Artist's Supply Agreement (Non-Exclusive)
Artist's Supply Agreement (Non-Exclusive)
This Agreement governs the terms by which photographers, videographers or other artists provide photographic, video, and other media content to members of the www.stockist.co.za community, on a non-exclusive basis through the web site located at www.stockist.co.za and www.stockist.photo.co.za (the "Site”) , and to other prospective purchasers through other distribution venues as provided for in this Agreement. 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 document constitutes the agreement between any member intending to upload data or materials onto the Site (in this agreement referred to as "you” or the "Supplier”) and STOCKIST (Pty) Ltd LP (herein referred to as "STOCKIST”). If you are a corporation or other entity or a minor you may be subject to further filing requirements. The Supplier hereby appoints STOCKIST as its non-exclusive agent to license, sublicense and distribute Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement Upon accepting the terms of this Agreement, you may make Content available to STOCKIST 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.
b. This document contains many important provisions that affect your rights and obligations and must be read thoroughly. By ticking the correct box at the end of this Agreement and typing "I agree”, you agree to be bound by the terms of this Agreement. We recommend that you to print a copy of the Agreement for your records.
c. 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, software, photographs, illustrations, audio files, video files, animations, flash files, data files, code snippets and other material to STOCKIST using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, "Content”) together with other information, documents (such as model or property releases) or software relating to such Content or otherwise required to enable STOCKIST to realize the commercial potential of the rights granted in the Content ("Descriptive Information"). STOCKIST, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of direct or indirect distribution, and only such Content as it deems suitable will be considered "Accepted Content” for the purposes of applicable provisions of this Agreement. Although STOCKIST may permit Content to be submitted pursuant to certain applications from time to time, your ability to submit further Content to the Site shall be subject to policies and procedures outlined in the Site and such applications.
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 and relevant applications, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to Accepted Content outlined in the Site will be deemed to be a breach of this Agreement.
3. Grant of Authority
1. The Supplier hereby appoints STOCKIST as Supplier's non-exclusive distributor to sell, license, or sublicense Content to third parties worldwide and to collect and remit funds in connection with those endeavors on the terms set forth in this Agreement. For all Content, the Supplier grants STOCKIST:
i. The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products or publicly perform or display Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site; or (ii) through other venues owned or operated by STOCKIST or its affiliates from time to time, and (iii) through Distribution Partners (defined in Clause 3(c) below) ; and
ii. The right to grant perpetual, worldwide and non-exclusive licenses or sublicenses to end-users. STOCKIST and its Distribution Partners will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal.
2. In addition to the foregoing grant STOCKIST and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for their own business purposes relating to the promotion of the Site, the Content and their distribution programs, and promote 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.
3. Accepted Content may be included in one or more current or future content collections ("Collections”) made available for licensing or distribution by STOCKIST or third party distributors (each a "Distribution Partner”). STOCKIST will determine the Collection and may subsequently move and license Accepted Content through a Collection on notice to you either through the Site or otherwise. For Content that moves into another Collection, the royalties paid to you shall be as set out in the Rate Schedule (defined below).
4. 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 STOCKIST or any third party except as provided in this Agreement.
5. STOCKIST or a Distribution Partner may offer license models through an application program interface (API) or other utility that will make Accepted Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (1) the ratio of the number of individual items of your Accepted Content to the total number of individual items of Content licensed together; or (2) in STOCKIST’s discretion, the relative value of your individual items of Accepted Content compared to all other content licensed together with it.
4. Intellectual Property Matters
1. The Supplier acknowledges that STOCKIST 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.
2. By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement. In addition, unless the Content is identified as ‘for editorial use’ in the manner and form prescribed by STOCKIST, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as model release that will permit the uses for such Content contemplated in this Agreement and that you will keep the original release and provide a copy to STOCKIST if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as [property release] 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 broad uses, including commercial use, of Accepted Content by STOCKIST and its Distribution Partners’ customers. Where the Content is identified as ‘for editorial use’ the Supplier represents and warrants that the Content has not been manipulated, modified or processed in any manner that might distort the contextual integrity of the Content. For greater clarity, cropping and brightness/contrast corrections are permissible where the integrity of the Content has not been distorted.
3. The Supplier agrees that neither STOCKIST 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 or Description Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.
4. Using the member name supplied by you, STOCKIST shall use commercially reasonable efforts to credit you as the source of Accepted Content, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Content is not credited, that Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
5. Compensation
a. STOCKIST agrees to pay the Supplier royalties equal to 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”). The parties acknowledge that the Rate Schedule may differentiate among various types of Content, such as still images, Flash files, video footage, and among the sites/Distribution Partners through which the Content is distributed or otherwise in accordance with its terms. The Rate Schedule is subject to change in the sole discretion of STOCKIST upon providing you 30 days’ notice by e-mail at the last address contained in your membership information and by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, you may terminate this Agreement in accordance with its terms.
b. In response to a written request, STOCKIST will endeavor to make payment of royalties 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, except when sales reporting from a Distribution Partner is delayed, in which case payments will be made in the month following the date such sale is reported, provided such fees aggregate a minimum of five hundred (ZAR 500.00) South African Rand, failing which royalties owing will be retained until they exceed such minimum. In all cases, payment of royalties 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 agreements contemplated herein; (iv) cancellations or refund of a license where the original sale has been reported to you, including but not limited to where due to a fraudulent transaction; (v) overpayment of royalties in a prior period; and (vi) any amounts owing by the Supplier to STOCKIST under this Agreement or otherwise. Without limiting the generality of the foregoing, STOCKIST is entitled to set-off against any amount owing to Supplier, all amounts to which STOCKIST 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.
c. The parties further agree that STOCKIST shall not be required to pay royalties to the Supplier if STOCKIST is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
d. In the event STOCKIST facilitates a sale or exclusive license of Content, STOCKIST shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale or license, which share shall be based on the royalty payable pursuant to the Rate Schedule at the time of the transaction.
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 STOCKIST is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. STOCKIST shall have no liability or responsibility to monitor the provision of Content under your member name and password.
7. Managing Content
STOCKIST has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, STOCKIST does not and cannot review all Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Content. Notwithstanding the foregoing, STOCKIST reserves the right to delete, move, refuse to accept or edit any Content or Descriptive Information 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 STOCKIST or as it may direct. STOCKIST shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by STOCKIST 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 applicable license agreement. STOCKIST 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. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, STOCKIST 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. STOCKIST will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
8. Confidential Information
a. 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 STOCKIST and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of STOCKIST, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
b. 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 STOCKIST, 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 content belonging to others and other intellectual property.
9. Representations and Warranties
The Supplier hereby represents and warrants as follows:
a. 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;
i. If the Content consists in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by Supplier for such design program software allows the Supplier to incorporate such elements in Content created by the Supplier, and to license such Content to STOCKIST for the purposes set forth herein;
ii. No portion of the Content as delivered to STOCKIST 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 Descriptive 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 "STOCKIST” or improperly altering search results that would otherwise be applicable to such Content; and
iv. The Content delivered to STOCKIST hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information 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; and
v. The Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be
breached by the Content being used by STOCKIST, its customers or distributors as
contemplated under this Agreement.
b. 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 STOCKIST 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 STOCKIST 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.
10. Indemnity
a. You agree to indemnify, defend and hold STOCKIST and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the "STOCKIST Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on an attorney and client basis) incurred by any STOCKIST 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 STOCKIST Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
b. STOCKIST reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnity by you, and in such case, you agree to cooperate with SSI's defense of such claim.
c. The Supplier agrees that STOCKIST shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of a license agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases STOCKIST from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by STOCKIST to proceed or not to proceed against any Infringer in any instance. STOCKIST hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate STOCKIST for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery ( including, without limitation, reasonable counsel and experts' fees and disbursements on an attorney and client basis) incurred by or on behalf of STOCKIST in connection with such action, be divided between the Supplier and STOCKIST pursuant to the provisions of the Compensation section above. In the event STOCKIST elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on an attorney and client basis), be divided between the Supplier and STOCKIST pursuant to the provisions of the Compensation section above.
11. Term and Termination
a. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to STOCKIST using management@stockist.co.za or such other means of written notice acceptable to STOCKIST which enables confirmation of your identity and your intention to terminate. STOCKIST 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 STOCKIST 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.
b. Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site 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.
c. In addition, STOCKIST 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 STOCKIST, 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.
12. Effect of Termination
a. Upon the termination of this Agreement, the grant of authority given to STOCKIST shall cease subject to the following conditions: (i) SSI shall remove Accepted Content from the Site and distribution partners within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, STOCKIST and its distribution partners shall have the right to continue licensing Accepted Content until it is removed from the Site or other sites where Accepted Content is distributed; and (iii) regardless of the expiration or termination of this Agreement, STOCKIST 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.
b. Upon termination, STOCKIST 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.
c. 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 STOCKIST pursuant to this Agreement.
d. Termination of this Agreement shall operate without prejudice to the STOCKIST'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.
13. DISCLAIMER OF WARRANTIES
a. THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY STOCKIST "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. STOCKIST 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.
b. STOCKIST 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.
