ENGLISH | Nimia
Thank you for choosing Nimia. The Nimia Internet Application (NIMIA) is one of the world’s most advanced archives & rights management systems for producers, directors, cinematographers, and professional videographers. Please read this Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement, and Producer Agreement carefully before using NIMIA. In consideration for using NIMIA, you are agreeing to be bound by the terms of these agreements (Producer Agreement only applicable if user contributes content to be licensed). If you do not agree to the terms of the Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement, or Producer Agreement (Producer Agreement is applicable if user is contributing content to be licensed) do not use the application.
Important Note: To the extent that this application may be used to reproduce materials, it is licensed to you only for reproduction of materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. To the extent that this application may be used for remote access to video files for viewing between computers, remote access of copyrighted videos is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.
Cloud Storage Agreement
Your Digital Assets & Your Privacy.
By using our Services you provide us with information, files, and folders that you submit to NIMIA (together, “your digital assets”). You retain full ownership to your digital assets. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your digital assets or intellectual property except for the limited rights that are needed to run the Services, as explained below.
We may need your permission to do things you ask us to do with your digital assets, for example, hosting your files, or sharing them at your direction. This includes product features visible to you, for example, image thumbnails or document previews. It also includes design choices we make to technically administer our Services, for example, how we redundantly backup data to keep it safe. You give us the permissions we need to do those things solely to provide the Services. This permission also extends to trusted third parties we work with to provide the Services, for example Amazon, which provides our storage space (again, only to provide the Services).
You are solely responsible for your conduct, the content of your files and folders, and your communications with others while using the Services. For example, it’s your responsibility to ensure that you have the rights or permission needed to comply with these Terms.
We may choose to review public content for compliance with our community guidelines, but you acknowledge that Nimia has no obligation to monitor any information on the Services. We are not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services.
Sharing Your Digital assets.
The Services provide features that allow you to share your digital assets with others or to make it public. There are many things that users may do with those digital assets (for example, copy it, modify it, re-share it). Please consider carefully what you choose to share or make public. Nimia has no responsibility for that activity.
Files and other content in the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share files unless you have the right to do so. You, not Nimia, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Service.
You, and not Nimia, are responsible for maintaining and protecting all of your digital assets. Nimia will not be liable for any loss or corruption of your digital assets, or for any costs or expenses associated with backing up or restoring any of your digital assets.
If your contact information, or other information related to your account, changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18.
You are responsible for safeguarding the password that you use to access the Services and you agree not to disclose your password to any third party. You are responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify Nimia of any unauthorized use of your account. You acknowledge that if you wish to protect your transmission of data or files to NIMIA, it is your responsibility to use a secure encrypted connection to communicate with the Services.
Nimia Property and Feedback.
These terms do not grant you any right, title, or interest in the Services, Software, or the content in the Services. While we appreciate it when users send us feedback, please be aware that we may use any feedback, comments, or suggestions you send us or post in our forums without any obligation to you. The Software and other technology we use to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. These Terms do not grant you any rights to use the Nimia trademarks, logos, domain names, or other brand features. The Services may continue to change over time as we refine and add more features. We may stop, suspend, or modify the Services at any time without prior notice to you. We may also remove any content from our Services at our discretion.
Nimia respects others’ intellectual property and asks that you do too. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. Such notices should be reported using our DMCA Process. We reserve the right to delete or disable content alleged to be infringing and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is: Copyright Agent Nimia, 506 2nd Ave. Suite 1400, Seattle, WA 98145, or email [email protected]
The Services may contain links to third-party websites or resources. Nimia does not endorse and is not responsible or liable for their availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such websites or resources. Also, if we provide you with any software under an open source license, there may be provisions in those licenses that expressly conflict with these Terms, in which case the open source provisions will apply.
You can stop using our Services any time. We reserve the right to suspend or end the Services at any time, with or without cause, and with or without notice. For example, we may suspend or terminate your use if you are not complying with these Terms, or use the Services in any way that would cause us legal liability or disrupt others’ use of the Services. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating these Terms, a court order, or danger to other users) where we may suspend immediately.
NIMIA is Available “AS-IS”.
Though we want to provide a great service, there are certain things about the service we can’t promise. For example, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”, AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Nimia will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Services or Software. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL NIMIA, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT NIMIA HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO NIMIA FOR THE PAST THREE MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.
We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you (for example via email to the email address associated with your account). Other changes may be posted to our blog or terms page, so please check those pages regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services.
Miscellaneous Legal Terms.
THESE TERMS AND THE USE OF THE SERVICES AND SOFTWARE WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE. These Terms constitute the entire and exclusive agreement between you and Nimia with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms create no third party beneficiary rights. Nimia’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but Nimia may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. Nimia and you are not legal partners or agents; instead, our relationship is that of independent contractors.
Application License Agreement
Permitted License Uses and Restrictions.
Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to use NIMIA. To the extent that NIMIA may be used to reproduce materials, such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. You may not make NIMIA available over a network where it could be used by multiple computers at the same time.
You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of NIMIA, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with NIMIA). Any attempt to do so is a violation of the rights of Nimia and its licensors of NIMIA.
Certain components of NIMIA and third party open source programs included with NIMIA have been or may be made available by Nimia You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified NIMIA is used, in place of the unmodified NIMIA, on a single Nimia-labeled computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. Nimia is not obligated to provide any maintenance, technical or other support for the resultant modified NIMIA.
You may not rent, lease, lend, redistribute or sublicense NIMIA. You may, however, make a one-time permanent transfer of all of your license rights to NIMIA to another party, provided that: (a) the transfer must include all of NIMIA, including all its component parts, original media (if any), printed materials and this License; (b) you do not retain any use of NIMIA, full or partial, and (c) the party using NIMIA reads and agrees to accept the terms and conditions of this License.
Consent to Use of Data.
If you opt in to diagnostic and usage collection, you agree that NIMIA and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your computer, system and application application, and peripherals, that is gathered periodically to facilitate the provision of application updates, product support and other services to you (if any) related to NIMIA and to verify compliance with the terms of this License. Nimia may use this information, as long as it is collected in a form that does not personally identify you, to provide and improve Nimia’s products and services.
You agree to allow NIMIA to gather information about videos uploaded, viewed, or purchased and to send information to Nimia about the content you select in NIMIA in order to provide you with personal recommendations. By using NIMIA, you agree to Nimia’s use of such information.
You understand that by using any of Nimia’s Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that Nimia shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Content types (including genres, sub-genres, portfolios, and categories and sub-categories and the like) and descriptions are provided for convenience, and you acknowledge and agree that Nimia does not guarantee their accuracy.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Nimia is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Nimia, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree that you will not use any Third Party Materials in a manner that would infringe or violate the rights of any other party, and that Nimia is not in any way responsible for any such use by you.
You agree that the Services, including but not limited to graphics, audio clips, and editorial content, contain proprietary content, information and material that is owned by Nimia and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Nimia. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Nimia is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
In addition, Services and Third Party Materials that may be accessed from, displayed on or linked to from the Nimia Application are not available in all languages or in all countries or regions. Nimia makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Nimia and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Nimia be liable for the removal of or disabling of access to any such Services. Nimia may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
This License is effective until terminated. Your rights under this License will terminate automatically without notice from Nimia if you fail to comply with any term(s) of this License. Upon the termination of this License, you must cease all use of NIMIA and destroy all copies, full or partial, of NIMIA. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.
Disclaimer of Warranties.
If you are a customer who is a consumer (someone who uses NIMIA outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF NIMIA AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIMIA AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NIMIA AND NIMIA’S LICENSORS (COLLECTIVELY REFERRED TO AS “NIMIA” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO NIMIA EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
NIMIA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF NIMIA AND SERVICES, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY NIMIA WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF NIMIA AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN NIMIA OR SERVICES WILL BE CORRECTED, OR THAT NIMIA WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY APPLICATION, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS APPLICATION MAY AFFECT THE USABILITY OF THIRD PARTY APPLICATION, APPLICATIONS OR THIRD PARTY SERVICES.
YOU FURTHER ACKNOWLEDGE THAT NIMIA AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY NIMIA OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NIMIA OR AN NIMIA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD NIMIA OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL NIMIA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE NIMIA OR SERVICES OR ANY THIRD PARTY APPLICATION OR APPLICATIONS IN CONJUNCTION WITH NIMIA, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NIMIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Nimia’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You may not use or otherwise export or reexport NIMIA except as authorized by United States law and the laws of the jurisdiction in which NIMIA was obtained. In particular, but without limitation, NIMIA may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using NIMIA, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use NIMIA for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
Government End Users.
NIMIA and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Application” and “Commercial Computer Application Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Application and Commercial Computer Application Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the State of Washington. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
Complete Agreement; Governing Language.
This License and the Site User Agreement constitutes the entire agreement between the parties with respect to the use of NIMIA licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of any additional terms and conditions you are required to accept if you choose to License content as a Producer with Nimia, which will govern your use of such services. No amendment to or modification of this License will be binding unless in writing and signed by Nimia. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
Site User Agreement
PLEASE READ THIS CAREFULLY. THE FOLLOWING TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND NIMIA, INC (Nimia). By using the Nimia web site (“Site”) and/or downloading any content or activating an account, you agree to be bound by and comply with this Site Usage Agreement (“Agreement”). If you do not wish to be bound by this Agreement, do not use this Site. THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS OF LIABILITY AND EXCLUSIONS, YOUR INDEMNIFICATION OBLIGATION AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. This Agreement applies to you, and if you are using this Site on your employer’s behalf, to you and your employer. Nimia reserves the right to change this Agreement from time to time at its sole discretion, and your use of the Site will be subject to the most current version posted on the Site at the time of your use. If you are acting within the scope of your employment as an employee, contractor, or agent of another party, you warrant that such party has full knowledge of your actions and has consented thereto. This Agreement is in addition to your obligations under the applicable Nimia Content License Agreement (if any). In the event of any conflict between this Agreement and the Nimia Content License Agreement, the Nimia Content License Agreement will control as to the conflicting terms. If you are unsure of your rights or obligations under this Agreement, please contact Nimia Customer Service.
Permitted Use of this Site
This Site is owned and operated by Nimia. All images, audio, video and related informational materials in any medium furnished by Nimia hereunder, including related text, captions, or information (collectively referred to as “Content”), is owned by our licensors or by us and is protected by US and international copyright laws, trade dress, moral rights, and other intellectual property rights. Except as explicitly permitted under this Agreement or the applicable Nimia Content License Agreement (if any), no portion or element of this Site or its Content may be copied or retransmitted via any means and all related rights shall remain the exclusive property of Nimia
FOR THE PROTECTION OF NIMIA AND ITS IMAGE SOURCES AND OTHER LICENSORS, CONTENT MAY BE VISIBLY, INVISIBLY, OR ELECTRONICALLY WATERMARKED AND MAY INCLUDE THE USE OF DIGITAL RIGHTS MANAGEMENT SYSTEM TECHNOLOGY WITHIN CONTENT. SUCH TECHNOLOGY MAY PERMIT ONLINE CRAWLING OR TRACKING OF CONTENT OBTAINED FROM NIMIA AND/OR OTHER METHODS OF PROTECTING, MONITORING, OR TRACKING THE UNAUTHORIZED USE OF THE CONTENT (“RIGHTS MANAGEMENT SYSTEMS (RMS))”. If you do not consent to Nimia’ use of RMS, do not use the Site or any Content found therein. You shall not knowingly disable any such technology or tool. You may not remove any copyright or other proprietary notices contained in the Content, caption information, or any other material on this Site. Additionally, unless authorized by Nimia in writing, you may not:
- deep link or employ software or any automatic device, technology or algorithm, to “crawl,” “scrape,” search or monitor the Site and/or retrieve or copy Content or related information;
- violate the mechanical restrictions of the Site, or bypass other measures employed to prevent or limit access to the Site or Content by hacking or other means;
- copy, redirect, or exploit the Site or any Content;
- probe, scan, or test the vulnerability of the Site or of the network supporting the Site, or seek information on visitors to the Site or personal information of Nimia’ customers; or
- use any device, software or routine that would interfere with the proper functioning of the Site, or any transaction conducted via the Site.
Your use of this Site and any Content shall comply with all applicable law. Nimia reserves the right, in its sole discretion, to revoke your authorization to view, download and use the Content and information available on the Site at any time and for any reason, with or without notice to you of such revocation, and you agree to immediately discontinue such use upon notice from Nimia. Nimia may also restrict or remove Content from the Site for any reason, and you agree to immediately discontinue all use of the Content upon notification from Nimia. Additionally, you are responsible for backing up your data and any Content you have licensed from the Site, and Nimia provides no warranty or guarantee that Content you have licensed will be available from the Site.
Unauthorized use of Content constitutes infringement of copyright and other applicable rights and shall entitle Nimia to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. Nimia in its sole discretion reserves the right to bill You (and You hereby agree to pay) ten (10) times the license fee for any unauthorized use, in addition to any other fees, damages and penalties Nimia may be entitled to under this Agreement, any applicable Nimia Content License Agreement and applicable law. The foregoing is not a limiting statement of Nimia or its Content sources’ rights or remedies in connection with any unauthorized use of the Content, breach of the Agreement, or Nimia Content License Agreement.
Despite our efforts to provide accurate information, this Site may contain technical or other mistakes, inaccuracies or typographical errors. Additionally, this Site and its Content may include historically and culturally important images and text that may contain subjects that reflect the social attitudes and circumstances of a particular time or location. You should be aware that your search may display results containing content that may seem inappropriate to its context, or text that could be potentially offensive. You are solely responsible for determining whether your use of any Content requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by Nimia. If you are unsure whether additional third-party rights are needed for your use, you are responsible for consulting with competent rights management professionals or legal counsel.
Please note that if you use Nimia’s Community Section, including blogs and discussion threads described further below, you should be aware that any personally identifiable information you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages. We are not responsible for the personally identifiable information you choose to submit in these pages. You may, at any time, request access to, correct and delete personal information about you stored by Nimia with respect to these Community Section by contacting us directly.
Registering for a Nimia Account
Registration with Nimia grants you certain privileges. For example, if you have registered for a Nimia account and Nimia has approved your registration, you may be able to access Content without a visible watermark. In applying for a Nimia account, you agree to furnish true and accurate information. Nimia reserves sole discretion over whether to grant you an account, and you agree to access the authorized sections of the Site and your account only by using the account number and password supplied to you by Nimia. You are responsible for maintaining the confidentiality of your account number and/or password, if applicable, and you shall not distribute this access information or allow others to use this access information to gain access to this Site. You agree to take reasonable steps to prevent others from obtaining your access information and to notify Nimia of any unauthorized access or need to update or remove access for any of your employees or agents. You shall be liable for payment for all Content downloaded by others using your account, with or without your permission or knowledge prior to the time that you notify Nimia of any unauthorized use. You acknowledge and agree that you are responsible for damages and repercussions resulting from all uses of your account, whether actually or expressly authorized by you. You further acknowledge and agree that you will be responsible for each and every access, use or enjoyment of the Content that occurs in conjunction with the account and password given to you by Nimia, and that Nimia is authorized to accept the account information and password as conclusive evidence that you have accessed, utilized, or otherwise enjoyed the Content.
If you suspect you are being impersonated, contact us immediately. Nimia reserves the right to disclose any information, including registration data, in order to comply with any applicable laws and/or government requests for the protection of Nimia and its members.
Nimia cannot and will not be liable for any loss or damage arising from your failure to follow these obligations. You agree that you shall not acquire any rights of use, ownership, or bailment as a result of using any Nimia account or Site or related services.
Minors and children (persons under the age of 18) are not eligible to use this Site unsupervised and we ask that minors and children do not register for an account or submit any personal information to us. By using this Site unsupervised, and/or registering for an account, you warrant that you are 18 years of age or older.
You may not use the trademarks or service marks of Nimia without Nimia’s prior written consent. “Nimia,” “Ninu”, “NIMIA”, “Ninu Motion,” “Ninu Film”, “Ninu Shorts”, “Ninu TV”, “Ninu Indy”, “Black Board”, “White Board”, “Director’s Chair” and any associate logos are trademarks of Nimia, or Ninu, Inc. Other product and company names mentioned on the Site are trademarks of their respective owners.
You agree to indemnify and hold harmless Nimia and its Content sources, officers, directors, employees, contractors, subsidiaries, joint ventures, licensors and licensees against all claims (including, without limitation, claims by third parties), liability, damages (including punitive damages), judgments, settlements, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) Your breach of any terms, conditions or restrictions of this Agreement, (ii) Your use or modification of any Content, or combination of any Content, with any text or other content, (iii) Your failure to obtain from third parties all permissions necessary to use the Content,; and (iv) any act or failure to act by you or any of your employees, contractors, employers, agents, clients, principals, or users and (v) any claims arising out of Content you supply via the Community Section.
Disclaimers and Limitation of Liability
NIMIA PROVIDES YOU WITH THE SITE AND CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. YOU UNDERSTAND AND AGREE THAT THE USE OF THE CONTENT IS AT YOUR SOLE RISK.
NIMIA MAKES NO REPRESENTATIONS WITH RESPECT TO ANY CONTENT, INCLUDING PRODUCTS, SERVICES AND SOFTWARE AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS OF ANY KIND, EXPRESS AND IMPLIED, REGARDING THE CONTENT (INCLUDING PRODUCTS, SERVICES AND SOFTWARE), INCLUDING WITHOUT LIMITATION, ALL REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS REGARDING ACCURACY, TIMELINESS, COMPLETENESS, CURRENTNESS, AVAILABILITY, EFFECTIVENESS, NON-INFRINGEMENT, SECURITY, PRIVACY, TITLE, USEFULNESS, SUITABILITY, QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, NIMIA MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT (INCLUDING PRODUCTS, SERVICES AND SOFTWARE) WILL BE SATISFACTORY TO YOUR NEEDS, MEET YOUR EXPECTATIONS, OR BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE OR FREE FROM ERRORS.
EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER NIMIA NOR ANY NIMIA SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, JOINT VENTURE, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SOURCE, LICENSOR OR LICENSEE SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, CONTENT OR THIS SITE, AND YOUR RIGHTS UNDER ANY PROVISION OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE CONTENT OR THIS SITE, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE.
NIMIA, ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS OR EMPLOYEES, SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGE OR LOSS OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR ANY CONTENT (INCLUDING PRODUCTS, SERVICES AND SOFTWARE) PROVIDED THEREIN, OR ARISING OUT OF OR RELATING TO THE USE OF ANY SITE LINKED HERETO AND/OR EVENTS BEYOND THE REASONABLE CONTROL OF NIMIA, INCLUDING VIRUSES, FAILED OR UNDELIVERED MESSAGES, THE CORRUPTION OF DATA, TRANSMISSION ERRORS, INTERNET SERVICE PROVIDERS, LINKS TO AND THIRD PARTY SITES AND THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST OPPORTUNITIES, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC OR CONSEQUENTIAL DAMAGE, EVEN IF NIMIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR OF A CLAIM BY ANOTHER PARTY.
ALTHOUGH NIMIA TAKES PRECAUTIONS TO PROTECT PERSONAL AND CONFIDENTIAL INFORMATION, THERE IS NO GUARANTEE, AND NIMIA MAKES NO REPRESENTATION OR WARRANTY, THAT PERSONAL AND CONFIDENTIAL INFORMATION TRANSMITTED TO OR FROM OR STORED ON THE SITE, OR TRANSMITTED OVER THE INTERNET GENERALLY, WILL BE MAINTAINED CONFIDENTIAL AND SECURE. NIMIA ASSUMES NO LIABILITY OR RESPONSIBILITY PERTAINING TO THE RECEIPT, STORAGE, TRANSMISSION OR OTHER USE OF PERSONAL OR CONFIDENTIAL INFORMATION PROVIDED BY YOU TO NIMIA, UNLESS OTHERWISE PROVIDED IN A WRITTEN AGREEMENT BETWEEN YOU AND NIMIA.
NIMIA, ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, AND THEIR RESPECTIVE DIRECTORS AND EMPLOYEES CUMULATIVE TOTAL LIABILITY FOR ANY DAMAGE OR LOSS THAT YOU MAY SUFFER FROM ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE) SHALL BE LIMITED TO THE AMOUNT, IF ANY, PAID BY YOU TO NIMIA IMMEDIATELY PRECEDING THE TIME THAT THE DAMAGES OR LOSS FIRST OCCURRED. YOU ACKNOWLEDGE THAT NIMIA’ PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT. IN NO EVENT WILL NIMIA’ TOTAL MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIMS ARISING FROM USE OF THE SITE EXCEED $500.00.
Third Party Links
As a convenience, our Site may link to other sites that may be of interest to you but are not under Nimia’s control. These links do not imply endorsement by Nimia and we are not responsible for the availability of or the content contained in any linked site.
Notification of Copyright Infringement
Nimia may terminate the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Site, send Nimia’s copyright agent a notice containing: (i) a physical or electronic signature of the copyright owner or person authorized to act on behalf of the copyright owner; (ii) a description of the copyrighted work or works that you claim have been infringed and identification of what material in such work(s) is claimed to be infringing; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) information sufficient to permit Nimia to contact you, such as your physical address, phone number, and email address; (v) a statement that you have a good faith belief that the use of the material you identified is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Nimia’ copyright agent for notice of claims of copyright infringement can be reached as follows:
Nimia Copyright Agent, 506 2nd Ave. Seattle, WA 98104. By phone: 206.388.8092
Choice of Law / Jurisdiction / Attorneys’ Fees
Any dispute regarding this Agreement shall be governed by the laws of the State of Washington and applicable U.S. Federal law, including Title 17 of the U.S. Code, as amended. The parties agree to accept the exclusive jurisdiction of the state and federal courts located in Washington, USA, regardless of conflicts of laws. This Agreement shall 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 shall be written in the English language In any dispute between Nimia and you, Nimia shall be entitled to recover its reasonable attorneys’ fees, legal expert fees, and other legal expenses from you.
Community Section Agreement:
The Site may contain chat rooms, discussion forums, bulletin boards, review services or other forums in which you or third parties may post Content, messages, materials or other items on the Site (“Community Section”).
If Nimia provides such Community Section, You are solely responsible for your use of such Community Section and use them at your own risk. You agree that all the information posted or accessed will be used only for your individual personal purposes. You will not make any other unauthorized use of this Site, or any interactive features available on this Site. You agree that you are responsible for your own use of the Site, for any Content you upload, and for any consequences thereof.
Nimia may require you to furnish additional information or agree to additional terms before permitting you to access certain features of the Site you agree to access the authorized sections of the Site and your account only by using the account information and password supplied to you by Nimia. You acknowledge that your user name may be displayed on the Site in connection with any content you submit.
For use of Community Section, Nimia will enable registered users to create a community profile of themselves. Please note that if you delete your profile, all Content you submit (“User Content”), including work and information created by that user may be deleted.
Permitted Use of Community Section.
Subject to the terms of this Agreement, you may post User Content consisting of images, tags, keywords, reviews, comments, and other material relating to Content; send communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” Hotlinking to other third party Sites is not permitted.
In posting any User Content, you represent and warrant that:
- you are the sole owner of the User Content and its copyright and/or have the right to grant Nimia the rights in the User Content set forth in this agreement;
- the User Content is original and does not infringe on or violate or misappropriate the statutory copyright or common law rights of privacy, publicity, or moral rights of any third party;
- the User Content is not pornographic or obscene nor does it defame any third party;
- the User Content does not contain any illegal material or promote illegal activities; and
- the User Content does not contain any material that denigrates or attacks any persons based on race, religion, national origin or sexual orientation.
You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of material or User Content posted or submitted to the Site.
Nimia reserves the right (but not the obligation) to remove or edit such material, but does not regularly review posted User Content. Tags, keywords, reviews, and comments posted on, and other material or content submitted to or through the Site are public, not private, and while Nimia reserves the right (but not the obligation) to screen postings, no posting on or submission to or through Site should be considered approved, reviewed, or endorsed by Nimia.
You agree to abide by the Code of Conduct linked to the Community Section.
Grant of Rights/Indemnity.
You grant Nimia and its affiliates and sub-licensees the right to use your user name, or the name and avatar that you submit in connection with such User Content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the User Content that you post; that the information provided in association with the User Content is accurate; that use of the User Content you supply does not violate this policy and will not cause injury to any person or entity;
The Community Section is not intended to be used as back up drive or asset management system. Nimia provides no warranty or guarantee that User Content you have submitted on the Community Section will be available from the Site.
Nimia takes no responsibility and assumes no liability for any User Content posted by you or any third party on the Community Section. You understand and agree that for purposes of any Community Section, Nimia is acting only as a Service Provider as defined in 17 U.S.C. § 512 and as an Interactive Computer Service as defined in 47 U.S.C. § 230(f)(2). As such, Nimia only operates the pages from which Producers may offer and users may post User Content, information and materials. Nimia does not guarantee the safety, quality or legality of the Producer content or the accuracy of the information provided.
Accordingly, you irrevocably waive and unconditionally release and waive any and all claims, demands, damages (actual and consequential) of every kind and nature, known and unknown, you may have or assert against Nimia relating to or arising out of any use of User Content or of these Community Section.
You acknowledge and agree that inherent in the procurement, compiling, collecting, interpreting, reporting, communicating, delivering and inputting digitally of the Content, there will be a degree of error which cannot be avoided even with standards of quality control which exceed industry standards. You further acknowledge that Third Party Content and User Content are provided by third parties and that Nimia cannot control such Content.
The following constitute violations of this Agreement and may result in immediate termination or suspension of your account:
- any use of the Site or any Content for illegal purposes, or in support of illegal activities. Nimia reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing;
- harming, or attempt to harm, minors in any way, including, but not limited to child pornography;
- transmitting any material (by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property, or that harasses another;
- making commercial use of any Nimia Community Section, including offering to sell or selling goods or services via the forum,
- making fraudulent offers to sell or buy products, items, or services (including Content), or to advance any type of financial scam such as “pyramid schemes,” “ponzi schemes,” and “chain letters”;
- adding, removing or modifying identifying network header information in an effort to deceive or mislead, or attempting to impersonate any person by using forged headers or other identifying information;
- transmitting any unsolicited commercial or unsolicited bulk e-mail, or malicious intent to impede another person’s use of electronic mail services or news, or forging any message header, in part or whole, of any electronic transmission, originating or passing through the Nimia service;
- accessing, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Nimia’ or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
- transmitting any material (by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
- collecting, or attempt to collect, personal information about third parties without their knowledge or consent in violation of any applicable statute or ordinance;
- any activity that affects the ability of other people or systems to use Nimia Services or the Internet. This includes “denial of service” (DOS) attacks against another network host or individual user. Interference with or disruption of other network users, services or equipment is prohibited;
- any knowing misrepresentation or misleading statement, writing or activity made with the intent that the person receiving it will act upon it;
- intentional distributions of software that attempts to and/or causes damage, harassment, or annoyance to persons, data, and/or computer systems, or use of software or any device that would facilitate a continued connection, i.e. pinging, while using Nimia services;
- reselling or giving away free access to Nimia services or resources.
You agree that you will not attempt to enter restricted areas of Nimia’s computer system or perform functions that you are not authorized to perform pursuant to this Agreement. Nimia may, without notice, temporarily or permanently suspend your access to the Site and the Content by deactivating your account or password if Nimia reasonably suspects that you are using the account or password to obtain unauthorized access to Nimia’s other systems or information, or are using the account or password in any other inappropriate manner. These suspensions will be for a period of time necessary to permit the thorough investigation of such suspended activity. Nimia may terminate this Agreement immediately without notice if it is determined that you have undertaken such unauthorized activity or if such unusual activity cannot be reasonably explained.
Termination of this Agreement
This Agreement is effective until terminated by Nimia, in its sole and absolute discretion. Nimia may terminate this Agreement with or without notice to you and will do so if you use or attempt to use the Site or the Content therein in any manner contrary to the terms of this Agreement. Any such termination by Nimia shall be in addition to and without prejudice to such rights and remedies as may be available to Nimia, including the suspension or termination of your account or password and injunctive relief enjoining such acts or attempts, it being acknowledged by you that other legal remedies are inadequate. The, Disclaimer of Warranties, Limitation of Liability, Indemnification, Termination and Choice of Law provisions of this Agreement shall survive the termination or expiry of this Agreement.
The Site is controlled, operated, and administered by Nimia from its offices within the United States of America. The Site can be accessed from countries around the world and may contain references to Content, including products and services, that are not available in your country. These references do not imply that Nimia intends to market, promote, or distribute such Content, including products and services, in your country. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws.
This Agreement only applies if you choose to license your content through Nimia If you don’t license content with Nimia, this Agreement does not apply. If you decide to license your content through Nimia you hereby agree to be bound by the terms of this Agreement. This Agreement governs the terms by which Producers provide video and other media content to be licensed through the web site located at http://www.nimia.com (the “Site”) , and to other prospective purchasers through other distribution venues as provided for in this Agreement. This Producer Agreement is in addition to the Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement, that all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement, Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement, the terms of this Agreement shall govern.
This Agreement (“Agreement”) is between Ninu, Inc. (“Nimia”) and the individual and/or entity (“Producer”) that created a Nimia account located at http://www.app.nimia.com (the “Site”). In consideration for access to use Nimia’s Site, Nimia and Producer (collectively, the “Parties”) agree to the following Standard Terms and Conditions and the Commercial Terms as set forth in Exhibit “A”. Capitalized or underlined words represent defined terms.
This Agreement applies to all Content (as the term is defined in Section 1.2) that Producer has previously submitted and, in the future, will submit via the Nimia website located at the Site.
- ASSET MANAGEMENT, CLOUD STORAGE AND LICENSING
Provision of Content: The Parties acknowledge that Producer may, from time to time, provide video files, digital assets, animations, information, photographs, illustrations, audio files, flash files, data files and other material (collectively, “Content”) together with other information, documents (such as model or property releases) or software relating to such Content (“Descriptive Information“) to the Nimia Asset Manager and Licensing Platform (the “Platform”) using the upload procedures as specified on the Site or such other procedures as the parties may mutually agree.
Producer in their sole discretion may determine which of such Content is suitable for publishing to the Nimia archives (“Published Files”).
Producer in their sole discretion may determine which of such Content is suitable for private licensing through the Nimia platform (“Direct Sales Content”).
Producer in their sole discretion may determine which of such content is suitable for public licensing (content they choose to license and publish) through the Nimia archives (“Licensable Content”). Nimia in their sole discretion may determine which of stated Licensable Content to approve and place into the Nimia Marketplace for public license (“Appointed Content”).
- Content Management and Storage: Producer hereby grants Nimia permission to use Content files to perform services related to content management and storage (Services). The Services include but is not limited to archiving, copying, playing back, displaying, and transferring Content files. Producer agrees to permit Nimia to extend Producer’s grant of authority to trusted third parties that Nimia works with to provide Services.
- Published Files: Producer hereby grants Nimia permission to display Producer’s Published Files to the general public.
- Direct Sales Content: Producer hereby grants Nimia a worldwide right to license Direct Sale Content to a licensee that Producer chooses. The licensee may use the Direct Sale Content according to the specific license type and add-on licenses selected by the licensee. The Parties agree that all rights, including title and copyright, in and to the Direct Sale Content will be retained by the Producer, and no title or copyright is transferred or granted in any way to Nimia or any third party except as provided in this Agreement.
- Appointed Content: Producer hereby grants Nimia a worldwide right to sell, license and/or sublicense Appointed Content to any prospective licensees for any and all media now in existence or that may in the future be introduced, including without limitation via the Site, print, 3rd party websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films.
Nimia may sublicense or authorize any third party distributors (“Distributors”), any customer who licenses Appointed Content from Nimia or a Distributor (“Clients”) and their respective customers to exercise the rights described in this Section 1. Nimia and any Distributors or Clients will determine the terms and conditions of all licenses of Appointed Content granted by them, but will not use or license Appointed Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by Clients brought to their attention. Nimia and Distributors may determine how Appointed Content may be marketed and may stop marketing or licensing it at any time. If Nimia notifies Producer that it has permanently stopped marketing and licensing any particular Appointed Content, the Agreement will be deemed to be terminated only with regards to that Appointed Content.
The Parties agree that all rights, including title and copyright, in and to the uploaded Appointed Content will be retained by the Producer, and no title or copyright is transferred or granted in any way to Nimia or any third party except as provided in this Agreement.
Collections: Appointed Content may be included in one or more of Nimia’s current or future Content collections (“Collections”) made available for licensing or distribution by Nimia or Distributors or Clients. When Producer submits Appointed Content for distribution and licensing, Producer may, where appropriate, be asked to specify the license model(s) through which the Content is available to be licensed. Nimia will determine the Collection and may subsequently move and license Appointed Content through any other license models and/or Collections. For Content that moves into a new license model and/or Collection, the Royalties of the new license model or Collection will apply going forward.
Content Aggregation. Nimia or a Distributor or Client may offer license models through an application program interface (API) or other utility that will make Appointed 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 Appointed Content to the total number of individual items of Content licensed together; or (b) in Nimia’s discretion, the relative value of your individual items of Appointed Content compared to all other content licensed together with it.
Consumer Products and Services. Nimia may include Appointed Content within direct-to-consumer products and services (as opposed to Nimia or Distributors licensing to Clients for such uses) including, without limitation, within merchandise and on websites that primarily generate revenue from advertising. The amount due to Producer will be determined in the same way as under Section 1.7.
Marketing Use of Content. Nimia and Distributors may use Appointed Content and/or Published Content to market Producer, Producer work, Nimia, or Distributors, including use in composites that include Content supplied by a third party. No royalties will be paid on these marketing uses.
Managing Content. Nimia has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, Nimia does not and cannot review all Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Content. Notwithstanding the foregoing, Nimia reserves the right to delete, move, refuse to accept or edit any Content or Descriptive Information that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Nimia or as it may direct. Nimia shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Nimia to determine Appointed Content is done as a courtesy only.
Credit and Moral Rights.
Nimia shall use commercially reasonable efforts to credit Producer as the source of Appointed Content, but shall have no liability for lack of credit. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of Appointed Content that are automatically conferred by legislation to varying degrees in different countries, which shall include the following rights and all rights of a similar nature: (a) the right to be identified as the creator; (b) the right to object to misrepresentative modification of Appointed Content; and (c) the right to withdraw Appointed Content from the market (except pursuant to the termination provisions of this Agreement). To the extent allowed by law, Producer hereby waives all Producer’s Moral Rights relating to Appointed Content. To the extent such waivers are not permitted by applicable law, Producer agrees not to enforce such moral rights against Nimia, Distributors or Clients. Where Producer are not the owner of any Moral Rights, Producer confirms that all Moral Rights have been waived to this same extent or that Producer has obtained the same commitments not to enforce Moral Rights. Further, Producer acknowledges and accepts that it is common business practice for commercial uses that the creator of Content is not credited and that Content may be modified.
Digital Millennium Copyright Act.
If Producer or an agent thereof believes that any Content licensed or distributed through Nimia infringes upon its copyrights, Producer may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing Nimia with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Nimia’s designated “Copyright Agent” to receive notifications of claimed infringement is Eric Harrison, located at P.O. Box 85273, email: [email protected].com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Nimia customer service through [email protected] Producer acknowledges that if it fails to comply with all of the requirements of this Section 1.10, your DMCA notice may not be valid.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Appointed Content, you may send a counter-notice containing the following information to the Copyright Agent (“Counter-Notice”):
- Your physical or electronic signature;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Nimia may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Nimia’s sole discretion.
- ROYALTIES AND PAYMENTS
For royalties calculated according to Exhibit “A”, royalties are paid on Gross License Fees and are based on the type of license model and/or Collection through which Appointed Content and/or Direct Sales is actually licensed as specified in Exhibit “A”. “Gross License Fees” means (a) the amount charged by Nimia or a Distributor/Client to each of their Clients (or the amount charged by Nimia to certain of its Distributors for certain royalty free licenses, where applicable); (b) the amount recovered from a third party infringer in connection with a Claim or (c) the amount of revenue received from consumer products/services that is allocated to the Appointed Content. In all cases, the following deductions shall be made from Gross License Fees before royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by Nimia from any current or future sums due to Producer by any law, regulation, or treaty (excluding: (a) any taxes on the net profits of Nimia or any Distributor; and (b) any withholding taxes imposed on remittances to Nimia from countries outside of the United States); (ii) unauthorized use detection/enforcement fees and expenses, if any; and (iii) shipping charges, insurance charges and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, in all cases arising out of or resulting from any license of the same Appointed Content (“License Fee Deductions”).
Nimia may deduct the following amounts from the Royalties payable to Producer (together the “Royalty Deductions”): (a) advances on earnings or royalties under any agreement with Nimia; (b) cancellations of a license where the original sale has been reported in a current or past sales report (“Sales Report”) including where due to a fraudulent transaction; (c) overpayment of Royalties in a prior Royalty period; and (d) amounts that may be deducted or withheld. Nimia will notify Producer of any Royalty Deductions in a Sales Report before deducting amounts from payments to Producer. Other than Royalties for Content that is improperly credited to Producer or any cancellations under (b), if Nimia has not notified Producer of any Royalty Deduction within 1 year after it has been incurred, Nimia waives the right to recoup it.
Reporting and Payments.
- Royalties: Nimia will make available to Producer an Earnings Summary for transactions completed. The Earnings Summary will include the following information: (a) the license sale amount; (b) date of transaction; (c) Content ID number; and (d) royalty rate. Nimia will make Payments when requested by the Producer through the “Request Payment” button inside the Producer’s Earnings page within the Nimia Platform. No payment will be made unless a minimum of US$100.00 (or local currency alternative), after Royalty Deductions, is due to Producer.
- Storage Fees: For all non-Appointed Content, Producer shall pay storage rates as indicated on http://nimia.com/pricing/. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. All fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Producer agrees to pay such taxes (excluding US taxes based on Nimia’s net income) unless Producer has provided Nimia with a valid exemption certificate. Notwithstanding anything to the contrary, in addition to any other remedy available, Nimia may: (a) restrict or suspend Customer’s access to the Services without warning if payment is not made when due; or (b) deduct and offset any amounts due from any earned but unpaid Royalties due producer.
The parties further agree that Nimia shall not be required to pay Royalties to the Producer if Nimia is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
Without limiting the generality of the foregoing, Nimia is entitled to set-off against any amount owing to Producer, all amounts to which Nimia is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Producer under this Agreement.
- REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION & LIMITS ON LIABILITY
Representations and Warranties. Producer hereby represents and warrants as follows:
- Producer has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
- If the Content consists in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by Producer for such design program software allows the Producer to incorporate such elements in Content created by the Producer, and to license such Content to Nimia for the purposes set forth herein;
- No portion of the Content as delivered to Nimia 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;
- The Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content;
- The Content delivered to Nimia hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party;
- The Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Content being used by Nimia, its customers or distributors as contemplated under this Agreement. In addition to any other available remedies, if you breach this paragraph Nimia may immediately terminate this Agreement. You further agree to forfeit any royalties earned by you in connection with your misconduct;
- You have obtained valid model and property releases where necessary in accordance with Nimia’s submission requirements applicable at the time of submission and you will keep the original release and provide a copy to Nimia.
- You agree to indemnify, defend and hold Nimia and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (singularly a “Nimia Party” and collectively, the “Nimia Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Nimia Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Nimia Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
Nimia reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Nimia’s defense of such claim.
Producer agrees that Nimia shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer“) for any violation of a license agreement or alleged infringement of other rights of the Producer. Producer hereby releases Nimia from any and all claims Producer might have, either directly or indirectly, arising out of or in connection with a determination by Nimia to proceed or not to proceed against any Infringer in any instance. Nimia hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Nimia for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis) incurred by or on behalf of Nimia in connection with such action, be divided between the Producer and Nimia pursuant to the provisions contained herein. In the event Nimia elects not to proceed against an Infringer, Producer shall have the right to proceed against such Infringer for such license violation or infringing action. Producer hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Producer for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts’ fees and disbursements on a solicitor and client basis), be divided between the Producer and Nimia pursuant to the provisions contained herein.
Limitation of Liability. THE SITE AND PLATFORM, INCLUDING ALL SOFTWARE, SERVICES AND/OR OTHER RELEVANT TECHNOLOGIES OR METHODOLIGIES REQUIRED TO SUPPORT THE SITE AND THE PLATFORM ARE PROVIDED “AS IS”, AND PRODUCER AGREES THAT THE USE OF THE SITE AND/OR THE PLATFORM WILL BE AT ITS OWN RISK, WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND BY NIMIA, INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN. NIMIA FURTHR DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THE HEREIN, NIMIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE SITE AND/OR THE PLATFORM OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF NIMIA, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NIMIA OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE PLATFORM, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF NIMIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIMIA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM PRODUCER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SITE AND/OR PLATFORM; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF, ANY MATERIALS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE AND/OR PLATFORM; (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF PRODUCER OR PRODUCER’S CUSTOMER DATA SUBMITTED VIA AUTHORIZED USER ACCOUNTS ON THE PLATFORM AND/OR SITE, OR (IV) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY AUTHORIZED USER OR THIRD PARTY. IN NO EVENT WILL NIMIA, ITS DIRECTORS, OR EMPLOYEES, BE LIABLE TO SUBSCRIBER AND/OR ITS AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE LESSER OF (A) THE AGGREGATE AMOUNT PRODUCER PAID TO NIMIA UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM; OR (B) ONE THOUSAND DOLLARS USD ($1,000.00).
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 NIMIA OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Nimia IP and Marks. Nimia reserves all rights, title and interest to the Site, the Platform and any other software, technology, methodology or knowhow not otherwise expressly granted to Producer in this Agreement. No title to or ownership of the Site, the Platform and any other software, technology, methodology or knowhow, or any other IPR of Nimia associated therewith is transferred to Producer or any third party under this Agreement. For the purposes of this Agreement, “IPR” means all rights of a person or business entity in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
- TERMINATION & SURVIVAL
Termination and Effect. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Nimia at [email protected] or such other means of written notice acceptable to Nimia, which enables confirmation of your identity and your intention to terminate. Nimia may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Nimia terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
In addition, Nimia may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of Nimia, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or Producer provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Producer based on the information provided through the Site as part of the account profile of such Producer.
Upon termination, Nimia will use commercially reasonable efforts in relation to all Appointed Content subject to termination to: (a) inactivate digital Appointed Content in its inventory within 90 days; and (b) upon Producer’s written request made by within 1 year of termination, either (i) return to Producer any analog format Appointed Content within 3 years; or (ii) provide Producer with a digital copy of any analog format Appointed Content that is irretrievable or otherwise damaged (normal wear excepted). During all wind-down periods under this Section 3.1, Nimia may continue to process licenses of the Appointed Content so long as Nimia pays Royalties to Producer as required under this Agreement and Producer may not exploit the Appointed Content elsewhere during this time.
Survival of Unexpired Licenses. Following termination of the Agreement, all unexpired licenses of Appointed Content will remain in effect and Producer shall not license any Appointed Content (or derivative works) in a way that conflicts with any unexpired exclusive licenses identified in Producer’s past Sales Reports. Nimia and Distributors will have a one-time only (or up to five times only in the case of licenses for educational uses) right to renew unexpired licenses on substantially the same terms, provided that there is no break in the licensing period.
Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. All sections and the Commercial Terms specified in Exhibit “A” as may be appropriate, will survive termination of the Agreement, as will any matter arising under the Agreement either expressly or that by its nature is required to be performed or apply after the Term of the Agreement.
Entire Agreement; Severability and Waiver. This Agreement supersedes and cancels any previous agreements related to the distribution of Appointed Content. Unless otherwise specified herein, this Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except (a) via the Rate Card described in the Commercial Terms contained in Exhibit “A”; (b) in writing by an authorized representative of each Party; or (c) where a court or other competent legal authority finds a provision to be invalid, illegal or unenforceable (in which event such determination shall not affect any other provision in the Agreement all of which shall remain in full force and the Parties shall in good faith consult to agree the extent of any amendment that might be possible to make the provision valid, enforceable or legal whilst reflecting as far as possible the original intention of the Parties). If a Party waives any provision of this Agreement, the waiver in such an instance shall not be deemed to be a continuing waiver, and no waiver by either Party shall prevent such Party from enforcing any and all other provisions of this Agreement.
Relationship of Parties. The Parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, or any other legal identity, and that Nimia has no obligation to find or offer employment to Producer.
Governing Law and Arbitration. The Site is controlled, operated and administered by Nimia from within Washington State. The Site can be accessed from all states in the United States, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of Washington State, you acknowledge and agree that this Agreement will be governed under the laws of Washington State and the federal laws of the United States applicable therein (without reference to conflicts of laws principles). Producer hereby irrevocably submits to the exclusive jurisdiction of Washington State with respect to the subject matter of this Agreement. 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 excluded.
Producer hereby consents to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by Producer at the time you are first granted access to the membership portions of the Site. Producer agrees to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Nimia related to the Site or this Agreement.
Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Seattle, Washington.
If Nimia is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, Producer hereby agrees to reimburse Nimia for its legal fees, costs and disbursements if Nimia is the prevailing party in any such action.
- Parties shall provide all notices in writing via mail and/or email to the addresses set forth in Exhibit “A”.
- Producer acknowledges and agrees that it is responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with Producer’s Member Name and such passwords, and that Nimia is authorized to accept Producer’s Member Name and password as conclusive evidence that Producer wishes to upload Content pursuant to this Agreement. Nimia shall have no liability or responsibility to monitor the provision of Content under your member name and password.
- “Confidential Information” Producer acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of Nimia and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Nimia, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of Nimia, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
- Personal Data Transfer. Producer understand and agree that information relating to Producer or any other person such as a model that Producer may provide to Nimia may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of Producer’s home country. Nimia, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting Producer, and may disclose this information to necessary service providers, to provide the services they contract for. These third parties will have no right to use Producer’s information for secondary purposes. Any personal information Producer do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. Nimia reserves the right to disclose any information Producer provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distributors and their employees, customers or the public.
- Nimia’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right;
- This Agreement is personal to Producer and is binding upon its heirs, executors and legal representatives, as the case may be, and is not assignable by Producer without Nimia’s prior written consent. Nimia may assign this Agreement without Producer’s consent to any other party so long as such party agrees to be bound by its terms;
- This Agreement can be amended by the written agreement of the parties or by Nimia posting amendments to its Cloud Storage Agreement, Application License Agreement, Site User Agreement, Community Section Agreement and any other agreements, which may be incorporated by reference therein on the Upload portion of 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 the Producer and it will be incorporated by reference into this Agreement. The Agreement may be executed in two or more counterparts, each of which will be deemed to be an original and each of which together constitute a single instrument.
PRODUCER ACKNOWLEDGE THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAS HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF NIMIA AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF PRODUCER’S APPOINTED CONTENT, PRODUCER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PRODUCER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN IT AND NIMIA, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN PRODUCER AND NIMIA RELATING TO THE SUBJECT OF THIS AGREEMENT.
|Royalties: The following royalty rates (“Royalty/ies”) calculated on Gross License Fees (as defined in Section 1.4) will apply:|
|You Choose||Boutiq’||Premium||Editorial||Multi-Agency||Public Domain|
|Commercial Use||Commercial Use||Commercial Use||No Commercial Use||Commercial Use||Commercial Use|
|Pricing: CustomSpecifically designed for Direct Sales Content. Can be used in either commercial or editorial productions.||Pricing: ~$1,000Rights Managed Content. This Content is of exceptional quality both in terms of objective and subjective attributes.Can be used in either commercial or editorial productions.||Pricing: $175-$400Royalty Free Content. This Content is high quality and unique to Nimia.Can be used in either commercial or editorial productions.||Pricing: $150-$400Royalty Free Content. This Content is for blogs, magazine and newspaper editorial applications.Cannot be used for commercial purposes because it may lack proper legal releases.||Pricing: $125-$250Royalty Free Content. This Content is NOT exclusive to Nimia.Can be used in either commercial or editorial productions.||Pricing: $50-$100Content or media that is iconic, digitally re-mastered and available for public download.This media is free from all copyright restrictions, but may have right of publicity issues if used commercially.|
|**Non-Exclusive: This means that Content submitted to Nimia via the Site may be licensed to any third party without restriction subject to the Royalty provisions provide.|
|Nimia may, upon providing you 30 (thirty) days notice, make amendments to this Agreement including by introducing new royalty rates and methods for calculating Royalties to accommodate distribution of Appointed Content through new licensing methods/models that it introduces from time to time, by posting a rate card (the “Rate Card”) on the Site. When changes or additions are made to the Rate Card, Nimia will also notify you of such changes by email. It is your responsibility to keep Nimia informed of your current email address via the account management tool made available to you by Nimia. Continued submission of Content or failure to terminate this Agreement within 30 days of Nimia notifying you of any changes to the Rate Card will be deemed acceptance by you of those changes and they will be incorporated by reference into this Agreement.|
|The Term of this Agreement begins as of the Commencement Date and will continue for an initial period of One (1) Year, with automatic renewals of successive one-year periods, subject to the termination provisions provided above.|