INTRODUCTION

Drone Stock Shop Pty Limited (ABN 73 613 993 070) maintains the www.dronestockshop.com website (“the Site”).  This Agreement outlines the rights you are granting to DSS in any stock video, drone footage and other media files and information (collectively “Content”) you upload to the Site, and what uses DSS may make of that Content. By making Content available to DSS by following the “upload” procedures identified on the Site, you are accepting the terms of this Agreement. If you are under 18 years of age, then you must obtain your parent or guardian’s consent before contributing content to the Site

This Agreement hereby incorporates the terms of the following additional documents, including all future amendments or modifications there to:

1. DSS

1.1 What we do

DSS operates an online stock content market place for user generated video clips and drone footage. Our Users pay a fee to license content from the Site.

1.2 Provision of Content

From time to time, you may choose to contribute Content to the Site, along with any associated text, for license to other Users in exchange for royalties, using the upload procedures of the Site or such other procedures as the Parties may mutually agree together with other information, documents or software relating to such Content or otherwise required to enable DSS to realise the commercial potential of the rights granted in the Content. Any User who contributes Content to the Site shall be referred to as a “Contributor”. You acknowledge and agree that Users may make broad use of such Content for the stated fee and are under no obligation to inform DSS or you of the uses made of any Content.

You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by Users of the Site with the intention that they will adhere to the terms of the applicable license agreement. Notwithstanding the foregoing, given the exigencies of the stock videography business and the prevalence of royalty-free content, DSS cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Accepted Content being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Accepted Content at law, DSS shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content.

1.3 Content & Removal

DSS in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of direct or indirect distribution, and only such Content as it deems suitable will be considered Accepted Content for the purposes of applicable provisions of this Agreement. DSS has the right to refuse to accept any Content for any or no reason.

DSS also has the right to remove any Accepted Content from the Site for any reason. Accepted Content will be removed if DSS believes, or has reason to believe that the Accepted Content will subject DSS or any of its officers, managers, directors or employees to legal action or if the Accepted Content violates the terms of this Agreement.

You give DSS the right and authority to take any steps which DSS believes are commercially reasonable to protect your Accepted Content. While DSS takes commercially reasonable steps to protect the intellectual property rights of its Contributors, DSS has no obligation to pursue legal action against any alleged infringer of your rights in or to your Accepted Content.

You may remove your Accepted Content from the Site at any time for any reason. DSS will use reasonable efforts to cause the Accepted Content, to be removed from the Site within sixty (60) days of your deactivation of such Accepted Content. However, you agree that any licenses issued by DSS in respect of any Accepted Content that is removed from the Site will remain in full force and effect under the terms of that license.

2. OWNERSHIP AND RELEASES

2.1 Ownership

Nothing contained in this Agreement shall be construed to transfer any copyrights to DSS. The copyrights in and to all Accepted Content remains with the owner of such copyrights. Any and all Content submitted to the Site must be your own original work.

2.2 Model and Property Releases

By submitting Content to the Site, you agree to provide at the request of DSS, valid and accurate releases for all non-editorial Content you upload to the Site that, in our judgment, contains an identifiable face, identifiable person, other identifiable attribute, or property, examples are found:

If you do not have a release for any Accepted Content that contains an image(s) of an identifiable person or property, DSS may choose to subsequently remove such Accepted Content. You agree that you are solely responsible for retaining all original releases and maintaining complete and accurate release records for all Accepted Content.

You acknowledge and agree that the submission of falsified, inaccurate or otherwise defective releases constitutes a material breach of this Agreement and can result in the immediate termination of this Agreement without prior notice.

You acknowledge and agree that you are liable for and will INDEMNIFY, DEFEND and hold DSS and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Accepted Content (collectively the “DSS Parties”) HARMLESS from and against any and all errors, omissions, claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any DSS Party as a result of or in connection with any of your Accepted Content that contains an identifiable face, identifiable person, other identifiable attribute, or property.

3. GRANT OF AUTHORITY

3.1 Election of Grant of Authority

Simultaneously with submitting Content to the Site, you must elect to grant to DSS, either an exclusive or a non-exclusive right and license to copy, reproduce, create derivative works, publicly display, market, sublicense, distribute and sell any Accepted Content.

3.2 Exclusive License Grant of Authority

If you elect to grant to DSS an exclusive license right then you hereby appoint DSS as your exclusive agent to license, sublicense, distribute and sell the Accepted Content to third parties worldwide and to collect and remit funds in connection with those endeavors on the terms and conditions set forth in this Agreement. In connection with the Accepted Content, for all exclusive license grants of authority, you grant to DSS:

  1. the exclusive worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell, or publicly perform or display the Accepted Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site; (ii) through other venues owned or operated by DSS or its affiliates from time to time; and
  2. the right to grant perpetual, worldwide, licenses or sublicenses to end-users. DSS will determine the terms and conditions of all licenses of Accepted Content granted by them, but will not use or license Accepted Content for uses that are defamatory, pornographic or otherwise illegal.

In addition to the foregoing grants, DSS may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for their own business purposes relating to the promotion of the Site, the Accepted Content and their distribution programs, and promote the licensing of the Accepted Content (including, without limitation, the use of the Accepted Content and your registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). You agree that DSS shall have exclusive rights to design marketing literature for the Accepted Content, at its own expense, and you agree to cooperate in that regard. No compensation shall be due to you for use of the Accepted Content for such business purposes.

Accepted Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by DSS. Your Accepted Content may be made available for licensing through a lower price tier royalty-free Collection of a Distribution Partner only if you opt in to the “Partner Program” category (as may be available from time to time) or other applicable indicator under the preferences panel of your account profile on the Site. Unless otherwise provided for in the upload process or on the Site, your Content may be made available for licensing through a similar or higher price tier Collection of a Distribution Partner as may be determined by DSS from time to time upon notice to you either by posting notice on the Site or otherwise. The price tier of a Collection shall be determined by DSS, acting reasonably, taking into consideration the average comparable pricing on the Site. For all Content that moves into another Collection, the Royalties (defined below) paid to you shall be as set out in the Rate Schedule (defined below). The price tier of a Collection shall be subject to promotions and varying discounts from time to time.

The Parties agree that all rights, including title and copyright, in and to the Accepted Content will be retained by you, and no title or copyright is transferred or granted in any way to DSS or any third party except as provided in this Agreement.

DSS may offer license models through an application program interface (API) or other utility that will make Accepted Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Exclusive Content to the total number of individual items of content licensed together; or (b) in DSS’s discretion, the relative value of your individual items of Exclusive Content compared to all other content licensed together with it.

3.3 Non- Exclusive License Grant of Authority

If you elect to grant to DSS a non-exclusive license right then you hereby appoint DSS as your non-exclusive distributor to sell, license or sublicense the Accepted Content to third parties worldwide and to collect and remit funds in connection with those endeavors on the terms set forth in this Agreement. In connection with the Accepted Content, for all non- exclusive license grants of authority you grant to DSS:

  • The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell, or publicly perform or display Accepted Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site; (ii) through other venues owned or operated by DSS or its affiliates from time to time; and
  • The right to grant perpetual, worldwide, licenses or sublicenses to end-users. DSS will determine the terms and conditions of all licenses of Accepted Content granted by them, but will not use or license Accepted Content for uses that are defamatory, pornographic or otherwise illegal.

In addition to the foregoing grants, DSS may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for their own business purposes relating to the promotion of the Site, the Accepted Content and their distribution programs, and promote the licensing of the Accepted Content (including, without limitation, the use of the Accepted Content and your registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to you for use of such Accepted Content for such business purposes.

Your Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by DSS. DSS will determine the Collection and may subsequently move and license the Content through a Collection on notice to you either through the Site or otherwise. For Content that moves into another Collection, the Royalties (defined below) paid to you shall be as set out in the Rate Schedule (defined below).

The Parties agree that all rights, including title and copyright, in and to the Accepted Content will be retained by you, and no title or copyright is transferred or granted in any way to DSS or any third party except as provided in this Agreement.

DSS may offer license models through an application program interface (API) or other utility that will make Accepted Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Accepted Content to the total number of individual items of Content licensed together; or (b) in DSS’s discretion, the relative value of your individual items of Accepted Content compared to all other Content licensed together with it.

4. INTELLECTUAL PROPERTY MATTERS

You acknowledge that DSS prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.

By uploading Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement.

DSS shall use commercially reasonable efforts to credit you as the source of Accepted Content, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Accepted Content is not credited, that Accepted Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.

5. PAYMENT AMOUNT AND PAYMENT TERMS

5.1 Payment Amount

DSS will pay you a royalty for each unique license purchase of your Accepted Content for which DSS receives payment. The current royalty rates are set out in the Royalty Schedule. Royalty rates are calculated on the GST exclusive cost of each unique license purchase. Royalties are inclusive of all taxes (including but not limited to GST, sales and other withholding taxes).

5.2 Payment Terms

On a monthly basis (unless otherwise provided) DSS will effect settlement by:

  1. reporting to you on total payments received and the royalty rate and amount applicable to each unique license purchase of your Accepted Content;
  2. issuing you a recipient created invoice (RCI); and
  3. remitting to you the royalty payment set out in the RCI due for each unique license purchase.

You acknowledge that DSS’s RCI is the only invoice to be issued between the parties and that you will not issue your own invoice. If you dispute the RCI you must notify DSS within 2 business days of receipt, in which case you and DSS will use reasonable endeavours to resolve the dispute.

Australian residents registered for GST, acknowledge that the RCI is a ‘Recipient Created Tax Invoice’ and  is issued pursuant to A New Tax System (Goods and Services Tax) Act 1999 Classes of Recipient Created Tax Invoice Determination (No. 7) 2001.

If you are credited with a unique license purchase of your Accepted Content and DSS thereafter issues a refund to an individual or User that licensed any of your Accepted Content, DSS will have the right to deduct royalties credited to you. If DSS makes an overpayment of royalties or other compensation to you for any reason, DSS shall have the right to deduct the amount of such overpayment from your accrued royalties or to demand the immediate repayment of such overpaid royalties or other compensation.

If your account is cancelled for a breach of this Agreement, any royalties and/or other compensation otherwise payable to you hereunder will be forfeited by you.

5.3 Amendments to Royalty Rates

DSS may amend the royalty rate and/or payment schedule at any time. If DSS does amend the royalty rate, royalties earned before the effective change in rates will be credited at the rate in effect at the time such royalties were earned. You may also choose to not receive payment for Accepted Content if used in a personal and/or commercial work by a User by marking the appropriate box during submission, in which case that particular Accepted Content will be available for free to DSS Users.

5.4 Taxes

DSS acknowledges it is registered for GST in Australia.

If you are an Australian resident, you must provide DSS with your Australian Business Number (ABN) before we are able to pay you and you must notify DSS if you are registered for Goods and Services Tax (GST). You must immediately notify us if your ABN or GST registration changes.

All royalties payable under this Agreement are tax inclusive (including but not limited to GST, sales and other withholding taxes) and you must remit your own taxes to your relevant revenue authority in Australia or overseas, unless DSS is otherwise obliged by law to do so on your behalf.

Where DSS is obliged to withhold taxes under Australian or other laws, you acknowledge and agree that DSS is authorised to withhold such taxes from any Royalties payable to you. DSS makes no warranties or representations as to the accuracy of withheld amounts and you hereby release and indemnify DSS against any loss or damage arising in connection with taxes paid, collected, withheld or not paid, collected or withheld on your behalf.

6. WARRANTIES, REPRESENTATIONS AND RESPONSIBILITIES

  1. You are the authorized representative of, or the unencumbered owner of all rights, including the copyrights, in and to your uploaded Content and you have the legal capacity and authority to enter into this Agreement and perform your obligations hereunder;
  2. Each item of your uploaded Content consists of original works and is capable of copyright protection in all countries where copyright or similar protection is available;
  3. Each item of your uploaded Content is neither obscene nor defamatory 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;
  4. If any of your uploaded Content consist in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools and the like that are included in design programs, by uploading such Content, you warrant and represent that the end user license agreement, terms of service or the equivalent license held by you does allow you to incorporate such elements in Content created by you, and to license such Content to DSS for the purposes set forth herein;
  5. You will not use a keyword, image title, metadata or any other reference that: (i) violates any third party’s trademark or other proprietary right; (ii) is or may be illegal to use; (iii) which may cause confusion with respect to another person or other entity; or d) which DSS deems in its discretion to be indecent, vulgar or otherwise offensive;
  6. No portion of Content as uploaded to the Site from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
  7. You will use DSS only for lawful purposes;
  8. You will not upload pornographic content or other content which is deemed by DSS, in its sole discretion, to be inappropriate; and
  9. Your Content has not been obtained in any unlawful manner and there is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect your uploaded Content or which might in any way impair the rights granted by you hereunder.

7. DSS TRADEMARKS

You may not adopt or use any registered or common law DSS trademarks, which include but are not limited to all logos, service marks, trade names, Internet domain names, or other indications of origin now or in the future used by DSS (“Trademarks”) for any reason without DSS’s prior written consent.

You will not use DSS’s trademarks or variations (including misspellings) as a domain name, part of a domain name, metatag, keyword, or any other type of programming code or data.

You will not 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 DSS Trademarks or the Trademark rights claimed by DSS.

The look and feel of the DSS website, including but not limited to all page headers, custom graphics, icons, and scripts, is the intellectual property of DSS and may not be copied, imitated or used, in whole or in part, without the prior written consent of DSS.

You will not use DSS’s trademarks for search engine advertising and/or marketing. You acknowledge that such advertising might infringe on the intellectual property rights of DSS and/or third parties.

You will not transmit unsolicited emails or engage in so-called “spamming” to publicize or promote your relationship with DSS or the sale of your Content.

8. INDEMNITY AND LIMITATIONS ON LIABILITY

You assume all responsibility and risk for use of the Site including without limitation any of the Accepted Content contained therein. You shall be liable for, and indemnify and must keep indemnified DSS on a full indemnity basis against, and must pay on demand, all claims, costs, expenses (including legal costs), liabilities, loss or damage (including but not limited to loss of or damage to property, personal injury or death, loss of profits, failure to realise expected profits or savings, loss of business revenue, loss of goodwill, damage to reputation, and other commercial or economic loss of any kind) directly or indirectly caused or contributed to by, or arising out of or in connection with:

  1. breach of any Consumer Guarantees, the Australian Consumer Law and/or any other Australian Laws in respect of the Accepted Content;
  2. breach of any condition or warranty given by you in respect of the Accepted Content, including any condition or warranty implied under Australian Laws;
  3. DSS being considered or deemed to have manufactured or supplied the Accepted Content under Australian Laws;
  4. any claim for actual or alleged infringement of any patent, trade mark, copyright, design, confidential information or other intellectual property right whether granted under Australian Laws or laws of any foreign jurisdiction;
  5. license purchases(s) of your Accepted Content via the Site;
  6. any acts or omissions of you or your employees, agents or contractors on or in relation to the Accepted Content and/or any breach of this Agreement; and/or
  7. any negligent or otherwise tortious act or omission; breach of any statutory obligation or equitable duty; breach of any term, warranty or condition implied by statute or common law; fraud; willful misconduct; or unlawful activity, in each case on your part or your employees, officers, agents or contractors.

It is not necessary for DSS to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement. DSS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to the foregoing indemnification, without affecting your indemnity obligations.

In no event will DSS or any of its directors, officers, employees, shareholders, partners, agents or licensees be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss)  in connection with any claim, loss, damage, action, suit of other proceeding arising under or out of this Agreement, including without limitation the use of, and reliance upon, access to, or exploitation of the Site, the Accepted Content or any part thereof, or any rights granted hereunder, even if DSS has been advised of the possibility of such damages, whether the action is based in contract, tort (including negligence), infringement of intellectual property rights or otherwise.

You release DSS from all liability for all claims, costs, loss or damage occurring in relation to the use of, and reliance upon, access to, or exploitation of the Site, the Accepted Content or any part thereof, or any rights granted hereunder.

In any event, DSS’s total maximum aggregate liability under this Agreement or in respect of the use or exploitation of any or all part of the Site of the Accepted Content in any manner whatsoever shall be limited to the fees collected by DSS for the Accepted Content that is the subject matter of the claim, but in any event will not exceed one hundred Australian Dollars.

Some jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such jurisdictions, the liability of DSS or any or its directors, officers, employees, shareholders, partners, agents or licensees shall be limited to the greatest extent permitted by law.

9. TERM AND TERMINATION

This agreement commences each time you submit Content to DSS by following the “upload” procedures identified on the Site and remains in force until terminated in accordance with the terms of this Agreement.

Subject to clauses 1.3, 3.2 and 3.3 herein, you may terminate this Agreement at any time with or without cause by notifying DSS’s support staff, subject to the limitation that any item of Accepted Content uploaded to the Site must be available for a minimum of sixty (60) days.

DSS may terminate this Agreement at any time, for any reason or no reason.

10. DISCLAIMERS

DSS expressly disclaims all warranties and conditions of any kind, either express or implied, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third party rights, and those arising from a course of dealing or usage of trade.

DSS makes no warranty with respect to any guidance. Any guidance provided by DSS is not legal advice.

DSS, its licensors, and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through DSS.

DSS makes no warranty that access to the Site will be uninterrupted, timely, secure, or error free.

DSS makes no warranty with respect to any related software or hardware used or provided by DSS. Any patent, copyright, trademark, trade secret or warranty issues, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product.

11. APPLICABLE LAW

The validity, interpretation and enforcement of this agreement, matters arising out of or related to this agreement or its making, performance or breach, and related matters shall be governed by the laws of the State of New South Wales and the Commonwealth of Australia. The Parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales and the Commonwealth of Australia.  The parties will not object to the exercise of jurisdiction by those courts on any basis.

12. MISCELLANEOUS

If and to the extent you are submitting Content to DSS as an authorised representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.

The fact that a Party fails to do, or delays in doing, something the party is entitled to do under this document, does not amount to a waiver of any obligation of, or breach of obligation by, another Party. A waiver by a Party is only effective if it is in writing. A written waiver by a Party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without DSS’s prior written consent. DSS may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, enforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid in any jurisdiction, that clause or part is, as to such jurisdiction, to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

This Agreement can be amended by the written agreement of the Parties or by DSS posting amendments on the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by you and it will be incorporated by reference into this Agreement.

Except where provision is made for subsequent agreement between the Parties, this Agreement contains everything the parties have agreed on in relation to the matters it deals with. No Party can rely on an earlier document, or anything said or done by another Party, or by a director, officer, agent or employee of that Party, before this Agreement was accepted.

13. DEFINITIONS AND INTERPRETATION

In this Agreement the following definitions apply:

“Accepted Content” means Content that is submitted by you using the upload procedures of the Site and that is accepted by DSS.

 “Agreement” means this agreement and any schedules.

“Australian Consumer Law” means the Australian Consumer Law in schedule 2 to the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory Fair Trading legislation.

“Australian Laws” means all applicable laws of Australia and its states and territories, including the Australian Consumer Law.

“Consumer Guarantees” means the guarantees applicable under Division 1, Part 3-2 of the Australian Consumer Law.

 “GST” means tax levied under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“the Parties” means you and DSS collectively.

“a Party” means you or DSS as the context of this Agreement requires.

“Tax Invoice” means Tax Invoice means what it means under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 “Users” means an individual or entity that accesses the Site.