Terms of Service
Date of Last Revision: March 1, 2011
Thank you for using Schmooru.com (hereinafter referred to “Schmooru” or the “Site”) and for working with IB5K, LLC (hereinafter, also referred to as “IB5K”, or “we”, “us”, “our”, etc.). Schmooru is an online community of independent producers who seek work and the opportunity for collaboration in creative development and production (“Members”). The Site is designed to give Members an online space to upload their original content for potential use by IB5K/Schmooru Clients (as hereinafter defined), comments and collaboration with other Schmooru Members.
By registering with us, using or browsing the Site, you acknowledge that you have read, understand, and agree to be bound by the terms and conditions of this Agreement without limitation or qualification. If you do not agree to any of these terms, you can stop using Schmooru at any time.
Producer Content and IB5K/Schmooru Clients
- “Client Productions” are productions by IB5K/Schmooru Clients that use IB5K’s, Schmooru’s and/or Member’s services.
- “Producer Content” means any work of authorship posted by or submitted by you on or to IB5K or Schmooru or created by you as a Member, including profiles (including without limitation, your name, image, likeness, and biographical material), notes, comments, recommendations, forums, photos, videos, music, software, designs, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags, metrics regarding Producer Content, and other content added to or submitted with any of the foregoing.
- “IB5K/Schmooru Clients” are third parties with whom we enter into agreements to curate, recommend, solicit or otherwise provide Producer Content and/or “Developer Intellectual Property” (as hereinafter defined) for any purpose.
- “Client Agreement” means any agreement by and between a IB5K/Schmooru Client and us and/or you for Producer Content and/or Developer Intellectual Property.
- You hereby certify and agree that all Producer Content shall be deemed a “work made for hire” (as defined under the United States Copyright Act and for the purpose of all other copyright laws throughout the world) created for IB5K and/or Schmooru. If, for any reason, said Producer Content, or any portion thereof, shall be adjudged not to be a “work made for hire,” then you hereby irrevocably assign all rights of ownership in such Producer Content, including without limitation, all copyrights and all renewals and extensions thereof throughout the universe, to IB5K and/or Schmooru. Without limiting their rights, IB5K and/or Schmooru shall have the sole and exclusive right in perpetuity and throughout the universe to manufacture, advertise, sell, license or, otherwise dispose of and exploit the Producer Content and derivatives derived therefrom in any manner or media whatsoever upon such terms, and under such trademarks, as IB5K and/or Schmooru elects, or, in IB5K’s and/or Schmooru’s sole discretion, to refrain therefrom. Subject to Client Agreements as provided for herein and the terms of this Agreement, you continue to have the right to use and license Producer Content in any way you choose. You are responsible for protecting those rights as appropriate. Producer Content must comply with the terms of this Agreement.
- We shall instruct IB5K/Schmooru Clients to pay to us any fee or sum due for the use or grant of rights in and to the applicable Producer Content and/or Developer Intellectual Property (the “Client Fee”). After our actual receipt of the Client Fee, we shall promptly pay you a net sum (“Your Fee”) after first deducting our commission (the “Commission”) and the IB5K/Schmooru community re-investment fund (the “Community Fund”) from the Client Fee. We will use reasonable business efforts to advise and inform you of the applicable Commission and Community Fund in each case prior to the final execution of the applicable Client Agreement. You acknowledge the Commission and Community Fund are subject to change. We shall use reasonable business efforts to inform you of any such changes.
- You are solely responsible for ensuring that you have all rights in Producer Content and/or Developer Intellectual Property, including the rights necessary for you to grant the foregoing rights to us as regarding Producer Content and/or Developer Intellectual Property and enter into Client Agreements, including any necessary licenses, consents or releases from any and all necessary third parties. Except as expressly provided, you are solely responsible for Producer Content and/or Developer Intellectual Property. You understand that whether or not Producer Content and/or Developer Intellectual Property is published or marked as private, we do not guarantee any confidentiality or privacy with respect to any Producer Content and/or Developer Intellectual Property.
- In addition to the rights, licenses and privileges referred to above, you agree that we, in our sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of IB5K and/or Schmooru, and any products, goods, features, capabilities and/or services associated with IB5K and/or Schmooru.
- As a Member you acknowledge that we and our designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any Producer Content, in whole or in part, at any time for any reason or no reason. We may delete or remove Producer Content without notice and with no liability of any kind.
- If a Member is removed from the Site, the Producer Content associated with that Member may be deleted at our sole discretion. We are not required, and may not keep, back-up copies of Producer Content once such Producer Content is deleted. Furthermore, we make no guarantee, either during or after the term of this Agreement, that Producer Content will be safely stored on the Site. You should independently back up Producer Content.
Developer Intellectual Property
- “Developer Intellectual Property” includes any computer programming, software, source code, object code, HTML formatting, writing of any kind, user interface, audio-visual work, “look and feel,” idea, know-how, trade secret, artwork, design, illustration, image, photograph, printed or graphic matter, graphical user interface, trademark, copyright, confidential information, as well as preparatory materials, such as charts, diagrams, memoranda, print-outs, drafts, sketches and outlines.
- All Developer Intellectual Property created or prepared or provided by you in connection with your services hereunder, including all material subject to copyright, is the property of IB5K and/or Schmooru. The Developer Intellectual Property shall be deemed a “work made for hire” within the meaning of the Copyright Act, 17 U.S.C. § 101, and all rights to copyright shall be vested entirely in IB5K and/or Schmooru. If for any reason IB5K and/or Schmooru may not be deemed to have commissioned a “work made for hire,” and its rights to copyright are thereby in doubt, you hereby assigns to IB5K and/or Schmooru all rights in and to the Developer Intellectual Property. You agree to cooperate with us and execute such documents as may reasonably be required to implement this assignment and to perfect our rights in the Developer Intellectual Property. The parties intend that any and all rights in and to the Developer Intellectual Property are to be conveyed to IB5K and/or Schmooru in full. You retain no rights in the Developer Intellectual Property, unless set forth in a writing signed and agreed to by us.
- Without limiting any other terms of this Agreement, in the event that you incorporate into the Developer Intellectual Property any work of authorship not first produced in connection with the services provided by you hereunder, but in which copyright is owned and retained by you, you grant to us a royalty-free, non-exclusive, irrevocable license throughout the world to publish, modify, transfer, translate, deliver, perform, use and dispose of in any manner any portion of any such work(s).
- Unless our written approval is obtained, you may not include in any Developer Intellectual Property provided to you hereunder any works of authorship in which copyright is not owned by you or us without acquiring for us any rights necessary to perfect a license of the scope set forth in subparagraph 2(c) above.
- You agree to indemnify and hold IB5K and/or Schmooru, its officers, directors, agents and employees harmless against any and all claims, settlements, judgments, liabilities, damages, losses, suits and expenses (whether arising by tort, statute, contract or otherwise), including reasonable attorneys fees (and fees incurred in enforcing this provision), arising in connection with anything that you create, prepare, develop, utilize or deliver in connection with the services rendered hereunder or Developer ntellectual Property provided hereunder, including, but not limited to claims for infringement of patent, trademark, copyright, trade secret or other intellectual property rights. You shall notify us promptly of any third party suit or proceeding, and we may defend or otherwise deal with such matter if you fail to do so after notice, with all costs chargeable to you.
- We shall be the sole judge of the suitability of the Developer Intellectual Property created for its purposes under this Agreement. Nothing herein shall require us to use in any way any rights and/or property conveyed herein. Our rights in the Developer Intellectual Property shall include, but are not limited to: (a) the unrestricted and exclusive reproduction rights throughout the world, without name credit; (b) the exclusive right throughout the world to protect the Developer Intellectual Property by copyright or trademark, including any renewals thereof; (c) the right to alter and/or modify the Developer Intellectual Property in any way; (d) the right to license, distribute, assign or transfer such title and copyright or otherwise dispose of the Developer Intellectual Property or any portion thereof for any purpose and in any manner; and (e) all subsidiary rights therein. You agree to execute any documents necessary to effectuate this Agreement.
IB5K’s Intellectual Property Rights and Limited License
Copyright and Trademarks
- The Site Materials are subject to the copyright laws of the United State and/or similar laws of other jurisdictions. Without limitation, we own the copyright in the Site Materials and have the exclusive rights, subject only to the limited license granted to you herein, granted to copyright owners under United States copyright law, including, without limitation, the copyright in the selection, coordination, arrangement and enhancement of all Site Materials.
- “Schmooru”, the “Schmooru logo”, as well as other marks that may appear on the Site (”Site Marks”), are the service and trademarks of IB5K. All other trademarks, service marks and logos used on this Site, with or without attribution, are the trademarks, service marks or logos of their respective owners. You agree not to display or use the Site Marks in any matter without our prior written consent. In addition, elements of the Site are protected by trade dress and other federal and state intellectual property laws and may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without our prior written consent.
Links and Other Sites
- This Site contains links to pages on other sites, and those sites may offer products, services or other resources. Because we have no control over such sites and resources, you acknowledge and agree that we have no responsibility for the accuracy of information provided by or availability via other sites. Links to external sites do not constitute an endorsement by us of the sponsors of such sites or the content, products, advertising or other materials presented on those sites. We do not author, edit or monitor these pages or links. You further acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on these other sites or resources.
- We hereby grant you a non-exclusive, limited license, revocable at our sole discretion, for you to link to Schmooru’s home page from any site you own or control that is not commercially competitive to Schmooru and does not criticize or otherwise injure Schmooru, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material. Such a link is not an endorsement of such other site(s) by IB5K and/or Schmooru. All of our rights and remedies are expressly reserved.
- Producer Content and/or Developer Intellectual Property shall be subject to the applicable terms and conditions set forth herein. You hereby agree that any communication or Producer Content and/or Developer Intellectual Property you do transmit to us by electronic mail or otherwise will be treated as non-confidential and non-proprietary, and you grant to IB5K and Schmooru the rights defined in paragraphs 1 and 2.
- You acknowledge that you shall not be entitled to any monetary compensation in exchange for our exercise of any rights granted to us herein, including but not limited to those rights granted in paragraphs 1 and 2. Furthermore, we are free to use any ideas, concepts, know-how or techniques contained in any communication or Producer Content and/or Developer Intellectual Property you submit to us and/or Schmooru for any purpose, at any time, and without any remuneration or obligation to you. We shall have no obligation to post, exhibit, distribute or otherwise make use of any Producer Content and/or Developer Intellectual Property.
- With respect to any and all Producer Content and/or Developer Intellectual Property submitted by you, you hereby warrant and represent that such Producer Content: and/or Developer Intellectual Property
- Is not unlawful, obscene, fraudulent, indecent; does not defame, abuse, harass, or threaten others; and is not hateful or racially, ethnically or otherwise objectionable;
- Does not contain any software viruses, Trojan horses, worms, bombs, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
- Does not advocate or encourage any illegal activity
- Does not infringe the copyright, patent, trademark, trade secret, right of publicity or other intellectual property, proprietary, contracted, personal or other right of any third party;
- Does not violate the privacy of individuals, including other users of the Site; or
- Does not violate any applicable local, state, national or international law.
- You agree not to, or attempt to, circumvent any access or use restrictions, data encryption or content protection related to the Site; not to data mine the Site and not to in any way cause harm to or burden the Site.
- You agree that you will not post on or transmit through the Site any advertising or commercial solicitation of any kind whatsoever, including, without limitation, via e-mail or chat, without our express prior written approval and, if then, solely in accordance with the terms and conditions imposed by us with respect thereto. You further agree not to use the Site, or any element or portion thereof (including, without limitation, e-mail addresses of users), for any commercial purpose whatsoever.
- As used herin, the term “Proprietary Information” shall mean all trade secrets or confidential or proprietary information or other information considered secret by IB5K and/or Schmooru, including, without limitation, business prospects, computer software, research techniques, research results, media plans, client pitch materials and techniques, and information regarding IB5K’s or Schmooru’s or either’s actual or prospective clients' advertising, marketing and sales promotion products, services and strategies, and any other information deemed confidential, whether or not marked confidential or proprietary. Without limiting the foregoing, information which is disclosed to the you by the us shall constitute Proprietary Information if (i) it would be apparent to a reasonable person, familiar with IB5K’s or Schmooru’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to IB5K and/or Schmooru or if (ii) we, at the time of disclosure or within 30 days after such disclosure, deliver to you a written document or documents describing such Proprietary Information and referencing the place and date of such oral, visual or written disclosure. In addition, the term “Proprietary Information” shall be deemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the you which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to you pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties concerning the possible establishment of a business relationship.
- You shall use the Proprietary Information only for the purposes of our relationship as set forth herein and such Proprietary Information shall not be used for any other purpose without our prior written consent. You shall hold in confidence, and shall not disclose to any person any Proprietary Information or exploit such Proprietary Information for your own benefit or the benefit of another without our prior written consent. Without limitation of the foregoing, you shall not cause nor permit reverse engineering of any Proprietary Information or decompilation or disassembly of any software programs which are part of the Proprietary Information. You shall adopt and maintain programs and procedures which are reasonably calculated to protect the confidentiality of Proprietary Information and shall be responsible to us for any disclosure or misuse of Proprietary Information which results from a failure to comply with this provision. You will promptly report to us any actual or suspected violation of the terms hereof and will take all reasonable further steps requested by us to prevent, control or remedy any such violation. Notwithstanding anything contained herein to the contrary, these provisions shall not prohibit you from disclosing Proprietary Information to the extent required in order for you to comply with applicable laws and regulations, provided that you provide prior written notice of such required disclosure to us and take reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
- Your obligations specified herein shall not apply, and you shall have no further obligations, with respect to any Proprietary Information to the extent you can demonstrate, by clear and convincing evidence, that such Proprietary Information: (a) is generally known to the public at the time of disclosure or becomes generally known without the you violating this Agreement; (b) is in the your possession at the time of disclosure otherwise than as a result of your breach of any legal obligation; or (c) becomes known to you through disclosure by sources other than us having the legal right to disclose such Proprietary Information.
- You agree that you shall not receive any right, title or interest in, or any license or right to use, the Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise. You shall, upon the termination of our relationship or at our request, return to usall Proprietary Information received by you from us (and all copies and reproductions thereof). In addition, you shall destroy: (i) any notes, reports or other documents prepared by you which contain Proprietary Information; and (ii) any Proprietary Information (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to us. Alternatively, upon our written request, you shall destroy all Proprietary Information received by you from us (and all copies and reproduction thereof) and any notes, reports or other documents prepared by us which contain Proprietary Information. Notwithstanding the return or destruction of the Proprietary Information, you will continue to be bound by their obligations of confidentiality and other obligations hereunder.
Non-Compete / Non-Solicitation Agreement
You understand and acknowledge that we invest significant time and resources developing customer and employee relationships, and that we are only willing to enter into this relationship with you to the extent you agree to reasonable restrictions on your ability to negatively impact those relationships during your relationship with us and for a reasonable period of time thereafter. Accordingly, you agree that, during the term of our relationship (as extended, if applicable) and for 12 months thereafter, you will not:
- directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, including on behalf of any account described below, solicit any account that is a client or prospective client of ours at any time during the term of our relationship (as extended, if applicable); provided that the foregoing shall apply only with respect to clients as to which you are significantly involved on our behalf during the term of our relationship (as extended, if applicable) and shall apply only to prospective clients to which a formal presentation or similar offering of services in which you are more than insignificantly involved occurs during the term of our relationship (as extended, if applicable).
- directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, including on behalf of any account described in (a) above, perform any services for any account or client described in (a) above.
- directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, accept any offers of employment of any kind for any account or client described in (a) above.
- directly or indirectly, either on your own behalf or on behalf of any other person, firm or entity, including on behalf of any account described in (a) above, solicit the employment or consulting services of or employ or retain the consulting services of or attempt to employ or retain the consulting services of any person who is at such time or who was at any time within six months immediately prior to such time, an employee of ours.
Representations and Warranties
You represent and warrant that:
- Producer Content and/or Developer Intellectual Property s wholly original to you and that no part is a copy or imitation of any other material;
- Producer Content and/or Developer Intellectual Property will not infringe or violate any right whatsoever, including without limitation, any contractual rights, personal rights (e.g., defamation, privacy, false light, moral rights, etc.) or any property rights (e.g., copyright, trademark, etc.) of any person or entity; and is not, and will not be, the subject of any threatened or pending litigation, claim or dispute;
- You have not granted or transferred any right in or to the Producer Content and/or Developer Intellectual Property to any third party. You have not done anything which has impaired and will not do anything to impair the rights granted to us in any way;
All persons engaged by you to work on the Producer Content and/or Developer Intellectual Property or who appear in Producer Content:
- Have no payment claims;
- Have no rights of approval or consultation and no participation rights whatsoever; and
- Are not engaged pursuant to any union or guild agreement that result in any ongoing obligations resulting from the exploitation of the Producer Content and/or Developer Intellectual Property.
- Any use of master recordings and musical compositions in Producer Content has been authorized in writing by the entities that own or control such master recordings and musical compositions, and that we shall have no obligation to make any payments to such owners or to any other entity in connection with the distribution of the Producer Content;
- You are an adult and at least 18 years of age, or that you have attained the age of majority under the laws of your state, province or country, and are capable of lawfully entering into and executing this Agreement;
- You and all parties that performed any services on, or appear in, any aspect of Producer Content and/or Developer Intellectual Property have signed the release available to you on the Schmooru website or a similar form that establishes the services as a “work-for-hire” and grants the same rights and releases as in the Schmooru Release; and
- You will indemnify and hold harmless IB5K, its parents, subsidiaries, affiliates, successors, licensees, and assigns, and each of their directors, officers, agents, equity holders and employees, from and against any and all claims, losses, costs, damages, liabilities and costs and expenses (including reasonable attorneys’ fees costs) which arise out of any breach of any of your covenants, agreements, obligations, representations or warranties set forth herein.
- The terms and conditions of this Agreement and their performance will be binding on you and your heirs, administrators, successors and assigns.
Notwithstanding the foregoing, you acknowledge that we may nonetheless:
- Bring an action in court to protect or interpret any of our purported intellectual property rights.
- You further acknowledge that mere ideas may not be subject to copyright protection. Accordingly, you hereby assume the risk that third parties may appropriate such ideas for their own accounts and that neither IB5K nor Schmooru shall have liability to you or any other entity in the event of such appropriation.
Copyright Infringement/Digital Millennium Copyright Act Notice
IB5K respects the intellectual property rights of others and prohibits users from uploading, posting or otherwise transmitting on the Site any materials that violate another party’s intellectual property rights. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users that it suspects to be infringers. When we receive proper Notification of Alleged Copyright Infringement as described in the Copyright Policy, we will promptly remove or disable access to the alleged infringing material and terminate the accounts of repeated infringers as described herein in compliance with the Digital Millenium Copyright Act. If you believe that material posted on Schmooru infringes on a copyright that you own or control, you must send a written notification specifying such infringement to our Designated DMCA Agent.
You may notify us of alleged intellectual property rights infringement by contacting our designated DMCA Agent at:
81 Bradford Street
San Francisco, CA 94110
Disclaimer of Warranties
You expressly understand and agree that:
- Your use of the Site is at your sole risk. Any content or information contained within the Site is provided “as is” with no representations or warranties of any kind.
- To the fullest extent permissible by applicable law, IB5K disclaims all warranties, either express or implied, including (but not limited to) the implied warranties of merchantability, fitness for a particular purpose and noninfringement.
- You assume total responsibility and risk for your use of the Site, Site Materials and any other Schmooru-related materials. In addition, IB5K does not warrant that the functions on the Site will be uninterrupted or error-free, that defects in or on the Site will be corrected, or that the Site or the server that makes the Site available are free of viruses or other harmful components.
- Any material downloaded or otherwise obtained through the use of the Site is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material. Under no circumstances will we be liable in any way for any material, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any material posted, emailed or otherwise transmitted via the site.
- If you find any material on the Site objectionable, do not use the Site.
Limitation of Liability
You expressly understand and agree to the following:
- That under no circumstances will IB5K, its parent, affiliates or subsidiaries, their sponsors, contractors, sponsors, vendors or other partners, any of their successors, assigns or licensees, or any of their respective officers, directors, agents, employees (collectively “released parties”) be responsible or liable to you or any other person or entity for any direct, indirect, incidental, consequential, special, exemplary, punitive or other damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or relating in any way to the Site, the use or the inability to use the Site, unauthorized access to or alteration of your transmissions or data, the materials available on the Site, statements or conduct of any third party on or in connection with the Site or any other matter relating to the Site information contained within the Site, even if any of these parties have been advised of the possibility of any damages.
- Your sole remedy for dissatisfaction with the Site, Site Materials and/or other Schmooru-related materials is to stop using the Site. You agree that this limitation of liability and release is made with the knowing intent of releasing all known and unknown future claims and with the intent of waiving all rights under the Delaware Code or other laws requiring similar waivers to be knowingly made.
Term and Termination
Choice of law and forum selection
Except as specifically provided otherwise herein:
- You agree that any legal lawsuit or other action brought by IB5K, you or any third party to enforce this agreement, or in connection with any matters related to this Site, shall be subject only to the jurisdiction of either the state or federal courts located in Delaware. You agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within Delaware.
- You irrevocably agree that any and all disputes, claims and causes of action you may have in connection with or related to IB5K or the Site will be resolved individually, without resort to any form of class action.
We reserve the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time any materials, information or content available on the Site and any functionality or features in or on the Site, including the cessation of all activities associated with the Site, with or without notice. You agree that IB5K shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site.
Relationship of the Parties
Nothing contained in this Agreement shall be construed to create a joint venture, agency, partnership or fiduciary relationship between you and us.
Please use this form here: http://www.schmooru.com/contact
or send written correspondence here:
81 Bradford Street
San Francisco, CA 94110