Terms of Use And Asset License
Last updated: June 13, 2017
The Chopchopchop Marketplace is owned and operated by Chopchopchop, a company under Dutch law, (chamber of commerce no. 55189385, with its business address at Isolatorweg 36, 1014AS in Amsterdam, Netherlands. (Chopchopchop)
These Terms of Use of use apply between Chopchopchop ( we / us / our ) and any visitor or User of the Website ( you/your ) and govern all related agreements and legal relations between us and you, including your use of the Website, your Account and the Marketplace.
1. Definitions
In these Terms of Use, the words listed below have the meaning as set out below, regardless of whether they are used in the singular or plural:
1.1. Account: your Account for the Website
1.2. Assets: software and software development kits for the development of interactive media uploaded to and distributed via the Marketplace.
1.3. Asset License: the license and conditions included in Annex 1 to these Terms of Use
1.4. Intellectual Property: any and all intellectual and industrial property rights and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights in respect of knowhow and performances on par with such rights.
1.5. Publisher: User with a Publisher Account on the Website, who may upload and distribute Assets through the Marketplace.
1.6. Purchase Agreement: the license agreement that is concluded through the Marketplace between the Publisher on the one hand and the User on the other, with respect to a particular Asset and subject to the Asset License.
1.7. Purchase Price: the price the Publisher indicates for its Asset on the Website.
1.8. Marketplace: the digital environment and online platform on the Website via which Publishers can upload and distribute Assets, and Users can purchase and download these Assets from the Publishers.
1.9. Services: the Services available on the Website, including but not limited to the Account and the Marketplace.
1.10. Terms of Use: these General Terms of Use.
1.11. User: the individual, company or other organisation having an Account, including both regular Users and Publishers, also referred to as you/your.
1.12. User Agreement: agreement between User and Chopchopchop for the use of Services, to which these Terms of Use apply.
1.13. User Materials: any files, text, images, videos or other materials a User may upload or otherwise insert or include on the Website, including reviews, comments, and – where Publishers are concerned – Assets, descriptions and previews thereof.
1.14. Website: www.chopchopchop.org, including all subdomains thereof, Accounts, Marketplace and other Services, contents, and underlying software.
2. Creating an Account
2.1. You can create your Account by following the indicated steps on the Website. When you have finalised this process we will send an activation mail to your e-mail address. Upon activation your User Agreement for the Account comes into effect, we will send you a confirmation mail and you can start using your Account and the related Services. The confirmation mail is a copy of your User agreement with us. We also keep a copy in our administration.
2.2. To create an Account you must be 18 years of age or older and have the legal capacity to enter into agreements. By creating an Account, you warrant that you are in fact 18 years of age or older and have the legal capacity to enter into agreements.
3. Purchase an Asset
3.1. When you are logged into your Account, you can purchase and download an Asset following the indicated steps.
3.2. If you purchase an Asset, you purchase it from the Publisher, not from us. Chopchopchop plays only a facilitating and supporting role, by offering a Marketplace and supplementary Services. We have no control over the quality, safety, lawfulness or correctness of the Assets that are offered, the Publishers’ authority to distribute and license Assets, or the authority or ability of Users to purchase Assets.
3.3. The Publisher of the Asset is fully and exclusively responsible and liable for (i) the Asset, its description and previews; and (ii) for providing the correct and complete required information in relation to himself and the Asset.
3.4. When you complete a purchase via the Website, a Purchase Agreement comes into effect between you and the Asset’s Publisher. You will receive an e-mail confirming your purchase. Each confirmation mail is a copy of the Purchase Agreement for the relevant Asset. We also keep copies of these agreements, and the Publisher is expected to do so as well.
3.5. You will pay the Purchase Price to/through Chopchopchop, using the payment
method indicated on the Website’s payment page.
3.6. You accept that Chopchopchop may draw up and send invoices on behalf of the Publisher
insofar as it is mandatory to issue invoices.
3.7. You accept that when you obtain and download an Asset from the Website (whether paid or unpaid), your use of this Asset will be subject solely to the Purchase Agreement and the Asset License.
3.8. Some components of Assets may also be governed by applicable open source software licenses. You acknowledge and accept that in the event of a conflict between the Terms of Use, the applicable Purchase Agreement and any open source such licenses, the open source software licenses will generally prevail with respect to those components.
3.9. Your Purchase Agreement and the applicable Asset License are autonomous agreements between you and the Publisher. These agreements are not ancillary to or dependent of the User Agreement or other agreements between you and Chopchopchop, related to your use of the Website.
3.10. Notwithstanding any other provision stipulated in these Terms of Use, the User
acknowledges and accepts that the Intellectual Property in the Assets does not belong to Chopchopchop, but to the Publisher and/or its licensors.
3.11. From time to time, we may discover an Asset on our Marketplace that violates Intellectual Property, legal agreements with us or others, laws, regulations or policies. You agree that in such an instance we retain the right at our sole discretion to demand that such Asset is removed from any computer or other equipment under your control and you agree to promptly comply with such demand.
4. Are you a consumer?
4.1. Please take into account that you will nevertheless not have the consumer’s right of withdrawal when you have purchased and downloaded an Asset, in view of the exception to this right for digital content which is not supplied on a tangible medium. When you purchase and download the Asset, you give your prior express consent to begin this performance and you acknowledge that you thereby lose your right of withdrawal.
4.2. Please be reminded that there is a legal guarantee of conformity for goods, which means that the Asset you download must be in conformity with the Publisher’s Asset description in the Marketplace, and must have the characteristics that based on the Purchase Agreement and the Asset description you would reasonably expect. This includes the characteristics necessary for the regular and agreed use of the Asset, where upon the purchase there was no reason for you to have any doubts as to the presence of these characteristics.
5. Fees and payments
5.1. Applicable fees and accepted payment methods are specified on the Website.
5.2. Purchase Prices are non-refundable and purchases cannot be annulled.
5.3. Notwithstanding the fact that Chopchopchop is not a party to the Purchase Agreement, you will pay the Purchase Price to Chopchopchop. We receive and accept the Purchase Price on behalf of the Publisher. Upon your payment of the Purchase Price to us, your payment obligation to the Publisher for the Asset is extinguished, and we are responsible for remitting the Purchase Price (less any applicable fees) to the Publisher. In the event that we do not remit these amounts, such Publisher will have recourse only against Chopchopchop.
5.4. Payments take place via a secured payment environment of a third party, such as a credit card company. Chopchopchop has no influence on that and is therefore not responsible or accountable for the use or inability to use this payment environment.
5.5. You agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with your use of the Chopchopchop Marketplace and the purchase of Assets through it. The reporting and payment of any such applicable taxes are your responsibility.
5.6. In accepting appointment for receiving and accepting the Purchase Price on behalf of the Publisher, Chopchopchop assumes no liability for any acts or omissions of the Publisher.
6. Reviews and comments
6.1. Users can review Assets purchased on the Website and publish their reviews and comments on the Website. While these reviews and comments should be honest and may also address negative aspects of an Asset or Publisher, Users must draft their reviews and comments in an objective manner, including only information relevant for the Marketplace and its Users. All Users must remain respectful and refrain from using insulting language or images.
7. User Material
7.1. The User acknowledges and accepts that (i) he is fully responsible and accountable for his own User Material; that (ii) User Material is not checked and/or reviewed by Chopchopchop; and that (iii) Chopchopchop is not liable for any User Material.
7.2. By placing User Material on the Website, each User warrants that: (i) he is authorised and entitled to do so, and to provide the related license as given under these Terms of Use (see: Intellectual Property); that (ii) such User Material does not violate any laws or regulations, these Terms of Use, nor any rights of others, including rights from agreement, Intellectual Property, privacy rights or is otherwise unlawful towards other Users, third parties or Chopchopchop; and (iii) that Chopchopchop will not be obliged to perform any payment, tax, levy or deduction of any nature whatsoever to anyone as a result thereof, including third parties whose work, model, brand or performance is included in the User Material, including to collective rights organisations.
7.3. You acknowledge and accept that your User Material can be viewed and used by other Users. All Users must limit this use to the license given under these Terms of Use. However, Chopchopchop cannot guarantee that all Users will indeed stay within the limits of these Terms of Use.
7.4. Chopchopchop retains the right to remove User Material from the Website, to shorten it or otherwise change it if it sees reason to do so, without notice and without incurring any liability in relation thereto.
7.5. If you are of the opinion that certain User Material is unlawful, you can report this to Chopchopchop.
7.6. With regard to allegedly infringing or otherwise unlawful (i) User Material or (ii) use of User Material, Chopchopchop is entitled but not obliged to take (legal) measures, including – but not limited to – providing the relevant User’s personal data to third parties.
8. Using the Website
8.1. You accept that the Website contains only the functionalities and other characteristics that you find at the time of use (‘as-is basis’); and that the content and functionalities of the Website may change from time to time.
8.2. Whenever you use the Website, you will make sure that your use – including your downloading, installation, or use of any Assets – is (i) in line with applicable laws, regulations and licenses; and (ii) does not infringe any Intellectual Property or other rights or cause damage in any way. It is also your responsibility to use a secure device and internet connection when using the Website.
8.3. Whenever you are requested to provide details on the Website (e.g. for creating an Account) you shall provide such details correctly and accurately. If you have an Account you shall keep your Account details up to date. You shall also choose a safe password and maintain its secrecy.
8.4. Use of the Services is limited to the User that signed up for the Account. If you have a reason to believe that others may have access to your Account, you must inform us immediately and change your password.
8.5. All use of the Website is for your own risk, account and responsibility.
9. Prohibited use
9.1. You shall refrain from activities outside of the normal and intended use of the Website, such as activities that may disrupt or damage the Website, its integrity or functioning; or reverse engineering of any Website element or Asset.
9.2. You will refrain from any processing of personal data of other Users outside of the regular use of the Marketplace. Such irregular and forbidden use of User data includes but is not limited to adding Users to a mailing list without their permission or approaching them for such at your own initiative; as well as any other form of unsolicited communications to other Users.
9.3. You are not allowed to use the Website to directly or indirectly develop competing products and/or services and you will not be allowed to resell or resupply any part of the Services – other than the Assets within the limits of the applicable Asset License – nor to use the Website on behalf of any third party.
10. Indemnity
10.1. You will indemnify Chopchopchop against each loss, liability and cost arising out of any claim of infringement of Intellectual Property or other rights, as well as other third-party causes of action including enforcement actions by competent authorities, where such claim or cause of actions follows from your use of the Website.
10.2. This obligation to indemnify applies for Chopchopchop as well as its management, directors, employees, representatives and legal successors.
11. Closing your Account
11.1. You may close your Account at any moment and without giving a reason, by clicking on the ‘close Account’ button within the Account.
11.2. When you have successfully closed the Account, we will send a confirmation thereof and close and delete the Account. In case of outstanding payments, we will postpone the closing of the Account until all payments have been settled.
11.3. Chopchopchop can close an Account with a notice period of three months, for any reason and without the obligation to give such reason. If a User does not comply with the User Agreement or these Terms of Use, we can close its Account with immediate effect. Our notice for closing an Account is sent via e-mail.
11.4. Closing an Account will result in termination (‘opzegging’ under Dutch law) of the related User Agreement between you and Chopchopchop. This termination comes into effect on the moment of deletion of the Account. After such termination, all provisions that by nature have post-contractual effect will remain in effect. These Terms of Use will also remain applicable to any other use of the Website (without an Account).
11.5. An Account and related User Agreement will remain in effect until the Account is closed in accordance with these Terms of Use.
11.6. Chopchopchop will in no way be liable for compensation or otherwise for the closing of an Account based on this provision.
11.7. The closing of your Account does not affect the Purchase Agreement between you and the Publisher and the applicable Asset License. The Purchase Agreement and Asset License remain in effect or are terminated subject to their own conditions.
12. Third parties
12.1. Apart from the Publishers, we may also work with other third parties (suppliers) in the provision of the Website.
12.2. The Website may furthermore contain links to websites of third parties. Such links are suggestions only. We have no influence on such third party websites and are not responsible or liable for what happens on such third party websites. Your visit and use of such website will be governed by that website’s own terms and conditions. We recommend you study the legal documents of such third party websites.
13. Intellectual Property
13.1. All Intellectual Property on the Website (including but not limited to content and underlying software) will at all times remain with us or our licensors. Where User Materials are concerned, the respective Users qualify as our licensors referred to here.
13.2. All Intellectual Property in the Asset remains with the Publisher and / or its licensors. No transfer of Intellectual Property takes place by downloading Assets from the Platform.
13.3. Users will have a non-exclusive and non-transferable license to use the Website in line with their User Agreement, these Terms of Use and the intended use as follows from the Website, the relevant Services and their context.
13.4. As a User, you license and allow Chopchopchop to publish and make available your details and User Materials on the Website, in line with your use of the Website and Services. You further license the other Users to use this User Materials as follows from these Terms of Use and from the nature and intended use of the Website and the relevant Services. This means that, for example, a regular User allows Chopchopchop to share his details with a Publisher of whom the User purchases an Asset; and to show his reviews and comments in the designated Website areas together with his Username. Other Users on their turn are allowed to use these reviews in the context of their own use of the Marketplace.
13.5. If you are using the Website in a professional capacity, you permit Chopchopchop to use your trademarks and tradename to publish or otherwise provide overviews and examples of (some of) its Users, for promotional purposes.
14. Availability
14.1. While we strive for maximum availability and functionality, we cannot guarantee that the Website will always be available and work perfectly. Unavailability or errors can for example occur as a result of Website maintenance, failures in the internet or telephone connection, viruses or faults/defects. We exclude liability for such unavailability or any failures, but we appreciate all your related feedback.
15. Liability
15.1. We exclude all liability for any (i) loss of: profits (whether actual or anticipated); revenue; anticipated savings; business; opportunity; or goodwill; or (ii) any indirect, special or consequential loss or damage howsoever caused, whether or not aforementioned losses or damages were foreseen, direct, indirect foreseeable, known or otherwise.
15.2. Subject to the above, our total aggregate liability arising out of or in connection with the Website (whether for tort, breach of agreement, breach of statutory duty or otherwise) will in no event exceed the amount of Chopchopchop’s revenue related to your purchase in the past six months of Assets relating to the dispute.
15.3. To the extent all or some portion of the exclusion or limitation of liability is not valid under applicable law, liability is limited to the greatest extent permitted by applicable law.
16. Disputes
16.1. Please report any complaints and disputes with another User (Publisher or other) to Chopchopchop as quickly as possible. The Users must resolve disputes between themselves, however if necessary Chopchopchop will undertake reasonable efforts to mediate between Users.
16.2. If a Publisher and User are unable to agree on a solution and Chopchopchop still holds the Purchase Price, the Publisher and the User hereby accept that Chopchopchop will have the final right to decide whether the Purchase Price will be refunded to the User or will be paid on to the Publisher.
16.3. In the event of an imminent dispute between Users, in order to secure its own rights and those of others, Chopchopchop will be entitled at all times (i) to suspend any payments to the Users in question or (ii) to freeze any of their balances, if they are not consumers, and if we consider this necessary. This provision does not in any way limit the statutory suspension rights that we have towards our Users.
16.4. Chopchopchop is not a party to disputes as referred to above, and will not be liable to compensate any damage or pay any other compensation to any involved User.
17. Applicable law and competent court
17.1. Dutch law applies to these Terms of Use, your use of the Website and any related agreement between you and Chopchopchop.
17.2. The Website, these Terms of Use, the User Agreements and Purchase Agreements are only available in English.
17.3. Any dispute with Chopchopchop in relation to the Website and User Agreements, which cannot be solved amicably, will be exclusively submitted to the competent court in Amsterdam. If you use the Website as a consumer, such conflict will be submitted to the competent court according to Dutch law.
17.4. Notwithstanding the above, you agree and accept that Chopchopchop shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
18. Amendments and severability
18.1. We are entitled to amend or supplement the Terms of Use from time to time. The most up-to-date version of the Terms of Use can be found on the Website or will be brought to Users’ attention when using a Service. In the event that an amendment or addition will significantly affect Users’ rights or obligations, we will notify the Users by email or we will clearly display the changes on the Website.
18.2. If the User continues to use the Website after the Terms of Use have been amended or supplemented, the User thereby irrevocably accepts the amended or supplemented Terms of Use. In the event that the User does not wish to accept the amended or supplemented Terms of Use, the User’s only option is to close his Account and stop using the Website.
18.3. If any provision of the User Agreement or these Terms of Use is held to be void or invalid under any applicable laws or regulations, that invalidity will not affect the rest of the User Agreement or Terms of Use, which will remain valid and enforceable. Chopchopchop is entitled to replace the void and/or invalid part (with regard to the specific User or specific situation) by provisions that are valid and of which the legal consequences, in view of the contents and object of these Terms of Use, are in line with the invalid part as much as possible.
19. Contact
19.1. You can reach Chopchopchop by e-mail on support AT chopchopchop.org.
19.2. We welcome any feedback on the Website, but cannot promise that we implement all your suggestions.
19.3. Whenever we send you an e-mail, we will use the e-mail address as registered in your Account data on that moment.
ANNEX 1
ASSET LICENSE
This Asset License and its conditions apply to the Purchase Agreement between the User and the Publisher relating to a specific Asset, as referred to in the Purchase Agreement.
1 Definitions
1.1. Words that are ‘capitalised’ in this Asset License have the meaning as defined in the Chopchopchop General User Terms or here below.
1.2. Project: the User’s own project incorporating the Asset as a component or building block.
1.3. The User, Publisher and Asset here refer to the specific User; Publisher; and Asset referred to in the Purchase Agreement.
2 License
1.4. Publisher grants the User a license to use the purchased Asset as a component of or building block for creating its own Project. The User may provide its Project as an end-product to its own customer(s) and license them to use the Project as part of their event, website or otherwise.
1.5. Aforementioned license is non- exclusive, worldwide and for any medium. The license includes the right to: (a) reproduce the Asset to create a Project; and to (b) reproduce, post, promote, license, publicly perform, publicly display, digitally perform, or transmit the Asset as part of the Project for personal, promotional and commercial purposes; (c) within this context use the name and likeness of any individuals represented in the Asset; and (d) use any trademarks, service marks or trade names incorporated in the Asset to indicate the author and/or origin of the Asset.
1.6. User is explicitly not allowed to sell or sublicense the Asset ‘as such’ to third parties, nor as (part of) a tool for third parties to create TouchDesigner projects and/or visual creations.
3 Termination
3.7. This license will remain in effect indefinitely, until terminated pursuant to the following. If either User or Publisher terminates the Purchase Agreement, this license will be automatically terminated.