big Question Inc. copies of releases for all Content submitted as model and/or property released. You further warrant and represent that model and/or property release information is accurate and complete and that Big Big Question may use such Content without obtaining any additional consents or permissions or the payment of additional fees to third parties.
In addition to other remedies available to Big Big Question and nothing else in this Agreement withstanding, Big Big Question Inc. will not pay Your Payment on licenses of any Content that violates the Representations, Warranties and Covenants you make in this section of the Agreement.
You agree to indemnify, save, and hold Big Big Question, its affiliates (and their respective successors, officers, directors, employees, directors and representatives) and authorized partners harmless from any and all claims, demands, costs, losses, penalties, interest and damages (including reasonable attorneys’ fees, expert witness fees and expenses) arising out of or in connection with any claim by a third party (including Users) to the extent such claim would (i) constitute a breach of the representations, warranties and obligations set forth in this Agreement, or (ii) arise out of the use of the Site or any materials or services provided by Big Big Question and its affiliates by you.
Release, Disclaimer of Warranties
IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS OR THIRD PARTIES, YOU HEREBY RELEASE Big Big Question BV (AND OUR OFFICERS, DIRECTORS, AUTHORIZED PARTNERS, AFFILIATES, SUBSIDIARIES, VENTURERS AND EMPLOYEES) (THE “Big Big Question PARTIES”) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. CONTRIBUTORS WHO ARE CALIFORNIA RESIDENTS HEREBY WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE Big Big Question PARTIES MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; THAT THE SITE OR THE PAYMENT SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; THAT INFORMATION OR MATERIALS INCLUDED ON THE SITE WILL BE AS REPRESENTED, OR THAT USERS WILL PERFORM THEIR OBLIGATIONS AS PROMISED; OR THAT THE Big Big Question PARTIES WILL LICENSE OR WILL MAKE ANY EFFORTS TO LICENSE YOUR CONTENT; OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF Big Big Question. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE Big Big Question PARTIES DISCLAIMS ANY AND ALL SUCH WARRANTIES.
Limitation of Liabilility
YOU AGREE THAT THE Big Big Question PARTIES ARE NOT LIABLE FOR ANY LOSS OR DAMAGE TO CONTENT OR MATERIAL SUBMITTED TO Big Big Question AND YOU ARE REQUIRED TO PROVIDE OR MAINTAIN YOUR OWN BACKUP FILES FOR ANY CONTENT SUBMITTED TO Big Big Question. UNDER NO CIRCUMSTANCES WILL THE Big Big Question PARTIES’ MAXIMUM AGGREGATE LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY CLAIM ARISING UNDER THIS AGREEMENT, THE USE OF CONTENT PROVIDED TO Big Big Question UNDER THIS AGREEMENT OR THE USE OF THE SITE WILL BE LIMITED TO FEES COLLECTED BY Big Big Question INC. FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED THE MAXIMUM AMOUNT OF US$10 IN THE AGGREGATE, REGARDLESS OF THE NUMBER OF CLAIMS. IF THESE AMOUNTS ARE NOT ADEQUATE TO COVER THE VALUE OF YOUR CONTENT, YOU WILL BEAR SOLE RESPONSIBILITY FOR OBTAINING AND MAINTAINING ADEQUATE INSURANCE FOR PROTECTION OF THE CONTENT OR MATERIALS PROVIDED TO Big Big Question.
NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE DATE OF THE ALLEGED LOSS OR DAMAGE.
FOR ANY CLAIM UNDER THIS AGREEMENT, THE Big Big Question PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, LOSS OF PRIVACY, INTERRUPTION OR OTHER PECUNIARY LOSS, SITE OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY THERE OF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT TORT OR OTHERWISE) EVEN IF THE Big Big Question PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE Big Big Question PARTIES WILL NOT BE RESPONSIBLE FOR MISUSE OF THE CONTENT BY ITS LICENSEES.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE Big Big Question PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Modification and Notice
This Agreement will not be modified by you except by a written agreement signed by duly authorized representatives of Big Big Question, provided that no purchase order or similar document issued by you will modify this Agreement, even if signed by Big Big Question. Big Big Question may modify this Agreement or any policies or guidelines governing the Site, at any time and in our sole discretion. Notice of any change by e-mail to Contributor’s address in our records, or the posting on the Site of a change notice or a new agreement is considered sufficient notice for notifying Contributor of a modification to the terms and conditions of this Agreement. All notice of change to this Contributor Agreement will be posted on the Site for thirty (30) days. Modifications may include, but are not limited to, changes to the Rate Card and payment procedures. All such modifications will take effect thirty (30) days following of notice to you and/or posting on the Site, unless we indicate otherwise. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE SITE FOLLOWING THE POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
Term and Termination
Contributor may terminate this Agreement at any time by providing Big Big Question with thirty (30) days notice by using the Contact Us page to provide notice to Big Big Question or by following the written notice provision below.
Big Big Question may deem an account to be terminated if there is (i) no activity in your account for a twelve (12) month period despite reasonable attempts by Big Big Question to contact you based on the information you provide on the My Account page or (ii) you have breached the terms and conditions of this Agreement or the terms and conditions of the Big Big Question User Agreement.
Upon termination of this Agreement:
(i) Big Big Question will remove your Content from the Site within a thirty (30) day period, and will use reasonable efforts to cause Content to be removed form the Sites of any affiliates and partners within sixty (60) days from the removal from the Site. Contributor acknowledges and agrees that Big Big Question, its affiliates and partners may continue to license the content in accordance with this Agreement until the Content is so removed. (ii) Big Big Question will continue, in accordance with this Agreement, to make Payments due to you in respect to licenses granted prior to termination, or during the transition period, subject to any setoffs Big Big Question is entitled to deduct from your account in accordance with this Agreement.
Choice of Law / Jurisdiction / Attorneys’ Fees.
Any dispute regarding this Agreement will be governed by the laws of the State of New York and applicable U.S. Federal law, including Titles 17 and 35 of the U.S. Code, as amended. The parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York State, USA, regardless of conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement, as well as any other documents relating hereto, including notices, has been and will be written in the English language. In any Dispute between Big Big Question and you, Big Big Question will be entitled to recover its reasonable Attorneys’ fees, legal expert fees, and other legal expenses from you.
Notices. Unless otherwise specified, all notices and other communications which are required in this Agreement will be in writing and delivered personally, via mail service, via facsimile with acknowledgment of receipt, to the addresses set forth in the Agreement below, or to such other addresses as either party will have specified by notice in writing to the other party.
Independent Contractor. Nothing in this Agreement creates a partnership, employer-employee relationship, or a joint venture between the parties. You are solely responsible for obtaining and maintaining all applicable business licenses and insurance, and for timely payment of all income, payroll, and employment-related taxes, including without limitation all unemployment, workers compensation, income tax withholding, social security, and any other taxes or public charges of any nature whatsoever.
Assignment. Your obligations hereunder are personal and may not be assigned without Big Big Question’s prior written consent, not reasonably withheld if assigned to a bona-fide legal entity organized and acting solely on your or your heir’s behalf. This Agreement will be binding upon and will inure to the benefit of the parties’ heirs, executors, administrators, successors, and permitted assigns. Big Big Question and its affiliates may sublicense or assign its or their rights and obligations and liabilities arising under this Agreement (including without limitation the Contributor Agreement and the Content License Agreement) to any third party without your consent and without written notice, including without limitation, any assignment resulting from any corporate reorganization, merger, sale of substantially all the assets to which this Agreement relates.
Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement will be in no way affected or impaired.
Entire Agreement. This Agreement together with the Big Big Question User Agreement and Content License Agreement incorporates the entire understanding of the parties concerning the subject matter contained herein and merges all prior and contemporaneous communications. Any and all prior agreements, oral or written, between the parties concerning the subject matter contained herein are hereby terminated, superseded, and are of no further force or effect. No action of Big Big Question, other than the express or written waiver or amendment, may be construed as a waiver or amendment of this Agreement. The headings and numbering will not be considered or given effect in construing this agreement. This Agreement will not be interpreted against the party causing this agreement to be drafted. The English language version of this Agreement will be used for interpretation of this Agreement, and any foreign language translations of this Agreement provided in the future are provided by Big Big Question solely for convenience.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT UNDERSTAND IT AND HAVE HAD THE OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. YOU AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT BETWEEN YOU AND Big Big Question, AND THAT THIS AGREEMENT SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN AND ANY OTHER COMMUNICATION BETWEEN YOU AND Big Big Question RELATING TO THE SUBJECT OF THIS AGREEMENT.