THE FOLLOWING PUBLISHING AGREEMENT IS A LEGALLY BINDING, NON-EXCLUSIVE AGREEMENT BETWEEN YOU AND STRATA MIXED REALITY INC. (“STRATA”). PLEASE READ THE PUBLISHING AGREEMENT CAREFULLY AND BE SURE YOU UNDERSTAND IT FULLY. THE PUBLISHING AGREEMENT, WHICH MAY BE AMENDED FROM TIME TO TIME, DESCRIBES AND CONTROLS YOUR LEGAL RELATIONSHIP WITH STRATA, THE RIGHTS YOU ARE GRANTING TO STRATA IN ANY STOCK DESIGN ASSETS TOGETHER WITH ANY ASSOCIATED KEYWORDS, METADATA AND/OR TITLES SUBMITTED BY YOU TO STRATA (COLLECTIVELY, “CONTENT”) AND WHAT USES STRATA MAY MAKE OF THE CONTENT. THIS DOCUMENT ALSO EXPLAINS YOUR OBLIGATIONS TO STRATA AND STRATA’S OBLIGATIONS TO YOU; INCLUDING THE OBLIGATION TO PAY YOU AS HEREINAFTER SET FORTH.
STRATA RESERVES THE RIGHT TO MODIFY THESE TERMS AT ANY TIME. BY LOGGING IN ON YOUR LOGIN PAGE YOU AGREE TO BE BOUND BY ALL SUCH CHANGES. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES PLEASE REMOVE FROM THE STRATA WEBSITES ALL OR THAT PORTION OF YOUR CONTENT TO WHICH YOU DO NOT WISH THE CHANGES TO APPLY.
STRATA OPERATES A GLOBAL MARKETPLACE FOR STOCK DESIGN ASSETS. STRATA’S CUSTOMERS PAY A FEE TO LICENSE CONTENT FROM THE STRATA WEBSITES (COLLECTIVELY, “STRATA WEBSITES”). CUSTOMERS MAY MAKE BROAD USE OF LICENSED CONTENT AND ARE UNDER NO OBLIGATION TO INFORM STRATA OR YOU OF THE USES MADE OF ANY CONTENT.
I. Introduction & Definitions
Strata welcomes you to the community and hopes that you will be able to earn a satisfying level of additional income through your activities on the Site.
This agreement is intended to be easy to understand, and to provide clarity to you about the requirements and obligations for publishing Stock Design Assets on the Site, as well as the rights you authorize Strata to grant to those who Purchase Stock Design Assets (“Customers”) for use in the work they create (“Creations”).
Some words in this agreement are given specific meanings. Words that appear initially in quotations, such as “you” and “Creations”, are defined in the text preceding the word. Other capitalized words are defined below:
“Stock Design Asset” is the collection of one or more digital files, packaged in the form of a product on the Site that can be identified by a product ID, and that is uploaded by you, or otherwise made available by you, for Purchase on the Site. A Stock Design Asset may include 3D models, texture maps, motion captures, photographs, imagery, application and plug-in software, materials and shaders, shapes and vector graphics, training materials, building components, sound effects, stock music, and videos. Additionally, a Stock Design Asset may include a number of individual files of different file formats to make it easier for Customers to work in a variety of software applications, and may also include other files (such as jpeg images used for texturing), and images or other files that are used for promotional purposes. For Customers and their use in Creations, this definition also includes derivative and intermediary files used for that purpose.
“Site” refers to the Strata websites, API’s, software applications or any approved means or utility either currently in existence or in the future; the software and source code used by Strata to provide such services; user interface layouts, designs, images, text, knowledgebase articles, program offers; site information provided in reports (such as popular keyword searches); and all other intellectual property protected under copyright, trademark, patent, publicity, or any other proprietary right.
“Product Page” is the product page or interface that displays the Stock Design Asset available for Purchase, typically on the website www.strata.com.
“Purchase Price” is the actual price paid by the Customer for the Stock Design Asset, not including sales or other taxes and fees.
“Purchase” is the acquisition of a Stock Design Asset by a Customer, whether by the purchase of a Stock Design Asset made available at a Product Price of greater than $0, or by the download of a Stock Design Asset made available at no charge (i.e. a Product Price of $0 that is downloaded for free).
“Customer” is a person who uses the Site to Purchase a Stock Design Asset.
“Corporate Customer” is a corporate entity that requires special legal or accounting terms for Purchases that Strata may grant as appropriate after a review by Strata on a case-by-case basis.
“Strata” includes Strata Mixed Reality Inc. and all licensed affiliates and partners that distribute Stock Design Assets on behalf of Strata Mixed Reality Inc.
“Intellectual Property” means, copyright, patent, trademark, trade secret, right of publicity, or any other proprietary right throughout the world.
To make reading this agreement easier and less repetitive, the following constructions are used:
“Include,” including,” and “such as” are considered to be followed with “but not limited to.” Examples are used in this agreement to illustrate, rather than limit, the scope of the terms.
“The following restrictions,” “the foregoing restrictions,” and “subject to the restrictions” are considered to be followed with “in addition to all other restrictions applicable within this agreement.”
II. Ownership, Royalties, Withholdings, Payments, and Pricing
1. Ownership. You retain all ownership, title, right, and interest in Stock Design Assets, except as expressly licensed to Strata, its Customers, and other licensees as set forth herein.
2. Royalties. After a Purchase that is not reversed for any reason, you are entitled to a percentage royalty of 40% of the Purchase Price (“Royalty Amount”).
a. Purchase Reversal. If a Purchase is reversed, such as for a Customer return or a fraudulent credit card charge, you acknowledge that subject to the Site’s policies, any Royalty Amount may be reversed on your account by Strata such that no money will be owed to you for that Purchase. In such case, the Customer license to the Stock Design Asset is terminated.
b. Other Royalty Rates. Strata may, in its sole discretion, have agreements with other companies to increase Purchases of Stock Design Assets. Some companies may require a portion of the Product Price as a commission, and may set pricing levels at rates as negotiated with Strata. Strata provides the ability for you to opt out of participating in any agreement that results in a lower than normal Royalty Amount for you. If a new agreement may result in a lower than normal Royalty Amount for you, Strata will notify you in advance of that fact, and will also provide the ability for you to opt out of participating in the new agreement before Stock Design Assets are made available through such agreement.
3. Tax Withholding. There are rules established by the United States (“US”) Internal Revenue Service (“IRS”) regarding tax withholding that apply to Royalty Amount payments that Strata must adhere to. Up to 30% of your Royalty Amount payments are subject to this tax withholding. In order to process your Royalty Amount payments, and help to possibly reduce or exempt you from this withholding, Strata requires that you submit the proper IRS form to us prior to payments being made. The correct form depends on your status:
a. US Person. If you are a citizen, corporation, partnership, trust or estate of the US (a US Person – see the IRS official definition of “US Person”), you may submit a signed and completed IRS Form W-9 to Strata. US Persons who submit a completed from W-9 are exempt from the withholding tax and are instead responsible themselves for any possible tax payments.
b. Foreign Person. If you are a non-US citizen or non-US entity (a Foreign Person – see the IRS official definition of “Foreign Person”) you may submit a signed and completed IRS Form W-8 to Strata. If you are a foreign (non-US) individual submit a signed and completed IRS Form W-8BEN. If you are a foreign (non-US) corporation, partnership, trust or estate, submit a signed and completed IRS From W-8BEN-E. Though many countries have a tax treaty with the US that provides for zero withholding on payments to you, there are also a number of countries where the 30% withholding (or lower rate) may still apply even if the correct form W-8 is provided to Strata.
The form must be signed by you and mailed or faxed to Strata. Because the IRS form will contain sensitive information, email is not our preferred option. However, if you would like to email the form to Strata, we require that you scan and then password protect the document first. Many compression and PDF tools offer password protection options. Once you’ve emailed the document, you’ll need to supply the password to us via a different method, such as voice phone call.
Scan, password protect and Email to: firstname.lastname@example.org
Voice Phone (to provide password): (435) 628-5218
Fax to: (435) 628-9756
Strata Mixed Reality Inc
c/o Strata Store Support
3013 Santa Clara Drive
Santa Clara, Utah 84765
If you fail to provide the proper IRS form to Strata prior to Royalty Amount payments being due to you, Strata will hold the Royalty Amount for up to 3 months. If you do not claim the royalties due to you within that 3 month window the funds will be forfeited by you to Strata.
You should seek advice from your financial or tax advisor or the IRS about your individual situation. No information in this agreement is meant to, and does not, constitute professional financial advice.
4. Purchase and Payment Processing.
a. You authorize Strata to collect money from the Customer and distribute payment amounts to you such as you are entitled, and permit Strata to retain the remainder of the proceeds of your Purchase, and to distribute portions of Purchases to Strata licensees, tax authorities, or other entities as the case requires under: (i) this agreement, (ii) standard Site policies, and (iii) in compliance with legal regulations.
b. Every calendar month by the fifteenth (15) day, or the following business day if the fifteenth occurs on a weekend or holiday, Strata will process your royalty payments according to your account settings. Strata reserves the right to withhold requested payments in the following cases: (i) the amount is below the minimum amount allowed for a monthly royalty payment (as set by standard Site policies), (ii) your payments are on hold because a previous payment to you failed to be received, (iii) you have provided inaccurate payment information, (iv) you have provided a W-8 or W-9 form and it has expired, or (v) there is violation of Site policies that must be reconciled before any payment is made.
c. If Strata discovers and verifies, either on its own or after a notification by you, that you were paid less than your owed Royalty Amount (“Underpayment”), Strata agrees to provide accounting documentation to you and to correct such Underpayment in an expedited manner.
d. If a Purchase is reversed after you have been paid your Royalty Amount, or if for any reason Strata has already paid to you a Royalty Amount in excess of the correct royalty payment for such Purchase (“Overpayment”), you acknowledge that such Overpayment is due from you to Strata, and authorize Strata to deduct from your future payments to settle any Overpayment, and agree to maintain all Stock Design Assets on Strata Websites at reasonable and historical Product Prices until such Overpayment is corrected. If you discover or become aware of any Overpayment, you agree to notify Strata of such Overpayment in an expedited manner for each occurrence.
5. Pricing of Stock Design Assets.
a. Control: You control the price of Stock Design Assets at the time of publishing, and may edit that price at any time thereafter. Such prices will be set in denominations of the United States Dollar.
b. Parameters: Strata may set minimum and maximum price ranges (“Price Parameters”) for Stock Design Assets, based on reasons such as the category and complexity of a given Stock Design Asset and the cost of certification and product reviews. For example, 3D models of edible fruit may have predetermined available price ranges that are lower than those of more complex 3D models, such as those of military vessels. Strata may set Price Parameters to conform to market norms, based on its sole discretion and whether by algorithm or manual judgment, and is not required to set Price Parameters at any time for any or all Stock Design Assets.
c. Tiers: Strata may set price tiers for Stock Design Assets to conform pricing to predictable increments. An example of such pricing increments would be to allow you to select a price from a list such as: $99, $149, $199, or $299. For purposes of clarity, this practice allows Strata to avoid the situation where Customers have to decide between unusual pricing between products, such as $123.42 for one product versus $126.87 for another.
d. Sales and discounts: Strata reserves the right to set “sale prices”, discounts and/or reductions of price for any single Stock Design Asset or group of Stock Design Assets. Such price reductions may be for a limited time during a promotion or for an extended period. You always have the right to remove your products from the Strata store if you wish to not participate in such discounts and sales.
e. Currency: Strata may sell Stock Design Assets denominated in any foreign currency, at pricing that is either above or below the current exchange rates of that currency to the United States Dollar. Strata will set such pricing in its sole judgment to optimize for pricing stability in foreign currencies, round prices to predetermined incremental tiers in that particular currency, and reduce the risk of currency losses when exchange rates fluctuate. In all such cases, Strata will pay you the entitled royalty as if the Purchase had been originally denominated in United States Dollars and assume all losses or gains due to Purchases in foreign currency.
III. License Grants
License Grant to Strata . In all media now in existence or that may in the future be introduced, you authorize Strata to do the following:
1. License to Customers. To distribute and grant worldwide, irrevocable and perpetual license rights in Stock Design Assets to Customers, according to the following license options:
a. Royalty Free License: To fulfill the license grant terms detailed in the Royalty Free License, as made publicly available on the Site and incorporated herein by reference.
b. Corporate License: To negotiate an individual agreement and license grant in Stock Design Assets for qualified Corporate Customers who require individualized agreements, procurement processes, or special indemnities and guarantees. Strata will remit the normal Royalty Amount entitled to you for each Purchase of a Stock Design Asset under such license, and will make commercially reasonable efforts to retain the terms of the Royalty Free License in such negotiations. You understand such agreements are confidential to Corporate Customers and will not be disclosed to you.
c. New Uses: While Strata has tried to explicitly allow or prohibit every known type of Creation by a Customer in the Royalty Free License, Customers may request approval for a Creation that is not explicitly described (“New Use”), for example a Creation in a new medium not yet invented. You authorize Strata to decide whether to allow the New Use, determined in Strata’s reasonable discretion that the New Use will not diminish your future Royalty Amounts and is reasonably or conceptually similar to existing uses. Strata will notify you on each case that a New Use was authorized for a given Customer, and may not notify you in advance of a Purchase for a New Use. If you inform Strata that you object to the New Use, Strata will note your objection for your account and will not approve the New Use again for your Stock Design Assets. You acknowledge that the New Use may be added to the Royalty Free License in the future, whether to allow or prohibit the New Use, and that if the New Use is allowed in the Royalty Free License, this will apply to your Stock Design Assets and supersede your previous objection. You hereby fully release Strata from any liability associated with its decisions based on any New Use.
2. License Promotional Images. To license to Customers, as part of a Purchase, the images that are included as preview images in the Stock Design Asset, when the following conditions are met: (i) the Stock Design Asset is of the 3D model type, (ii) the images could have been reasonably replicated with the Stock Design Asset, (iii) the images include no additional elements other than personal branding that is easily cropped out of the image, and (iv) the images include no attributions. For purposes of clarity, less experienced Customers occasionally ask to purchase preview images of 3D models, and this section enables such use after a Purchase by the Customer, however it would not if such a preview image has an additional element like a stock photograph in the background. Further, in this case, the Customer would have the rights to the 3D model as well because it was a Purchase, although the Customer might never actually download the 3D model itself and only the promotional images.
3. Re-license Customer After License Transfer. To process additional Purchases to a past Customer of a Stock Design Asset that is no longer available on the Site if the following conditions are met: (i) there was a past Purchase of the Stock Design Asset to the Customer, (ii) the Customer does not require digital files, only an additional license, and (iii) the Customer transferred the original license to another party (such as a client of the Customer), and the Customer requires another license to the Stock Design Asset to be legally compliant, and (iv) the Stock Design Asset is not software sold under a Custom License. For any such case (“Re-License”), the Purchase will be under the same license terms and Product Price as at the time of the Customer’s most recent purchase of the Stock Design Asset. Strata will notify you of such Re-License and waive any commissions to Strata, but will retain amounts otherwise required for taxes and similar obligations. This right survives termination of this agreement, and in the case of a Re-License after termination of this agreement, Strata will notify you of the Re-License, and facilitate your payment using the Royalty Amount you were entitled to at the time of termination. Subject to the exception under this section, your removal of any Stock Design Asset from the Site extinguishes Strata’s right to grant licenses to such Stock Design Asset.
4. Trial Basis Use. To grant Corporate Customers access to Stock Design Assets without cost (“Trial Basis Use”) where they may test Stock Design Assets for suitability in their Creations. For Trial Basis Use, a Purchase is required before any commercial use, and Corporate Customers must account for Trial Basis Use on a timely basis.
5. General Strata Use and Stock Design Asset Maintenance. Strata may:
a. Use Stock Design Assets for the benefit of Strata’s business, including: (i) to market, promote, publicly perform, publicly display, digitally perform; (ii) use any trademarks, service marks or trade names incorporated in connection with Stock Design Assets, (iii) to incorporate Stock Design Assets into various parts of the the Site’s user interface (such as category icons), and (iv) to incorporate Stock Design Assets into Strata software applications. In the event that Strata elects to incorporate one or more of your Stock Design Assets into a Strata software application, Strata will make an effort to do the following: limit the number of Stock Design Assets used to no more than one in ten that you submit and that are approved for sale by Strata; notify you via email that Strata intends to use the Stock Design Asset in the Strata software application. If you feel that inclusion in the Strata software application is not beneficial in creating awareness, and therefore sales, of your Stock Design Assets, and you no longer wish to participate in selling your Stock Design Assets on the Site, Strata will make an effort to remove your Stock Design Assets from the Strata software application(s) once you have provided Strata with written notice and upon the next major revision of the Strata software application(s).
b. Provide Customer support, including (i) downloading files within Stock Design Assets to perform compatibility checks, (ii) performing file format conversions, and (iii) after a Purchase, performing various artistic or technical services for Customers for free or for a fee, as Strata deems appropriate based on the nature of the services requested by Customers. Please note that if you aid Strata in providing Customer support, Strata will charge no fee associated with your Customer support efforts.
c. Remove, in Strata’s sole discretion, any damaged files from Stock Design Assets without removing the entire Stock Design Asset. For example, if a particular file format is technically flawed, that file format may be removed without suspending the entire Stock Design Asset.
d. Add additional file formats to your Stock Design Assets that may be created in the normal course of business, such as in performing Customer support. These files may be added by Strata to Stock Design Assets provided that: (i) Strata claims no derivate ownership of such files, (ii) that you are free to download and use these files without restriction, and (iii) that you may request Strata refrain from adding such files to Stock Design Assets in the future.
e. Update metadata for Stock Design Assets, including processing and modify images.
f. Refuse any Stock Design Assets for distribution on the Site. For any reason in its sole discretion, Strata may deny, reject, and remove Stock Design Assets from the Site.
6. 3D Industry Promotion. To license Stock Design Assets without cost to 3D software and hardware companies for internal testing and development of their products, and for the promotion of such 3D software and hardware products (“3D Industry Promotion”). This licensing does not include distribution of Stock Design Assets, and such use will be indicated within the Site as a “3D Industry Promotion”. In your account settings, you may opt out of 3D Industry Promotion use.
You covenant, represent, and warrant that:
1. You have authority to enter into and perform this agreement, to sell Stock Design Assets under this agreement, that all Stock Design Assets are your original work and contain no intellectual property or other rights of any kind that you are not the exclusive owner of (unless you have secured any third-party consents needed to do so in writing), and that prior to publishing Stock Design Assets had an opportunity to seek independent legal counsel.
2. Your Stock Design Assets do not and will not infringe on any third party’s copyright, trademark, trade dress, patent, trade secret, right of publicity, right of privacy, moral right, or any other proprietary right, and that you will not remove any notice of any such right.
3. Your Stock Design Assets are not and will not be defamatory, pornographic, obscene, libelous, and do not further racial hatred.
4. Your Stock Design Assets do not and will not violate any statute, law, regulation, or ordinance.
5. Your Stock Design Assets do not and will not contain any computer viruses or other malicious software.
6. You will read and comply with the Site’s publishing policies and general requirements that are made available to you, including: (i) you will represent all facts about Stock Design Assets accurately and truthfully, without deception, including the descriptions and other metadata related to your products, and (ii) you will use keyword tags and categorization only as they are legitimately related to your product, and not “spam” or attempt to alter search results to cause Stock Design Assets to display when they are not relevant. An example of such prohibited behavior is to publish a Stock Design Asset that is a “lamp” and add tags or description appropriate for “table” such that a Customer searching for lamps might see the Stock Design Asset of a table.
7. You will provide accurate, complete, and valid member information, including contact and payment information.
8. You will notify Strata if you become aware or suspect any unauthorized use of Stock Design Assets by a Customer before contacting the Customer, either by contacting Strata support or sending an email to email@example.com. You agree to submit to the Limited Arbitration rules set out in the Royalty Free License.
9. You will execute and provide written or electronic documents to Strata, upon Strata’s reasonable request, to reflect Strata’s rights under this agreement.
10. You will not engage with Strata Customers directly or use metadata, product files, or any other mechanism for such purposes. If you are contacted directly by a Customer, you must refer the Customer to the Strata Site.
V: Limitation of Liability
1. To the fullest extent permitted by law, Strata shall not be liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including loss of business, revenue, profits, goodwill, use, data, electronically transmitted orders, or other economic advantage) arising out of or in connection with Stock Design Assets, even if Strata has previously been advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract or in tort (including negligence). To the extent that any jurisdiction does not allow the exclusion or limitation of direct, incidental, or consequential damages, portions of the preceding limitation or exclusion may not apply, but should be construed to the greatest extent applicable in such jurisdictions.
2. You agree to indemnify and hold Strata and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives (“Strata Parties”) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of Stock Design Assets, Creations, or otherwise caused by or related to your use of the Site.
3. Strata implements and maintains business practices to accurately categorize Stock Design Assets and otherwise process any and all metadata related to Stock Design Assets. If Strata makes any error in processing, handling, or other managing of Stock Design Assets, your sole and exclusive remedy will be for Strata to take all reasonable steps to promptly correct the error as soon as Strata becomes aware of the error.
4. In any event, Strata’s total maximum aggregate liability under this agreement or in respect to the use or exploitation of any Stock Design Assets shall be limited to the lesser of the fees collected by Strata for the Stock Design Assets giving rise to the claim or one hundred United States dollars ($100). Some jurisdictions do not allow for the limitation or exclusion of liability set forth herein, and in those jurisdictions, Strata shall be entitled to the greatest limitation of liability permissible by law.
VI: License Term and Termination
Termination and Consequences of Termination . This agreement may be terminated by closing your account on the Site by Strata Support, and removing your Stock Design Assets from the Site. Strata can terminate this agreement and your account at Strata’s sole discretion or for a violation of this agreement or any other agreement incorporated by reference, including the Strata policies as judged by Strata in its reasonable discretion.
This Publishing Agreement is in effect as of January 1, 2014.