Terms and Conditions - Marketplace Seller
Terms and Conditions
The following are the Terms (or “Market Terms”) by which you (hereinafter “you,” “Shop Owner”) may sell Assets or licenses to Assets through the Market as a Shop Owner. Your use of the Market constitutes an agreement by you and Photobooth Supply Co. (hereinafter “we,” “us,” “our,” “PBSCO”) to be bound by the terms and conditions in these Market Terms.
Please read these Market Terms carefully. By creating an account as a Shop Owner, you are telling us that you have read, understood, and agree to be bound by these Market Terms, together with all other applicable PBSCO Terms of Service, and other legally binding agreements (collectively “User Agreement”). If you open an account as a Shop Owner on behalf of a legal entity other than yourself, you warrant and represent that you are an authorized representative of the entity with the authority to bind the entity to the User Agreement, and you hereby agree to the User Agreement on that entity’s behalf.
If you do not agree with anything we propose in the User Agreement, please don’t (and you don’t have our permission to) use any of the Market. If presented with the option to “agree” or “disagree” to the terms, click “disagree.”
These Market Terms are entered into as of the date (hereinafter “Effective Date”) that you create an account with the Market, and is between yourself and PBSCO, a California corporation.
You may license your Assets to PBSCO through the Market. Such Assets include: images, video, templates, interface screens, art assets, sound clips, GIFs, or other media that may be appropriate for marketing PSBCO brand photo booths and other PBSCO brand services and products. Such Assets will be made available to other PBSCO Market users to sublicense.
PBSCO will charge a 30% commission fee on all license and royalty payments made through the Market as described below in Subsection A. PBSCO reserves the right to immediately remove any Asset from the Market for any reason and without cause or notice.
PBSCO does not have the right to and will not file suit or seek legal redress for infringement or misuse of Assets licensed through the Market.
YOU RETAIN ALL INTELLECTUAL PROPERTY RIGHTS TO THE ASSETS AND MAY USE OR EXPLOIT SUCH ASSETS IN ANY WAY OUTSIDE OF THE MARKET.
A. Limited License to Us
You expressly grant us a worldwide, irrevocable, non-exclusive, royalty-free license (with the right to sublicense) to host, store, transfer, display, adapt, perform, reproduce, modify, translate, and distribute your Assets (in whole or in part) in any media formats and through any media channels (now known or hereafter developed) for use in connection with the Market or PBSCO’s business, including without limitation for promoting and redistributing part or all of the Market or any other PBSCO brand product or service.
This license expressly allows PBSCO to use and modify your Assets on its social media and all other forms of advertising and networking.
You also expressly agree to allow PBSCO to sublicense any Assets posted to the Market to any other User through the Market’s internal payment system, and you understand and agree that PBSCO will grant a perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, edit, publish, publish information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such Assets as well as your likeness, name, and voice contained within the Assets, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with marketing a PBSCO brand Photobooth or other PBSCO brand products or services.
You understand that PBSCO will take a 30% commission fee on all license and royalty payments made through the Market.
Payments are distributed to the Shop Owner’s Paypal account provided by the Shop Owner. Payment will be remitted in US Dollars within thirty (30) business days after the License is finalized and payment is received by PBSCO. Once payment issues have been remitted to the Paypal account provided by the Shop Owner, PBSCO is relieved of all payment obligations.
You understand that PBSCO has no obligation to provide refunds on any licensed Assets that have been removed by PBSCO from the Market.
PBSCO may exercise its rights to your Assets granted under these Market Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise or any other payment other than that contemplated by these Market Terms.
B. Representations and Warranties
You are solely responsible for your Assets and any consequences that occur because you have licensed your Assets to PBSCO through the Market. When you license your Assets to PBSCO through the Market, you represent and warrant to us that:
- You are the creator and owner of the Assets or have all necessary rights from other people or companies to use, and permit others to use, your Assets on the Market;
- Your use of the Market is permitted by applicable law and by all applicable rights holders;
- Your Assets (including as used by you, us, or other Users of the Market) do not and will not infringe or misappropriate any third-party right including but not limited to, any Intellectual Property Rights* or rights of privacy;
- You have obtained written consent and/or model releases of any third parties pictured; you have the ability to license and sublicense Assets containing those third parties; you have been released from liability arising in relation to the use of their likeness;
- You will not provide inaccurate, misleading, or false information to PBSCO or to any other Market User or Shop Owner; and that, if information provided becomes inaccurate, misleading or false, you will promptly notify PBSCO or such User or Shop Owner of such change; and
- If your Assets contain music and/or lyrics, that you own or have acquired all rights to use such music and/or lyrics and any sound recording from the owner of the copyright in such music and/or lyrics or sound recording.
You understand that publishing your Assets on the Service is not a substitute for registering it with the U.S. Copyright Office, or any other rights organization.
*For the purposes of these Market Terms, Intellectual Property Rights means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, or trade secret rights, whether registerable or otherwise.
C. Termination of Access
Access to the Market may be terminated at any time by us without notice if we receive one or more copyright complaints against your listed Assets. Our disclaimer will nevertheless survive any such termination.
You agree to defend and indemnify us, including our officers, directors, employees, consultants, affiliates, agents, and representatives from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from:
- Your activities in connection with the Market;
- Your breach of any clause of these Terms or any law or regulation;
- Any allegation that any Assets that you license to us through the Market infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; or
- Any disputes between you and a third party.
5. Limitation of Liability
To the maximum extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded. In no case will PBSCO be liable for any consequential loss or damage suffered by you arising from these Market Terms.
We accept no liability for any failure to comply with this agreement where such failure is due to circumstances beyond our reasonable control.
IN NO EVENT WILL PBSCO BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY -- INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR FROM ANY DEFECT OR ERROR IN ITS PRODUCTS OR SERVICES) EVEN IF A PARTY HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PBSCO ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE MARKET TERMS EXCEED THE AMOUNTS PAID TO SHOP OWNER UNDER THESE MARKET TERMS.
6. Disclaimer and No Warranties
PBSCO’S PRODUCTS AND SERVICES, INCLUDING THE PBSCO MARKET, ARE PROVIDED "AS IS" AND "AS AVAILABLE." PBSCO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ITS PRODUCTS OR ANY PRODUCT OR ASSET OFFERED FOR LICENSING THROUGH THE MARKET OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. PBSCO DOES NOT WARRANT THAT ITS PRODUCTS OR SERVICES INCLUDING ANY ASSET OFFERED FOR LICENSE THROUGH THE MARKET WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET THE OTHER PARTY’S OR ANY CUSTOMERS’ REQUIREMENTS OR WILL COMPLY WITH APPLICABLE LAWS.
Neither Party shall be deemed to be an agent of the other Party for any purpose, and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other Party in any respect whatsoever.
Shop Owner may not assign, delegate, or otherwise transfer its rights or obligations under these Market Terms, by operation of law or otherwise, without the prior written consent of PBSCO. These Market Terms will inure to the benefit of the Parties and their permitted successors and assigns.
In the event of a conflict in terms between these Market Terms, the Site Terms of Service, and the Affiliate Terms (if applicable), the conflicting provision of these Market Terms shall apply solely with respect to the subject matter of these Market Terms and then only to the extent of the conflict.
8. Governing Law, Arbitration, Class Actions, and Severability
A. Governing Law
These Market Terms are subject to the governing law in the Site Terms of Service, without regard to conflicts of law principles.
Any dispute, claim, or controversy arising out of or relating to these Terms or the use of the Market will be settled exclusively by binding arbitration. This means that you agree to give up your right to go to court to sue us (or be sued by us) under this contract. Our disputes will be determined by a neutral arbitrator and not a judge or jury and you cannot start or join a class action lawsuit.
C. No Class Actions
You and PBSCO agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity or not allowed. Nor is combining individual proceedings without the consent of all parties.
If one or more of the provisions in this Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
9. Modifying these Terms
We may revise and update these Market Terms from time to time at our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Market thereafter. However, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Market. Your continued use of the Market following the posting of revised Market Terms means that you accept and agree to the changes. You are expected to check this page regularly so you are aware of any changes, as they are binding on you.