TERMS OF USE
THIS AGREEMENT GOVERNS YOUR USE OF THE PHOMUS WEBSITE. TO LEARN ABOUT USAGE RIGHTS FOR OUR ROYALTY-FREE CONTENT, PLEASE READ OUR CONTENT LICENSE AGREEMENT.
This Web site is owned and operated by phomus (“phomus”). Access and use of this Web site is provided by phomus to you on condition that you accept these Terms of Use, and by accessing or using this Web site, you agree to these Terms of Use. If you do not agree to accept and abide by these Terms of Use you should not access or use this Web site.
phomus may revise and update these Terms of Use at anytime and without notice. You are cautioned to review the Terms of Use posted on the Web site periodically. Your continued access or use of this Web site after any such changes are posted will constitute your acceptance of these changes.
You may not interfere with the security of, or otherwise abuse this Web site or any system resources, services or networks connected to or accessible through this Web site. You may only use this Web site for lawful purposes.
Intellectual Property
All materials (including the organization and presentation of such material) on this Web site (the “Materials”) are the property of phomus and its licensors and may be protected by intellectual property laws including laws relating to copyrights, trade-marks, trade-names, internet domain names, and other similar rights.
Unless you have entered into a separate agreement with phomus, such as a Royalty Free License Agreement, any other use of these Materials without phomus's written permission is prohibited.
The Materials may only be used and copied for your own, non-commercial, personal or educational purposes, provided that the Materials are not modified and that copyright and other intellectual property notices are not deleted. You may not create derivative works from or otherwise exploit the Materials in any way.
2009phomus. All rights reserved.
Privacy
phomus is committed to respecting the privacy of the personal information of the individuals with whom we interact. We have developed a Website Privacy Commitment to describe our privacy policies and practices and how we collect, use and disclose the personal information of those individuals who visit our website
Currency of Web site
phomus updates the information on this Web site regularly. However, phomus cannot guarantee or accept any responsibility or liability for the accuracy, currency or completeness of the information on this Web site. phomus may revise, supplement or delete information, services and/or the resources contained in the Web site and reserves the right to make such changes without prior notification to past, current or prospective visitors.
Linked Web sites
This Web site may provide links to third party Web sites for your convenience only. The inclusion of these links does not imply that phomus monitors or endorses these Web sites. phomus does not accept any responsibility for such Web sites. phomus shall not be responsible or liable, directly or indirectly, for any damage or loss, caused or alleged to be caused by or in connection with the use of or the reliance upon any information, content, goods or services available on or through any third party Web sites or linked resources.
Internet software or computer viruses
Due to technical difficulties with the Internet, Internet software or transmission problems could produce inaccurate or incomplete copies of information contained on this Web site. Computer viruses or other destructive programs may also be inadvertently downloaded from this Web site.
phomus shall not be responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your access to, use of, or browsing on this Web site or your downloading of any of the Materials from this Web site. phomus recommends that you install appropriate anti-virus or other protective software.
Web Site and Materials Provided "As Is"
THIS WEB SITE AND THE MATERIALS ARE PROVIDED "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PHOMUS DOES NOT REPRESENT OR WARRANT THAT THIS WEB SITE OR THE MATERIALS WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
Limitation of Liability
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THIS WEB SITE AND THE MATERIALS INCLUDING WITHOUT LIMITATION ANY OF THE INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL PHOMUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THESE TERMS OF USE, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THIS WEB SITE, THE MATERIALS OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS OF USE OR THE USE OR EXPLOITATION OF ANY OR ALL PART OF THIS WEB SITE OR THE MATERIALS IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO FIVE ($5.00) CANADIAN DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Indemnification
You agree to indemnify and hold phomus harmless against all claims or liability asserted against phomus arising out of or in connection with any breach by you or anyone acting on your behalf of any of these Terms of Use.
Notice and Procedure for Making Claims of Infringement
phomus LP respects the copyright of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide phomus with a n email communication addressed to our President including substantially the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Web site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Please address your email to our CEO, as follows:
phomus
info@phomus.com

Attention: CEO
Email
Feel free to email phomus at info@phomus.com. However, the Internet is not a fully secure medium and any communication may be lost, intercepted or altered. phomus is not liable for any damages related to communications to or from this Web site. You agree with respect to any information provided by you to us through this Web site or via e-mail that:
• phomus has no obligation concerning such information;
• the information is non-confidential;
• phomus may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose without compensation; and
• the information is truthful and disclosure of the information does not violate the legal rights of others.
Applicable law
This Web site is controlled, operated and administered by phomus from within the United Kingdom. This Web site can be accessed from all provinces and territories of the United Kingdom, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the United Kingdom, by accessing this Web site, you acknowledge and agree that all matters relating to access to, or use of this Web site shall be governed by the laws of the United Kingdom and the federal laws of the United Kingdom applicable therein (without reference to conflicts of laws principles).
You also agree that any claims or disputes whatsoever arising hereunder shall be submitted to the exclusive jurisdiction and venue of the courts of the United Kingdom and acknowledge that you do so voluntarily.
General
phomus’s failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right.
If any provision or part thereof of these Terms of Use is wholly or partially unenforceable the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place thereof an enforceable provision or provisions, or part thereof, that as nearly as possible reflects the terms of the unenforceable provision or part thereof.
The parties have requested that these Terms of Use and all documents relating thereto be drawn up in English.
Contact
If you have concerns relating to this web site or these Terms of Use, please contact phomus at info@phomus.com

ARTIST'S SUPPLY AGREEMENT (NON-EXCLUSIVE)
This Agreement governs the terms by which photographers or other artists provide photographic and other media content to members of the phomus.com community, on a non-exclusive basis through the web site located at www.phomus.com (the “Site This Artist's Supply Agreement is in addition to the Terms of Use applicable to the Site and to the Membership Agreement that all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement, the Membership Agreement and the Terms of Use, the terms of this Agreement shall govern.
1. Background of Agreement
a. This is a legal agreement between any member intending to upload data or materials onto the Site (in this agreement referred to as “you” or the “Supplier”) and phomus (“phomus”) operator of the Site. The Supplier wishes to appoint phomus as its non-exclusive agent to license and distribute Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement and phomus's form of content license agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the “Content License Agreement”). For the purposes of this Agreement, “Content License Agreement” shall be deemed to include all of the Extended License options and provisions to which Supplier has opted-in using the administrative tools relating to his or her account profile on the Site.
b. Upon accepting the terms of this Agreement, you may make Content available to phomus by following the “Upload” procedures and policies identified on the relevant portion of the Site. Each upload of Content will be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each upload.
c. This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By ticking the correct box at the end of this Agreement and typing “I agree”, you thereby agree to be bound by the terms of this Agreement. We encourage you to print a copy of the Agreement for your records.
d. This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under “Term and Termination”.
2. Provision of Content
a. The parties acknowledge that the Supplier may, from time to time, provide information, photographs, illustrations, audio files and other material to phomus using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Content”). phomus, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered “Accepted Content” for the purposes of applicable provisions of this Agreement.
b. In addition to the terms of this Agreement, the parties acknowledge that the provision of all Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement.
3. Grant of Authority
a. The Supplier hereby appoints phomus as Supplier's non-exclusive agent to license royalty-free Content to third parties within the jurisdictions of phomus's business. For all Content, Supplier grants phomus the right to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or publicly perform or display Content to prospective licensees through the Site or other venues which it may determine from time to time, and the right to grant perpetual, worldwide, non-exclusive and non-transferable licenses or sub-licenses to end-users in accordance with the terms of the Content License Agreement that the Supplier hereby acknowledges having reviewed and approved.
b. In addition to the foregoing grant, so long as the Supplier has not opted out of the “Promotional Uses” category under the Control Panel of his or her account profile on the Site, phomus may use Accepted Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and the Supplier's registered and unregistered trademarks relating to Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Supplier for use of Accepted Content for such business purposes.
c. The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to phomus or any third party except as provided in this Agreement and the Content License Agreement. Except to its affiliated and associated companies or as specifically permitted in this Agreement, phomus may not distribute Content to any third party for the purposes of resale or re-license, it being understood that nothing herein shall restrict phomus from providing access to the Site or Accepted Content to prospective buyers through an application program interface or other utility so long as all purchases are subject to the Content License Agreement
4. Intellectual Property Matters
a. The Supplier acknowledges that phomus prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
b. By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content. In addition, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties in substantially the same form as that will permit the uses for such Content contemplated in the Content License Agreement. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement.
c. The Supplier agrees that neither phomus nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content.
5. Compensation
a. phomus agrees to pay a portion of the fees collected in respect of Accepted Content that is downloaded or otherwise purchased by end-users according to the rate schedule set forth on Appendix "A" to this Agreement, as it may be modified from time to time (the “Rate Schedule”) and the licensing of Content recorded by phomus. The parties acknowledge that the Rate Schedule may differentiate among various types of Content, such as still images, audio files or otherwise in accordance with its terms. The Rate Schedule is subject to change in the sole discretion of phomus in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, you may refrain from providing additional Content or terminate this Agreement in accordance with its terms.
b. In response to a written request, phomus will endeavor to make payment of fees in respect of purchased downloads of Accepted Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Content provided such fees aggregate a minimum of US$50, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Supplier will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Agreement or the Content License Agreement; (iv) phomus only uses pay pal for all financial transactions, obtaining an account is the sole responsibility of the supplier. (v) any amounts owing by the Supplier to phomus under this Agreement or otherwise. Without limiting the generality of the foregoing, phomus is entitled to set-off against any amount owing to Supplier, all amounts to which phomus is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement.
6. Passwords
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that phomus is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. phomus shall have no liability or responsibility to monitor the provision of Content under your member name and password.
Managing Content
phomus does not and cannot review all communications or Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such communications or Content. Notwithstanding the foregoing, phomus reserves the right to delete, move, refuse to accept or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to phomus or as it may direct. phomus shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by phomus to determine Accepted Content is done as a courtesy only.

NOTICE: You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Content License Agreement. phomus cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, phomus shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. phomus will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
Confidential Information
. The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of phomus and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of phomus, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
a. For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of phomus, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
Representations and Warranties
. The Supplier hereby represents and warrants as follows:
i. The Supplier has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
ii. No portion of the Content as delivered to phomus from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
iii. The Content will include all necessary descriptive information to enable its effective marketing on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content; and
iv. The Content delivered to phomus hereunder represents original creations and expressions of subject matter, and no Content infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
a. You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another phomus member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph phomus may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
Indemnity
. You agree to indemnify, defend and hold phomus and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the “phomus Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any phomus Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any phomus Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement and the Content License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
a. phomus reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with phomus's defense of such claim.
Term and Termination
. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to phomus using info@phomus.com or such other means of written notice acceptable to phomus which enables confirmation of your identity and your intention to terminate. phomus may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If phomus terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
a. Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
b. In addition, phomus may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of phomus, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Supplier provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Supplier based on the information provided through the Site as part of the account profile of such Supplier.
Effect of Termination
. Upon the termination of this Agreement, the grant of authority given to phomus shall cease subject to the following conditions: (i) phomus shall remove Accepted Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, phomus shall have the right to continue licensing Accepted Content until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, phomus will continue, in accordance with this Agreement, to pay compensation due to the Supplier in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
a. Upon termination, phomus will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
b. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by phomus pursuant to this Agreement.
c. Termination of this Agreement shall operate without prejudice to the phomus's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
DISCLAIMER OF WARRANTIES
. THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY PHOMUS “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PHOMUS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
a. PHOMUS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
a. IN NO EVENT SHALL PHOMUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF PHOMUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
b. IN ANY EVENT, PHOMUS'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY PHOMUS FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
c. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF PHOMUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Applicable law
. The Site is controlled, operated and administered by phomus from within the United Kingdom. The Site can be accessed from all provinces and territories of the United Kingdom, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the United Kingdom, you acknowledge and agree that this Agreement will be governed under the laws of the United Kingdom and the federal laws of the United Kingdom applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the United Kingdom swith respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
a. You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against phomus related to the Site or this Agreement.
b. Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in the United Kingdom, pursuant to the rules of the Arbitration Act in effect at the time arbitration is demanded.
c. If phomus is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse phomus for its legal fees, costs and disbursements if phomus is successful.
General
. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
a. phomus's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
b. This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without phomus's prior written consent. phomus may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
c. If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
d. This Agreement can be amended by the written agreement of the parties or by phomus posting amendments on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.
e. The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s'y rattachent soient en anglais.
Contact
If you have concerns relating to this Agreement, please contact phomus at info@phomus.com

Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF PHOMUS AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND PHOMUS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND PHOMUS RELATING TO THE SUBJECT OF THIS AGREEMENT.

 




PHOMUS PRIVACY POLICY
Last Updated: June 2009

phomus is committed to protecting your privacy. This privacy policy tells you about our online collection, use and disclosure of personal information. The terms of this policy apply to all personal information collected by phomus on the website phomus.com and other country-specific phomus websites which are linked to phomus.com.
This site is operated by phomus LP (“phomus”), a subsidiary of Getty Images, Inc. (“Getty Images”) and may be accessed in the United Kingdom and abroad. For personal information protection purposes, phomus is the controller and, unless otherwise noted, is also the processor of the personal information. Information collected may be retained as long as it is reasonably required for the purposes it was collected.

Consent to Collection of Your Personal Information
When you visit this site, certain kinds of non-personal information, such as the website that referred you to us, your IP address, browser type and language, and access times, may be collected automatically as part of the site's operation. We also may collect navigational information, including information about the pages you view, the links you click, and other actions taken in connection with the site. Demographic information (e.g., your occupation, hobbies, gender, or interests) may also be collected and may be linked to your personal information.
We only collect personal information about you after you have provided us with your consent to collect that specific information. By voluntarily providing this information to us, you consent to the collection and use of your personal information as set out in this privacy policy.

Personal information includes:
1. information collected when you register including your member name and password, your name, your mailing address, email address, and phone number.
2. information collected when you make a purchase including your credit card number and billing address.
3. if you become a contributor, information collected when you sign-up as a contributor including (i) banking and other financial institution information required in order for us to compensate you; (ii) your social insurance number required in order for us to prepare tax information slips; and (iii) a copy of your photo identification (for example, your driver’s license).
You may always choose not to provide personal information, but if you so choose, certain products and services may not be available to you.

Use of Your Personal Information
phomus collects and uses your personal information to:
• create and manage your membership account;
• process your transactions;
• provide customer service;
• perform research and analysis aimed at improving our products, services and technologies;
• to display content that is customized to your interests and preferences;
• to run contests, select entrants, and choose prize winners;
• to run Interactive Areas;
• if you are contributor to phomus, to compensate you and to prepare tax information slips;
• if you are a contributor to phomus, to identify your uploaded content as your content; and,
• to communicate with you about your transactions, new products and services. We may send transaction-related communications such as welcome letters, billing reminders, and purchase confirmations. We may also send you surveys or marketing communications to inform you of new products or services or other information or offers that may be of interest. These surveys or marketing communications may come from phomus or our parent company, Getty Images or any of its divisions, affiliates or subsidiaries (the “Getty Images Group”). If you do not wish to receive surveys or marketing communications, you may adjust your "Personal Information Preferences" as described below or follow the "unsubscribe" instructions included within each email communication. Please keep in mind that, if you choose not to receive marketing communications, you will continue to receive transactional or account communications (e.g., confirmation emails and account balance statements).
Personal information collected by phomus may be stored and processed in Canada or any other country in which phomus or its parent, affiliates, subsidiaries or agents maintain facilities, and by providing us with your personal information and using our sites or services, you consent to any such transfer of information outside of your country. If you would like to exercise any of your personal information protection rights (including the right to have your personal information deleted), please contact us using the "Contact Information" below.

Disclosing Your Personal Information
Except as set out in this privacy policy, phomus does not disclose or sell your personal information to any third-parties.
We may disclose your personal information to third-party service providers who perform services on our behalf. For example, we may hire other companies to handle the processing of payments, to provide data storage, to host websites, to fulfill orders and shipments, to assist in marketing, to conduct audits, etc. Those third-party service providers (i) shall be permitted to obtain only the personal information they need to provide the service, (ii) must protect personal information to the same extent as phomus, and (iii) shall be prohibited from using it for any other purpose.
We may disclose your personal information to the Getty Images Group, provided that the Getty Images Group uses your personal information for the same purposes and protects it to the same degree, as set out in this privacy policy. Personal information disclosed to the Getty Images Group may be available to the United States government or its agencies under a lawful order made in a court of competent jurisdiction in the US.
If you have entered into and/or won an phomus contest, we or a contest sponsor may publish your name and city of residence. Information about our customers, including personal information, may be disclosed as part of any merger, acquisition, or sale of the company and/or its assets, as well as in the unlikely event of insolvency, bankruptcy, or receivership, in which personal information would be transferred as one of the business assets of the company. We will notify you of such an occurrence as described in the "Changes to This Privacy Policy" section below. We reserve the right to disclose your personal information if required or permitted to do so by law.

Accessing Your Personal Information
If you would like to review or revise information that you previously provided to us, you may access and change your personal information in the "Account Details" section of the site. You may also contact Customer by email at info@phomus.com for assistance.

Personal Information Preferences
phomus respects your right to make choices about the use and disclosure of your personal information. If at any time you decide that you do not want to receive surveys or marketing communications from us, please let us know by: (1) checking or unchecking the appropriate box on your online registration form when you sign up or the in "Control Panel" page of the website once you are a member; (2) contacting your Customer Service at by email at info@phomus.com.
If you choose not to receive marketing communications, please be advised that you will continue to receive transactional or account communications (e.g., confirmation emails and account balance statements).

Use of Cookies and Other Technologies
phomus uses "cookies" to enable you to sign in to our services and to help personalize your online experience. A cookie is a small text file that is placed on your hard drive. Cookies contain information, including personal information, that can later be read by a web server in the domain that issued the cookie to you. The information that cookies collect includes the date and time of your visit, your registration information, session identification number and your navigational history and preferences.
Cookies offer you many conveniences. They allow us to identify registered users when they return to the site so that they can retrieve previous image search results, access lightboxes and view their previous invoices. Cookies also save you time by eliminating the need to repeatedly enter the same information.
In some cases, our third-party service providers may use cookies on our sites. We have no access to or control over these cookies. This privacy statement covers the use of cookies by phomus only, and does not cover the use of cookies by third parties.
You have the ability to accept or decline cookies. Most browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies. If you choose to decline cookies, you may not be able to sign in or use other interactive features of our sites and services that depend on cookies but you will be able to perform basic navigation through the site.
In addition to cookies, we may use other technologies, including single-pixel gifs (also known as web beacons) on our websites and in promotional e-mail messages or newsletters. These tiny electronic images assist us in determining how many users have visited certain pages or opened messages or newsletters. We do not use these images to collect personal information.

Security of Your Personal Information
The security of your personal information is important to us. We follow generally accepted industry standards to help protect your personal information including without limitation:
• limiting access to your personal information to those of our employees who require it to provide services to you;
• requiring employees to sign confidentiality agreements to protect customer and other confidential information;
• ensuring that third-party service providers sign confidentiality agreements to maintain the confidentiality of your personal information and not to use it for any unauthorized purposes;
• encrypting credit card information on our order forms using secure socket layer (SSL) technology; and
• storing your personal information in secure computer systems which protect it from unauthorized access or use.
No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to protect your personal information, we cannot guarantee its absolute security.
If a password is used to protect your account and personal information, it is your responsibility to keep your password confidential.

Forums & Other Interactive Services
Our sites may include discussion forums or other interactive areas or services, including blogs, chat rooms, bulletin boards, message boards, online hosting or storage services, or other areas or services in which you or third parties create, post or store any content, messages, comments, materials or other items on the sites ("Interactive Areas"). If you use an Interactive Area, you should be aware that these areas are open to the public and any personal information you post or provide at registration may be viewable by others. We are not responsible for personal information you submit in connection with the Interactive Areas, nor are we responsible for how others might use that information, including to send you unsolicited messages. Interactive Area postings may be retained indefinitely. If at any time you would like to remove a posting, please email us at info@phomus.com. Keep in mind that removal of a posting from an Interactive Area does not mean that the posting will be deleted from our systems.

Email Referrals
If you choose to use our email referral services to tell a friend about our products or services (including images in your Lightbox, promotional campaigns, new websites, job postings, etc.), we will ask you for your friend's name and email address. We will use that information to send your friend a one-time email inviting him or her to visit the site and review the product or service you have selected. We may use a third-party provider to administer this function, but any such third-party provider may only use the information submitted to facilitate this one-time email.

Children
We do not intend to solicit or collect personal information from anyone under the age of 18 without parental consent. If you are under 13, you shall not use or enter information on this site, including without limitation, any Interactive Areas of the site without parental consent. Please contact Customer Services by email at info@phomus.com, to obtain the necessary parental consent forms.

Links
We may link to websites, including those of our subsidiaries and third-party content providers, that have different privacy policies and practices from those disclosed here. We assume no responsibility for the policies or practices of such linked sites, and encourage you to become acquainted with them prior to use.

Changes to This Privacy Policy
We reserve the right to change the terms of this privacy policy at any time. When we make changes, we will revise the "last updated" date at the top of the policy. If there are material changes to this statement or in how phomus will use your personal information, we will notify you by prominently posting a notice of such changes here or on our home page, or by sending you an email. We encourage you to review this policy whenever you visit one of our sites.

 


SOUND ARTIST SUPPLY AGREEMENT AUDIO (NON-EXCLUSIVE)
This Agreement governs the terms by which composers, musicians or other artists provide stock musical compositions, master recordings, sound recordings, digital files and other audio content to members of the phomus.com community, on a non-exclusive basis through the web site located at www.phomus.com (the “Site”). This Agreement contains many important provisions that affect your rights and obligations. By ticking the correct box at the end of this Sound Artist Supply Agreement (Non-Exclusive) (the “Agreement”) and typing “I agree”, you thereby agree to be bound by the terms of this Agreement We encourage you to print a copy of the Agreement for your records. In this Agreement you will be referred to as either “you”, “your” or “Sound Artist”. You agree that phomus may make changes to this Agreement by posting such changes on the Site which changes will be effective from the date of such posting. It is your duty to regularly review the Site for any posted amendments.
If you are currently a member of a performing rights society or other similar organization anywhere in the world (for example: SOCAN, ASCAP, BMI, SESAC, PRS, Harry Fox Agency, CMRRA, GEMA, SACEM, SDRM, SODRAC, SGAE, AGEDI, AIE, AOSGE, DAMA or JASRAC) you are not eligible to submit Audio Content to phomus. Should you wish to become a member of any such organization during the term of this Agreement, you must first terminate this Agreement by following the rules in section 13(a).
1. Background of Agreement
a. This is a legal agreement between any member intending to upload Audio Content onto the Site and phomus LP, a subsidiary of Getty Images, Inc. (“phomus” or “us” or “we”). phomus is operator of the Site. The Sound Artist wishes to appoint phomus as its non-exclusive agent to license and distribute Audio Content (as defined below) created by the Sound Artist on the terms and conditions set forth in this Agreement and phomus's form of Audio Content License Agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the “Audio Content License Agreement”). For the purposes of this Agreement, the “Audio Content License Agreement” shall be deemed to include all of the Extended License options, if any, and provisions to which you have opted-in using the administrative tools relating to his or her account profile on the Site.
b. Upon accepting the terms of this Agreement, you may make Audio Content available to phomus by following the “Upload” procedures and policies identified on the relevant portion of the Site. Each upload of Audio Content will be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each upload.
c. This Agreement is in addition to the Terms of Use applicable to the Site and to the Membership Agreement that all persons providing Audio Content to or downloading Audio Content from the Site have previously entered into. In the event of any inconsistency between this Agreement, the Membership Agreement and the Terms of Use, the terms of this Agreement shall govern.
d. This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Sound Artist, you must follow the termination procedures set forth below under “Term and Termination”.
2. Provision of Content
a. The parties acknowledge that the Sound Artist may, from time to time, provide information, musical compositions, master recordings, non-musical audio recordings and other sound material to phomus using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Audio Content”). phomus, in its sole discretion, may determine which of such Audio Content is suitable for posting on the Site or other means of distribution for licensing, and only such Audio Content as it deems suitable will be considered “Accepted Audio Content” for the purposes of the applicable provisions of this Agreement.
b. In addition to the terms of this Agreement, the parties acknowledge that the provision of all Audio Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Audio Content outlined in the Site will be deemed to be a breach of this Agreement.
c. You represent and warrant that you shall not: (i) license your own Audio Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another phomus member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph phomus may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
3. Grant of Authority
a. The Sound Artist hereby appoints phomus as Sound Artist's non-exclusive agent for the term to license Audio Content to third parties worldwide. For all Audio Content, the Sound Artist grants to phomus the right to grant perpetual, worldwide, non-exclusive and non-transferable licenses or sublicenses to end-users through the Site, via a portable interface that links back to the Site, or through other venues owned or operated by phomus or its parent or affiliated companies substantially in accordance with the terms of the Audio Content License Agreement (a current copy of which can be found here) that the Sound Artist hereby acknowledges having reviewed and approved. For all Audio Content, the Sound Artist grants to phomus the following rights to be exercised in any manner and in any and all media (whether now known or, if permitted by applicable law, hereafter created):
i. Reproduction, Synchronization and Electrical Transcription. The right to use and authorize others to use the Audio Content for the purposes of mechanical reproduction and duplication, electrical transcription, synchronization with visual images, other music or sound, dramatic productions, and various commercial uses and to collect all fees and royalties becoming due from such uses, if any;
ii. Public Performance. The right to publicly perform and authorize others to publicly perform the Audio Content for profit and to collect all fees and royalties becoming due from such performances, if any;
iii. Media. The right to market, advertise, promote, distribute, rent, sell, license, broadcast, exhibit, manufacture and otherwise exploit products, film or television productions and other works embodying the Audio Content, including (i) theatrically, (ii) on all forms of television including cable, cable transmission, free, pay, subscription, syndicated, video-on-demand, CATV and satellite, (iii) on radio for broadcast over the air, satellite broadcast, or internet whether by streaming or otherwise, (iv) on the internet and/or mobile devices via browser, device or download, and (iv) on tangible media devices (like DVD), and the right to authorize other to do the same;
iv. Distort, Edit and Modify. To the extent permitted by applicable law, the right to adapt, edit, modify, change, loop and use less than an entire Audio Content file and the right to authorize others to do the same (and consequently you accept all changes to the Audio Content in keeping with the usual practices of the applicable industry of use);
v. Distribution. The right to distribute and license Audio Content in any configuration (as a single song or sound, as part of an album or other bundle, in an on-demand stream, as part of a subscription service, etc.) direct from the Site, via a portable interface that links back to the Site or through other venues owned or operated by phomus or its parent or affiliated companies;
vi. Preview Content. The right to create, edit and publicly perform, playback or otherwise make available to the public by streaming, clips comprising portions of the Audio Content (“Preview Content”), such Preview Content designed to promote the sale of permanent downloads of Audio Content or subscriptions to a service that includes Audio Content or to promote the Site;
vii. Server and Ephemeral Copies. The right to reproduce and publicly perform or reproduce any necessary server and/or ephemeral copies of the Audio Content, including those required to create and maintain an audio fingerprint and the right to authorize other to do the same;
viii. Ring Tones and Mobile Audio. The right to edit, modify, alter, enhance, reproduce, loop, distribute and publicly perform portions of the Audio Content as so-called “ring tones,” “master tones,” “ringback tones,” or similar audio segments for use in connection with wireless devices, and the right to authorize others to do the same; and
ix. Likeness and Biographical Information. The right to use and publish, and permit others to use and publish, your phomus member name (or, if you consent, your proper name) in association with the Audio Content, in connection with exploitation of the Audio Content by us or by third parties selling and distributing music or other sound content on or through their sites or other distribution channels, including for advertising and promotional purposes.
b. In addition to the foregoing grant, so long as you have not opted out of the “Promotional Uses” category under the Control Panel of your account profile on the Site, phomus may use Accepted Audio Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Accepted Audio Content (including, without limitation, the use of the Accepted Audio Content and the Sound Artist's registered and unregistered trademarks relating to Audio Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Sound Artist for use of Accepted Audio Content for such business purposes.
c. The Parties agree that all right, title, and interest including copyright, in and to the uploaded Audio Content will be retained by the Sound Artist, and no right, title or copyright is transferred or granted in any way to phomus, licensees, sublicensees or any other third party except as provided in this Agreement and the Audio Content License Agreement. Except to its affiliated and associated companies or as specifically permitted in this Agreement, phomus may not distribute Audio Content to any third party for the purposes of resale or re-license, it being understood that nothing herein shall restrict phomus from providing access to the Site or Accepted Audio Content to prospective buyers, licensees or sublicensees through an application program interface or other utility so long as all purchases are subject to the Audio Content License Agreement in its essential elements.
4. Intellectual Property Matters
a. The Sound Artist acknowledges that phomus prohibits any Audio Content or any other material that infringes on any rights, including without limitation, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site and Sound Artist expressly agrees that the upload of Audio Content complies with all applicable law and does not infringe any of said rights.
b. To the extent permitted by applicable law, you waive all moral rights including without limitation your right to integrity of the Audio Content and the right to be associated with the Audio Content by name. To the extent such waiver is void or unenforceable by applicable law, you agree not to enforce any such moral rights against phomus, its licensees and sublicensees of the Audio Content. To the extent such an agreement not to enforce your moral rights is void or unenforceable by applicable law, you: (i) grant a revocable right to phomus, its licensees and sublicensees to use Audio Content without being credited as the author; (ii) grant to phomus, its licensees and sublicensees the right to make adaptations of the Audio Content and to exploit the Audio Content as provided in article 3 above, and, (iii) agree that the upload by you of the Audio Content to the Site constitutes the first publication of the Audio Content.
c. All rights which are not expressly granted to phomus in this Agreement by Sound Artist are specifically reserved to Sound Artist and Sound Artist agrees not to exercise those reserved rights in any manner inconsistent with the rights granted to phomus in this Agreement.
d. phomus is entitled to categorize Accepted Audio Content into the audio category it deems appropriate without any liability to you. Should you disagree with any such categorization, you may request that such Accepted Audio Content be removed from the Site.
5. Compensation
a. phomus shall determine the price to be charged to licensees and sublicensees for the download and use of Audio Content. These prices are subject to change in the sole discretion of phomus in the ordinary course of its business without notice by posting such changes on the Site.
b. phomus agrees to pay a portion of the fees collected in respect of Accepted Audio Content that is downloaded or otherwise licensed by licensees and sublicensees according to the rate schedule set forth on Appendix "A" to this Agreement, as it may be modified from time to time (the “Rate Schedule”) and the licensing of Audio Content as recorded by phomus. The parties acknowledge that the Rate Schedule may differentiate among various types of Audio Content, such as sound, sample, loop, and song or otherwise. Subject to applicable law, the Rate Schedule is subject to change in the sole discretion of phomus in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Sound Artist, you may refrain from providing additional Audio Content or terminate this Agreement in accordance with its terms.
c. In response to a request as specified in your Account Details – Financial section of the Site (either through email, fax or through the Site), phomus will endeavor to make payment of fees in respect of purchased downloads of Accepted Audio Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Audio Content provided such fees aggregate a minimum of US$100, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Sound Artist will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; and (iii) legal and other reasonable fees incurred in enforcing this Agreement or the Audio Content License Agreement; (iv) fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method where purchases or licenses are by other than the credit system; (v) returns and refunds; and (vi) any amounts owing by the Sound Artist to phomus under this Agreement or otherwise.
d. Without limiting the generality of the foregoing, phomus is entitled to set-off against any amount owing to Sound Artist, all amounts to which phomus is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Sound Artist under this Agreement.
e. Waiver of Certain Fees and Royalties. Sound Artist hereby waives any and all fees and royalties, including without limitation, mechanical royalties, synchronization fees, transcription license fees, videogram fees and royalties, neighbouring rights royalties and public performance royalties to which Sound Artist may otherwise be entitled to at law, as the result of any use, including duplication, reproduction, public performance or synchronization of all or a part of the Audio Content by phomus or by any licensee or sublicensee in connection with the Preview Content or the Audio Content. If such waiver is void or unenforceable by applicable law, you agree that the amounts paid to you under section 5 b are inclusive of all such fees and royalties.
f. Third Party Payments. You will be solely responsible for and will pay (i) any sums due to artists, authors, co-authors, copyright owners and co-owners, musicians, performers, producers and any other record royalty participants from sales, licenses or other uses of the Audio Content, including without limitation, neighbouring rights and sales royalties; (ii) all sums payable to recording studios, engineers, rental companies and others in connection with the recording of any Audio Content; (iii) all sums payable in connection with the use of musical compositions derived from sales or other uses of the Audio Content (i.e. mechanical royalties), (iv) for any rights, consents, or royalties payable to third-parties in connection with the delivery, encoding, transcoding, encrypting, use and/or distribution of the Audio Content; (v) all payments that may be required under any collective bargaining agreements applicable to you or any third party in connection with the Audio Content, and (vi) any other monies payable with respect to other authorized uses of the Audio Content.
6. Passwords
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your member name and such passwords, and that phomus is authorized to accept your member name and password as conclusive evidence that you wish to upload Audio Content pursuant to this Agreement. phomus shall have no liability or responsibility to monitor the provision of Audio Content under your member name and password.
Managing Content
. phomus does not review all communications or content uploaded to the Site and is not responsible for the Audio Content, quality, or consequences of your uploading such communications or Audio Content. Notwithstanding the foregoing, phomus reserves the right to delete, move, refuse to accept or edit any communication or Audio Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, the applicable law, or any of phomus’s policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Audio Content to phomus or as it may direct. phomus shall have the right but not the obligation to correct any errors or omissions in any Audio Content, as it may determine in its sole discretion. You acknowledge that any screening of Audio Content performed by phomus to determine Accepted Audio Content is done as a courtesy only.
a. phomus shall make good faith efforts to organize the Audio Content on the Site in a rational format. However, phomus makes no guarantees to Sound Artist as to the placement or location of any Audio Content in search results or otherwise. All features, specifications, products and prices of products and services described or depicted on the Site are subject to change at any time without notice.

NOTICE: You acknowledge that the Audio Content you provide pursuant to this Agreement may be licensed by licensees or sublicensees with the intention that such licensees or sublicencees will adhere to the terms of the Audio Content License Agreement. phomus disclaims responsibility for the compliance by purchasers and licensees with the terms of such agreements or for any unauthorized use by a third party, and you acknowledge and agree to the possibility of Audio Content being used in a manner that is not contemplated in this Agreement or the Audio Content License Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees or sublicensees or other unauthorized users of such Audio Content at law, phomus shall have no liability to you or any person claiming through you for any breach by a licensee or sublicensee of the terms of any agreement respecting Accepted Audio Content or for any other unauthorized use. phomus will use reasonable commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
Confidential Information
. The Sound Artist acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Audio Content constitutes valuable, confidential, proprietary information of phomus and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of phomus, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
a. For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of phomus, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site Audio Content belonging to others and other intellectual property.
Representations and Warranties
. In addition to the representations and warranties contained within the Terms of Use, Sound Artist hereby represents and warrants as follows:
i. The Sound Artist (i) has the legal capacity and authority to enter into this Agreement, (ii) has the right to grant all of the rights contemplated to be provided under this Agreement, (iii) has not granted, and for the term of this Agreement, shall not grant any rights or licenses to any Audio Content or any other intellectual property or technology that would conflict with this Agreement, and (iv) has paid, in full, all amounts owing to any parties in respect of the production and recording of any Audio Content, including without limitation, any recording studios, producers, engineers and rental companies;
ii. The Sound Artist is the sole and exclusive owner of the Audio Content or has all necessary rights and authorization from all musicians, performers, co-owners or co-creators related to the Audio Content. If you are not the sole creator of the Audio Content, you represent and warrant that you have legally enforceable written agreements with the authors, composers, performers, musicians and co-creators of the Audio Content under which the Audio Content is and will remain your sole and exclusive property or which grants you the right to enter into this Agreement. If requested by phomus, you shall supply it with copies of these agreements;
iii. No portion of the Audio Content as delivered to phomus from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Audio Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Audio Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Audio Content or the Site in any way;
iv. The Audio Content will include all necessary descriptive information to enable its effective marketing on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Audio Content;
v. The Audio Content delivered to phomus hereunder represents wholly original creations and expressions of subject matter, and no Audio Content infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party;
vi. There are no liens or encumbrances on the Audio Content;
vii. The Sound Artist has not registered the Audio Content with any performing or other rights societies anywhere in the world, including but not limited to, SOCAN, ASCAP, BMI, SESAC, PRS, Harry Fox Agency, CMRRA, SODRAC, GEMA, SACEM, SODRAC, SGAE, AGEDI, AIE, AOSGE, DAMA and JASRAC (a “Rights Society”) and the Audio Content is not and will not become subject to any rights granted by you, if any, to a Rights Society;
viii. The Sound Artist is not and, for the term of this Agreement, will not become a member of or otherwise assign or grant rights to any Rights Society;
ix. Neither phomus nor any licensee or sublicensee will be required to obtain any form of license from a Rights Society in connection with its use of the Audio Content hereunder, nor pay any fees or royalties to a Rights Society related to such use; and,
x. The Audio Content is not created using any third party samples or loops which may be available in sequencing, digital audio work station or other like software (even if the license agreement for such software permits the samples or loops to be used in new works to be used or sold for commercial purposes.)

Liability and Indemnity
. You agree to be liable to and indemnify, defend and hold harmless phomus and its parent and affiliates, and each of their respective directors, officers, employees, shareholders and agents, the licensees and sublicensees of Audio Content (collectively, the “phomus Parties”) from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any phomus Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Audio Content under your member name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Audio Content uploaded under your member name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any phomus Party to the extent such claim is based upon a contention that any of the Audio Content used within the scope of this Agreement and the Audio Content License Agreement infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
a. phomus reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with phomus's defense of such claim.
b. The Sound Artist agrees that the phomus Parties shall not be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Audio Content.
DISCLAIMER OF WARRANTIES
. THE SITE, INCLUDING ANY AUDIO CONTENT CONTAINED THEREIN, ARE PROVIDED BY PHOMUS “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PHOMUS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE AUDIO CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
a. PHOMUS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY AUDIO CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE AUDIO CONTENT OR INFORMATION CONTAINED THEREIN.
a. IN NO EVENT SHALL THE PHOMUS PARTIES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE AUDIO CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF PHOMUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
b. IN ANY EVENT, PHOMUS'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE AUDIO CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY PHOMUS FOR THE AUDIO CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE HUNDRED ($100.00) UNITED STATES DOLLARS.
c. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF PHOMUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Term and Termination
. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to phomus at info@phomus.com or such other means of written notice acceptable to phomus which enables confirmation of your identity and your intention to terminate. You shall ensure that “Sound Artist Termination Request” appears in the subject line of the email or other communication. phomus may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If phomus terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
a. Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in material breach of this Agreement.
b. In addition, phomus may deem an account to be terminated if there has been no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Sound Artist based on the information provided through the Site as part of your account profile. If phomus is unable to contact you, you agree to forfeit any fees and credits in your account to phomus. If phomus is able to contact you, phomus shall pay to you the fees and credits in your account less an administrative charge of Fifteen ($15.00) United Stated Dollars if the address in your account profile is in North America and Thirty ($30.00) United States Dollars in other jurisdictions. If in the reasonable opinion of phomus you have made a material misrepresentation as to the capacity, identity or copyright ownership of Audio Content or the Sound Artist, you agree to forfeit all fees and credits in your account to phomus.
Effect of Termination
. Upon the termination of this Agreement, the grant of authority given to phomus shall cease subject to the following conditions: (i) phomus shall remove Accepted Audio Content from the Site within thirty (30) days of the date of termination of this Agreement; (ii) notwithstanding termination, phomus shall have the right to continue licensing Accepted Audio Content until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, phomus will continue, in accordance with this Agreement, to pay compensation due to the Sound Artist in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
a. Upon termination, phomus will be entitled to retain all amounts owing to the Sound Artist for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
b. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees by phomus pursuant to this Agreement.
c. Termination of this Agreement shall operate without prejudice to the phomus's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Audio Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
Applicable law
. The Site is controlled, operated and administered by phomus from within the Umited Kingdom. The Site can be accessed from all provinces and territories of United Kingdom, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the United Kingdom, you acknowledge and agree that this Agreement will be governed under the laws of the United Kingdom and the federal laws of United Kingdom applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the United Kingdomwith respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
a. You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against phomus related to the Site or this Agreement. If such a waiver is void or unenforceable by applicable law, you agree not to (iii) seek trial by jury; and (iv) commence or participate in any class action against phomus related to the Site or this Agreement
b. Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration the United Kingdom, pursuant to the rules of the Arbitration Act (United Kingdom) in effect at the time arbitration is demanded.
c. If phomus is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse phomus for its legal fees, costs and disbursements if phomus is successful.
General
. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
a. phomus's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
b. This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without phomus's prior written consent. phomus may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
c. If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
d. This Agreement is the entire agreement between the parties with respect to the subject matter hereof. This Agreement can be amended by the written agreement of the parties or by phomus posting amendments on the Site as permitted by this Agreement. Continued provision of Audio Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Sound Artist and it will be incorporated by reference into this Agreement.
e. This Agreement shall be binding upon the parties and enure to the benefit of their heirs, executors, personal representatives, successors and permitted assigns. Nothing in this Agreement shall be deemed to have created a joint venture, partnership or employment relationship between the parties.
f. The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s'y rattachent soient en anglais.
Contact
If you have concerns relating to this Agreement, please contact phomus at info@phomus.com

Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF PHOMUS AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED AUDIO CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.