I. Introduction & Definitions
TurboSquid welcomes you to the community and hopes that you will be able to earn a satisfying portion of your income through your activities on the Site, and eventually join the many artists that have made this their full-time occupation.
This agreement is intended to be easy to understand, and to provide clarity to you about the requirements and obligations for publishing Stock Media Products on the Site, as well as the rights you authorize TurboSquid to grant to those who Purchase Stock Media Products (“Customers”) for use in the work they create (“Creations”).
Some words in this agreement are given specific meanings. Words that appear initially in quotations, such as “you” and “Creations”, are defined in the text preceding the word. Other capitalized words are defined below:
“Stock Media Product” is the collection of one or more digital files, packaged in the form of a product on the Site that can be identified by a product ID, and that is uploaded by you, or otherwise made available to you, for Purchase on the Site. A Stock Media Product may include 3D models, texture maps, motion captures, photographs, imagery, application and plug-in software, materials and shaders, shapes and vector graphics, training materials, building components, sound effects, stock music, and videos. Additionally, a Stock Media Product may include a number of individual files of different file formats to make it easier for Customers to work in a variety of software applications (such as 3ds Max, Maya, and Cinema 4D), and may also include other files (such as jpeg images used for texturing), and images or other files that are used for promotional purposes. For Customers and their use in Creations, this definition also includes derivative and intermediary files used for that purpose.
“Site” refers to the TurboSquid websites, API’s, software applications or any approved means or utility either currently in existence or in the future; the software and source code used by TurboSquid to provide such services; user interface layouts, designs, images, text, knowledgebase articles, program offers; site information provided in reports (such as popular keyword searches); and all other intellectual property protected under copyright, trademark, patent, publicity, or any other proprietary right.
“Product Page” is the product page or interface that displays the Stock Media Product available for Purchase, typically on the website www.turbosquid.com.
“Product Price” is the price of a Stock Media Product as displayed within the Site’s product management interface.
“Purchase” is the acquisition of a Stock Media Product by a Customer, whether by the purchase of a Stock Media Product made available at a Product Price of greater than $0, or by the download of a Stock Media Product made available at no charge (i.e. a Product Price of $0 that is downloaded for free).
“Customer” is a person who uses the Site to Purchase a Stock Media Product.
“Corporate Customer” is a corporate entity that requires special legal or accounting terms for Purchases that TurboSquid may grant as appropriate after a review by TurboSquid on a case-by-case basis.
“TurboSquid” includes TurboSquid, Inc. and all licensed affiliates and partners that distribute Stock Media Products on behalf of TurboSquid, Inc.
“Intellectual Property” means, copyright, patent, trademark, trade secret, right of publicity, or any other proprietary right throughout the world.
To make reading this agreement easier and less repetitive, the following constructions are used:
“Include,” including,” and “such as” are considered to be followed with “but not limited to.” Examples are used in this agreement to illustrate, rather than limit, the scope of the terms.
“The following restrictions,” “the foregoing restrictions,” and “subject to the restrictions” are considered to be followed with “in addition to all other restrictions applicable within this agreement.”
II. Ownership, Royalties, Withholdings, Payments, and Pricing
1. Ownership. You retain all ownership, title, right, and interest in Stock Media Products, except as expressly licensed to TurboSquid, its Customers, and other licensees as set forth herein.
2. Royalties. After a Purchase that is not reversed for any reason, you are entitled to a percentage royalty of up to 80% of the Product Price (“Royalty Amount”) based on the following formula:
a. Base Royalty: 40%
b. SquidGuild Royalty: An additional percentage of the Product Price that starts at 10% and increases to a maximum level of 20%, based on your qualifications within the SquidGuild Loyalty Program and SquidLevel attained within that program. The Base Royalty plus the SquidGuild Royalty is as follows:
i. Clear Level = 50%
ii. Bronze Level = 51%
iii. Silver Level = 52%
iv. Gold Level = 54%
v. Emerald Level = 56%
vi. Ruby Level = 58%
vii. Diamond Level = 60%
c. Affiliate Royalty. An additional 15% of the Product Price, or 20% for members of the SquidGuild loyalty program, on any Purchase that results from a user session initiated after the Customer clicks an affiliate link appropriately formatted with your Site user name. Please note that the Affiliate Royalty is not granted if the Customer has an active user session already in existence at the time your affiliate link is clicked.
d. Purchase Reversal. If a Purchase is reversed, such as for a Customer return or a fraudulent credit card charge, you acknowledge that subject to the Site’s policies, any Royalty Amount may be reversed on your account by TurboSquid such that no money will be owed to you for that Purchase. In such case, the Customer license to the Stock Media Product is terminated.
e. Other Royalty Rates. TurboSquid may, in its sole discretion, have agreements with other companies to increase Purchases of Stock Media Products. Some companies may require a portion of the Product Price as a commission, and may set pricing levels at rates as negotiated with TurboSquid. TurboSquid provides the ability for you to opt out of participating in any agreement that results in a lower than normal Royalty Amount for you. If a new agreement may result in a lower than normal Royalty Amount for you, TurboSquid will notify you in advance of that fact, and will also provide the ability for you to opt out of participating in the new agreement before Stock Media Products are made available through such agreement.
3. Tax Withholding. If you are not a citizen, permanent resident, or corporate entity of the United States, and your Purchase is by a Customer who is a citizen, permanent resident, or corporate entity of the United States, TurboSquid is required by the United States Internal Revenue Service to withhold some portion of your Royalty Amount for payment to the United States Treasury. In such case, if your country has a tax treaty with the United States, and you have a United States Tax ID number (“TIN”), you may reduce or even eliminate such withholdings depending on the tax treaty rate for your country. If you do not have a TIN, TurboSquid royalty payments will have 30% withheld and paid by TurboSquid to the United States Treasury. You may elect not to be paid until you obtain a TIN if you desire to claim the tax treaty rates. Alternatively, if you are paid by TurboSquid without a TIN, if you receive a TIN you may recover any excess tax payments made the calendar year you received the TIN, and TurboSquid will assist you to recover such tax withholdings. Please see TurboSquid’s Tax Center for more information about Tax Withholding.
4. Purchase and Payment Processing.
a. You authorize TurboSquid to collect money from the Customer and distribute payment amounts to you such as you are entitled, and permit TurboSquid to retain the remainder of the proceeds of your Purchase, and to distribute portions of Purchases to TurboSquid licensees, tax authorities, or other entities as the case requires under: (i) this agreement, (ii) standard Site policies, and (iii) in compliance with legal regulations.
b. Every calendar month by the fifteenth (15) day, or the following business day if the fifteenth occurs on a weekend or holiday, TurboSquid will process your royalty payments according to your account settings. TurboSquid reserves the right to withhold requested payments in the following cases: (i) the amount is below the minimum amount allowed for a monthly royalty payment (as set by standard Site policies), (ii) your payments are on hold because a previous payment to you failed to be received, (iii) you have provided inaccurate payment information, (iv) you have provided a W-8BEN form and it has expired, or (v) there is violation of Site policies that must be reconciled before any payment is made.
c. If TurboSquid discovers and verifies, either on its own or after a notification by you, that you were paid less than your owed Royalty Amount (“Underpayment”), TurboSquid agrees to provide accounting documentation to you and to correct such Underpayment in an expedited manner.
d. If a Purchase is reversed after you have been paid your Royalty Amount, or if for any reason TurboSquid has already paid to you a Royalty Amount in excess of the correct royalty payment for such Purchase (“Overpayment”), you acknowledge that such Overpayment is due from you to TurboSquid, and authorize TurboSquid to deduct from your future payments to settle any Overpayment, and agree to maintain all Stock Media Products on TurboSquid at reasonable and historical Product Prices until such Overpayment is corrected. If you discover or become aware of any Overpayment, you agree to notify TurboSquid of such Overpayment in an expedited manner for each occurrence.
5. Pricing of Stock Media Products.
a. Control: You control the price of Stock Media Products at the time of publishing, and may edit that price at any time thereafter. Such prices will be set in denominations of the United States Dollar.
b. Parameters: TurboSquid may set minimum and maximum price ranges (“Price Parameters”) for Stock Media Products, based on reasons such as the category and complexity of a given Stock Media Product and the cost of certification and product reviews. For example, 3D models of edible fruit may have predetermined available price ranges that are lower than those of more complex 3D models, such as those of military vessels.TurboSquid may set Price Parameters to conform to market norms, based on its sole discretion and whether by algorithm or manual judgment, and is not required to set Price Parameters at any time for any or all Stock Media Products.
c. Tiers: TurboSquid may set price tiers for Stock Media Products to conform pricing to predictable increments. An example of such pricing increments would be to allow you to select a price from a list such as: $99, $149, $199, or $299. For purposes of clarity, this practice allows TurboSquid to avoid the situation where Customers have to decide between unusual pricing between products, such as $123.42 for one product versus $126.87 for another.
d. Currency: TurboSquid may sell Stock Media Products denominated in any foreign currency, at pricing that is either above or below the current exchange rates of that currency to the United States Dollar. TurboSquid will set such pricing in its sole judgment to optimize for pricing stability in foreign currencies, round prices to pre-determined incremental tiers in that particular currency, and reduce the risk of currency losses when exchange rates fluctuate. In all such cases, TurboSquid will pay you the entitled royalty as if the Purchase had been originally denominated in United States Dollars and assume all losses or gains due to Purchases in foreign currency.
III. License Grants
License Grant to TurboSquid . In all media now in existence or that may in the future be introduced, you authorize TurboSquid to do the following:
1. License to Customers. To distribute and grant worldwide, irrevocable and perpetual license rights in Stock Media Products to Customers, according to the following license options:
a. Royalty Free License: To fulfill the license grant terms detailed in the Royalty Free License, as made publicly available on the Site and incorporated herein by reference.
b. Corporate License: To negotiate an individual agreement and license grant in Stock Media Products for qualified Corporate Customers who require individualized agreements, procurement processes, or special indemnities and guarantees. TurboSquid will remit the normal Royalty Amount entitled to you for each Purchase of a Stock Media Product under such license, and will make commercially reasonable efforts to retain the terms of the Royalty Free License in such negotiations. You understand such agreements are confidential to Corporate Customers and will not be disclosed to you.
c. New Uses: While TurboSquid has tried to explicitly allow or prohibit every known type of Creation by a Customer in the Royalty Free License, Customers may request approval for a Creation that is not explicitly described (“New Use”), for example a Creation in a new medium not yet invented. You authorize TurboSquid to decide whether to allow the New Use, determined in TurboSquid’s reasonable discretion that the New Use will not diminish your future Royalty Amounts and is reasonably or conceptually similar to existing uses. TurboSquid will notify you on each case that a New Use was authorized for a given Customer, and may not notify you in advance of a Purchase for a New Use. If you inform TurboSquid that you object to the New Use, TurboSquid will note your objection for your account and will not approve the New Use again for your Stock Media Products. You acknowledge that the New Use may be added to the Royalty Free License in the future, whether to allow or prohibit the New Use, and that if the New Use is allowed in the Royalty Free License, this will apply to your Stock Media Products and supersede your previous objection. You hereby fully release TurboSquid from any liability associated with its decisions based on any New Use.
2. License Promotional Images. To license to Customers, as part of a Purchase, the images that are included as preview images in the Stock Media Product, when the following conditions are met: (i) the Stock Media Product is of the 3D model type, (ii) the images could have been reasonably replicated with the Stock Media Product, (iii) the images include no additional elements other than personal branding that is easily cropped out of the image, and (iv) the images include no attributions. For purposes of clarity, less experienced Customers occasionally ask to purchase preview images of 3D models, and this section enables such use after a Purchase by the Customer, however it would not if such a preview image has an additional element like a stock photograph in the background. Further, in this case, the Customer would have the rights to the 3D model as well because it was a Purchase, although the Customer might never actually download the 3D model itself and only the promotional images.
3. Re-license Customer After License Transfer. To process additional Purchases to a past Customer of a Stock Media Product that is no longer available on the Site if the following conditions are met: (i) there was a past Purchase of the Stock Media Product to the Customer, (ii) the Customer does not require digital files, only an additional license, and (iii) the Customer transferred the original license to another party (such as a client of the Customer), and the Customer requires another license to the Stock Media Product to be legally compliant, and (iv) the Stock Media Product is not software sold under a Custom License. For any such case (“Re-License”), the Purchase will be under the same license terms and Product Price as at the time of the Customer’s most recent purchase of the Stock Media Product. TurboSquid will notify you of such Re-License and waive any commissions to TurboSquid, but will retain amounts otherwise required for taxes and similar obligations. This right survives termination of this agreement, and in the case of a Re-License after termination of this agreement, TurboSquid will notify you of the Re-License, and facilitate your payment using the Royalty Amount you were entitled to at the time of termination. Subject to the exception under this section, your removal of any Stock Media Product from the Site extinguishes TurboSquid’s right to grant licenses to such Stock Media Product.
4. Trial Basis Use. To grant Corporate Customers access to Stock Media Products without cost (“Trial Basis Use”) where they may test Stock Media Products for suitability in their Creations. For Trial Basis Use, a Purchase is required before any commercial use, and Corporate Customers must account for Trial Basis Use on a timely basis. Any instances of Trial Basis Use, should they occur, will be indicated to you within the Site’s interface, including the state of the Trial Basis Use and whether it resulted in a Purchase. In your account settings, you may opt out of Trial Basis use.
5. General TurboSquid Use and Stock Media Product Maintenance. TurboSquid may:
a. Use Stock Media Products for the benefit of TurboSquid’s business, including: (i) to market, promote, publicly perform, publicly display, digitally perform; (ii) use any trademarks, service marks or trade names incorporated in connection with Stock Media Products, and (iii) to incorporate Stock Media Products into various parts of the the Site’s user interface (such as category icons).
b. Provide Customer support, including (i) downloading files within Stock Media Products to perform compatibility checks, (ii) performing file format conversions, and (iii) after a Purchase, performing various artistic or technical services for Customers for free or for a fee, as TurboSquid deems appropriate based on the nature of the services requested by Customers. Please note that if you aid TurboSquid in providing Customer support, TurboSquid will charge no fee associated with your Customer support efforts.
c. Remove, in TurboSquid’s sole discretion, any damaged files from Stock Media Products without removing the entire Stock Media Product. For example, if a particular file format is technically flawed, that file format may be removed without suspending the entire Stock Media Product.
d. Add additional file formats to your Stock Media Products that may be created in the normal course of business, such as in performing Customer support. These files may be added by TurboSquid to Stock Media Products provided that: (i) TurboSquid claims no derivate ownership of such files, (ii) that you are free to download and use these files without restriction, and (iii) that you may request TurboSquid refrain from adding such files to Stock Media Products in the future.
e. Update metadata for Stock Media Products, including processing and modify images.
f. Refuse any Stock Media Products for distribution on the Site. For any reason in its sole discretion, TurboSquid may deny, reject, and remove Stock Media Products from the Site.
6. 3D Industry Promotion. To license Stock Media Products without cost to 3D software and hardware companies for internal testing and development of their products, and for the promotion of such 3D software and hardware products (“3D Industry Promotion”). This licensing does not include distribution of Stock Media Products, and such use will be indicated within the Site as a “3D Industry Promotion”. In your account settings, you may opt out of 3D Industry Promotion use.
You covenant, represent, and warrant that:
1. You have authority to enter into and perform this agreement, to sell Stock Media Products under this agreement, that all Stock Media Products are your original work and contain no intellectual property or other rights of any kind that you are not the exclusive owner of (unless you have secured any third-party consents needed to do so in writing), and that prior to publishing Stock Media Products had an opportunity to seek independent legal counsel.
2. Your Stock Media Products do not and will not infringe on any third party’s copyright, trademark, trade dress, patent, trade secret, right of publicity, right of privacy, moral right, or any other proprietary right, and that you will not remove any notice of any such right.
3. Your Stock Media Products are not and will not be defamatory, pornographic, obscene, libelous, and does not further racial hatred.
4. Your Stock Media Products do not and will not violate any statute, law, regulation, or ordinance.
5. Your Stock Media Products do not and will not contain any computer viruses or other malicious software.
6. You will read and comply with the Site’s publishing policies and general requirements that are made available to you, including: (i) you will represent all facts about Stock Media Products accurately and truthfully, without deception, including the descriptions and other metadata related to your products, and (ii) you will use keyword tags and categorization only as they are legitimately related to your product, and not “spam” or attempt to alter search results to cause Stock Media Products to display when they are not relevant. An example of such prohibited behavior is to publish a Stock Media Product that is a “banana” and add tags or description appropriate for “oranges” such that a Customer searching for oranges might see the Stock Media Product of a banana.
7. You will provide accurate, complete, and valid member information, including contact and payment information.
8. You will notify TurboSquid if you become aware or suspect any unauthorized use of Stock Media Products by a Customer before contacting the Customer, either by contacting TurboSquid support or sending an email to email@example.com. You agree to submit to the Limited Arbitration rules set out in the Royalty Free License.
9. You will execute and provide written or electronic documents to TurboSquid, upon TurboSquid’s reasonable request, to reflect TurboSquid’s rights under this agreement.
10. You will not engage with TurboSquid Customers directly or use metadata, product files, or any other mechanism for such purposes. If you are contacted directly by a Customer, you must refer the Customer to the TurboSquid Site.
V. Limitation of Liability
1. To the fullest extent permitted by law, TurboSquid shall not be liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including loss of business, revenue, profits, goodwill, use, data, electronically transmitted orders, or other economic advantage) arising out of or in connection with Stock Media Products, even if TurboSquid has previously been advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract or in tort (including negligence). To the extent that any jurisdiction does not allow the exclusion or limitation of direct, incidental, or consequential damages, portions of the preceding limitation or exclusion may not apply, but should be construed to the greatest extent applicable in such jurisdictions.
2. You agree to indemnify and hold TurboSquid and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, licensee, suppliers, alliance members, other partners, employees and representatives (“TurboSquid Parties”) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of Stock Media Products, Creations, or otherwise caused by or related to your use of the Site.
3. TurboSquid implements and maintains business practices to accurately categorize Stock Media Products and otherwise process any and all metadata related to Stock Media Products. If TurboSquid makes any error in processing, handling, or other managing of Stock Media Products, your sole and exclusive remedy will be for TurboSquid to take all reasonable steps to promptly correct the error as soon as TurboSquid becomes aware of the error.
4. In any event, TurboSquid’s total maximum aggregate liability under this agreement or in respect to the use or exploitation of any Stock Media Products shall be limited to the lesser of the fees collected by TurboSquid for the Stock Media Products giving rise to the claim or one thousand United States dollars ($1,000). Some jurisdictions do not allow for the limitation or exclusion of liability set forth herein, and in those jurisdictions, TurboSquid shall be entitled to the greatest limitation of liability permissible by law.
VI. License Term and Termination
Termination and Consequences of Termination . This agreement may be terminated by closing your account on the Site by TurboSquid Support, and removing your Stock Media Products from the Site in accordance with other commitments and agreements (such as the SquidGuild Agreement and CheckMate Agreement). TurboSquid can terminate this agreement and your account for a violation of this agreement or any other agreement incorporated by reference, including the TurboSquid policies as judged by TurboSquid in its reasonable discretion.
This Publishing Agreement is in effect as of December 12, 2013.