WinModify Member Submission Policy and Terms of Service Agreement

By becoming a registered member of WinModify, you agree to the submission policy (“the Policy”), laid out in full below. The Policy is based on a standard agreement, in use on other community-based websites – designed to protect both registered members of WinModify and the WinModify entity.

Before completing registration for a WinModify Member Account (“the/your account”), you must verify that you have read and understand the Policy. From the time of registration, you consent to be bound by and are becoming a party to the Policy with regard to any work you submit, as well as any form of usage of winmodify.com.

Overview

The following is a brief overview (in simplified American English) of the terms and conditions under which submissions to winmodify.com will be accepted. By submitting photographic, artistic, computer-generated and/or other materials (audio, visual, audiovisual and otherwise) to us and agreeing to the terms and conditions set forth below, you are giving us the non-exclusive right (i.e., you can grant similar rights to others at any time) to use those materials on and as part of our websites (e.g., to include your materials in our database which we make freely available over the World Wide Web). You are also representing to us that, among other things, you have the right to allow us to so use the materials and are agreeing, among other things, to cover the costs of our defense if someone claims that we do not have the right to so use the materials (or that you do not have the right to allow us to so use the materials). Our right to use your materials in this manner will continue until you choose to remove your materials, or any of them, from our website, and notify us in writing that you want to terminate your agreement with the Policy (and, thereafter, your Account). You are agreeing that we are not responsible for your work while it is on our website, including protecting it from other people, and that we are not responsible for removing it from our website. This means that if someone else gets your materials from our website and starts selling posters featuring your materials that we are not responsible for this activity and that you will pursue that other person and not WinModify to stop such use of your materials. Despite the foregoing sentence, you are also agreeing that we can remove your materials, or any of them, from our website at any time or from time to time without notice to you and without provision of reason. You are agreeing that we have the right to use your name and likeness on our websites solely in connection with the promotion and marketing of our business (e.g., we can refer to you as a member of winmodify.com) until you notify us in writing that you wish to terminate your agreement to the Policy and you have removed all of your materials from our website. In the event that we have sublicensed your materials to another website, it is your responsibility to have your materials removed from that website and you will not hold us responsible or liable if the other website refuses to remove your materials.
We reserve the right to make changes to this policy at any time, without provision of notice. It is, therefore, recommended to review the Policy (winmodify.com/content/submission-policy).

TERMS OF SERVICE AGREEMENT

This agreement ("Agreement") is a legal agreement between you, either an individual artist or the legal authorized representative of a group artist ("Artist"), and “WinModify”, regarding uploading certain of Artist's audio, visual, audiovisual and other materials to the winmodify.com website or any successor(s) thereto and/or assigns thereof (the "WinModify Site(s)") and WinModify's use of such materials. If Artist is agreeing on behalf of a group artist or a group of artists to be bound by the terms of this Agreement, each reference to "Artist" in this Agreement refers to each member of the group or the group as a whole, as applicable. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree (and ratify past submissions) as follows:

1. Term. The term ("Term") of this Agreement shall commence on the date that the "Artist Materials" (defined below) are initially uploaded to any WinModify Site(s) and shall continue thereafter until either Artist or WinModify terminates this Agreement, as well as the Policy in writing. To the extent this Agreement is terminated by Artist, the rights granted hereunder shall terminate only after Artist has removed all of Artist's Materials from the WinModify Site(s), and WinModify has received notice of such removal. If this Agreement is terminated by WinModify, this Agreement will terminate upon WinModify's removal of Artist's materials from the WinModify website. In connection with any such termination of this Agreement, the parties agree to co-operate in providing an orderly termination of their relations.

2. Ownership. Artist shall at all times retain all right, title and interest in and to the Artist Materials provided by Artist hereunder (including, but not limited to, the copyrights therein and thereto), subject to the non-exclusive rights granted to WinModify under this Agreement. Artist is free to grant similar rights to others during and after the Term of this Agreement.

3. License to Use Artist Materials. Artist hereby grants to WinModify a worldwide, royalty-free non-exclusive license to do the following things during the Term:

(a) To prepare and encode Artist Materials, or any portion thereof for digital transmission, manipulation and exhibition in any format and by any means now known or hereafter devised.

(b) To display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital), and electronically publish any or all of the Artist Materials, including any portion thereof, and to include them in compilations for such purposes, by any and all means and media now known or hereafter devised (for avoidance of doubt, the rights granted to WinModify hereunder include the rights to make Artist Materials available on WinModify Site(s) and/or third-party websites).

(c) To adapt, change, modify or otherwise alter the Artist Materials (e.g., change the size).

(d) The right to sublicense to any third party the Artist Materials or any part or element thereof subject to the terms and conditions of this Agreement. Artist hereby disclaims any and all right, title, or interest in any and all material with which Artist Materials may be combined or into which all or any portion of Artist Materials may be incorporated. As used in this Agreement, the term "Artist Materials" means Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, liner notes, and other graphical or textual materials that Artist uploads to WinModify, and any and all "skins," computer-generated images or other artwork or images that Artist submits to WinModify.

4. Name and Likeness. Artist hereby grants to WinModify the following:

(i) A worldwide, royalty-free, non-exclusive license to use during the Term Artist's name(s), group name, photograph and/or likeness(es) and biographical materials solely in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Materials and the WinModify Site(s).

(ii) A perpetual, worldwide, royalty-free, nonexclusive license to use Artist's name(s), group name, photograph and/or likeness(es) and biographical materials solely in connection with the promotion and marketing of WinModify and/or the WinModify Site(s). Artist also agrees not to assert any privacy, publicity, moral or similar rights held by Artist (and any other person(s) whose performances are embodied in the Artist Materials) under the laws of the United States of America (USA) and any other country in connection with the exploitation of such materials.

5. Royalty-free License. Unless otherwise agreed between Artist and WinModify in a writing signed by both parties, the license granted to WinModify pursuant to this Agreement shall be royalty-free.

6. Representations and Warranties. Artist agrees upon, represents, and warrants the following:

(a) Artist has the full right and power to enter into and perform this Agreement and to grant WinModify all rights to use the Artist Materials as contemplated in this Agreement.

(b) Artist has secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for Artist to enter into and perform this Agreement and to grant WinModify all rights to use the Artist Materials as contemplated in this Agreement (including, but not limited to, consents and permissions from owners of any elements that are used in the Artist Materials).

(c) The Artist Materials (and WinModify's use thereof as contemplated under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party.

(d) All information that Artist has provided or will provide to WinModify is true and complete.

(e) The Artist Materials do not and will not violate any law, statute, ordinance or regulation.

(f) The Artist Materials do not and will not be defamatory, trade libelous, pornographic or obscene

(g) The Artist Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of WinModify or any third party,

(h) If Artist or any member of Artist's group is a minor, Artist hereby warrants that Artist has the legal right to execute this Agreement on behalf of the minor artist and guarantee such person's performance of the terms of this Agreement.

These warranties shall survive any termination of this Agreement.

7. Third Party Payments. Artist shall be responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Artist Materials.

8. Indemnity. Artist agrees to indemnify, reimburse and hold WinModify and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney's fees, costs and expenses and court costs) arising out of or related to:

(a) Artist's use of the WinModify Site(s);

(b) Any breach or alleged breach of Artist's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions hereof; and

(c) Artist's violation or alleged or threatened violation of any rights of a third party.

9. WinModify’s Performance.

(a) Artist acknowledges and agrees that the operation of the WinModify Site(s) may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and WinModify shall not be responsible to Artist or others for any such interruptions, errors or problems or an outright discontinuance of the WinModify service. There are no assurances whatsoever that any of the Artist Materials or any part or element thereof shall actually be utilized on the WinModify Site(s) or if so utilized continue to be available for any particular time. WinModify has the right, in WinModify's sole and absolute discretion, to remove from the WinModify Site(s) at any time the Artist Materials or any part thereof and/or to revoke any sublicense granted by WinModify to any affiliate or unaffiliated third party. The WinModify Site(s) may be discontinued at any time, with or without reason.

(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WINMODIFY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (1) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE WINMODIFY SITE(S), AND (2) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE WINMODIFY SITE AND ANY SERVICES PROVIDED BY WINMODIFY HEREUNDER. IN ADDITION, ALTHOUGH WINMODIFY INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRSUES OR OTHER DESTRUCTIVE MATERIALS TO THE WINMODIFY SITE(S), AND WHETHER OR NOT WINMODIFY IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, WINMODIFY DOES NOT WARRANT THAT THE WINMODIFY SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE WIMODIFY SITE(S) IS FREE OF VIRUSES, MALWARE, SPYWARE, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.

(c) WINMODIFY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE ARTIST MATERIALS THAT RESULT FROM ARTIST'S MATERIALS BEING AVAILABLE ON THE WINMODIFY SITE(S) OR ANY THIRD-PARTY WEBSITE LICENSED TO USE ARTIST MATERIALS UNDER THE TERMS OF THIS AGREEMENT. ARTIST SHALL BE SOLELY RESPONSIBLE FOR REMOVING ARTIST MATERIALS FROM A SITE OTHER THAN THE WINMODIFY WEBSITE AND ARTIST SHALL SEEK RELIEF FOR SUCH UNAUTHORIZED USE OF ARTIST MATERIALS SOLELY FROM SUCH OFFENDING THIRD-PARTY WEBSITE(S), AND NOT FROM WINMODIFY. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS YOUR ARTIST MATERIALS FROM WINMODIFY (WHETHER OR NOT WITH WINMODIFY'S EXPRESS OR NON-EXPRESS PERMISSION), AND USES THOSE MATERIALS FOR COMMERCIAL GAIN OR IN SOME OTHER WAY THAT YOU DO NOT APPROVE YOU WILL SEEK REDRESS FROM THE OTHER PERSON AND NOT FROM WINMODIFY, AND THAT YOU WILL NOT HOLD US RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.

10. No Liability for Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL WINMODIFY, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF (A) THE USE OR INABILITY TO USE THE WINMODIFY SITE(S), (B) THE RELIANCE ON ANY CONTENT ON OR ACCESSED THORUGH THE WINMODIFY SITE(S), AND/OR (C) ANY GOODS OR SERVICES ADVERTISED ON THE WINMODIFY SITE(S) OR ACCESSED THORUGH THE WINMODIFY SITE(S), EVEN IF WINMODIFY HAS BEEN ADVISED OF THE POSSIBILITY, OR IMMINENCE, OF SUCH DAMAGES.

11. Copyright and Trademark Notices. WinModify, the WinModify logos, and the layout and design of the WinModify Site(s), among other marks that may appear on the WinModify Site(s) are trademarks of WinModify. (the "Marks"). Other trademarks and service Marks on the WinModify Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties in any agreement, written, oral, or verbal) with WinModify. You may not use any of the Marks without WinModify's prior exclusive express permission, and you may not use any third-party marks without the third party's prior exclusive express permission.

12. Miscellaneous.

(a) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE PROVINCE/STATE IN WHICH WINMODIFY RESIDES WITHOUT REGARD TO ITS OR ANY OTHER JURSUDCICTION'S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE COURT LOCATED IN WINMODIFY’S OPERATING REGION (STIPULATED BY WINMODIFY), AND YOU AND WINMODIFY BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SAID COURTS.

(b) Assignment. WinModify shall have the right to assign this Agreement in whole or in part to any person or business entity.

(c) Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to WinModify, the details for which can be obtained using a contact form on the WinModify site(s). Communications shall be deemed received: (i) for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt or refusal as indicated on the return receipt; (ii) for Communications sent by personal delivery, on the date of personal delivery; and (iii) for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt. No other form of notice shall be accepted under this Agreement.

(d) Entire Agreement. This Agreement sets forth the entire understanding and agreement of Artist and WinModify as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.

(e) Modification. This Agreement may be changed only by a writing signed by both parties that specifically refers to the parties' intent to amend this Agreement.

BY CONFIRMING REGISTRATION, I HEREBY INDICATE THAT I HAVE READ AND UNDERSTAND THE POLICY AND UNDERLYING AGREEMENT (“ENTIRE POLICY”), AND AGREE TO BE BOUND BY THE ENTIRE POLICY AND RATIFY MY AGREEMENT TO BE BOUND BY THE TERMS HEREOF WITH RESPECT TO WORK SUBMITTED BY MYSELF IN THE PAST.