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PRODUCER'S NON-EXCLUSIVE CONTRACT

 
 
 

This is a legal Contract ("Contract") between you ("you" "your" or "Producer") and MotionDrops ("MotionDrops"). By clicking the "submit" button at the end of this Contract, you agree to be bound by the terms of this Contract. You should print a copy of the Contract for Your records.

 
 
THIS CONTRACT IS BASED ON THE FOLLOWING UNDERSTANDINGS:

A. That MotionDrops is engaged in the business of licensing Media (as defined herein), to Third Parties in exchange for a license fee, including the licensing of Media for Royalty Free usage (as defined herein).

B. The Producer is the exclusive owner of certain Media and/or Products, or otherwise is authorized to sub-license such Media and Products for Royalty Free purposes, and wishes to grant MotionDrops the right to distribute the Media and Products on a Royalty Free basis, pursuant to the terms of this Contract.

C. The Producer and MotionDrops have mutually agreed that it is in their best interest to enter into this Contract for the Royalty Free licensing, manufacturing and distribution of the Producer's Media and Products under the following terms and conditions.

Producer may have additional Contracts with MotionDrops for the licensing of Media on a Non-Royalty Free Basis.

DEFINITIONS

For the purpose of the Contract, the following terms used in the Contract shall have the following meanings:

1. "Affiliates" means any entity either currently or subsequently, directly or indirectly, owned by MotionDrops.

2. "Media" shall include any audio, still, or motion picture images or photographic images including but not limited to photography, illustration, animation, digital images, film, digital, analog or video footage or their derivatives, obtained by camera or computer in any media now known or later created.

3. "Products" means any compilation or single file of the Media in DVD-ROM form or in any media, which is now known or may become known in the future.

4. "Promotional Materials" includes print catalogs, directory ads, trade and consumer magazine ads, CD catalogs, demo reels, videos, internet banners or any other promotional media.

5. "Royalty Free License" means the licensing of Media for use on a substantially unlimited basis for an unlimited period of time for a license fee not based on usage.

6. "Stock Agency" means any stock picture agency, stock film library, picture library, on-line image service, royalty free or clip art provider, or any other similar entity that is in the business of licensing, distributing, providing, selling or otherwise exploiting Media anywhere in the world.

7. "Territory" means the World.

8. "Third Party" means any third party other than Producer, Affiliates and Sub licensee.

9. "Resellers" means third party value added reseller channels of distribution to which Producer resells or re licenses Products.

1. PRODUCER'S GRANT OF RIGHTS

1.1 Pursuant to the terms of this Contract, Producer grants to MotionDrops for the duration of the Term, in the Territory a non-exclusive license to:

a) Reproduce, publish, distribute, transmit, broadcast, display, perform, adapt, modify and enhance any Media or Products, alone or in combination with any other material, in any media now known or which may become known in the future;

b) Use Media and Products in MotionDrops's Promotional Materials.

c) To brand the Media and Products as a MotionDrops product line with the MotionDrops logo.

1.2 Notwithstanding the above exclusive grant of rights to MotionDrops, Producer retains the right to use his or her Media for the following purposes:

a) Self Promotion meaning any marketing piece used solely for the purpose of bringing awareness to the Producer's film business. Self promotion is limited to self promotional circulars (promo cards), demo reels, source book and other industry related advertisements, personal website, compact disc, and other digital media presentations;

b) With respect to footage, the right to market and distribute the Media as part of a larger production containing multiple scenes;

1.3 This Contract shall not prevent the Producer from submitting to other Stock Agencies or Third Parties any Media that has been submitted to MotionDrops.

1.4 The Producer grants to MotionDrops complete and sole discretion regarding the terms and conditions of pricing, licensing, sublicensing, use, or other exploitation of Media to Affiliates, Sub licensees and Third Parties. MotionDrops shall have complete and sole discretion as to delivery methods and distribution of the Media and Products.

1.5 Ownership of Media and Products: All Media and Products submitted to MotionDrops pursuant to the terms of this Contract shall be, and remain, the Producer's exclusive property.

1.6 Waiver of Moral Rights: Producer waives all moral rights relating to any Media, including but not limited to (1) the right to be identified as the author of any Media, (2) the right to object to any modification of the Media, and (3) the right to withdraw any Media from the market.

2. OBLIGATIONS AND RIGHTS OF MOTIONDROPS

2.1 MotionDrops shall review all Media and Products submitted by Producer, and select such Media and Products that it deems appropriate for Royalty Free licensing, in its sole discretion. If Product is delivered, MotionDrops shall return unselected Products within a reasonable time after selection. MotionDrops shall notify Producer which Media is selected. MotionDrops shall retain all selected Media or Products for the duration of the Term of this Agreement.

2.2 Producer grants MotionDrops the right to brand the Media under MotionDrops company name and trademark, providing such changes do not violate any restrictions or the terms of this Agreement.

2.3 Producer grants MotionDrops the exclusive right, at its expense, to determine in its sole and reasonable discretion, without obligation, if, and when, any legal action shall be pursued with regard to the Media, and to defend claims and counterclaims related to the Media. MotionDrops shall have complete discretion regarding its choice of attorney. Settlements shall not be subject to the Producer's prior approval. Producer agrees to cooperate with MotionDrops, providing, if requested, all reasonable assistance to MotionDrops. Producer agrees to be named in and be joined in as a party to any proceeding in connection with the prosecution or defense of any legal claim. The Producer shall not hold MotionDrops responsible for any misuse of the Media. If MotionDrops chooses not to pursue any such claims, then the Producer is free to pursue such claims him or herself, and is entitled to 100% of any compensation he or she receives.

2.4 MotionDrops shall pay the Producer 50 percent of the total sale from individual clips or collections. Payment will occur in a monthly basis the first day of each month through Paypal payment system. If a customer chooses delivery method (hard copy DVD-R) percentage will be divided after deducting product packaging.

3. OBLIGATIONS OF THE PRODUCER

3.1 The Producer agrees to deliver to MotionDrops, at the Producer's sole risk and expense for production and delivery, the Media and Products in good condition, and in accordance with the current MotionDrops Submission Guidelines.

3.2 The Producer agrees to indicate in a clear manner directed by MotionDrops whether or not the Media has model releases, or property releases, in accordance with the current Submission Guidelines and shall deliver a copy to MotionDrops in accordance with the current Submission Guidelines.

3.3 The Producer agrees not to circumvent, attempt to circumvent, or permit any other party or persons on their respective behalf to circumvent, MotionDrops regarding any transactions during the term of this Agreement, except those licensing rights retained by the Producer.

The Producer will not submit any Media that have any restrictions to, or limitations on, the use of any Media.

4. WARRANTIES OF THE PRODUCER

4.1 Producer represents and warrants that:

(a) Producer has read and understands this Agreement, and has the legal right to enter into this Agreement and perform his or her obligations hereunder.

(b) Producer either is the sole and exclusive copyright holder of all Media and/or Products or has a written agreement with the exclusive copyright holder authorizing it to enter into this agreement and has not assigned the copyrights in the Media or Products to any Third Party.

(c) Producer has obtained and shall deliver to MotionDrops valid property and model releases where necessary for MotionDrops to lawfully distribute, publish, market, license and sublicense the Media and Products for the purpose of Royalty Free Licensing;

(d) Any Media and/or Products submitted to MotionDrops shall not (i) infringe on any copyright or trademark right or any right of privacy or publicity; (ii) defame any third party; nor (iii) give rise to any existing or potential claim by any third party.

(e) The Additional Information is complete and accurate, does not contain any misleading information, and includes all Additional Information necessary to enable the Media or Product to be effectively marketed on the Website; and

(f) No portion of the uploaded Media or Product contains any feature designed to prevent its use, duplication, or enjoyment in the manner contemplated in this Contract and the Media or Product License Contract, and all Media or Product is free of any defects such as viruses, worms, or other items that may result in modification or damage to the Website, the Media or Product or any other hardware or computer system.

5. ROYALTIES

5.1 All Media or Product and Footage is subject to MotionDrops's approval prior to being made available to other users of the Website. However, such review and approval process does not make MotionDrops responsible for the Media or Product, quality, or consequences of Your Media or Product.

5.2 Each time the Media or Product uploaded by You is downloaded or otherwise licensed by a user, MotionDrops agrees to pay the royalty set. The parties acknowledge that the Rate Schedule is subject to change in MotionDrops's discretion at any time without notice upon posting such changes on the Website. If at any time the Royalty Schedule is not acceptable, You may terminate this Contract.

5.3 MotionDrops will use its best efforts to pay royalties on a monthly basis on or about the 1st. day of the month following the month in which the license in the Media or Product is purchased. The following may be deducted or held from royalties that may otherwise be payable: (1) any amounts owed to MotionDrops by You; (2) royalties previously paid to You on purchases on which a refund or credit is subsequently issued to the purchaser; (3) legal and other reasonable fees and expenses incurred in enforcing this Contract or the other contracts contemplated herein, including costs associated with claims threatened relating to any matter which is the subject of a representation, warranty or indemnity under this Contract; and (4) applicable taxes or other withholdings required by applicable law.

5.4 If MotionDrops is prevented in any way from using rights granted under this Contract because those rights (and/or the Media or Product itself) are found or alleged to be an infringement of the rights of a third party, MotionDrops may refuse to pay royalties until the dispute is resolved to MotionDrops's satisfaction. If MotionDrops discovers or determines in its reasonable discretion that the Media or Product provided by You appears for sale or license or free in breach of this Contract, MotionDrops may refuse to pay royalties.

6. MANAGING THE MEDIA OR PRODUCTS

6.1 All Media or Product and Footage is subject to MotionDrops's approval prior to being made available to other users of the Website. However, such review and approval process does not make MotionDrops responsible for the Media or Product, quality, or consequences of Your Media or Product.

6.2 MotionDrops may at any time, in its sole discretion delete, move, refuse to accept or edit The Media or Product that it may determine violates or may violate this Contract, the proprietary rights of third parties, any of its Terms and Conditions or is otherwise objectionable. You acknowledge that You, and not MotionDrops, are responsible for the Media or Product and any consequences of uploading it on the Website.

6.3 You acknowledge and agree that the Media or Product You provide pursuant to this Contract may be licensed by users of the Website that agree to the terms of the Media or Product License Contract. If MotionDrops becomes aware of the breach of the Media or Product License Contract, it agrees that it will take initial steps consistent with its usual business practices to request that the user which purchased the rights in the Media or Product comply with the Media or Product License Contract and refrain from any prohibited use.

6.4 MotionDrops will use reasonable efforts to further assist You in the protection of Your rights, at Your request and expense, but You acknowledge that enforcement of Your rights is Your sole obligation and that MotionDrops shall have no liability to You or any person claiming through You for any breach of the terms of any Media or Product License Contract.

7. WEB ACCESS

7.1 You acknowledge and agree that You will be responsible for each and every access or use of the Website that occurs under Your user name and password, and that MotionDrops is authorized to accept Your user name and password as conclusive evidence that You wish to upload the Media or Product pursuant to this Contract.

8. TERM AND TERMINATION

8.1 This Contract is effective until terminated. You may terminate this Contract at any time by giving thirty (30) days written notice to MotionDrops if the media was uploaded and the Metadata entry was made by you. If the video was uploaded and or Metadata was entered by MotionDrops you should give six (6) month notice. You should contact MotionDrops by using [support@MotionDrops.com] or such other means of written notice acceptable to MotionDrops which allows confirmation of Your identity and Your intention to terminate.

8.2 MotionDrops may also terminate this Contract for any reason by giving You thirty (30) days notice by e-mail at the last address contained in the information You submit to us. Either party may terminate this Contract immediately upon e-mail notice of a violation of this Contract.

9. EFFECT OF TERMINATION

9.1 Upon the termination of this Contract: (1) subject to the provisions in the last sentence of the preceding paragraph, MotionDrops shall remove the Media or Product from the Website within thirty (30) days of the termination of this Contract; (2) if the Media or Product has previously appeared in MotionDrops's promotional materials, MotionDrops shall have the right to continue licensing the Media or Product until it is removed from the Website and for up to (1) year following termination; and (3) MotionDrops will continue to pay royalties due to You at non-exclusive royalty rate in effect at the time of termination for licenses granted after termination, subject to any rights of set-off and retention under this Contract.

9.2 Upon termination, MotionDrops will be entitled to retain all amounts owing to You for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating Your account.

9.3 Notwithstanding any other provision in this Contract, the termination or expiration of this Contract shall not alter or affect the rights granted by MotionDrops pursuant to any Media or Product License Contract.

9.4 The provisions of this Contract relating to: Managing the Media or Product, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Contract and continue in full force and effect or free of defects despite termination.

10. CONFIDENTIALITY

10.1 Producer Agrees to hold in confidence and not to disclose to third parities the terms of this Agreement, nor any of the particular business practices, consumer information or other proprietary information of MotionDrops to which the Producer might be exposed; provided, however, the Producer may disclose the terms of the Agreement to his/her own attorney or accountant.

11. ENTIRE UNDERSTANDING

11.1 This Agreement incorporates the entire understanding between the Producer and MotionDrops, and it can be modified only by a written document signed by both parties. This Agreement supersedes any prior agreement or understanding between MotionDrops and the Producer.

12. LAW GOVERNING

12.1 This Agreement will be deemed to have been entered into in State of Florida, U.S.A. and shall be construed and enforced in accordance with the laws of Florida, excluding its laws relating to conflict of laws. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules located in Florida, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

12.2 To the extent that any provision is deemed illegal, void or unenforceable, that provision shall not affect the remaining provision of the Agreement, which shall remain in full force and effect.

12.3 If any legal action or other proceeding is brought for the enforcement of this Agreement, or if a dispute arises under this Agreement, the successful or prevailing party shall be entitled to recover attorneys fees or other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.

13. DISCLAIMER OF WARRANTIES

THE WEBSITE AND THE SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MOTIONDROPS DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE.

DOES NOT REPRESENT OR WARRANT THAT ANY MEDIA OR PRODUCT THAT APPEARS ON THE WEBSITE WILL ACTUALLY BE AVAILABLE FOR PURCHASER OR, IF DOWNLOADED, THAT IT WILL BE FREE OF DEFECTS OR VIRUSES.

14. LIMITATION OF LIABILITY

YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE WEBSITE.

IN NO EVENT SHALL MOTIONDROPS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS CONTRACT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE WEBSITE, THE MEDIA OR PRODUCT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF MOTIONDROPS 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.

IN ANY EVENT, MOTIONDROPS'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS CONTRACT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE WEBSITE OR THE MEDIA OR PRODUCT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY MOTIONDROPS FOR THE MEDIA OR PRODUCT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED $500.00 UNITED STATES DOLLARS.

SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF MOTIONDROPS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

ATTENTION

MOTIONDROPS AND PRODUCER THAT EACH HAS READ THIS NON-EXCLUSIVE AGREEMENT AND THE EXHIBITS INCLUDED WITH THIS AGREEMENT, UNDERSTANDS THEM AND AGREES THAT PRODUCER AND MOTIONDROPS ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE EXHIBITS. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ITS EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDE ALL PRIOR PROPOSALS, NEGOTIATIONS, AND COMMUNICATIONS, ORAL OR WRITTEN BETWEEN THE PARTIES OR THEIR REPRESENTATIVES. DEVIATIONS TO THIS AGREEMENT SHALL ONLY BE BINDING UPON WRITTEN MUTUAL AGREEMENT.

 
     
 
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