Terms of Use

Buyers Terms Of Use

    1. In these Terms, unless the context otherwise requires:

      Account” means the unique log in details which a Buyer must create in order to access the Platform and make purchases;

      Business Day” means a day on which banks are open for general banking business in Ireland, excluding Saturdays, Sundays and public holidays;

      Buyer Data” means all of the information, documents and other data provided by the Buyer or their Personnel to Marker Content, any details on a Buyer or their Personnel’s usage of the Platform, any content uploaded by the Buyer or their Personnel to Marker Content, or otherwise accessed by Marker Content in providing the services on the Platform;

      Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

      Consumer“ means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;

      Content” means original work created by the Contributor and uploaded to the Platform and may consist of text, styles, images, video, HTML and/or any other multimedia content. A Contributor’s Content is uploaded to the Platform and may be purchased by a Buyer;

      Content Fee” means the fee payable to Marker Content by a Buyer when purchasing a Video, Content or other material on the platform. There are also variety of payment subscriptions available, or “Price Plans”;

      Content Licence” has the meaning given to it in clause 11;

      Contributor” means a writer, creator, blogger, seller or any other producer of Content available on the Platform;

      Costs” means any costs, including, without limitation, reasonable legal and accounting fees, reasonably incurred in the defence of any Claim arising out of or otherwise related to these Terms;

      Data Protection Laws” means all applicable law relating to data protection including (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), (ii) the Data Protection Acts 1988 to 2018 and (iii) any subsequent re-enactment, replacement or amendment of such laws. The terms “Personal Data”, “Processor”, “Controller”, “Processing”, "Data Subject", “Personal Data Breach” and “Supervisory Authority”, shall have the meanings ascribed under the GDPR;

      Force Majeure” means any event or circumstances beyond the reasonable control of a Party including any acts of God, government intervention, war, hostilities, rebellion, terrorist activities, local or national emergency, sabotage or riots, public health emergencies such as pandemics or epidemics, floods, or unusually severe weather conditions which could not be reasonably anticipated, fires, explosions, or other catastrophe, national or district strikes or other concerted acts of workmen or other similar occurrences to the extent that it:

      1. would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
      2. results in a Party being unable to perform an obligation under these Terms on time;

      Intellectual Property” means any:

      1. Copyright;
      2. Registered or unregistered design, patent, trade mark rights;
      3. Trade, business, company or domain names;
      4. Know-how, inventions, processes, trade secrets or confidential information;
      5. Right to use;
      6. Good will and the right to sue for passing-off;
      7. Circuit layouts, databases or source codes; or
      8. Similar rights in any part of the world relating to a Party, the operation of its business, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of the foregoing;

      Intellectual Property Rights” means all present and future rights to Intellectual Property including:

      1. copyright and related rights;
      2. registered or unregistered designs, patents, trade marks;
      3. Trade, business, company or domain names;
      4. Know-how, inventions, processes, trade secrets or confidential information;
      5. Right to use;
      6. Good will and the right to sue for passing-off;
      7. Circuit layouts, databases or source codes; or
      8. Similar rights in any part of the world relating to a Party, the operation of its business, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of the foregoing;

      Liability” means any expense, charge, cost, liability, loss, damage, Claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent. References to liability include every kind of liability arising under or in connection with the Terms including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise;

      Marker Content” means Marker Content Limited, a company registered in Ireland with company number 620734 and any other current or future group companies registered in Ireland or any other jurisdiction;

      Moral Rights”: means all rights under Sections 107 to 119 inclusive of the Copyright and Related Rights Act 2000 and all other moral rights and rights of a similar nature under the laws of any jurisdiction;

      Party” means a party to these Terms from time to time;

      Personnel” means in relation to a Party, any employee, contractor, officer and agent of that Party;

      Platform” refers to the platform operated by Marker Content which enables Contributors to post Content available for purchase and Buyers to search, select and purchase the Videos, material and other Content;

      Purpose” means the use of the Platform to enable Contributors to supply videos to a growing network of businesses which require content and for Buyers to be able to access and purchase Video and other Content;

      Services” has the meaning given to it in Clause 7 below;

      Terms” means the terms and conditions between the Contributor and Marker Content set out in this document;

      Third Party” means a person other than Marker Content or the Buyer;

      Video” has the meaning given to it at Clause 7 below;

      In these Terms, unless the context otherwise requires:
    1. the singular includes the plural and vice versa;
    2. headings are for convenience only and do not affect interpretation;
    3. a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of these Terms;
    4. if any act which must be done under these Terms is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
    5. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
    6. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
    7. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
    8. “includes” and similar words mean includes without limitation;
    9. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
    10. a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
    11. a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
    12. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
    13. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
    14. a reference to time is to local time in Dublin, Ireland; and
    15. a reference to € or euro refers to the currency of Ireland from time to time.
    1. Marker Content will use all reasonable endeavours to maintain adequate and qualified staff, facilities and equipment to provide efficient and satisfactory Services, Platform and Content and Videos, along with the necessary maintenance and support services and to respect all Intellectual Property Rights of Contributors, Buyers and other Third Parties, in particular the licence it grants to Buyers in accordance with clause 11.
    2. Marker Content will comply with all applicable laws and regulations, including but not limited to those affecting the selling of Videos or Content, offering the Platform and Services, taxation and licencing.
    1. The Buyer will only use the Platform for its intended Purpose and as instructed in these Terms and on the Platform itself.
    2. The Buyer will purchase and pay for Videos and Content as set out in these Terms.
    3. The Buyer will respect all Intellectual Property Rights of Contributors, Marker Content and other Third Parties and will only use the licence granted to it in accordance with clause 11.
    4. The Buyer will promptly notify Marker Content of any defects or issues with the Platform, the Service, and/or the Videos or Content, and assist Marker Content in resolving them where necessary.
    5. The Buyer will comply with all applicable laws and regulations including but not limited to those affecting the purchase of Videos or Content and availing of the Platform and Service, taxation and licencing.
    1. By accessing and/or using the Platform and/or by accepting these Terms and Conditions (Terms), either by clicking a box indicating your acceptance or by signing up for an account that references these Terms, you:
      1. agree to and are bound by the Terms set forth below and in any modified or additional terms that Marker Content may publish from time to time;
      2. understand and agree that you are not a Consumer and that these Terms reflect a business to business agreement;
      3. agree to use the Platform in accordance with the Terms;
      4. understand that Marker Content is not responsible for the information within the Content and will not be held accountable if any information is deemed illegal, harmful, incorrect or misleading; and
      5. will cease using the Platform immediately if you do not agree to the Terms.
    2. In this clause, “you” refers to the Buyer and its affiliates. Marker Content may, at any time and at its discretion, vary these Terms by publishing the varied terms on the Platform. Marker Content recommends you check the Platform regularly to ensure you are aware of the current Terms.
    1. By accepting these Terms, the Buyer and Marker Content do not intend to create any form of legal partnership, joint venture or agency relationship.
    1. Contributors who have created Content may submit this content to the Platform. Marker Content does not create Content and only provides a Platform for contributors of Content to sell their Content to Buyers.
    2. Marker Content uses this Content to create videos in various formats (“Videos”) ready for on-sale to businesses or users of the Platform. Marker Content:
      1. Converts a Contributor’s Content into a searchable archive;
      2. Identifies and extracts evergreen material and converts this into videos;
      3. Analyses, tags and categorises videos;
      4. Performs styling and clean-up of Content for conversion to a video, ready for sale;
      5. Confirms image and text rights with a Contributor (together the “Services”);
    3. Marker Content reserves the right to change or remove features of the Services and/or the Services from time to time and without notice.
    1. A Buyer must create an Account in order to purchase Content, Videos and other material. A Buyer must ensure that any information provided when creating an Account is accurate and up-to-date. Marker Content does not vet Buyers when they are creating an Account or at any other time.
    2. When a Buyer creates an Account, Marker Content will provide account details for the Account. It is the Buyer’s responsibility to keep its account details confidential. A Buyer is liable for all activity on its Account.
    3. A Buyer may register for an Account using its Google+, Facebook or other social media network account (“Social Media Account”). If a Buyer signs in to its Account using its Social Media Account, the Buyer authorises Marker Content to access certain information on its Social Media Account.
    4. The Buyer will immediately notify Marker Content of any unauthorised use of its Account.
    5. At Marker Content’s sole discretion, Marker Content may refuse to allow any person to register or create an Account.
    1. It is free to register for an Account on the Platform.
    2. A Buyer may purchase Content from Marker Content as set out on the Platform. Any order placed through the Platform is an offer by the Buyer to purchaser Content for the price notified at the time the order is placed.
    3. Content Fees are set out on the Platform and on Marker Content’s website. There are also a variety of Price Plans available for a Buyer to avail of.
    4. The payment of Content Fees will be made through Marker Content’s Third Party payment processor or by any other payment method set out on the Platform.
    5. Marker Content may change the Content Fees, Price Plans and/or payment terms applying to the Platform at its sole discretion and without notice and any change is immediately effective upon Marker Content publishing the change on the Platform and will apply to any use of the Platform following the change.
    6. No refunds or cancellation of purchases are possible.
    1. A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the date the Buyer agrees to these Terms (“Pre-Existing Material”) will not be altered, transferred or assigned by virtue of these Terms.
    2. Unless otherwise indicated, Marker Content owns all rights, title and interest (including Intellectual Property Rights) in the Platform. The Buyer’s use and access to the Platform does not grant or transfer to it any rights, title or interest in relation to the Platform.
    3. If any person makes any claim alleging that any of the Content (or use of the Content) infringes any Intellectual Property Rights or Moral Rights of any persons the Buyer must:
      1. promptly notify Marker Content in writing;
      2. not make any admissions or take any action in relation to the claim without Marker Content’s consent; and
      3. cooperate with, assist and act at all times in accordance with the reasonable instructions of Marker Content in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
    4. This clause 10 will survive the termination or expiry of these Terms.
    1. In consideration for the payment of the Content Fees, Marker Content grants the Buyer a perpetual, non-exclusive, world-wide, non-transferable, royalty free (except as otherwise permitted under these Terms), personal licence to use the purchased Content or Video, including to reproduce, retransmit, distribute, disseminate, publish, broadcast, circulate, modify, enhance, prepare derivative works, adapt and display the purchased Content (“Content Licence”).
    2. The Buyer shall not sub-licence, assign or otherwise transfer the rights granted in clause 11.1.
    3. Unless otherwise agreed with Marker Content, the Buyer:
      1. must not copy or use, in whole or in part, any Content on the Platform other than specific Content or Video obtained by paying the Content Fee;
      2. must not assign or transfer any of its rights under these Terms or grant sub-licences of any of its rights under these Terms; or
      3. must not permit a Third Party to use the Content or must not sell any Content to a Third Party.
    4. The Buyer grants to Marker Content a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Buyer Data:
      1. to supply the Platform and any services on it including to enable the Buyer to access and use the Service;
      2. for diagnostic purposes;
      3. to test, enhance and otherwise modify the services offered on the Platform whether requested by the Buyer or not;
      4. to develop other services or products; and
      5. as reasonably required for the performance of Marker Content’s obligations under these Terms.
    5. This clause 11 will survive the termination or expiry of these Terms.
    1. In relation to the Platform and any Content, Buyers must not, and must not attempt to do, anything that is unlawful, prohibited by any laws which apply to the Platform or which apply to the Buyer or the Buyer’s use of the Platform, anything which Marker Content would consider inappropriate or anything which might bring Marker Content or the Platform into disrepute, including but not limited to:
      1. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
      2. using the Platform to defame, harass, threaten, menace or offend any person;
      3. interfering with any user on the Platform;
      4. tampering with or modify the Platform, knowingly transmit viruses or other disabling features, or damage or interfere with the Platform, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with the Platform;
      5. anything that might violate any local, state, national or other law or regulation or any order of a court;
      6. using the Platform to find Content and then copying Content or completing a transaction independent of the Platform in order to circumvent the obligation to pay any fees related to our provision of the services on the Platform;
      7. using the Platform to send unsolicited communication of any form; or
      8. facilitating or assisting a third party to do any of the above acts.
    1. Pursuant to Data Protection Laws, Marker Content is a Controller of a Buyer’s Personal Data processed in the circumstances outlined in Marker Content’s Privacy Policy (hyperlink). Please consult this and related policies to understand the rights and obligations of both Parties in relation to Data Protection Laws.
    1. Both the Buyer and Marker Content shall treat as confidential all information supplied by either party for the purposes of this Agreement which is marked as confidential or which by its nature is clearly confidential. Such information may be disclosed to any employees, directors, other officers, agents, professional advisors, potential lenders to or potential acquirers of the Company who need to know the detail, provided always that such recipient is made aware of its confidential nature prior to such disclosure and is bound by confidentiality obligations equivalent to those set out in this Agreement.
    2. The obligation at clause 14.1 above shall not apply to information:
      1. Which is in or subsequently enters the public domain;
      2. Which was already known to the Buyer and Marker Content prior to disclosure;
      3. Which is required to be disclosed by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction;
      4. Which was obtained by the receiving party from a third party who was free to divulge the same.
    3. Any breach of this Clause shall amount to a material breach of these Terms for which Marker Content and /or the Buyer shall have the right to immediately terminate these Terms and Marker Content and/ or the Buyer shall be liable for any and all damage caused to the other Party as a result of the breach of this Clause.
    4. In the event that either party terminates these Terms, this Clause shall continue in force for the period of twelve months from the date of termination and the Buyer and /or Marker Content shall be liable for any loss or damage caused to Marker Content and /or the Buyer by any breach of this Clause by either party.
    1. On every day during the term of these Terms, the Buyer warrants that:
      1. any of its Personnel or any person who creates an Account on behalf of the Buyer has authority to create the Account;
      2. it will provide Marker Content with such information and materials as Marker Content may reasonably require in order to supply the Content or Video via the Platform, and ensure that such information is complete and accurate in all material respects;
      3. it will not directly or indirectly do anything that would or might invalidate or put in dispute the Content or Videos on the Platform or Marker Content;
      4. it has reviewed and understood these Terms;
      5. it has the legal capacity to enter into a legally binding agreement with Marker Content.
    1. To the greatest extent permitted by applicable law, Marker Content disclaims all representations, conditions or warranties express or implied by statute, common law or otherwise regarding:
      1. The identity of a Contributor or Buyer; and
      2. The truth or accuracy of any statement, claim or aspect of the Content.
    2. Marker Content does not warrant that the Services or the Content will be error-free or will operate without interruption or that, except as set out in these Terms, the Services will be operated in the manner intended by the Buyer or the Platform will meet the requirements of the Buyer.
    3. Marker Content makes no representations or warranties whatsoever about any other website which the Buyer may access through Marker Content.
    1. Despite anything to the contrary (but subject to clause 17.3), to the maximum extent permitted by the law:
      1. Marker Content’s maximum aggregate Liability arising from or in connection with these Terms will be limited to, and must not exceed the aggregate amount of any fees paid by the Buyer to Marker Content in the three-month period immediately preceding the event that gave rise to the Liability or €100 if no such fees have been paid;
      2. Marker Content, its shareholders, directors, officers, employees, agents, subsidiaries, affiliates, successors, and assignees will not be liable to the Buyer for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of Buyer Data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise arising out of the use or inability to use the Marker Content Platform; and
      3. Marker Content shall not be responsible or liable for any damage to the Buyer’s computer system or loss of data that results from the submission, upload, download or use of material or data which you may find in or on this Platform.
    2. References to Liability in this clause 17 means every kind of Liability arising under or in connection with the Platform including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    3. Nothing in this Clause 17 shall limit the Buyer's payment obligations to Marker Content under these Terms.
    4. Clause 17.1 will not apply to Marker Content’s Liability to the Buyer under these Terms for any liability which cannot be excluded or limited by applicable law, including:
      1. fraud or criminal conduct; or
      2. death or personal injury.
    5. Despite anything to the contrary, to the maximum extent permitted by the law, Marker Content will have no Liability, and the Buyer releases and discharges Marker Content from all Liability, arising from or in connection with any:
      1. Third Party Liability arising from any dispute, allegation or claim in relation to ownership of the Intellectual Property Rights or Moral Rights in the Content;
      2. failure or delay in providing Service on the Platform;
      3. breach of these Terms, where caused or contributed to by any:
        1. event of Force Majeure; or
        2. act or omission of the Buyer or its Personnel.
    6. Marker Content uses third-party service providers such as Amazon Web Services to host the Platform. Marker Content will not be liable for any interruption to the Platform, unavailability or outage, or any interruption, caused by any such third-party service provider.
    7. Buyers agree that, to the maximum extent permitted by the law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.
    8. To the maximum extent permitted by law, the Buyer hereby indemnifies and holds harmless Marker Content, its shareholders, directors, officers, employees, agents, subsidiaries, affiliates, successors and assignees (“Indemnified Parties”) against any Claim, Liability or other Costs suffered by Marker Content arising from or in connection with the Buyer’s use of the Platform or the Content in breach of these Terms or any Third Party’s claim in relation to Intellectual Property or any applicable laws by the Buyer. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for Marker Content to suffer or incur any Liability before enforcing a right of indemnity under these Terms.
    9. This Clause 17 will survive the termination or expiry of these Terms.
    1. These Terms will commence on the date the Buyer accepts these Terms in accordance with clause 5 and shall continue until terminated in accordance with these Terms.
    2. Marker Content may immediately suspend, terminate or limit a Buyer’s access to and use of the Platform and (where applicable) the Buyer’s Account if the Buyer breaches the Terms and the breach cannot be remedied or is not remedied within 5 Business Days of Marker Content notifying the Buyer of the breach. Marker Content’s decision to suspend, terminate or limit a Buyer’s access to the Platform is final.
    3. The Buyer may stop using the Platform at any time for any reason.
    4. Marker Content may stop making the Platform (or any part of it) available without prior notice.
    5. Expiry or termination of these Terms for any reason does not affect any Intellectual Property Rights or licence to use Content obtained by the Buyer during the term of these Terms.
    1. Marker Content may, at any time and at Marker Content’s discretion, vary these Terms by publishing varied terms on the Platform.
    1. A Buyer must not assign any rights or obligations under these Terms, whether in whole or in part, without Marker Content’s prior written consent.
    1. Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).
    1. These Terms contains all the terms which the Parties have agreed in relation to the Purpose provided for by these Terms and supersedes all previous agreements and understandings between the Parties with respect to its subject matter and neither of the Parties has been induced to enter into these Terms by a statement or promise which it does not contain. This shall not exclude any liability which a Party would otherwise have to the other Party in respect of any statement made fraudulently by that Party prior to the date of these Terms.
    1. If any provision of these Terms is held by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid or unenforceable in any respect this shall not affect any other provision of these Terms, which shall remain in full force and effect.
    1. These Terms are governed by the laws of Ireland. The Platform may be accessed in Ireland and overseas. Marker Content makes no representation that the Platform complies with the laws (including intellectual property laws) of any country outside of Ireland. If a Buyer accesses the Platform from outside Ireland, the Buyer does so at its own risk and is responsible for complying with these laws in the place the Buyer accesses the Platform.
    2. The courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms and Conditions.
    1. Any notice given under these Terms must be in writing and addressed to Marker Content at the details set out below or to a Buyer at the details provided when the Buyer registers for an Account. Any notice may be sent by prepaid recorded delivery, special delivery or registered post or email, and will be deemed to have been served on the expiry of 48 hours in the case of Irish prepaid recorded delivery, special delivery or registered post and 7 days in the case of international prepaid recorded delivery, special delivery or registered post, or at the time of transmission in the case of email.
    1. If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
  27. WAIVER
    1. Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.