This is an agreement between GearDemo Inc. (“GearDemo”) and you (“You”) concerning your uploading of a video (the “Video”) to the GearDemo Web site (“the Web site”). By clicking “I agree” in the box provided below, You are entering into a binding contract with GearDemo, all the terms of which are set forth below in this Video Upload Agreement (the “Agreement”). If You do not wish to enter into a binding contract with GearDemo, or disagree with the terms of the Agreement, You should not click “I agree” below and You should not upload your Video.
1. Video Content. The primary purpose of the Web site is for musicians and gear enthusiasts to be able to see and hear demonstrations, reviews, and critiques of musical gear. The purpose is not for You to demonstrate how well your band can cover the Who’s Quadrophenia album, or to rail against a particular equipment company. Accordingly, You agree and represent that:
a. You do not play more than 30 seconds of any song that You did not write in the Video, and that the sole purpose for playing the portion of the song (or songs) You did play was to demonstrate, critique, or comment upon the gear You are using;
b. The opinions You express in your Video are your own, and the facts You state in the Video are truthful, to the best of your knowledge;
c. The Video does not contain any obscene or pornographic content, or any content that is racially or ethnically offensive;
d. You do not disclose any trade secrets in the Video. This means that, for example, if You know a manufacturer has a secret technique for making or tuning their equipment, or has some secret supplier of really good materials because You used to work for that manufacturer (or have a friend that does), do not spill the beans in the Video.
e. You do not impersonate any person, living or dead, in the Video (sorry, Elvis fans);
f. You have the right to upload the Video to the Web site on behalf of yourself and any other persons appearing in the Video; and
g. The Video does not contain any advertisements or other offers to sell products or services. This includes an agreement by You that your Videos will focus on a review of the gear in question and not act as an attempt to sell your own music or guitar lessons.
h. The Video does not make reference to any phone number, address or specific Web Site URL/domain name address (other than a page that is part of the GearDemo Web site).
2. GearDemo’s Right to Reject and Remove the Video. GearDemo is striving to provide high quality content to musicians and gear enthusiasts who want to learn about the thousands of types and models of musical equipment out there. Likewise, You stand to benefit if the other videos on the Web site are also of high quality–more people will want to visit the Web site and download the Video if they know it is a source for quality content. Accordingly, You agree that GearDemo has the right to reject the Video if it does not meet our technical or quality standards (such standards being established and enforced by GearDemo and the question of whether a Video meets those standards is determined in GearDemo’s sole discretion), it does not meet our content standards (see paragraph 1 above), or if GearDemo believes for any reason that the Video is not appropriate for the Web site. In addition, You agree that GearDemo has the right to remove the Video for any of the same reasons it may reject the Video. You should be aware that GearDemo will comply with the terms of the Digital Millennium Copyright Act, which allows copyright owners to provide notices to us if they believe a video is infringing and requires us to take down such infringing videos.
3. GearDemo’s Rights To The Video. GearDemo’s goal is to make the Video available to the public and to share the profits earned from the Video with You (see below). In order to achieve that goal, GearDemo needs to have exclusive rights to the Video - GearDemo cannot generate revenues when You put the Video all over the Internet, effectively competing with GearDemo. Furthermore, GearDemo cannot effectively sell performances of the Video to the public if there is a danger that You will remove the Video after a customer has purchased, for example, a set number of or unlimited performances of the Video. By giving GearDemo the following exclusive rights, You are agreeing not to do these things yourself (for example, You will not put the Video on your own Web site) or allow others to do them. Accordingly, You agree that, once You have uploaded the Video:
a. GearDemo will have the permanent and exclusive right to make the Video available on the Internet for streaming and/or download by the public. You will not have the right to remove the Video from the GearDemo site for any reason;
b. GearDemo will have the permanent and exclusive right to reproduce and distribute the Video in a physical format (such as a CD, DVD, etc.), either on its own or with other videos in a compilation;
c. GearDemo will have the permanent and exclusive right to make edits to the Video for any purpose, to use the Video as a part of a compilation, to separate the audio and video elements of the Video; or to create new video clips based in whole or in part on the Video;
d. GearDemo will have the permanent and exclusive right to make public performances of the Video;
e. GearDemo will have the permanent and exclusive right to license any of the rights mentioned in (a)-(d) above to third parties (that is, other Web sites or companies);
f. GearDemo will have the permanent right to use your name and likeness, as well as the name and likeness of anyone else appearing in the Video in connection with any advertising or promotion of the Video, the Web site, or any service or business offered by GearDemo, including press photos, promotional materials, and advertisements; and
g. GearDemo will have the permanent right to enforce its exclusive rights in the Video, including by suing anyone who violates those exclusive rights. You agree to cooperate with GearDemo in its efforts to enforce its exclusive rights.
4. Your Rights to Use the Video. As stated in Paragraph 3, You may not do or authorize anyone else to do any of the things GearDemo has the exclusive right to do under that paragraph. However, You will have the right to do the following:
a. You may link your own personal Web site to a Web page on the GearDemo Web site containing the Video or a link to the Video;
b. You may use e-mail or any other form of communication to inform others of the availability of the Video on the GearDemo Web site; and
c. You may keep a copy of the Video on your own hard drive for your own personal use.
5. Your Compensation for Use of the Video. GearDemo is happy to share the money generated by the Video with You and to encourage You to continue to make and upload quality content to the Web site. Currently, GearDemo expects to make the Video available for paid downloads by Internet users. GearDemo expects that it will have many other opportunities to use the Video in many different ways in the future. GearDemo also expects to share those revenues with you. Accordingly, GearDemo agrees that:
a. GearDemo will pay You 70% of the revenues generated for GearDemo by (that is, the fees we earn as a direct result of) downloads or streams of the Video during the first 12 months the Video is available on the Web site;
b. GearDemo will pay You 50% of the revenues generated for GearDemo by downloads or streams of the Video after the first 12 months the Video is available on the Web site; and
c. GearDemo will pay You a percentage of all other revenues directly generated for GearDemo by the Video. At this time, GearDemo is still exploring all the different revenues we may generate through our Web site and through the use of the Video. When we do generate new revenues, we will share them with You according to a percentage that we will make known on the GearDemo Web site. If the Video is combined with one or more videos in a compilation and that compilation is then sold or licensed to the public or a third-party, GearDemo will pay You your pro rata share of that percentage of the revenues directly generated for GearDemo by that compilation.
5.1. GearDemo will pay You your share of the revenues generated by the Video according to a regular schedule established by GearDemo and only when GearDemo has all information necessary to make such payment to you. GearDemo reserves the right to make payments to You only when your unpaid share of the revenues generated by the Video exceed a minimum level of $50.
5.2 If and when GearDemo generates general advertising revenue from its site, that revenue will not be considered revenue generated by the Video and will not be shared. For example, GearDemo will not pay You a share of the revenues from banner ads that happen to appear on a Web page from which the public can download or stream the Video.
5.3 Notwithstanding the other terms of paragraph 4, GearDemo will have the right to make the Video available for free for limited times or on a limited basis for promotional purposes.
5.4 GearDemo may, in the future, either change its business model or be acquired by another company. In the course of such a change in GearDemo’s business, it may be necessary to change the basis under which it will share revenues with you. Should such a change occur, GearDemo will make the new revenue sharing arrangements known on the GearDemo Web site.
6. Indemnification. GearDemo is relying on your agreement not to post a Video that infringes on the copyrights (or other rights) of others, that contains false or misleading material, or is harassing or pornographic. If someone sues or otherwise makes a legal claim against GearDemo, its employees, its affiliates, or its agents because of the Video, You agree that You will indemnify GearDemo (and its employees, affiliates, or agents) against such claims. In this context, that means that You will reimburse GearDemo (and its employees, affiliates, or agents) for any damages it has to pay third parties as a result of the Video’s availability on the Web site or in physical copies sold or licensed by GearDemo or its licensees. In addition, You agree to pay the reasonable attorney’s fees incurred defending against claims brought against GearDemo (or its employees, affiliates, or agents) as a result of the Video’s availability on the Web site or in physical copies sold or licensed by GearDemo or its licensees.
7. Limitation of Liability. You agree that GearDemo (and its employees, affiliates, and agents) will not be liable to You for any direct, indirect, or consequential damages resulting from your use of the Web site, your uploading of the Video to the Web site, GearDemo’s use of the Video, or any use of the Video by third parties using the Web site. This limitation of liability will be effective against any claim You might bring against GearDemo, including any contract, personal injury or any other tort or legal claim.
8. General Terms. This Agreement is the entire contract between You and GearDemo. No oral statements by You or GearDemo, its employees, affiliates, or agents will have any effect on the terms of this Agreement (whether made before of after your acceptance of this Agreement), and no other prior agreement between You and GearDemo concerning the upload of the Video will be effective. GearDemo may, after giving You notice, change any of the terms of this Agreement. Your continued usage of the Web site or acceptance of payments under the amended terms will demonstrate your acceptance of the revised terms. Should You not accept the revised terms, the transfer of exclusive rights in paragraph 3 of this Agreement shall remain effective and subject to the existing terms of this Agreement. Any court reviewing this Agreement shall construe it under the laws of the Commonwealth of Virginia. You agree that any lawsuit against GearDemo will be brought in the state or federal courts in the Commonwealth of Virginia. A waiver of any of the terms of this Agreement will not be considered a waiver of any other term of this Agreement. Should any particular term of this Agreement be held unenforceable, void, or voidable by a court of competent jurisdiction, the remaining terms will not be affected and shall be enforced as if the unenforceable terms had never been included in the Agreement.