This page explains the terms (“Marketplace Terms”) by which you may sell licenses to Assets through the Laughingbird Software Marketplace Service (“Service”) as a Laughingbird Software Marketplace Shop Owner (“Shop Owner”). By creating an account or accessing or using the Service, you (1) agree that you have read, understood, and agree to be bound by the terms and conditions of these Marketplace Terms, together with the Laughingbird Software EULA, Affiliate Program Terms (if applicable), and all License Terms (including the General Licenses and Font Licenses, collectively, “License”), which constitute a binding agreement (“Agreement”) between the person or legal entity named in the sign-up process (referred to as “Shop Owner”, “you”, or “your”) you and Laughingbird Software LLC (referred to as “we”, “us”, “our”, “Laughingbird” or “Laughingbird Software”), and (2) also that you have read and acknowledge the collection and use of your information as set forth in our Privacy Policy (the “Privacy Policy”), whether or not you are a registered user of the Service. If you open a Laughingbird Marketplace Shop on behalf of an organization or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to the Agreement including these Marketplace Terms and that you agree to the Agreement including these Marketplace Terms on the entity’s behalf.
The Parties agree to the following:
This Shop Owner Agreement (the “Shop Owner Agreement”) is entered into as of the date (the “Effective Date“) the party whose name is set forth below (the “Shop Owner“) accepts its terms and conditions by creating an account and is by and between Laughingbird Software (“Laughingbird”), a California Limited Liability Company, and the Shop Owner. The Parties agree to the following:
- Shop Owner Affirmations and Warranties You agree that any Assets you make available on the Service will not violate third-party rights of any kind including, but not limited to, any Intellectual Property Rights or rights of privacy. For the purposes of these Shop Terms, “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. Laughingbird Software reserves the right to ban or remove access to Service if we receive one or more copyright complaints against your listed Assets. You understand that publishing your Assets on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization. You affirm, represent and warrant the following:
- You have the full right, power and authority to enter into this agreement and to fully perform all of your obligations.
- Your Assets and all parts thereof are owned and controlled by you, or licensed to you, and your use of the Service is permitted by applicable law and by all applicable rightsholders. You retain all Intellectual Property Rights to your posted Assets.
- If your Asset consists in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools, and the like that are included in design programs by uploading such Assets to Laughingbird Software, the end user license agreement, terms of service or the equivalent license held by you does allow you to incorporate such elements in the Assets created by you, and to license such Assets to Laughingbird Software.
- If your Assets contain music and/or lyrics, you own or have acquired all rights to use such music and/or lyrics and any sound recording from the owner of the copyright in such music and/or lyrics or sound recording.
- Your Assets and Laughingbird Software’s use as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- To the extent that your Assets contain identifiable third parties or landmark(s), you represent that you have obtained written consent and/or model and property release(s) of those third-parties pictured, to use such third party’s name or likeness and grant Laughingbird Software all of the license rights set forth in the applicable License(s). You also warrant that each such third party has released you from any liability that may arise in relation to such use.
- Laughingbird Software may exercise the rights to your Assets granted under these Shop Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- You will not provide inaccurate, misleading or false information to Laughingbird Software or to any other User. If information provided to Laughingbird Software or another User subsequently becomes inaccurate, misleading or false, you will promptly notify Laughingbird Software of such change.
- You will not use Service to direct Users to other services or sites to purchase Assets.
- By using the Service to sell one or more Assets, you agree to pay Laughingbird Software’s fees for such transaction, assume full responsibility for the content of the Assets offered, and accept that Laughingbird Software cannot guarantee exact listing durations.
- Laughingbird Software may, in its sole discretion, provide you with optional recommendations to consider when creating your listings and may also by default use the recommended prices as the default prices for your Assets. If Laughingbird Software uses the recommended prices as default prices for your Assets, you may opt-out of such default pricing and determine your own prices within your shop settings area. Such recommendations and/or default pricing may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. Your use of pricing recommendations or default pricing is optional, at your own risk, and Laughingbird Software does not warrant that such prices will be most effective for your Assets. You agree that you are not relying on any pricing recommendations from Laughingbird Software.
- You agree to abide by any seller guidelines or policies set forth by Laughingbird Software, including but not limited to the Shop Owner Guidelines.
- License Grant.
- To Laughingbird Software. By posting any Assets on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Laughingbird Software a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Assets and your name, voice, and/or likeness as contained in your Asset, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Laughingbird Software’s business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You affirm that any listed Assets are cleared to be sold under the applicable Licenses listed including the Laughingbird Software EULA and any other applicable licenses.
- To Other Users. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, as permitted through the functionality of the Service and under these Marketplace Terms and applicable License. You grant and/or authorize Laughingbird Software to grant each User of the Service who purchases licenses to your Assets with all the rights, and subject to all the restrictions, described in the applicable License purchased. You should review the Licenses carefully before uploading any Assets.
- Asset Delivery. All Assets must be delivered immediately after purchase, with no barriers to immediate download. Whenever required, all Asset files should be hosted on Laughingbird Software or any hosting provider used by Laughingbird Software to host files. You must not require a Buyer to provide personal information in order to access licensed Assets.
- Resolution Process for Transactions. All parties share the responsibility for making sure that purchases facilitated by our Service are satisfactory and hassle-free. Our Service hosts the resolution process for transactions when Buyers claim that their Asset was not received, or the Asset they received was different from what was described in the product listing. We may take a more active role in ensuring transaction problems are resolved; however, you understand that we are not obligated to do so. You agree to permit us to make a final decision, at our sole discretion, on any disputes. We reserve the right to fix any processing errors we discover by debiting or crediting Shop Owners earned monetary balance.
- Refunds: You understand and agree that Laughingbird Software has no obligation to provide refunds on any licensed Assets, including but not limited to if Laughingbird Software finds that the Asset has been downloaded by the User. You agree that any and all refunds are provided at the sole discretion of Laughingbird Software. You understand and agree to Laughingbird Software’s full Refund policy, which we may change from time to time.
- Payouts & Earnings. Unless otherwise agreed by the parties in writing, Laughingbird Software shall send requested payouts according to published timeframes. Available payout methods are subject to change. Our current payment terms (rates, fees, etc.) may be changed at our sole discretion at any time and such change will apply to all transactions that occur after the published change. Payout requests may only be made if the total amount due to you totals at least $20. Laughingbird Software reserves the right to withhold payment or chargeback to your account any amounts otherwise due to us under these Marketplace Terms, or amounts due to any breach of these Marketplace Terms by you, pending Laughingbird Software’s investigation of such breach. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information, and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any third-party fees related to returned or canceled payments due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment, you must notify Laughingbird Software in writing within thirty (30) days of such payment. Failure to notify Laughingbird Software shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by Laughingbird Software. No other measurements or statistics of any kind shall be accepted by Laughingbird Software or have any effect under these Marketplace Terms. We may withhold any taxes or other amounts from payments due to you as required by law. To protect against the risk of liability, we may request that our payment service provider hold Shop Owner funds based on certain factors, including, but not limited to, selling history, seller performance, the riskiness of the listing category, or the filing of a dispute claim.
- Warranty Disclaimer. LAUGHINGBIRD SOFTWARE’S PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS SET FORTH HEREIN WITH RESPECT TO SHOP OWNER, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ITS PRODUCTS OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. EXCEPT AS SET FORTH HEREIN WITH RESPECT TO SHOP OWNER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY WARRANTS THAT ITS PRODUCTS OR SERVICES WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET THE OTHER PARTY’S OR ANY CUSTOMERS’ REQUIREMENTS OR WILL COMPLY WITH APPLICABLE LAWS.
- Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR FROM ANY DEFECT OR ERROR IN ITS PRODUCTS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CREATIVE MARKET ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS SHOP TERMS EXCEED THE AMOUNTS PAID TO SHOP OWNER UNDER THIS SHOP TERMS.
- General.
- Independent Contractor. Neither Party shall be deemed to be an agent of the other Party for any purpose, and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other Party in any respect whatsoever.
- Governing Law and Jurisdiction. These Marketplace Terms are subject to the governing law, jurisdiction, class action waiver, and other dispute provisions set forth in the Laughingbird Software End User License Agreement (EULA).
- Assignment. Shop Owner shall not assign, delegate, or otherwise transfer its rights or obligations under these Marketplace Terms, by operation of law or otherwise, without the prior written consent of Laughingbird Software. These Marketplace Terms will inure to the benefit of the Parties and their permitted successors and assigns.
- Changes to Shops Terms. We may revise and update these Marketplace Terms from time to time at our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Service thereafter. However, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Service. Your continued use of the Service following the posting of revised Marketplace Terms means that you accept and agree to the changes. You are expected to check this page regularly so you are aware of any changes, as they are binding on you.
- Severability. If any of the provisions of these Marketplace Terms are held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions shall continue in full force and effect.
- Conflicts. In the event of a conflict in terms between these Marketplace Terms, the Laughingbird Software End User License Agreement (EULA), and the Affiliate Program Terms (if applicable), the conflicting provision of these Marketplace Terms shall apply solely with respect to the subject matter of these Marketplace Terms and then only to the extent of the conflict.