Last Update of Terms: January 16, 2023
PLEASE READ THIS AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN (COLLECTIVELY DEFINED BELOW AS THE “TERMS OF SERVICE”) CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
1. About StudioNow and these Terms of Service
StudioNow is a marketplace that provides services to both sellers and buyers of various types of audio and visual content for businesses and brands. There are two types of users (“Users”) of the StudioNow Platform and these Terms of Service apply to both. The first type of User contributes content to the Platform (a “Creator”). The other type of User buys content; or a license to use the content (a “Buyer”) that has been provided by a Creator. StudioNow makes its money by charging transaction fees to both Creators and Buyers for providing its services.
This User Agreement (this “Agreement”) is a contract between StudioNow, Inc. (“StudioNow”, “we” or “us”) and you (“you” or “User”), regardless of whether you are a Creator or a Buyer. All terms and conditions set forth herein apply to both Creators and Buyers unless otherwise specified.
You must read, agree to, and accept all the terms and conditions contained in this Agreement to be a User of the Platform or utilize our services (“Custom Content Services” or our “Marketplace Service“) through our website, located at https://corp.studionow.com (the “Site”), and to access any or all other services, including, without limitation, the Marketplace, located at https://community.studionow.com (further defined below), or any applications (including mobile applications) made available by StudioNow (collectively, the “Platform”).
StudioNow offers various services for registered Users to either submit content (which shall be defined as all still or motion, including video, photographs, graphics, illustration, audiovisual material, and all associated text and metadata; collectively “Content”), as a Creator, or commission rights to submitted Content, as a Buyer, to various types of Content on our Platform. StudioNow makes available the following services to Users:
StudioNow, in its sole discretion, may review any Content submitted by Creators as part of a Project, Marketplace, Challenge, or a Creator profile and remove Content at its discretion. As a Creator, it is your responsibility to read and understand the Project’s and Challenge’s requirements as posted on the Platform.
2. Platform Terms of Service
Acceptance of Terms of Service. You, the User, agree to be bound by the Terms of Service when you (a) access or use the Platform or (b) register for an account (an “Account”) to use the Platform to either (i) request or license Content, as a Buyer, or (ii) submit and sell Content, as a Creator. If you do not accept all of the terms contained in the Terms of Service, as applicable to your use of the Platform, do not register for or use the Platform.
You must be at least 18 years old to register to use the Platform. StudioNow may, in its sole discretion, refuse to offer the Platform to any person or entity and may change the eligibility criteria at any time.
Arbitration Notice. YOU AGREE THAT DISPUTES BETWEEN YOU AND STUDIONOW (INCLUDING ITS PARENT, SUBSIDIARIES AND AFFILIATES) WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A LAWSUIT, A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. FOR FURTHER INFORMATION PLEASE CONSULT SECTION 6(F) “ARBITRATION” BELOW.
B. User Account Registration
Buyer Account Registration. As part of the registration process, you will be asked to submit certain information at the following webpage corp.studionow.com such as your name, your organization’s name (if applicable), email address, location (city, state, country), Payment Data and to create an Account login password (“Buyer Data”). If you are registering to use the Platform on behalf of a legal entity in the capacity of a Buyer, (i) you must be the authorized representative of such entity, (ii) have the full power and authority to bind such entity as a Buyer to the Creator License Agreement and/or Copyright Purchase Agreement, and (iii) if such legal entity you represented as a Buyer subsequently disputes such power or authority, you shall be liable for any failure of such entity to comply with the Terms of Service as it applies to Buyers.
Creator Account Registration. As part of the registration process, you will be asked to submit certain information at the following webpage corp.studionow.com such as your name, your organization’s name (if applicable), profile photo, email address, phone number, location (city, state, country), specialty and role (i.e., photographer, videographer, editor, etc.), portfolio hyperlink, content samples, creative style, equipment details, Payment Data, and to create an Account login password (collectively, “Creator Data”). More information regarding use of your Profile, managing your Content and maximizing your earning opportunities can be found in our FAQs.
C. Platform License; User Permissions and Guidelines
Grant of License to Site. StudioNow hereby grants to you a limited, non-exclusive, revocable, royalty-free, non-transferable, non-assignable, non-sublicensable, right and license to access and make use of the Platform, solely as permitted by the tools, products, services, functionalities and/or features made available to Users of the Platform, subject in all respects to the Terms of Service, and not for redistribution of any kind. StudioNow and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Platform. The StudioNow logos and names are trademarks of StudioNow and are registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Platform may be the trademarks of their respective owners. For the purpose hereof, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
StudioNow may terminate any license it has granted to any User to access the Platform by providing notice, and the termination of such license shall be effective immediately upon providing such notice.
Permitted Uses. StudioNow offers the Platform for your business purposes only and not for personal, household, or consumer use. StudioNow makes the Platform available for Buyers and Creators to enter service relationships, make and receive payments through registered Accounts, and receive and provide services. We do not make any representations or warranties with respect to any information that is posted on the Platform by us or anyone else. In no event should any content be relied on or construed as tax or legal advice. You should independently verify the accuracy of any content.
User Guidelines and Restrictions. You agree that while using the Platform, you will comply with the following rules:
You agree not to permit any third party to do any of the foregoing. StudioNow reserves the right to terminate your access to the Platform, and your Projects or remove any Content that does not comply with the Terms of Service or for any reason, in its sole discretion.
D. No Solicitation and Non-Circumvent
Because StudioNow has incurred significant expenses in developing and managing a network of Buyers and Creators, both parties agree not to solicit contact off the Platform for purposes of circumventing the marketplace and its Fees. Additionally, Buyer agrees that for a period of one (1) year after initially agreeing to these Terms of Service, Buyer shall not directly solicit business, hire any Creator of StudioNow or interfere with the business relationship between StudioNow and such User.
Enforcement. We reserve the right but do not assume the obligation, to investigate any potential violation of this Section or any other potential violation of the Terms of Service and to remove, disable access to, or modify any User Content on the Platform. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of the Terms of Service or the User Agreement but we reserve the right to do so and pursue damages.
3. BUYER TERMS OF SERVICE
A. Custom Content Services
Service Options. StudioNow provides Buyers with customized options when accessing the Platform through the following service offerings detailed below. This Custom Content Service process begins with the submission of a Project as outlined in the “Custom Content Services; Projects and Challenges” paragraph first above. StudioNow may review the Project and all Content before it can be submitted in response to a Buyer’s Project. Creators agree to submit all Content produced for a Buyer’s Project when being assigned and in no circumstance shall the Creator withhold Content from a Project. Various self-serve and full-serve options are available on the Platform and are as follows:
Payment Options. Buyers may pay for a Project by credit card or may ask us to collect payment by invoice. If payment is made by credit card, we will pre-authorize payment for the total amount of budget associated with your Project. When the Project is complete, our payment processor will charge the total amount associated with your Project budget plus any related expenses or transaction fees.
Transaction Fees and Service Fees. StudioNow generates revenues from fees for various service offerings and is entitled to a transaction fee, as well as a service fee (if producer support is requested), each based on a specified percentage of the total amount charged and invoiced to Buyer upon completion of the Project. When we support Full-Service Custom Content Services, a Buyer’s Project will be quoted on a fixed budget based on scope requirements to deliver the Content where we build our service fees into the budget. When Buyers complete Projects without Full-Service support, they are charged a 10% to 15% transaction fee in addition to a Project’s budget. In addition, StudioNow is also entitled to transaction fees for payments made to Creators. A 10% transaction fee is collected from a Creator’s payment and the total amount will vary based on each Project’s budget. Creators may have the opportunity to waive any and all transaction fees if they subscribe to our Creator Subscription Services. All fees are displayed next to the Project budget.
B. Stock Photo Marketplace
Licensing Models. StudioNow also offers a Stock Photo Marketplace where Buyers can search Creators’ Content for either individual licensing on a per photo basis (“Individual License”) or licensing as part of a subscription that allows Buyers to license a quantity of Content from the Marketplace for a set subscription fee (“Subscription”). Creators have a right to exclude their Content from such Marketplace offerings on their Account Profile.
Individual License. For Individual Content licensing in the Stock Photo Marketplace, a Creator receives 50% percent of the License Fee received by StudioNow (see Compensation section “Payment Terms and Conditions”).
Subscription. The amount of Stock Photo Content that may be downloaded during each Subscription period shall be specified in a Buyer order. Any license for Content downloaded and not used in any given Subscription period will expire and will not roll over to any subsequent Subscription periods. When Buyers purchase a Subscription on the Platform, Creators agree to sell their Content according to the current Subscription fee, and Creators will receive credit for the individual items of Content downloaded in proportion to the number of total items of Content downloaded by the Buyer during the Subscription Period. License fees paid to Creators will vary depending on the Subscription package purchased by the Buyer. A Creator’s earnings are determined by the price of the Subscription plan and are detailed on the Platform’s Payout page.
Premium Content. StudioNow may select Content from the Marketplace to be designated as “Premium Content”. Creators agree that all Premium Content shall be exclusive to the StudioNow platform unless and until the Content is removed by the Creator. Premium Content may be selected and submitted to our Third Party Partner sites at StudioNow’s choosing, and in doing so, shall inform Creators that select Content has been submitted. Creators may choose to opt out of these relationships. In the event Creator removes Content that has been submitted to a Third Party Partner site, Creators understands and agrees that StudioNow’s removal process may be subject to delays (beyond its own control) to ensure that the Content is removed from any Third Party Partner site.
Payment and Fees. For any Content licensed from the Marketplace, Buyer agrees to the predetermined amount associated with the Content in US Dollars or the agreed-upon Subscription fee in accordance with the Subscription package acquired.
Billing. For each Individual license, Buyers are charged at the time of the license transaction. For Subscription licensing, Buyers are billed monthly on the date of purchase and subsequently on a renewal date until canceled. “Renewal Date” means the calendar day of the month as noted on the Subscription order. For example, a June 1 order date would imply a July 1 Renewal Date and the first of every month thereafter. A Buyer Subscription will be automatically renewed for consecutive Subscription terms unless earlier terminated as set forth below.
Cancellations. Subscriptions must be canceled at least 24 hours before the Renewal Date to avoid being charged for the next subscription period. If you cancel your subscription after the applicable Renewal Date, it will not take effect until the end of the following subscription period. If you subscribed via your Apple iTunes or Google Play Store account, you must cancel your subscription(s) through your Apple iTunes or Google Play Store account, as applicable.
C. Content Use Prohibitions
Unless otherwise authorized in writing by Creator or StudioNow, Buyer may not:
4. CREATOR TERMS OF SERVICE
A. Content Defined
All still or motion, including video, photographs, graphics, illustration, audiovisual material, and all associated text and metadata (collectively “Content”) that the Creator either makes available to StudioNow to include, or, Creator uploads directly to the Platform, may be accessed, used, licensed or purchased by any User in accordance with the Terms of Service.
B. StudioNow’s Review of Content
StudioNow has the right, but not the obligation, to review any Content submitted by Creators as part of their profile, Project, or Marketplace for compliance with the Terms of Service and remove any Content in its sole discretion for any reason. Furthermore, Creators may need to be qualified for skill(s) before they can respond to and participate on a Buyer Project. If you are selected for a Project, the Project instructions may require you to transfer all copyright rights in the Content to StudioNow and StudioNow may transfer those rights to Buyers. This ensures the highest quality standards for Buyers.
All Content uploaded to StudioNow’s Marketplace is automatically watermarked and you agree that the StudioNow watermark may be included with your Content. When a Buyer purchases or licenses Content as part of the Platform, the watermark is removed when the Content is downloaded.
Other than any watermarks, StudioNow will not knowingly remove any attribution with respect to Creators’ Content uploaded to the Platform if provided by Creator. Buyer agrees that it shall provide attribution to Creator in connection with any editorial use of Content licensed via StudioNow’s Marketplace unless Creator waives any right to attribution directly. Creators acknowledge that attribution is not provided by Buyers for advertising or other commercial use. Notwithstanding the above, StudioNow shall not be responsible if the Buyer fails to credit Creators.
D. Creator License Grant to StudioNow
Each Creator that uploads Content to the Platform agrees to grant, and each Buyer agrees to comply with, the following licenses to StudioNow to use the Platforms where applicable:
Creator’s License to StudioNow to sell Content. Creator grants StudioNow a worldwide, royalty-free, transferable license (that is exclusive in the case of Premium Content selected for the Marketplace) to sub-license, reproduce, distribute, publish, transmit, and display (in whole or in part) and to create derivative works of the Content uploaded by Creators (collectively ‘use’) with the right to grant sublicenses and transfer rights (when applicable to Custom Content Services) to Buyers and other sub-licensees to use the Content, in all media throughout the world, for all legal purposes, other than those uses prohibited below under Prohibited Uses.
Rejection of Content. In the event any Content is rejected for failing to timely meet the specifications of a Project by either not creating the subject matter or submitting Content that does not meet standard technical quality requirements of a professional creator, or the Buyer elects to terminate the purchase of any Buyout Content, Buyer will only be obligated to pay Creator fees and expenses relating to the services performed in creating the requested Buyout Content prior to termination. If Buyer rejects Content for reasons other than technical quality requirements and the shoot specifications are reasonably met, the Creator shall be paid for the Content. Please review our FAQs for more information about Content Buyout.
A. Creator Reserved Rights
Except in the case of a Content Buyout, all rights to the Content from the Marketplace shall continue to be owned by Creator, subject to the rights to use the Content as permitted under the Terms of Service. By way of example only, and unless additional rights are granted, as part of the standard Use license to a Buyer, the Buyer is permitted to:
The Creator shall maintain with an insurer or insurers of repute reasonable levels of insurance covering to an appropriate degree the liability that the Creator may have under this Agreement. The amount of such insurance shall not affect the liability of any party to any other under the terms of this Agreement. Upon StudioNow’s reasonable request, the Creator shall produce to StudioNow documentary evidence to prove that the Creator’s obligations are being complied with and the amounts of the insurance cover.
A. No Solicitation
Creator agrees that while using the Platform and for a period of one (1) year after the later to occur of the cessation of use or the date of termination or expiration of the Agreement, Creator agrees not to solicit business from any Buyer or hire any of the employees, consultants, customers, prospective customers, suppliers, or other business relations of StudioNow or interfere with the business relationship between StudioNow and such Person.
Removal of Content by Creator. Creator may remove or delete Content from the Platform which terminates all future grant of rights to use the Content on the Platform and to grant future licenses to Buyers. Termination or removal of Content by a Creator shall not affect any previously granted licenses or assignment of rights to Buyers. Please review our FAQs for more information regarding the management of Your Content and your profile.
5. PAYMENT TERMS
Fees. All fees (“Fees”) are collected or charged by StudioNow at the time a Project is completed by a Buyer, a Creator is paid for their submitted Content, or at the time Content is licensed from the Marketplace. Creator monies are deposited into StudioNow’s account and then distributed to Creators via the Creator’s chosen supported payment facilitator after a Buyer has paid for the Content.
Please review our Creator Payout Policy below for more information about terms and conditions for payments to Creators for creative services performed on Projects.
B. Creator Payout Policy
All Creator Payments. Payments may not be released to the Creator until all Fees are collected from the Buyer, and at such time, the Creator’s earnings will be made available. Creator’s payments will typically be processed on the 1st of the month but no later than 30 days from the date of the Buyer’s payment. Payments paid to the Creator for the Content sold to a Buyer are considered taxable income in most countries. Creators who receive payments shall be solely liable for ensuring that all payments of tax and other payments are duly remitted in accordance with the applicable legislation of their country and region.
Optional Waiver of Creator Transaction Fees. Creators may have the opportunity to waive any and all transaction fees if they subscribe to our Creator Cloud Pro subscription whereas one of the subscription’s benefits affords any one specific Creator to be paid within three (3) business days so long as a payout does not exceed Fifteen Thousand United States Dollars – ($15,000.00 USD). The total eligible Payout amount for any one Creator shall not exceed $15,000 USD per Creator per calendar year. All transaction fees are typically displayed next to the Project budget. Other benefits of the subscription include access to discounted insurance offerings.
Project Payments. Payments to Creators are facilitated when a Buyer or a StudioNow employee marks their Project Complete in the web service and has accepted the Content. Buyer may only reject Content submitted if it does not meet the technical quality requirements of the Project, including failing to comply with the description of the subject matter. Creator payment shall be entitled to the amount displayed amount less any transaction fees assumed by StudioNow. In exceptional circumstances, such as if a Creator submits content late or falsely represents their work, we will cancel a payout to a Creator or in other scenarios as defined below, we may send a partial payout. Changes to payments are subject to StudioNow’s approval.
Project Expenses. For certain Self Service Projects, a Creator may incur costs (such as model costs, entrance fees, location booking, food, etc.) to produce Content as outlined in the Projects. Expenses that have been pre-approved may be paid to a Creator in advance of the completion of a Project otherwise the displayed amount shall constitute the only payment eligible for a Creator.
Onsite Cancellations. In the event, a Project could not be completed based on circumstances outside of the Creator’s control (e.g. the Buyer canceled, the location was closed, or there was a last-minute change) a cancellation fee may be paid out to the Creator. Cancellation fees are flat rates depending on the type of shoot. Cancellation fees are not guaranteed.
Partial Payments. Less applicable processing fees, payment is sent in full when the Content submitted meets both the minimum deliverable amount and Project requirements in terms of subject matter and technical quality requirements. Partial payments will be sent if one of several of the scenarios apply: 1) there is only some usable Content (or the amount of Content submitted is below the minimum deliverable amount), 2). not all required Content scenarios defined in the Project are present within the Content submitted, 3) a re-schedule is required and the Creator is unable to accommodate, 4) there is no usable Content, 5) the Creator is at fault for a late submission. If Content is submitted late, a percentage of the Creator’s payment amount will be deducted resulting in a partial payment. The percentage deducted may increase for each day the submission deadline is missed.
Post Production Requests. Additional Content editing requests are occasionally made only to ensure the Content submitted reflects the aesthetic outlined in a given Project. If a Creator is unable to apply the additional edits, a partial payment may be sent.
Full Payment Eligibility. Creators are eligible for full payment when any Project issues have been communicated and resolved proactively and they have submitted at least the minimum deliverable amount of Content that 1) satisfies technical quality requirements based on industry standards for professional Creators; 2) meets the written requirements of the Project as described by the subject matter; and 3) submits the Content by the submission deadline. If a Buyer rejects any Content as described in the Project, the Creator may be given an opportunity to reshoot the rejected Content if possible or practicable.
No Payment Circumstances. Payment will not be issued if no or insufficient Content is submitted; if the Content does not meet technical requirements based on industry standards for professional Creators; if the Content submitted is not the Creator’s own work; is edited from their previous work; or is in other ways deceitful in nature based on the Project’s requirements.
Taxes. StudioNow does not employ Users in any way. As such, StudioNow will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security, or payroll withholding tax in connection with your use of the Platform or any transactions in connection therewith. You understand and agree that if StudioNow is found to be liable for any tax or withholding tax in connection with your use of the Platforms, then you will immediately reimburse and pay to StudioNow an equivalent amount, including any interest or penalties thereon.
6. GENERAL TERMS
StudioNow has adopted and implemented the StudioNow Copyright Policy in accordance with the Digital Millennium Copyright Act for its Platform. For more information, please read our Copyright Policy.
B. Third-Party Links, Sites, and Services
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by StudioNow. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third-party website, service, or content from StudioNow, you do so at your own risk and you agree that StudioNow will have no liability arising from your use of or access to any third-party website, service, or content.
StudioNow has the 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 Content offered exclusively on its Site, and to defend claims and counterclaims related to infringements of the Content. StudioNow shall have complete discretion regarding its choice of attorney or service for claims based on infringements. Settlements shall not be subject to Creator’s prior approval. Creator agrees to cooperate with StudioNow, providing, if requested, all reasonable assistance to StudioNow. Creator 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. However, Creator shall not hold StudioNow responsible for any misuse of the Content by any third-party. If StudioNow chooses not to pursue any such claims, then Creator is free to pursue such claims him or herself and is entitled to 100% of any compensation he or she receives. Otherwise, all settlements shall be subject to 50% of any settlement collected by StudioNow.
D. Representations and Warranties; Indemnification
StudioNow’s Representations to Buyers. Provided a Buyer is not in breach of the Terms of Service, StudioNow represents and warrants to the Buyer that the Content (as submitted and unaltered by Users) that is downloaded and used in full compliance with the Terms of Service and applicable law will (i) not infringe any copyright, trademark or other intellectual property right, and such unaltered Content does not violate any third parties rights of privacy or publicity; and (ii) unaltered Content does not and will not: (y) violate any US law; (z) be defamatory or libelous; or (iii) be pornographic or obscene.
User Indemnification to StudioNow. Each User (Buyer or Creator) agrees to defend, indemnify and hold harmless StudioNow, its affiliates, and their respective officers, directors, members, employees and agents, licensees, customers, and other Users from and against any and all claims, of damages, obligations, losses, liabilities, costs and expenses (including but not limited to reasonable attorney’s fees) arising from your use of the Platform; your use of the Content in violation of the Terms of Service, together with the other Terms of Service and any applicable Content Purchase Agreement; or your violation of any third party rights, including copyright, trademark right of publicity or privacy, or other third parties intellectual property right; this defense and indemnification obligation will survive the Terms of Service and your use of the Platform and the use of any Content.
StudioNow Indemnification to Buyer. Provided that Buyer is not in breach of the Terms of Service, StudioNow shall defend, indemnify, and hold Buyer harmless up to the “Limits of Liability” (as hereinafter defined) arising out of or directly connected to any actual or threatened third party lawsuit, claim, or legal proceeding for direct damages together with expenses (including reasonable outside attorney’s fees) based on StudioNow’s breach of its representations and warranties under this User Agreement. This indemnification is conditioned upon you notifying StudioNow, in writing, of any such claim or threatened claim, no later than ten (10) days from the date you know or reasonably should have known of the claim or threatened claim including all details of the claim then known to you. The notification must be emailed to StudioNow at firstname.lastname@example.org with a hard copy sent to its parent company, StudioNow, and such notice will be provided to the StudioNow Project Manager (fax no. (615) 577-9406), 4017 Hillsboro Pike, Suite 408, Nashville, Tennessee 37215. StudioNow shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with StudioNow in the defense of any such claim and shall have the right to participate in any litigation at your own expense. StudioNow shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein. StudioNow shall not be liable for any damages, costs or losses arising as a result of modifications made to the Content or the context in which the Content is used by you. StudioNow shall not be liable for consequential damages of any kind, whether as a result of a loss by you of present or prospective profits, anticipated sales, expenditures, investments, commitments made in connection with this Agreement, or on account of any other reason or cause whatsoever. StudioNow’s total maximum aggregate obligation and liability to any one Buyer for all claims herein shall be limited to the lesser of the actual value of the loss or Ten Thousand United States Dollars – ($10,000.00 USD) – (the “Limits of Liability”).
Buyer’s Obligation to Mitigate Damages. Buyer agrees that upon notice from StudioNow, or upon your knowledge that any Content is subject to a threatened, potential or actual claim for which Content owner or StudioNow may be liable, you must immediately and at your own expense (a) stop using the Content; (b) delete or remove the Content and any uses of the Content from your premises, computer systems and storage (electronic or physical); and (c) ensure that your clients, partners and any entity to whom you’ve provided Content do likewise. StudioNow shall provide you with replacement Content (which shall be determined by StudioNow in its reasonable commercial judgment) free of charge, provided your use of such replacement Content will be subject to the Terms of Service.
E. Disclaimer; Limitation of Liability
StudioNow takes reasonable measures to ensure that the Platform is accessible 24 hours a day, seven days a week. We reserve the right, at our discretion, to take necessary technological, maintenance or security measures that may affect the accessibility of Service, including shut down of the Platform. We will store digital files representing Content or Projects uploaded by a User to the Platform in the same format as uploaded, but we will not be responsible for any loss, damage or alteration of the Content that occurs during the file transfer to or from our servers.
OTHER THAN AS EXPRESSLY SET FORTH THIS AGREEMENT, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. STUDIONOW AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT OWNERS DO NOT WARRANT THAT: (A) THE PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE PLATFORM WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL STUDIONOW, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT OWNERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE PLATFORM (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
F. Arbitration; Class Waiver
Other than as provided below, any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of, or in connection with, or relating to these Terms of Service shall be resolved by binding arbitration by a single arbitrator by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The Parties agree that the location for arbitration shall be Nashville, Tennessee. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees to the prevailing party and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the applicable courts for matters related to data security, intellectual property or unauthorized access to the Platform.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND STUDIONOW ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
G. Governing Law; Venue
This Agreement, together with all the other Terms of Service and any applicable Content Purchase Agreement are governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
Other than claims subject to arbitration above, for any action at law or in equity of, you agree to resolve any dispute you have with StudioNow exclusively in a state or federal court located in Nashville, Tennessee, as applicable and to submit to the personal jurisdiction of the courts located in Davidson County as applicable for the purpose of litigating all such disputes.
Entire Agreement. This Agreement, together with the other Terms of Service and any applicable Content Purchase Agreement, sets forth the entire agreement and understanding between you and StudioNow relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though StudioNow drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or StudioNow because of the authorship of any provision of the Terms of Service.
Feedback. While we are continually working to develop and evaluate our Site, the Platforms and other features and functionalities, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the Users. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending us Feedback, you agree that: (i) StudioNow has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; (ii) Feedback is provided on a non-confidential basis, and StudioNow is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and (iii) you irrevocably grant StudioNow a perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
Modification; Severability; Waiver. No modification or amendment to the Terms of Service will be binding upon StudioNow unless they are agreed in a written instrument signed by a duly authorized representative of StudioNow or posted on the Platform by StudioNow. An email will not constitute a written instrument as contemplated by this section. If any provision of the Terms of Service is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from the Terms of Service and will not affect the validity and enforceability of any remaining provisions. StudioNow’s failure to insist upon or enforce strict performance of any provision of the Terms of Service will not be construed as a waiver of any provision or right. No waiver of any of the Terms of Service will be deemed a further or continuing waiver of such term or condition or any other term or condition.
Assignability. User may not assign the Terms of Service, or any of its rights or obligations hereunder, without StudioNow’s prior written consent in the form of a written instrument signed by a duly authorized representative of StudioNow. StudioNow may freely assign the Terms of Service and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
Force Majeure. The parties to the Terms of Service will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
Consent to Use Electronic Records. In connection with the Terms of Service, you may be entitled to receive, or we may otherwise provide, certain records from StudioNow, such as contracts, notices, and communications, in writing. To facilitate your use of the Platform, you give us permission to provide these records to you electronically instead of in paper form.