ILLUSTRATOR’S COLLABORATOR AGREEMENT
In the case of conflict or contradiction between the current Contract and the Contract written in Spanish, the terms of the Contract written in Spanish shall govern.
The COLLABORATOR answer to the call for submissions made by illustraStock on their website or on other websites and publications. Only selected and approved illustrators are allowed to have access to this Agreement and to be one of the illustrators of the selected Collection category under the Collective Work of such collection.
1 Background of Agreement
- If You have access to this Agreement, You qualify for the collaboration program of illustraStock whereby, in return for compensation, illustrators agree to provide exclusivity to illustraStock for elements of the visual content produced by them as a Collaborator. As illustraStock offers different Collections of content, this agreement may differentiate among Collections of content that You produce, which includes all Sub-Collections, and related material produced by the COLLABORATOR.
- This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By confirming your acceptance of this Agreement this becomes a binding legal agreement between any member intending to publish data or materials onto the Site on an exclusive basis for the relevant Collection of content (in this agreement referred to as “You” or the “COLLABORATOR”) and My language skills S.L.U. through illustraStock (in this agreement referred to as “illustraStock”). If you are a corporation or other entity or a minor you may be subject to further filing requirements. We encourage you to print a copy of the Agreement for your records.
- As part of its initiative and under its direction, illustraStock intends to create, disseminate, publish and distribute a Collective Work titled “Name of the Collection” or “Sub-Collection” consisting of contributions (one or several illustrations) from the COLLABORATOR and various Collaborators, and constitutes a unique and autonomous creation, conceived by illustraStock, which coordinates and manages to the completion of the Collective Work, as covered in article 8 of the Spanish Code of intellectual property rights.
- The Collaborator wishes to appoint illustraStock as its exclusive agent to license, sublicense and distribute the Individual Contribution (as defined below) produced by the Collaborator on the terms and conditions set forth in this Agreement of Collective Work, following the meaning of article 8 of the Spanish Code of intellectual property rights. Upon accepting the terms of this Agreement, You may make your Individual Contribution available to illustraStock by following the “Publish” procedures identified on the Site. Each publication of the Individual Contribution included in the published Collective Work will be governed by the terms and conditions of this Agreement.
- 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 Collaborator, You must follow the termination procedures set forth below under “Term and Termination”.
2 Definitions for this Agreement
- A “collective work” is a work, such as a collection of works, anthology, or encyclopedia, in which a number of Individual Contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
- A “Derivative Work” is a work based upon the Work or upon the Work and other pre-existing works, such as a picture version or any other form in which the Work may be recast, transformed, or adapted. A work that constitutes a Collective Work will not be considered a Derivative Work.
- A “Joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
- A “Work” is the copyrightable work of authorship.
- A “Collection” is a group of illustrations, known as its Individual Contribution or Items, each one made with one or several unique Sets of one common topic. Each Collection is a selection of Items with particular caracteristics, designed for specific purposes.
- A “Group of styles” is the ultimate page before buying the items. It includes different Individual Contributions or Items of the same topic. It also includes descriptions, taxonomies and technical information.
- An “item” or “Individual Contribution” is a group of related illustrations of one common topic designer for specific purposes in one Style.
- A “set” is a group of objects, considered as an entity unto itself (a lion family, a doctor, a car with all the positions and elements related to them). Some Individual Contributions allow an undetermined number of Sets and others come with a specific number of Sets.
- “Elements” means each part related to an Individual Contribution.
- “Fair Use Rights”. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.
3 Provision of the Individual Contribution included in the published Collective Work
- In this Agreement, “Individual Contribution” of the Collective Work means, as applicable to the Collaborator, one or more of (i) Image Content, or (ii) Illustration Content; together in any case with other information and documents, as the case may be or otherwise required to enable illustraStock to realize the commercial potential of the rights granted in the Content (“Descriptive Information”); but shall not include:
- Content that is produced as “work for hire” or is otherwise the result of a specific commission by a bona fide client of the Collaborator evidenced by written agreement where the Content deliverable from such commission is for the personal use of the client and not for resale or license to any other person or entity, except to the extent Collaborator retains in such Content any royalty free rights of the type outlined in the Content License Agreement;
- Content that is “Rights Managed”, which is defined as Content produced by the Collaborator and licensed for a fee that is based on one or more limited uses and for which usage history is tracked;
- Content that is of a collection category not currently offered for sale by illustraStock; or
- other Content specifically designated by the Collaborator and agreed by illustraStock as being Non-Individual Contribution.
- The publishing of Content that does not adhere to illustraStock’s Guidelines may result in the termination of Your illustrastock account. You agree to follow (i) illustraStock’s Collaborator Guidelines, and (ii) illustraStock’s Collaborator list of content by Collection Guidelines and (iii) illustraStock´s Collaborator Publishing Guidelines, which are deemed incorporated herein and made a part hereof by references such as, for example:
- We have a list of elements to draw available. Each list covers one different topic. From the index, the Collaborator will choose one list or a group of related illustrations (Items) from the list (if they are available). (However, lists can be limited or have up to thousands of elements).
- You may not Publish one identical Set from another Item, but You can change the style of the Set (following the illustraStock Collaborator Guidelines) and publish it (upon request and acceptance).
- Some collections allow duplicate elements and others do not. Some are ordered and others unordered (following the Guidelines).
- The Collaborator should use the Collection templates and the base elements from the repository.
- Each Item for one style should have 1 uploaded zip file with all the content related to the item (PNG, SVG and TXT Files).
- The Collaborator should upload and Publish the content in one Group of Styles page with the Descriptive Information following the different Guidelines. It is essential to choose the correct Taxonomies or controlled vocabularies that are used in descriptive metadata fields to support consistent, accurate, and quick indexing and retrieval of content.
- The Collaborator who creates the Group of Styles page should create the general descriptions, taxonomies and technical information related to the page. If the collaborator or another collaborator adds a new item in the Group of Styles page, if it is necessary, the previous information of the page shall be complemented following the Guidelines.
- One Individual Contribution is made with one or several Sets (according to our system of organization), each one with the necessary elements related to the Set.
- Notwithstanding the definition of Individual Contribution and the exclusive license granted in this Agreement, nothing shall restrict the Collaborator from (i) establishing or maintaining a personal portfolio on the Internet where Individual Contribution is posted for the purposes of art display, as long as You are not licensing or giving away rights to the Individual Contribution for anything other than such display; or (ii) using Individual Contribution in connection with the sale by Collaborator of prints, t-shirts and other merchandise, as long as You are not licensing or giving away rights to the Individual Contribution for anything other than such merchandising.
- The Collaborator will provide the Individual Contribution to illustraStock using the Publishing procedures and policies of the Site or such other procedures and policies as the parties may mutually agree. illustraStock, in its sole discretion, may determine which of such Individual Contribution is suitable for posting on the Site or other means of direct or indirect distribution, and only such Individual Contribution as it deems suitable will be considered “Accepted Individual Contribution” for the purposes of applicable provisions of this Agreement. Although illustraStock 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.
- The Collaborator must conserve a copy of his/her submitted digital files and declares to free illustraStock from any responsibility in case of a loss, theft or destruction of the files submitted to illustraStock.
- In addition to the terms of this Agreement, the parties acknowledge that illustraStock’s Collaborator program and the provision of all Content, including Individual Contribution, are subject to the policies and procedures outlined in the relevant portions of the Site and applications, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to the Collaboration program and Individual Contribution outlined in the Site will be deemed as a breach of this Agreement.
- illustraStock is in beta phase (testing process) during 2017-2018. Therefore, uploads will be performed in different phases in order to collect feedback to improve our services and to develop a system of uploads and publications of illustrations, as efficient as possible, for the company and You. In each phase You should upload a certain amount of illustrations, so as to minimize the time and effort You should invest at the beta phase of the project. Consequently, it may result in necessary changes in the organization of the system during the beta phase of the business activation. Due to these changes it might be necessary to ameliorate the current illustrations.
4 Managing Individual Contribution
- illustraStock 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, and illustraStock agrees to give priority to the posting of Individual Contribution within the general constraints of its business. Notwithstanding that some qualitative standards are required to be met, illustraStock does not and cannot review all Individual Contribution or Descriptive Information uploaded to the Site and is not responsible for the content, quality, or consequences of You publishing such Individual Contribution or Descriptive Information. Notwithstanding the foregoing, illustraStock reserves the right to delete, move, refuse to accept or edit any communication or Individual Contribution 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 illustraStock or as it may direct. illustraStock shall have the right but not the obligation to correct any errors or omissions in any Individual Contribution or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Individual Contribution or Descriptive Information performed by illustraStock to determine Accepted Individual Contribution is done as a courtesy only.
- You may not delete Published content (Individual Contributions or Descriptive Information) without the prior written consent of illustraStock.
- You further agree that any Individual Contribution that is not accepted by illustraStock and does not form Accepted Individual Contribution cannot be sold, licensed or otherwise made available to purchasers, licensees or other potential users without the prior written consent of illustraStock. illustraStock reserves the right to sell non-accepted Individual Contribution through another site or distribution venue determined by it, the compensation for which will be subject to the Rate Schedule.
NOTICE: You acknowledge that the Individual Contribution You provide pursuant to this Agreement which becomes Accepted Individual Contribution may be purchased or licensed by members of the Site or Distribution Partner sites with the intention that they will adhere to the terms of the applicable license agreement. Where illustraStock becomes aware of the breach of a license agreement by a user of Individual Contribution, it agrees that it will take initial steps in accordance with its usual business practices for the exclusivity program to request that the offending party refrain from its prohibited use of such Individual Contribution. illustraStock will use commercial efforts to further assist in the protection of Your intellectual property rights, at Your request and expense.
- Notwithstanding the foregoing, given the exigencies of the MicroStock Illustration business and the prevalence of royalty-free content, illustraStock cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, You acknowledge and agree to the possibility of Individual Contribution being used in a manner that is not contemplated in this Agreement, and You agree that notwithstanding any rights You may have to pursue the licensees of such Individual Contribution at law, illustraStock shall have no liability to You or any person claiming through You for any breach by a licensee of the terms of any agreement concerning Accepted Individual Contribution.
5 Intellectual Property Matters
- The Collaborator acknowledges that illustraStock prohibits any Individual Contribution, Descriptive Information 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 publishing Individual Contribution, You are warranting that You own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Individual Contribution with full power to grant the rights contemplated in this Agreement, and that You are not making any of the Individual Contribution available to or through any other distributor, website or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein.
- The Collaborator agrees that neither illustraStock 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 Individual Contribution or Descriptive Information, or any error, omission or other matter relating to a property release concerning Individual Contribution or Descriptive Information.
- Using the member name supplied by You, illustraStock shall use commercially reasonable efforts to credit You as the source of Individual Contribution, 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.
6 Grant of Authority
- The Collaborator hereby appoints illustraStock as the Collaborator’s exclusive distributor to sell, license or sublicense Individual Contribution included in the published Collective Work 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 Individual Contribution, the Collaborator grants illustraStock:
- In addition to the consequent grant, IllustraStock and its Collaborator Partners may publish, reproduce, modify, make derivative works, Joint Work or otherwise use any Individual Contribution for their own Individual Contribution of the Collective Work and their distribution programs. The Collaborator agrees that illustraStock and its Collaborator Partners shall have exclusive rights to create new Individual Contributions (provided that such Collaborators’ use of the modified Work is limited solely to the same uses permitted with respect to the original Work), at their own expense, and the Collaborator agrees to cooperate in that regard. No compensation shall be due to the Collaborator for use of Individual Contribution for such business purposes.
- The exclusive 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 the Individual Contribution to prospective licensees in any and all media now in existence and with preferential right acquisition in any media to be invented in the future (i) through the Site; (ii) through other venues owned or operated by illustraStock or its affiliates from time to time, and(iii) through Distribution Partners (defined in Section 6.1 (5 & 6)); and
- The right to grant perpetual, worldwide, licenses or sublicenses to end-users. IllustraStock 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, IllustraStock and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Individual Contribution for their own business purposes relating to the promotion of the Site, the Individual Contribution and their distribution programs, and promote the licensing of Individual Contribution (including, without limitation, the use of the Individual Contribution and the Collaborator’s registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). The Collaborator agrees that illustraStock shall have exclusive rights to design marketing literature for the Individual Contribution, at their own expense, and the Collaborator agrees to cooperate in that regard. No compensation shall be due to the Collaborator for use of Individual Contribution for such business purposes.
- Individual Contribution may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by illustraStock or third party distributors (each a “Distribution Partner”). Your Individual Contribution may be made available for licensing through a lower price tier royalty-free Collection of a Distribution Partner only if You opt in to the “Partner Program” Collection (as may be available from time to time) or other applicable indicator under Your account profile on the Site. Unless otherwise provided for in the publish process or on the Site, Your Individual Contribution may be made available for licensing through a similar or higher price tier Collection of a Distribution Partner as may be determined by illustraStock from time to time upon notice to You either by posting notice on the Site or otherwise.
- The price tier of a Collection shall be determined by illustraStock, acting reasonably, taking into consideration the average comparable pricing on the Site. For all Individual Contribution that moves into another Collection, the Royalties (defined below) paid to You shall be as set out in the Rate Schedule (defined below). The price tier of a Collection shall be subject to promotions and varying discounts from time to time.
NOTICE: The number of Sets or Elements (or the time it takes to create them) does not determine the price of one Individual Contribution.
- These ILLUSTRATOR’S COLLABORATOR AGREEMENTS intend to define the conditions in which the proprietary rights related to the Individual Contribution that will be included in the Collective Work to be published will be ceded, exclusively, by the Collaborator to illustraStock (therefore his/her contribution will be gathered together with those of other participants, without any proprietary rights of any kind for the Collaborator, regarding the joint work, the ownership of which will belong uniquely and exclusively to illustraStock), and the conditions in which illustraStock will cover, at their own expenses, the publication of the Collective Work, following the meaning of article 8 and article 97 of the Spanish Code of intellectual property rights, and no title or copyright is transferred or granted in any way to any third party except as provided in this Agreement.
7 Compensation *
- illustraStock agrees to pay You royalties (the “Royalties”) within: I) 90 days after the end of each accounting cycle in which the license or sale was made (except when sales reporting is delayed for transactions that do not occur on the illustraStock Site, whether made by a Distribution Partner or otherwise, in which case payments will be made in the month following the completion of the accounting cycle of the communication of such sale) (a “Sales accounting cycle”), o within: II) 90 days after the end of each month in which the license or sale was made (except when sales reporting is delayed for transactions that do not occur on the illustraStock Site, whether made by a Distribution Partner or otherwise, in which case payments will be made in the month following the date such sale is reported) (a “Sales Month”), according to the Your preference, however You must warn illustraStock if you wish to choose Option II by providing written notification, by electronic funds transfer (as may be supported by illustraStock from time to time), or such other method as may be agreed by the parties. No payment will be made unless there is a minimum of € 100, after Royalty Deductions (defined below), is due to You in accordance with the rate schedule (the “Rate Schedule”). Royalties are paid on “License Fees” which are (a) the amount charged by illustraStock or a Distribution Partner to each of their Clients (or in the case of certain Distribution Partners, the amount charged by illustraStock to those Distribution Partners for royalty free licenses); or (b) the amount of revenue, including advertising revenue, that is allocated to the Accepted Content pursuant to the Section below.
- We calculate royalties at the beginning of each month (defined below). These royalties come from three different sources. illustraStock and its Distribution Partners may offer license models through:
- Single Purchases: Each time someone purchases one Individual Contribution of the Collective Work or one Bundle from one Collection or Subcollection. So we add up all the purchases fees and we divide it by all the Individual Contributions that were Published, including Yours
- Subscriptions: Subscribers get unlimited access to all of our Individual Contributions from one Collection, including Yours. So we add up all the subscription fees and divide it by all the Individual Contributions that were Published, including Yours.
- API Usage: We divide the entire month’s API fees by the total number of Individual Contributions or other utility that will make Individual Contribution available for use by clients on a high-volume basis ( Sliding Scale ).
- Accordingly, where appropriate, the amount due to You will be determined according to:
- the ratio of the number of individual items of Your Individual Contribution to the total number of individual items of content (as defined below). The number will change every month following the Commision Program, but we always give a minimum of 20% of it back to share to the creators, including You.;
- or in illustraStock’s discretion, the relative value of Your individual items of Individual Contribution compared to all other content licensed together with it, following the meaning of article 46 of the Spanish Code of intellectual property rights.
- The parties acknowledge that the Rate Schedule may differ among various types of Collections and Subcollections, and among the sites/Distribution Partners through which the Content is distributed. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of illustraStock, upon providing You 30 days’ notice by e-mail at the last address contained in Your Collaborator information. If at any time the Rate Schedule is not acceptable to the Collaborator, You may terminate this Agreement in accordance with its terms. Continued submission of Content or failure to terminate this Agreement will be deemed acceptance by You of changes to the Rate Schedule, and the amended Rate Schedule will be incorporated by reference into this Agreement.
- In all cases, the following deductions are made from License Fees before Royalties are calculated: any
- applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by illustraStock from any current or future sums due to You by any law, regulation, or treaty (excluding: (i) any taxes on the net profits of illustraStock or any Distribution Partner; and (ii) any withholding taxes imposed on remittances to illustraStock);
- unauthorized use detection/enforcement fees and expenses;
- currency hedging fees and costs; and
- shipping charges, insurance charges, fees for materials, and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, distribution or fulfillment fees, and advertising sales commissions, in all cases arising out of or resulting from any license of the same Accepted Content.
- illustraStock may deduct the following amounts from the Royalties payable to You (together the “Royalty Deductions”): (i) cancellations of a license where the original sale has been reported to You including where the cancellation is due to a fraudulent transaction; (ii) overpayment of Royalties in a prior Royalty period; and (iii) amounts that may be deducted or withheld in accordance with the Section 11 Indemnity.
- illustraStock will use its best efforts to: (i) provide monthly reporting of licenses from the illustraStock site to Your member account; and (ii) in the month following the report of licenses by a Distribution Partner to illustraStock or any other licenses not made from the illustraStock site, provide monthly reporting of those licenses (including through the illustraStock subscription) to Your member account.
- Without limiting the generality of the foregoing, illustraStock is entitled to set-off against any amount owing to the Collaborator, all amounts to which illustraStock 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 the Collaborator under this Agreement.
- The parties further agree that illustraStock shall not be required to pay Royalties to the Collaborator if illustraStock is restrained or otherwise prevented from using rights granted under this Agreement relating to Individual Contribution because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party, or if illustraStock discovers or determines in its reasonable discretion that the Individual Contribution provided by the Collaborator appears for sale or license or give-away elsewhere in contravention of this Agreement.
- In the event illustraStock facilitates a sale or exclusive license of Individual Contribution, illustraStock 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, where share shall be based on the royalty payable pursuant to the Rate Schedule at the time of the transaction.
- You acknowledge and agree that You will be responsible for each and every access or use of the Publish portions of the Site that occurs in conjunction with Your Member Name and such passwords, and that illustraStock is authorized to accept Your Member Name and Password as conclusive evidence that You wish to publish Individual Contribution pursuant to this Agreement. illustraStock shall have no liability or responsibility to monitor the provision of Individual Contribution under Your Member Name and Password.
9 Confidential Information
- The Collaborator 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 Individual Contribution constitutes valuable, confidential, proprietary information of illustraStock and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of illustraStock, 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 illustraStock, 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.
10 Representations and Warranties
- The Collaborator hereby represents and warrants as follows:
- The Collaborator has the legal capacity and authority to enter into this Agreement and perform its obligations hereunder and that it will comply with all applicable laws, and he/she is the sole and exclusive owner of the Individual Contribution or is the authorized representative of the applicable copyright owner(s) of such Content. He/she 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 Individual Contribution or any other intellectual property or technology that would conflict with this Agreement;
- if the Individual Contribution 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 the Collaborator for such design program software allows the Collaborator to incorporate such elements in Individual Contribution created by the Collaborator, and to license such Individual Contribution to illustraStock for the purposes set forth herein;
- no portion of the Content as delivered to illustraStock 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;
- the Content delivered to illustraStock 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 illustraStock, its customers or distributors as contemplated under this Agreement.
- You represent and warrant that You shall not: (i) license Your own Exclusive 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 illustraStock 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 illustraStock 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.
- You agree to indemnify, defend and hold illustraStock and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Individual Contribution (collectively, the “illustraStock 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 illustraStock Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under You 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 illustraStock Party to the extent such claim is based upon a contention that any of the Individual Contribution used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
- illustraStock reserves the right, at Your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with illustraStock’s defense of such claim.
- The Collaborator agrees that illustraStock 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 Collaborator. The Collaborator hereby releases illustraStock from any and all claims the Collaborator might have, either directly or indirectly, arising out of or in connection with a determination by illustraStock to proceed or not to proceed against any Infringer in any instance. illustraStock 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 illustraStock 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 illustraStock in connection with such action, be divided between the Collaborator and illustraStock pursuant to the provisions of the Section 7 ‘Compensation’.
- In the event illustraStock elects not to proceed against an Infringer, the Collaborator shall have the right to proceed against such Infringer for such license violation or infringing action. The Collaborator 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 Collaborator 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 Collaborator and illustraStock pursuant to the provisions of the Section 7 ‘Compensation’.
12 Term and Termination
- This Agreement is effective as long as the literary property of the Collaborator and his/her heirs, beneficiaries or representatives go on, following the meaning of article 28 of the Spanish Code of intellectual property rights and foreign legislations and current or upcoming international conventions on artistic or literary property, including the extension that may be added to this period of time. (i) You may reject Your property rights related to the Individual Contribution with respect to the whole (but not part of), or one or more of Illustration Content that will be included in the collective work to be published at any time by giving thirty (30) days written notice specifying the Collection or Collections of Individual Contributions to which termination applies, to illustraStock using email@example.com or such other means of written notice acceptable to illustraStock which enables confirmation of Your identity and Your intention to terminate. (ii) illustraStock may also terminate this Agreement with respect to one or more Illustration Content for any reason by giving You thirty (30) days notice by e-mail to the last address contained in Your membership information.
- illustraStock has the right to refuse to establish an account or to close or block any existing account, for fraud, intellectual property infringement, violation of a third party’s rights including those of privacy or publicity, artificially inflating downloads, artificially inflating number of Individual Contributions, submission of material that is obscene in nature, violent or that might be construed as defamatory, failure to comply with illustraStock guidelines as may be amended from time to time, for any breach of the terms of this or any other agreement that You have with illustraStock, or for convenience. For the sake of clarity, Your Content will remain available for license by illustraStock customers.
- Either party may terminate this Agreement upon written notice effective 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, illustraStock 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 illustraStock, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Collaborator provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact the Collaborator based on the information provided through the Site as part of the account profile of such Collaborator.
13 Effect of Termination
- Upon the termination of this Agreement with respect to one or more of Individual Contribution, the grant of authority given to illustraStock shall cease with respect to the relevant collection of Content subject to the following conditions: (i) illustraStock shall remove from the Individual Contribution the identification of the creator(s) of the Licensed Material related to the Individual Contribution that will be included in the collective work and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated); a copyright notice; from the Site and distribution partners within ninety (90) days of the termination of this Agreement; (ii) notwithstanding termination, illustraStock and its distribution partners shall have the right to continue licensing Accepted Individual Contribution from the Site or other sites where Accepted Individual Contribution is distributed (iii) regardless of the expiration or termination of this Agreement, illustraStock will continue, in accordance with this Agreement, to pay compensation due to the Collaborator 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, illustraStock will be entitled to retain all amounts owing to the Collaborator 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.
- Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement with respect to one collection of Content shall not alter or reduce the obligations of the Collaborator and illustraStock concerning any remaining collection of Content, and in any event, shall not alter or affect the rights granted to licensees or sub-licensees by illustraStock pursuant to this Agreement.
- In the event in which the Collaborator terminates this Agreement with respect to any or all of Illustration Content, and subsequently wishes to re-enter the exclusivity program and provide Individual Contributions, the Collaborator may re-apply with respect to that collection of Content ninety (90) days after the termination date of the original Agreement relating to such collection of Content.
14 DISCLAIMER OF WARRANTIES
- THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY ILLUSTRASTOCK “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. ILLUSTRASTOCK 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.
- ILLUSTRASTOCK 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.
15 LIMITATION OF LIABILITY
- YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
- IN NO EVENT SHALL ILLUSTRASTOCK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF ILLUSTRASTOCK 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, ILLUSTRASTOCK’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 ILLUSTRASTOCK FOR THE INDIVIDUAL CONTRIBUTION THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED FIVE HUNDRED (€ 500.00) EUROS.
- SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF ILLUSTRASTOCK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
16 Applicable law
- This Agreement will be governed in all respects by the laws of the province of Valencia, Spain (European Union); without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator. The arbitration proceedings shall be conducted in Spanish and all documentation shall be presented and filed in Spanish. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, illustraStock shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against You in the event that, in the opinion of illustraStock, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
- You consent to service of any required notice or process upon You by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by You at the time You are first granted access to the membership portions of the Site. You agree to waive any right You may have to (i) trial by jury; and (ii) to commence or participate in any class action against illustraStock related to the Site, this Agreement or any agreements contemplated hereby.
- If illustraStock is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, You agree to reimburse illustraStock for its legal fees, costs and disbursements if llustraStock is successful.
- This documen has been drafted in accordance with the Real Decreto Legislativo 1/1996, de 12 de abril, por el que se aprueba el texto refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las disposiciones legales vigentes sobre la materia.
This Royal Legislative Decree is written in the Boletín Oficial del Estado of Spain.
- In addition, the Libro Blanco de la Ilustración has been consulted.
- No Agency. The relationship between You and illustraStock under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
- Taxes. You are responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to You under this Agreement.
- illustraStock’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 You and is binding upon Your heirs, executors and legal representatives, as the case may be, and is not assignable by You without illustraStock’s prior written consent. illustraStock may assign this Agreement without Your 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 illustraStock posting amendments on the Publish portion of the Site. Continued provision of Individual Contribution 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 Collaborator and it will be incorporated by reference into this Agreement.
- 18. If and to the extent You are submitting Content to illustraStock as an authorized representative of the applicable copyright owner(s), You acknowledge and agree that (a) You will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to You in such capacity, You will be solely responsible for compensating the copyright owner(s) where applicable.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF illustraStock AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR INDIVIDUAL CONTRIBUTION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND illustraStock, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND illustraStock RELATING TO THE SUBJECT OF THIS AGREEMENT.