Artwork Licensing Agreement
PLEASE READ THESE TERMS OF USE CAREFULLY. THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. BY SUBMITTING ARTWORK TO US, YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS HEREOF. YOU AGREE TO ABIDE BY AND BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE (COLLECTIVELY, THE "ARTIST TERMS"). IF YOU DO NOT AGREE TO THE TERMS OF USE CONTAINED IN THIS AGREEMENT, DO NOT SUBMIT YOUR ARTWORK TO US.
THIS ARTWORK LICENSING AGREEMENT (the "Agreement") is a legal agreement between you (collectively, “Artist,” “you” or “your”) and Blackdove, Inc., a Delaware corporation, its subsidiaries and affiliates (collectively, "Blackdove," “us,” “we” or “our”) which sets forth your rights and obligations, and those of Blackdove, in relation to artwork and other content submission (individually and collectively, the “Artwork”) which you submit to us for Sale and/or Commercialization, hereinafter defined, through our websites, www.blackdove.com (.tv, & .co) (collectively, our “Website”), our mobile application (“Application”) or in gallery spaces (“Gallery," "Galleries "or Gallery Space”). The Artwork licensed through this Agreement is attached hereto as “Exhibit A”, and may be added to at any time in the event Artist desires to license additional Artwork to Blackdove. The Licensing of any additional Artwork shall be governed by the same terms and conditions contained herein. This agreement supersedes any online agreements included within Blackdove website.
WHAT WE DO
Blackdove provides internet and gallery-based art services (our “Services”) to art collectors (our “Customers” or “Collectors”) by storing, transmitting, distributing and displaying digital audio and video content (your “Artwork”) through our distribution network (our “Network”), including but not limited to the Website, certain authorized-third party websites, various end- user interfaces and exhibition spaces owned or used by our Customers. For purposes of this Agreement, our Services include granting our Customer’s Usage Rights, hereinafter defined, to receive and display your Artwork; the provision of cloud-based, web-based, mobile and wireless artwork displays and; the sale of hardware which can be used to acquire, store, transmit and display your Artwork by our Customers.
HOW WE OPERATE
In consideration of the Royalties paid to you (defined below), you hereby grant us the worldwide, non-exclusive right (together with the worldwide non-exclusive right to license others to exercise all or any of such rights) in relation to each Artwork submitted by you, a license to use, distribute, transmit and publish your Artwork. This license extends to publication by electronic and digital means (whether used now or developed in the future) and may include without limitation: (i) digital, optical and magnetic information storage and retrieval systems, (iii) systems by which the Artwork may be accessed by means of wired or wireless communication system(s); and (iii) any other device, medium, format, system, means or method whether used now or developed in the future, (collectively, the “Rights”). When you submit Artwork to us, the Rights you grant to Blackdove include the rights:
i. to Commercialize and Sell your Artwork (see below);
ii. to grant sub-licenses to Agents and Galleries of the right to Commercialize your Artwork;
iii. to do and authorize others to perform our Services or undertake any of the Rights granted to us in this Agreement;
iv. to store, transmit and display the Artwork through our Network;
v. to grant Usage Rights to our Customers on such terms and conditions as are contained herein and Collector Terms & Conditions;
vi. to display and transmit your Artwork individually or in collection with other artwork;
vii. to publicize and promote your Artwork through advertising and promotional materials, including but not limited to brochures, websites and other media;
viii. to use any trademarks, service marks, trade names or copyrights incorporated in the Artwork or associated with you for the purposes of providing the Services to our Customers as well as the marketing and promotion of our Services;
ix. to use the name, image and likeness of any other Artist, producer or individual whose performances are embedded in or embodied in your Artwork; and
x. to modify the medium and format in which your Artwork is stored, transmitted and/or displayed for the purpose of delivering content to our Customers.
COMMERCIALIZATION AND SALE
As set forth above, the Sale and/or Commercialization of your Artwork may include, but shall not be limited to:
i. the sale of your Artwork through our Website to Customers by means of granting Usage Rights, which terms and conditions shall be governed by the Collector Terms & Conditions, incorporated herein by reference (“Sale”);
ii. the display of your Artwork in Galleries for re-sale to Collectors;
iii. providing Customers with the right to access and use the Artwork (together with other works) on a periodic subscription basis (“Subscriptions”);
iv. the ability to rent or lease your Artwork to our Customers (“Rentals”); and
v. the right to license your Artwork to use, display, distribute, transmit and communicate to the public your Artwork in combination with other artists’ works or as an individual Artwork.
WHAT DO OUR COLLECTORS PURCHASE
When a Customer makes a purchase of your Artwork, the Customer purchases a limited, non-exclusive, perpetual license to use the Artwork on the terms contained in the Collector Terms & Conditions (the “Usage Rights”). When a Customer obtains Usage Rights, we authorize that Customer, using digital technology, the rights to access your Artwork in their Private Collection, hereinafter defined, through our Network. Usage Rights, as defined in our Collector Terms & Conditions, entitle a Customer to access and use the Artwork in its Private Collection. The method of using, displaying or accessing each Artwork will vary according to the nature of the Artwork in question.
As set forth in the Collector Terms & Conditions, a Customer’s Usage Rights do not permit the Customer, and each Customer agrees not, directly or indirectly, to, authorize, permit or be involved in (a) printing or creating any other physical representation of your Artwork, (b) projecting your Artwork so that it is viewable other than directly on the screen of the Customer’s device, except in the context of the personal exhibition of the Artwork, (c) distributing or transmitting Artwork, or making it available (including through the internet) to any third party or (d) exhibiting or otherwise commercially exploiting your Artwork.
Usage Rights are to be enjoyed only on or through hardware devices that are owned or controlled by the Customer, which devices may be provided by us or the Customer. Personal and Commercial Accounts, as defined in the Collector Terms & Conditions may be subject to varying Usage Rights, including the right to display your Artwork on multiple devices. Artwork may not be compatible with all devices, operating systems and media. Collectors are encouraged to ensure that any purchased Artwork is compatible with their own devices, operating systems and media used before purchasing it by consulting our Frequently Asked Questions. As the technology becomes available to Blackdove, we shall include an invisible digital watermark or other coding in the Artwork in order to enable the linking of an individual Artwork to track potential infringements of our or your rights.
TERM AND TERMINATION
In respect to each Artwork submitted by you, you are granting Blackdove the Rights ongoing while you have published the Artwork from the Artist Portal. The expiration or termination of this Agreement does not affect our Customer’s Usage Rights pursuant to the Collector Terms and Conditions or any accrued monetary obligation owed to you or us. Therefore, if a Customer has purchased your artwork, Blackdove will maintain the ability for that Customer to play your artwork in perpetuity. However, when unpublished, no further sales will be authorized on the platform.
We may terminate this Agreement or otherwise withdraw your Artwork from our Galleries or cease further Commercialization of your Artwork upon five (5) days prior written notice to you in the event that you breach any term of this Agreement and fail to cure such breach within five (5) days of receipt of notice of such breach. We may elect to terminate this Agreement in the event you file bankruptcy, are declared insolvent or cease to carry on your business.
You may terminate this Agreement in the event that we fail to pay you any undisputed Royalties due hereunder and we fail to remedy such outstanding payment within forty-five (45) days of a written request to do so. You may further terminate this Agreement in the event we commit a material breach of our obligations under this Agreement and fail to remedy such breach within thirty (30) days of the date of receipt of notice of such material breach. This Agreement shall automatically terminate in the event we file bankruptcy, are declared insolvent or cease to carry on our business.
SUBMITTING YOUR ARTWORK
Prior to submitting your Artwork and for more information regarding format requirements, please read our Frequently Asked Questions. Files must be submitted through your Account, hereinafter defined, in 4K H265 or HD H264 in .mp4 output format. In the event your Artwork is no longer supported by our Network due to changing screen requirements, we may cease further Sale and Commercialization of your Artwork if you are unable to provide a substitute which is compatible with our Network.
YOUR COPYRIGHT
You retain the copyright in each Artwork you submit to us and assert to us your moral right to be identified as the author of each Artwork ("Copyright") in accordance with the U.S. Copyright Act, 17 U.S.C. §§ 101-1101 (“Copyright Act”). In connection with each Sale and Commercialization of each Artwork, we provide our Customers with a Certificate of Authenticity bearing your name, and will include your name prominently on our Website, Application and Galleries through which your Artwork is offered for Sale and in all accompanying Certificates of Authenticity.
The foregoing notwithstanding, you expressly acknowledge and agree that we may: (a) use copies of your Artwork; (b) aggregate copies of one or more of your Artworks with one another or with the works of other artists exhibiting in our Galleries; and (c) overlay text on copies of your Artworks online and for offline printed materials, in each case for promotional purposes and without being required to name you as the artist.
Please be advised that you may not sell, transfer, hypothecate or otherwise transfer your ownership of the Copyright in your Artwork without our express, prior written consent. You expressly acknowledge and agree that, should the Copyright in any Artwork be transferred by you to any third party, whether voluntarily or by operation of law, this Agreement shall be binding on such third party transferee. Nothing contained herein shall be deemed to relieve you of your obligations under this Agreement in the event of such Copyright transfer.
YOUR COMPENSATION
For each Commercialization of your Artwork, we shall pay you a royalty calculated as a percentage of the Net Revenues, hereinafter defined, on the relevant Commercialization (the “Royalty” or collectively, “Royalties). Royalties are calculated based on the purchase or rental price of your Artwork on the date on which your Artwork is sold or rented to a Customer. Royalty rates are as follows:
i. Sale/License of the Artwork made through the technology platform; distribute Eighty Percent (80%) of Net Revenues (“total revenues reduced by credit card, Apple, or Google fees”) to Artists or the then current rights owner of the commercial rights for the Artwork. ii. Subscription royalties are distributed to Artists at Twenty Percent (20%) of the Net Revenue earned by the Company on a pro-rata basis based on the number of artwork plays divided by the total plays. Artwork rotations may be determined at our sole and absolute discretion. iii. Fifty (50%) Percent of Net Revenues for Artworks sold in a Gallery or by a person.
For the purposes of calculating Royalties, “Net Revenues” shall be deemed to mean the amounts actually received from our Customers for a particular Artwork, net of all relevant deductions including, which shall be limited to the following:
i. sales tax and other value-added tax; ii. bank fees; iii. charge-backs and returns; iv. any sums paid or repaid to Customers in connection with a Sale or Rental; v. any revenue share or commission paid or payable to distributors, licensees or others involved in the Commercialization of an Artwork, such as Agents and Galleries, if previously agreed by you; vi. any previously agreed upon sales commission (not to exceed seven and one-half percent (7.5%) of the Sale price of the Artwork); vii. any costs and fees charged to us which should have otherwise been charged to you, including but not limited to legal costs and fees incurred with a defense of you or your Artwork, prosecution of infringement or breach of this Agreement, and viii any fees paid to distribution services such as Apple, Android, LG, Google, Samsung, Vizio or others for use of their platform.
We provide an online portal for you to view your sales and provide a email form to request ACH transfer to your bank account for amounts owed. Ongoing we will provide an automated payment process that does not require the email functionality.
You or your representatives shall be entitled to audit our books and records with respect to the Artwork upon not less than thirty (30) days prior written notice to us, but not more frequently than annually nor more than once with respect to any statement rendered hereunder. You shall not have the right to examine any books and records relating to our business generally, or with respect to the artwork of any other party. Any such inspections shall be made during normal business hours at our regular place of business and shall be conducted at your expense. Notwithstanding the foregoing, in the event that the audit proves that the statement (which statement is the subject of said audit) underreported the income due and payable to you pursuant to this Agreement by an amount greater than ten percent (10%) of the total sum due and payable to you, we shall reimburse you for the cost of said audit and shall remit to you any additional sums due and owing.
HOW YOUR ARTWORK IS PRICED
As soon as your Artwork has been approved for Sale, it will go on sale at a price determined by us, subject to your prior approval. We may suggest modifications or discounts to the purchase or rental price of your Artwork from time to time. We agree to use all commercially reasonable efforts to Sell and/or Commercialize your Artwork, which efforts may include featuring, promoting and, if necessary, discounting the purchase price of your Artwork (in an amount not to exceed twenty percent (20%) of the Sale price of the Artwork). In the event you dispute the purchase or rental price of your Artwork, you must submit to us a notice in writing. We shall work in good faith to comply with all reasonable requests made by you, but acknowledge and agree that nothing contained herein shall require us to modify or otherwise alter, raise or lower the purchase or rental price of an Artwork.
FOREIGN PAYMENTS AND TAXES
Royalties based on Net Revenues in any foreign country are payable to you in the United States in U.S. dollars calculated using the foreign exchange rate, as published by the Wall Street Journal, in effect for such foreign currency on the last business day of each calendar quarter for which a report is required. Where Royalties are due for Net Revenues in a country where, for reasons of currency, tax or other regulations, transfer of foreign currency out of such country is prohibited, we have the right to place your Royalties in a bank account, for example, by Automated Clearing House (ACH) credit or wire transfer, in your name and under your control, provided, however, that the bank selected is acceptable to you and that we inform you of the location, account number, amount and currency of money deposited therein. Any and all bank fees shall be borne by you. After you have been so notified, those monies shall be considered as Royalties duly paid to you, and will be completely controlled by you, and we will have no further responsibility or rights with respect to such deposits.
All foreign taxes on Royalty payments imposed upon or required to be withheld by us, our affiliates or sublicensees, shall be deducted from such payments, and evidence of such foreign taxes shall be delivered to you as part of its periodic Royalty reports. We agree, however, to assist you in recovering or preventing the levy or withholding of any such taxes, provided that we shall be reimbursed for our out-of-pocket expenses incurred in rendering any such assistance.
REPRESENTATIONS AND WARRANTIES
By submitting Artwork to Blackdove, you hereby warrant and represent to us that:
a. you are the sole owner of the Rights and have full power to enter into this Agreement and to grant all Rights set forth in this Agreement;
b. you are exclusively entitled to give all warranties, indemnities, assurances, confirmations, waivers and agreements set out in this Agreement to enable us to exploit each Artwork without making any payment other than as expressly set forth in herein;
c. you are the sole author of your Artwork, which Artwork is “original” to you within the meaning of the Copyright Act;
d. you are providing us with the highest quality (including highest resolution) version of your Artwork and that, until its withdrawal from Sale pursuant to the terms hereof, it will continue to be the highest quality version of your Artwork;
e. your Artwork, to the best of your knowledge, contains nothing which, in any part of the world, is capable of contravening any applicable law (including, without limitation, any criminal law) or regulation, which is capable of infringing on our rights or the rights of any third party, or (without limiting the foregoing) anything that is capable of being considered false, inaccurate, misleading, offensive, abusive, threatening or defamatory.
f. your Artwork, to the best of your knowledge, does not contain any computer virus, macro virus, Trojan horse, worm, or anything else designed to interfere with, interrupt, or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority, or expropriate any system, data or personal information.
We warrant and represents to you that:
(a) We are a duly organized, validly existing and in good standing corporation under Delaware law. We have the power and right to enter into and perform this Agreement and the transactions contemplated hereunder;
(b) This Agreement is a valid, legal and binding obligation of us;
(c) This Agreement does not conflict with (i) any existing law or regulation or judicial order; its articles of incorporation; or (iii) any other agreement;
(d) All authorizations, consent, approvals which are required have been or will be obtained;
INDEMNITIES
You agree to indemnify on demand and hold Blackdove, our shareholders, officers, directors, agents and affiliates, harmless from and against all actions, claims, liabilities, proceedings, costs and damages (including any damages or compensation paid by us on the advice of our legal counsel, after consultation with you, if possible, to compromise or settle any claim), and all legal costs and other expenses and losses including, but not limited to, losses of profits, arising, directly or indirectly, out of any material breach of any of the warranties and representations hereof or above or out of any claim by a third party based on any facts, which if substantiated, would constitute such a material breach or out of any non-performance by you of any of your obligations under this Agreement.
You agree to assume the defense of, and to indemnify and hold us, our subsidiaries, affiliates, franchisees, licensees, successors and assigns harmless from any and all liabilities, damages, claims, judgments, awards, fines, penalties, or other payments (including reasonable counsel fees), which may be incurred by any or all of them arising out of any claims or suits which may be brought or made against us or those in privity with us for injuries resulting from our Commercialization, Sale, marketing, distribution of or use of your Artwork, including those arising from claims involving copyright, patent, trademark, or software, or out of any breach by you of any provisions of this Agreement, provided that we shall give prompt notice and reasonable cooperation and assistance to you relative to any such claim or suit brought to its attention and provided it is not the result of our negligent, intentional or willful misconduct. This provision shall survive the termination or expiration of this Agreement.
We agree to indemnify on demand and hold you, your shareholders, officers, directors, agents and affiliates, harmless from and against all actions, claims, liabilities, proceedings, costs and damages (including any damages or compensation paid by you on the advice of your legal counsel, after consultation with us, if possible, to compromise or settle any claim), and all legal costs and other expenses and losses including, but not limited to, losses of profits, arising, directly or indirectly, out of any material breach of any of our warranties and representations hereof or above or out of any claim by a third party based on any facts, which if substantiated, would constitute such a material breach or out of any non-performance by us of any of our obligations under this Agreement.
PROTECTION AND DEFENSE OF THE ARTWORK
You agree to protect and defend the Artwork at your own cost and expense provided such infringement is not the result of our negligence, intentional or willful misconduct. By submitting Artwork to Blackdove, you agree to indemnify and hold us harmless from claims, liabilities and damages related to your Artwork as properly used by us pursuant to this Agreement. You agree to advise Blackdove in writing of any potentially infringing uses of your Artwork by others in addition to any suits brought, or claims made, against you involving the Artwork. Blackdove will cooperate with you in the defense and protection of the Property and shall promptly advise you in writing of any potentially infringing uses by others in addition to any suits brought, or claims made, against us involving your Artwork. In the event we are required to take any action on your behalf to protect the Artwork or incur any expense on your behalf, you shall promptly reimburse us for all costs and expenses related thereto provided we have received your prior written approval. We may elect to withhold Royalties if any sum due and owing to us by you relating to the protection and defense of your Artwork remains unpaid. Should we take any action on behalf of you in furtherance of the protection of your Artwork, us or our Customers, you shall cooperate fully withusinthedefenseandprotectionofyourArtwork.Insuchanevent,allproceedsreceived fromtheprosecutionordefenseofsuchactionshallinuresolelytoyourbenefit subject to our right to reimbursement.
COMPLIANCE WITH OUR TERMS
We will use all commercially reasonable methods to record Sales of the Artwork and to ensure that our Customers agree to the Collector Terms & Conditions. Although our Customers are prohibited from doing so thereunder, some may behave, in a way that is unreliable, illegal, or in breach of a Customer’s obligations under the Collector Terms & Conditions (which may include, without limitation, breaching their obligations concerning Artwork they have purchased). Accordingly, you expressly acknowledge and agree that we are not responsible for our Customer’s behavior, including in relation to your Artwork or for content posted to our Website by Customers. We shall not be held responsible for (and, for the avoidance of doubt, Royalties shall not be payable in relation to) any unauthorized copying, distribution, transmission or sale of Artworks that may occur, despite the prohibition thereof under our Collector Terms & Conditions. To the extent permitted under all applicable law, you hereby release us, our agents, directors, officers, shareholders and employees from all liability arising out of or in connection with any Customer’s behavior or content, provided such liability is not the result of our negligent, intentional or willful misconduct.
LIMITS ON LIABILITY
We agree to use reasonable care to provide our Services in accordance with this Agreement. The foregoing notwithstanding, all Services provided by us are provided on an "AS IS, WHERE IS" basis. We do not provide any warranties of merchantability or fitness for a particular purpose and have no obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise, save as expressly provided in this Agreement.
Neither party shall have liability other than for direct loss or damage, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise and whether caused by its act or omission or that of its agents, directors, officers, shareholders, employees and subcontractors with respect to third party claims that are not the result of that party’s negligent, intentional or willful misconduct. Either party’s aggregate liability during any successive period of twelve (12) months, the first of which shall be deemed to begin on the date when you submit your Artwork (each a "Year"), shall be limited to the amount of any Royalty payable to you, if any, under this Agreement during any applicable Year, in connection with third party claims that are not the result of the liable party’s negligent, intentional or willful misconduct.
Neither party’s , agents, directors, officers, shareholders, employees and subcontractors will be liable to the other party or any third party, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise (i) for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption; or (ii) for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising, in connection with any third party claims that are not the result of that party’s negligent, intentional or willful misconduct.
Notwithstanding anything contained herein to the contrary, all representations, warranties, conditions and other terms, unless expressly stated herein, are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law. Neither party will be liable for any failure to perform its obligations under this Agreement caused by matters beyond its reasonable control. The provisions of this Paragraph shall survive the termination or expiry of this Agreement.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (i) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES IN CONNECTION WITH ANY THIRD PARTY CLAIM THAT IS NOT THE RESULT OF THAT PARTY’S NEGLIGENT, INTENTIONAL OR WILLFUL MISCONDUCT. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES PROVIDED HEREIN.
OUR PRIVACY POLICY
You expressly consent to our Privacy Policy, which governs all users of our Services and Website. Given the global nature of the World Wide Web, content which appears on our Network, including you profile and your Artwork, may be accessible to internet users around the world. You agree not to use our Website or our Network in connection with the sending of any unsolicited messages, or to harvest or otherwise collect information about Customers, including e-mail addresses, without their express consent.
CONFIDENTIALITY
The Parties agree that all information received from the other party must be held in strict confidence, used only for the purposes of this Agreement, and not disclosed by the other party, its agents or employees without the other party’s prior written consent, unless such information (i) was in the public at the time of disclosure, (ii) later became part of the public domain through no act or omission of the recipient party, its employees agents, successors, or assigns, (iii) was lawfully disclosed to the recipient party by a third party having the right to disclose it, or (iv) was already known by the recipient at the time of disclosure. Each party's obligation of confidentiality shall be fulfilled with the same degree of care as it uses to protect its own confidential information. This obligation exists during this Agreement and for five (5) years thereafter. Nothing contained herein shall prevent either party, its affiliates or its sublicensees from disclosing information to the extent such information is required to be disclosed (i) in connection with the securing of necessary governmental authorization for it, its affiliates' or sublicensees, (ii) for its purpose, its affiliates, or sublicensees, compliance with governmental regulations or (iii) for the purpose of sublicensing, commercializing or selling of the Artwork.
CHANGES TO THESE TERMS & CONDITIONS
With respect to terms which will not adversely affect you, we reserve the right to change this Agreement from time to time, and post the new version on our Website. Artists will be notified through their Accounts or by e-mail as to changes to these Terms & Conditions. The new version of this Agreement will take effect on the date falling thirty (30) calendar days after the date of such posting (or such later date as we indicate in the relevant posting), if any of the changes is to an operative provision of this Agreement which is capable of adversely affecting you; or immediately upon the date of posting (or such later date as we indicate in the relevant posting), if the changes are not capable of adversely affecting you - examples of which would include, without limitation, (i) changing the name of, and/or the web-address (www.blackdove.co) that you use to access our Website, or (ii) the refinement of provisions that are already included or referred to in this Agreement. In either case, if you do not wish to be governed by the new version of this Agreement, you must send us a Termination Notice and immediately cease to use our Website. We shall not have any liability to you in such an event and your cessation of use of our Website will not limit or qualify and of our Customers’ rights (including Usage Rights) with respect to your Artwork purchased prior to the effective date of termination of the grant of Rights, nor the agreements contained herein for Commercialization of your Artworks prior to the effective date of termination.
TEMPORARY SUSPENSION OF SERVICES
In addition to the other rights of suspension specified in this Agreement, we are entitled to suspend provision of all or part of our Services, or the availability of Artwork or other content associated with you, at any time if we are obligated or advised to comply with an order, instruction or request of any governmental agency, court or other competent authority, or if we are advised by counsel that such suspension would protect us or you, where applicable.
We expressly reserve the right to withdraw or modify all or part the Services we offer, including the availability of Artwork, where we have legal or commercial reasons to do so. There may also be times when our Website’s or Network’s operation is adversely affected, or becomes inaccessible, as a result of technical difficulties experienced by us, on the Internet or other communications networks, or other matters that are beyond our reasonable control. We cannot and do not guarantee continuous, uninterrupted or secure access to our Website or any of the material (including all Artwork) that appears on it. If we are conducting a period of planned unavailability of our Website, we will inform Customers and you of this by a notice that appears on one or more parts of our Website. Furthermore, for security or other reasons, we may require you or our Customers to change their password or other information, which facilitates access to our Website. You are solely responsible for maintaining the confidentiality of your password, login credentials and any additional identifying information.
ASSIGNMENT OF THIS AGREEMENT
We reserve the right to assign this Agreement, and to assign or subcontract any or all of our rights and obligations under this Agreement (including, without limitation, the Rights), but will not do so in such a way as to reduce any guarantees you are given under this Agreement. Upon the assignee's execution of a covenant directly with you to perform our obligations under this Agreement, unless a notice has been provided within thirty (30) days post assignment objecting to any modifications in obligations, you agree that we shall be released from all obligations hereunder and that this Agreement shall renew (on identical terms and conditions) between you and such assignee. You may not, without the express, prior written consent of us, assign or dispose of this Agreement or any of your rights and obligations hereunder, except to an affiliate or a subsidiary.
MISCELLANEOUS
The expiration or termination of this Agreement shall not affect those provisions, and the rights and obligations therein, set forth in this Agreement which either by their terms state, or evidence the intent of the parties, that the provisions survive the expiration or termination of the Agreement, or must, in fact, survive to give effect to the provisions of this Agreement.
During the term of this Agreement, we shall keep accurate books of account and records covering all transactions relating to this Agreement and the Sale or Commercialization of the Artwork at its principal place of business for not less than three (3) years after the expiration or earlier termination of this Agreement.
We may designate any number of agents and/or distributors to utilize the Artwork and provide the Services. We may assign the rights granted hereunder to its agents and/or distributors in any manner consistent with the terms of this Agreement.
This Agreement shall not render you an employee, partner, independent contractor, or joint venturer with us for any purpose. Nothing in this Agreement shall serve to cause either party to be liable for the acts or omissions of the other party as to any matter other than those specifically set forth herein. You shall pay and discharge, or cause to be paid and discharged as and when the same become due, all taxes, levies, assessments, governmental charges, fines and penalties of any nature whatsoever lawfully imposed in connection with your activities hereunder and any income derived therefrom.
For the avoidance of doubt, the term "us" as used in this Agreement shall mean without limitation, our affiliates, subsidiaries and assignees.
If a third party contacts us in relation to your Artwork or a transaction associated with you, or any related activity or communication, then you agree (a) to provide all reasonable information and assistance that we may require in connection with responding to that contact; and (b) to respond promptly and accurately to it, should we pass the message to you for a response.
This Agreement and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the State of Florida. In the event of a dispute between the parties regarding the terms of this Agreement, prior to initiating any cause of action, the parties hereby agree to submit any dispute to non-binding mediation. Venue for any legal proceedings shall be in Miami-Dade County, Florida or in Los Angeles County, California.
In the event any term or provision of this Agreement shall be held illegal, unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement shall not be affected thereby, but each such term and provision shall be valid and shall remain in full force and effect.
This Agreement shall be binding upon, and shall inure to the benefit of, the successors and assigns of the parties hereto. This Agreement embodies the entire agreement between the parties hereto and supersedes any and all prior agreements and understandings, written or oral, formal or informal. No modifications or amendments to this Agreement, of any kind whatsoever, shall be made or claimed by any party hereto, and no notices of extension, change, modification or amendment made or claimed by any party hereto shall have any force or effect whatsoever unless the same shall be endorsed in writing and fully signed by the party against whom enforcement is sought.
Captions and Paragraph headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement nor the intent of any provision hereof.
In the event of any dispute or litigation between the parties of this Agreement relating to or arising out of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs at the pretrial, trial and appellate levels.
The parties hereto agree to take all such action as may be reasonably required by any party to effectuate the terms and provisions of this Agreement and the transactions contemplated herein.
In giving meaning to this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and the use of any gender shall be held to include every other and all genders.
The parties hereto acknowledge and agree that each is foregoing certain rights and assuming certain duties and obligations, which, but for this Agreement, would not have been foregone or assumed. Accordingly, the parties agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable in all of its terms.
No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the party against charged.
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