CONTENT LICENSE AGREEMENT (NON-EXCLUSIVE)

This Agreement governs the terms by which artists, photographers, graphic artists, videographers or other artists provide picture, photographic, video, and other media content to members of the ARTregards.com community, on a non-exclusive basis through the web site located at http://www.ARTregards.com (the "Site"), and to other prospective purchasers through other distribution venues as provided for in this Agreement. This Content License Agreement is applicable in addition to the Terms of Use which all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement and the Terms of Use, the terms of this Agreement shall govern.

  • Background of Agreement
    • This is a legal agreement between any member intending to upload data or materials onto the Site(in this agreement referred to as "Artist") and Elaborarte GmbH ("Elaborarte"). If the Artist are a corporation or other entity or a minor the Artist may be subject to further filing requirements. The Artist wishes to appoint Elaborarte as its non-exclusive agent to license, sublicense and distribute Content (as defined below) produced by the Artist on the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, the Artist may make Content available to Elaborarte 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.
    • This is a fairly lengthy document, and it contains many important provisions that affect the Artist's rights and obligations. By ticking the correct box at the end of this Agreement and typing "I agree", the Artists are agreeing to be bound by the terms of this Agreement. We encourage the Artist to print a copy of the Agreement for theArtist's records.
    • 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 Artist, the Artist must follow the termination procedures set forth below under "Term and Termination".
  • Provision of Content
    • The parties acknowledge that the Artist 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 Elaborarte 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 Elaborarte to realize the commercial potential of the rights granted in the Content ("Descriptive Information"). Elaborarte, 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 Elaborarte may permit Content to be submitted pursuant to certain applications from time to time, the Artist's ability to submit further Content to the Site shall be subject to policies and procedures outlined in the Site and such applications.
    • 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.
  • Grant of Authority
    • The Artist hereby appoints Elaborarte as Artist's non-exclusive distributor to sell, license, or sublicense Content to third parties worldwide and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Content, Artist grants Elaborarte:
      • 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 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: (a) through the Site; or (b) through other venues owned or operated by Elaborarte or its affiliates from time to time, and (c) through Distribution Partners(defined in Section 3); and
      • The right to grant perpetual, worldwide and non-exclusive licenses or sublicenses to end-users. Elaborarte 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.
    • In addition to the foregoing grant Elaborarte 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 Artist'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 Artist for use of Accepted Content for such business purposes.
    • Accepted Content may be included in one or more current or future content collections ("Collections") made available for licensing or distribution by Elaborarte or third party distributors (each a "Distribution Partner"). Elaborarte will determine the Collection and may subsequently move and license Accepted Content through a Collection on notice to the Artist either through the Site or otherwise. For Content that moves into another Collection, the royalties paid to the Artist shall be as set out in the (defined below).
    • The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Artist, and no title or copyright is transferred or granted in any way to Elaborarte or any third party except as provided in this Agreement.
    • Elaborarte 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 the Artist will be determined according to: (a) the ratio of the number of individual items of the Artist's Accepted Content to the total number of individual items of Content licensed together; or (b) in Elaborarte's discretion, the relative value of the Artist's individual items of Accepted Content compared to all other content licensed together with it.
  • Intellectual Property Matters
    • The Artist acknowledges that Elaborarte 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.
    • By uploading Content, the Artist is warranting that the Artist owns 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 Elaborarte, to the extent that the Content contains images of people or persons, the Artist represent and warrant that the Artist 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 the Artist will keep the original release and provide a copy to Elaborarte if requested. The Artist also warrant that where required by applicable law, the Artist have also obtained a valid and binding 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 Elaborarte and its Distribution Partners' customers. Where the Content is identified as 'for editorial use' the Artist 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.
    • The Artist agrees that neither Elaborarte 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.
    • Using the member name supplied by the Artist, Elaborarte shall use commercially reasonable efforts to credit the Artist as the source of Accepted Content, but shall have no liability for lack of credit. The Artist acknowledges and accepts and therefore waives 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.
  • Compensation
    • Elaborarte agrees to pay the Artist 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 set forth on Appendix "A" to this Agreement, as it may be modified from time to time (the ""). For Content distributed free of charge no compensation will be paid. Compensation is calculated and paid out in CHF (Swiss currency). The parties acknowledge that the 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 is subject to change in the sole discretion of Elaborarte upon providing the Artist 30 days notice by e-mail at the last address contained in the Artist's membership information and by posting such changes on the Site. If at any time the is not acceptable to the Artist, the Artist may terminate this Agreement in accordance with its terms.
    • In response to a written request, Elaborarte 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 CHF100, failing which royalties owing will be retained until they exceed such minimum. In all cases, payment of royalties to the Artist 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 the Artist, 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 Artist to Elaborarte under this Agreement or otherwise.
    • Without limiting the generality of the foregoing, Elaborarte is entitled to set-off against any amount owing to Artist, all amounts to which Elaborarte 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 Artist under this Agreement.
    • The parties further agree that Elaborarte shall not be required to pay royalties to the Artist if Elaborarte 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.
    • In the event Elaborarte facilitates a sale or exclusive license of Content, Elaborarte 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 at the time of the transaction.
  • Passwords

      The Artist acknowledges and agrees that the Artist will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with the Artist's Member Name and such passwords, and that Elaborarte is authorized to accept the Artist's Member Name and password as conclusive evidence that the Artist wish to upload Content pursuant to this Agreement. Elaborarte shall have no liability or responsibility to monitor the provision of Content under the Artist's member name and password.

  • Managing Content

      Elaborarte 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, Elaborarte does not and cannot review all Content uploaded to the Site and is not responsible for the content, quality, or consequences of the Artist's uploading such Content. Notwithstanding the foregoing, Elaborarte 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 the Artist hereby agree to forfeit any fees payable in respect of such Content to elaborarte or as it may direct. Elaborarte 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. The Artist acknowledges that any screening of Content performed by Elaborarte to determine Accepted Content is done as a courtesy only.



      NOTICE: The Artist acknowledges that the Content the Artist provides 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. Elaborarte cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and the Artist acknowledges and agrees to the possibility of Content being used in a manner that is not contemplated in this Agreement. The Artist also agrees that notwithstanding any rights the Artist may have to pursue the licensees of such Content at law, Elaborarte shall have no liability to the Artist or any person claiming through the Artist for any breach by a licensee of the terms of any agreement respecting Accepted Content. Elaborarte will use commercial efforts to assist in the protection of the Artist's intellectual property rights, at the Artist's request and expense.

  • Confidential Information
    • The Artist acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of Elaborarte and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Elaborarte, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
    • 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 Elaborarte, 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.
  • Representations and Warranties
    • The Artist hereby represents and warrants as follows:
      • The Artist 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;
      • 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 Artist for such design program software allows the Artist to incorporate such elements in Content created by the Artist, and to license such Content to Elaborarte for the purposes set forth herein;
      • No portion of the Content as delivered to Elaborarte 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;
      • 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 "doping" or improperly altering search results that would otherwise be applicable to such Content; and
      • The Content delivered to Elaborarte 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
      • 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 Elaborarte, its customers or distributors as contemplated under this Agreement.
    • The Artist represents and warrants that the Artist shall not: (i) license the Artist's own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. The Artist agrees that the Artist will not collude with another Elaborarte member to have that member do either of (i) or (ii) above for the Artist's benefit. The Artist acknowledges that genuine subscription customers typically license files from many contributors and the Artist agrees that the Artist's subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if the Artist breaches this paragraph Elaborarte may immediately terminate this Agreement and/or, if applicable, cancel the Artist's subscription package without any refund to the Artist. The Artist further agrees to forfeit any royalties earned by the Artist in connection with the Artist's misconduct.
  • Indemnity
    • The Artist agrees to indemnify, defend and hold Elaborarte and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the "Elaborarte Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Elaborarte Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under the Artist's Member Name by any person, whether or not authorized by the Artist; (ii) or resulting from any communication made or Content uploaded under the Artist's Member Name; (iii) any breach by the Artist of this Agreement; or (iv) any claim threatened or asserted against any Elaborarte 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.
    • Elaborarte reserves the right, at the Artist's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Artist, and in such case, the Artist agrees to cooperate with Elaborarte's defense of such claim.
    • The Artist agrees that Elaborarte 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 Artist. The Artist hereby releases Elaborarte from any and all claims the Artist might have, either directly or indirectly, arising out of or in connection with a determination by Elaborarte to proceed or not to proceed against any Infringer in any instance. Elaborarte 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 Elaborarte 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 a solicitor and client basis) incurred by or on behalf of Elaborarte in connection with such action, be divided between the Artist and Elaborarte pursuant to the provisions of the Compensation section above. In the event Elaborarte elects not to proceed against an Infringer, the Artist shall have the right to proceed against such Infringer for such license violation or infringing action. The Artist 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 Artist 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 a solicitor and client basis), be divided between the Artist and Elaborarte pursuant to the provisions of the Compensation section above.
  • Term and Termination
    • This Agreement is effective until terminated. The Artist may terminate this Agreement at any time by giving thirty (30) days written notice to Elaborarte using or such other means of written notice acceptable to Elaborarte which enables confirmation of the Artist's identity and the Artist's intention to terminate. Elaborarte may also terminate this Agreement for any reason by giving the Artist thirty (30) days notice by e-mail at the last address contained in the Artist's membership information. If Elaborarte terminates the Artist's membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
    • 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.
    • In addition, Elaborarte 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 Elaborarte, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Artist provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Artist based on the information provided through the Site as part of the account profile of such Artist.
  • Effect of Termination
    • Upon the termination of this Agreement, the grant of authority given to Elaborarte shall cease subject to the following conditions: (i) Elaborarte shall remove Accepted Content from the Site and distribution partners within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, Elaborarte 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, Elaborarte will continue, in accordance with this Agreement, to pay compensation due to the Artist in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
    • Upon termination, Elaborarte will be entitled to retain all amounts owing to the Artist for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating the Artist's account.
    • 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 Elaborarte pursuant to this Agreement.
    • Termination of this Agreement shall operate without prejudice to the Elaborarte's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
  • DISCLAIMER OF WARRANTIES
    • THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY ELABORARTE "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. ELABORARTE 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.
    • ELABORARTE DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
  • LIMITATION OF LIABILITY
    • THE ARTIST ASSUMES ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
    • IN NO EVENT SHALL ELABORARTE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO THE ARTIST HEREUNDER, EVEN IF ELABORARTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
    • IN ANY EVENT, ELABORARTE'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ELABORARTE FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND (CHF1,000.00) SWISS FRANCS.
    • SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE ARTIST. IN SUCH JURISDICTIONS, THE LIABILITY OF ELABORARTE OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  • Applicable law
    • The Site is controlled, operated and administered by Elaborarte from Switzerland. The Site can be accessed from all of Switzerland, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of Switzerland, the Artist acknowledges and agrees that this Agreement will be governed under the laws of Switzerland and the Swiss laws applicable therein (without reference to conflicts of laws principles). The Artist hereby irrevocably submits to the exclusive jurisdiction of Switzerland with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
    • The Artist consents to service of any required notice or process upon the Artist by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by the Artist at the time the Artist was first granted access to the membership portions of the Site. The Artist agrees to waive any right the Artist may have to (i) trial by jury; and (ii) to commence or participate in any class action against Elaborarte related to the Site or this Agreement.
    • Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Switzerland, pursuant to the rules of the Arbitration Act in effect at the time arbitration is demanded or any agreements contemplated hereby.
    • If Elaborarte is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, the Artist agrees to reimburse Elaborarte for its legal fees, costs and disbursements if Elaborarte is successful.
  • General
    • The Artist specifically agrees and acknowledges that the Artist has, in addition to the terms of this Agreement, reviewed the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement the Artist agrees to be bound by them.
    • Elaborarte's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
    • This Agreement is personal to the Artist and is binding upon the Artist's heirs, executors and legal representatives, as the case may be, and is not assignable by the Artist without Elaborarte's prior written consent. Elaborarte may assign this Agreement without the Artist's consent to any other party so long as such party agrees to be bound by its terms.
    • If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
    • This Agreement can be amended by the written agreement of the parties or by Elaborarte posting amendments on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Artist and it will be incorporated by reference into this Agreement.
    • The Artist understands and agrees that information relating to the Artist or any other person such as a model that the Artist may provide to Elaborarte may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of the Artist's home country. Elaborarte, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting the Artist, and may disclose this information to necessary service providers in accordance with the Elaborarte [Privacy Policy].
    • The parties have requested that this Agreement and all related documents be drawn up in English.
  • Contact

      If the Artist has concerns relating to this Agreement, please contact Elaborarte at or via phone at +41 (44) 586'80'87.

  • Acknowledgement

      THE ARTIST ACKNOWLEDGES THAT THE ARTIST HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF ELABORARTE AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF THE ARTIST'S ACCEPTED CONTENT, THE ARTIST AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE ARTIST FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE ARTIST AND ELABORARTE, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN THE ARTIST AND ELABORARTE RELATING TO THE SUBJECT OF THIS AGREEMENT.

© Elaborarte GmbH/ARTregards 2012.

Appendix A

Rate Schedule
SALES PRICES FOR E-ART CARDS IN CHF
Client Purchasing Model Card Price Price for Contingent Number of Cards
Regular 2.00 na 1
Small 1.56 25 16
Medium 1.20 72 60
Large 0.96 114 120
Big 0.72 288 400
Special Edition to be decided by ARTregards together with artist
The contigents are not limited in time

 
ROYALTIES FOR ARTISTS IN PERCENT (%) OF TURNOVER
Sales/month Artist Share
< CHF 400 22%
< CHF 800 25%
< CHF 1,500 30%
from CHF 1,500 33%
The percentage will be fixed monthly based on turnover accumulated within a 12 month period


Examples:
With a first month turnover of CHF 400, the artist share will be 25% equalling CHF 100
With an accumulated 4 month turnover of CHF 2,600, the artist share will be 25% equalling CHF 650
With an accumulated 4 month turnover of CHF 6,000, the artist share will be 33% equalling CHF 1,980

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