This is the agreement ("Agreement") between you as either an individual artist or as the legal authorized representative of a group artist ("Artist") and Paint It Off, ("Paint It Off") concerning the uploading of Artist's audio, visual, audiovisual and other materials (the "Artist Designs" defined below) to the Paintitoff.com website, and other Paint It Off mobile applications or any successor(s) websites and/or websites to which the contents in whole or in part of Paintitoff.com are assigned (together the "Paint It Off Site(s)") and concerning Paint It Off use of Artist Designs on the Paint It Off Site(s). If Artist is agreeing on behalf of a group artist or a group of artists then each reference to "Artist" in this Agreement refers to each member of the group or the group as a whole, as the case may be. Artist and Paint It Off acknowledge the exchange of mutual benefits and promises and other consideration and agree as follows with respect to new submissions of Artist Designs and any former submissions of Artist Designs:
Term. The term ("Term") of this Agreement starts on the date that the Artist Designs are initially uploaded to any Paint It Off and continues until either Artist or Paint It Off terminates this Agreement in writing, with or without cause or by the removal of Artist Designs for the purpose of termination all subject to the survival of certain undertakings in this agreement set out in paragraph 15 (f), below:
a) To the extent this Agreement is terminated by Artist, the rights granted in this Agreement will terminate only after Artist has removed all of his or her Artist's Materials from the Paint It Off Site(s) excluding those Artist Designs that cannot be removed by Artist (e.g. comments posted to Paint It Off), and Paint It Off has received notice of the removal. If this Agreement is terminated by Paint It Off, this Agreement will terminate when Paint It Off removes Artist's Materials from the Paint It Off website excluding comments posted to Paint It Off by Artist. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship.
b) Artist can selectively terminate this agreement with respect to any individual work posted by Artist to Paint It Off by removing the posted work from Paint It Off and this selective termination with respect to an individual work will become effective when Paint It Off receives notice of the removal. Paint It Off provides a removal function with respect to individual works posted by Artist and the proper use of this function shall serve as notice of removal. If the Agreement is terminated with respect to an individual work in this way, the parties agree to cooperate in providing an orderly withdrawal of the work to the extent it has been licensed to third parties under this agreement or to the extent that Artist has placed the work in the Print program or similar commercial efforts within Paint It Off Sites.
Ownership. Artist at all times retains all right, title and interest in and to the Artist Designs provided by Artist hereunder (including, without limitation, the copyrights in and to the Artist Designs), subject to the non-exclusive rights in the licenses granted to Paint It Off under this Agreement. Artist is free to grant similar rights to others during and after the Term of this Agreement.
License To Use Artist Designs. As and when Artist Designs are uploaded to the Paint It Off Site(s), Artist grants to Paint It Off a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
a) to prepare and encode Artist Designs or any part of them for digital or analog transmission, manipulation and exhibition in any format and by any means now known or not yet known or invented;
b) to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital) or other means, and electronically or otherwise publish any or all of the Artist Designs, including any part of them, and to include them in compilations for publication, by any and all means and media now known or not yet known or invented ;
c) to modify, adapt, change or otherwise alter the Artist Designs (e.g., change the size) and use the Artist Designs as described in Section 3(b); and
d) the right to sublicense to any other person or company any of the licensed rights in the Artist Designs, or any part of them, subject to the terms and conditions of this Agreement.
e) Artist acknowledges that Artist will not have any right, title, or interest in any other materials with which Artist Designs may be combined or into which all or any portion of Artist Designs may be incorporated.
f) During the Term, Paint It Off's licenses under this Agreement include the right to use any part of the Artist Designs in the promotion, advertising or marketing of the Paint It Off Sites.
g) As used in this Agreement, the term "Artist Designs" means any content uploaded to the Paint It Off Site(s) which may include without limitation Artist's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, audio-visual materials, artwork, liner notes, and other graphical, textual, video, film or audio materials and any and all "skins," computer-generated images or other artwork or images that Artist submits to Paint It Off in any medium or format whatsoever.
Name and Likeness. Artist also grants to Paint It Off:
a) a worldwide, royalty-free, non-exclusive license to use Artist's name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Designs, and the Paint It Off Site(s)as described hereunder, during the Term;
b) Artist also agrees not to assert against Paint It Off any privacy, publicity, moral or similar rights held by Artist and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Artist Designs. Artist also agrees that any persons other than Artist appearing recognizably or otherwise in Artist Designs will not assert of any privacy, publicity, moral or similar rights) under the laws of the United States and any other country in connection with the exploitation of the materials as described in this Agreement; and,
c) To the extent that the Artist Designs contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Artist hereby grants to Paint It Off a worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Artist Designs, as described in this Agreement, during the Term.
Limitation Of Rights The rights and licenses granted to Paint It Off under sections 3 and 4 of this Agreement require Paint It Off to obtain Artist consent before Paint It Off makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Artist Designs not in association with Paint It Off but as an individual work of art or as a group of works from a single Artist in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Artist Designs either as part of the Paint It Off Site(s) or in connection with the distribution of content groups from the Paint It Off Site(s) and/or for uses of the Artist Designs made at the discretion of a visitor to the Paint It Off Site(s) or other users under agreements with Paint It Off. Paint It Off will contact Artist in writing about any individual commercial uses of Artist Designs instigated by Paint It Off.
Payment Unless otherwise agreed between Artist and Paint It Off in a writing from Paint It Off, the license granted to Paint It Off under this Agreement is royalty-free.
Representations and Warranties. Artist represents and warrants that:
a) Artist has the full right and power to enter into and perform this Agreement and to grant Paint It Off all rights to use the Artist Designs as contemplated in this Agreement, including, without limitation, the license grants in Sections 3, 4 and 5,
b) Artist has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Artist to enter into and perform this Agreement and to grant Paint It Off the rights to use the Artist Designs set out in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Artist Designs),
c) the Artist Designs (and Paint It Off's use of them under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
d) all information that Artist has provided or will provide to Paint It Off is true and complete,
e) the Artist Designs do not and will not violate any law, statute, ordinance or regulation,
f) the Artist Designs do not and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
g) the Artist Designs do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Paint It Off or any third party, and
h) if Artist or any member of Artist's group is a minor, Artist hereby warrants that Artist has the legal right to execute this Agreement on behalf of the minor artist and guarantee such person's performance of the terms of this Agreement. These warranties shall survive any termination of this Agreement.
i) The use of the video services by you may require that you receive a license to use certain patents from MPEG-LA (the "License"). It is your own exclusive responsibility to decide whether your activity requires a License and to obtain it. Information about the License can be obtained from MPEG LA L.L.C. at http://www.mpegla.com.
Third Party Payments. Artist is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Artist PBN Program.
Indemnity. Artist agrees to defend, indemnify, reimburse and hold Paint It Off and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney's fees, costs and expenses and court costs) arising out of or related to:
a) Artist's use of the Paint It Off Site(s);
b) any breach or alleged breach of Artist's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
c) Artist's violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of Artist Designs as provided in this Agreement
Paint It Off's Performance. Artist acknowledges and agrees that the operation of the Paint It Off Site(s) may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Paint It Off will not be responsible to Artist or others for any interruptions, errors or problems or even for an outright discontinuance of the Paint It Off service. There are no assurances whatsoever that any of the Artist Designs or any part or element of Artist Designs will actually be used on the Paint It Off Site or if used will continue to be available for any particular time. Paint It Off has the right, in Paint It Off's sole and absolute discretion, to remove from the Paint It Off Site(s) at any time the Artist Designs or any part of them and/or to revoke any sublicense granted by Paint It Off to any affiliate or unaffiliated third party. Notwithstanding the foregoing, Paint It Off does not control the content of the Artist Designs and does not have any obligation to monitor the content of the Artist Designs for any purpose or reason. Artist acknowledges that Artist is solely responsible for all content submitted to the Paint It Off Site(s) by Artist. The Paint It Off Site may be discontinued at any time, with or without reason and all Artist Designs uploaded to Paint It Off may be removed and unavailable for recovery by any means. Artist and only Artist is responsible for maintaining at Artist's expense and in facilities owned or controlled only by Artist any and all original materials or so-called back-up copies of all or any part of the Artist Designs.
No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAINT IT OFF DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
a) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE PAINT IT OFF SITE, AND
b) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE PAINT IT OFF SITE AND ANY SERVICES PROVIDED BY PAINT IT OFF HEREUNDER. IN ADDITION, ALTHOUGH PAINT IT OFF INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE PAINT IT OFF SITE(S), AND WHETHER OR NOT PAINT IT OFF IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, PAINT IT OFF DOES NOT WARRANT THAT THE PAINT IT OFF SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE PAINT IT OFF SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
No Liability for Third Party Use. PAINT IT OFF DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE ARTIST DESIGNS MADE AVAILABLE ON THE PAINT IT OFF WEBSITE BY THE ARTIST PURSUANT TO THE TERMS OF THIS AGREEMENT. ARTIST SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF ARTIST DESIGNS BY A THIRD-PARTY, AND NOT FROM PAINT IT OFF. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS ARTIST DESIGNS FROM PAINT IT OFF (WHETHER OR NOT WITH PAINT IT OFF'S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED BY THE LICENSES GRANTED UNDER THIS AGREEMENT ARTIST WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON AND NOT FROM PAINT IT OFF, AND THAT ARTIST WILL NOT HOLD PAINT IT OFF RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL PAINT IT OFF, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT PAINT IT OFF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PAINT IT OFF SITE(S). IN NO EVENT SHALL PAINT IT OFF'S TOTAL LIABILITY TO ARTIST UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5. THE PARTIES ACKNOWLEDGE AND AGREE THAT PAINT IT OFF HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN ARTIST AND PAINT IT OFF, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES..
Copyright and Trademark Notices. Paint It Off, the Paint It Off logos and mascots, and the layout and design of the Paint It Off Site(s), among other marks that may appear on the Paint It Off Site(s) are trademarks of Paint It Off., LLC (the "Paint It Off Marks"). Other trademarks and service marks on the Paint It Off Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Artist may not use any of the Paint It Off Marks without Paint It Off's prior written permission, and Artist may not use any third-party marks without the third party's prior written permission.
a) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION'S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN LOS ANGELES, CALIFORNIA, AND ARTIST AND PAINT IT OFF BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
b) Assignment. Paint It Off shall have the right to assign this Agreement in whole or in part to any person or business entity. Artist may not assign Artist's rights or delegate Artist's obligations under this Agreement without the prior written consent of Paint It Off.
c) Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to Paint It OFF, 7111 Santa Monica Blvd, Ste B, PO Box 230, West Hollywood, CA 90046, ATTN: Legal Department (fax 323.417.5146 ). Communications shall be deemed received:
for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt or refusal as indicated on the return receipt;
for Communications sent by personal delivery, on the date of personal delivery; and
for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt.
No other form of notice shall be accepted under this Agreement, other than the electronic notification for individual works under the circumstances specifically described in 1(b).
d) Entire Agreement. This Agreement sets forth the entire understanding and agreement of Artist and Paint It Off as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
e) Modification. Paint It Off reserves the right to amend the terms of this Agreement from time to time in its sole discretion. Paint It Off will notify Artist of any material changes to this Agreement by sending an email to the address listed in Artist's account. If Artist continues to upload Artist Designs after being notified of the changes to the Agreement, Artist will be deemed to have accepted those changes and the new terms of the Agreement will govern all prior and future submissions of Artist Designs. If Artist does not accept the new terms of the Agreement, Artist's only and exclusive remedy will be to terminate this Agreement. Otherwise, this Agreement may be changed only by a writing signed by both parties that specifically refers to the parties' intent to amend this Agreement.
f) Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement. In addition, any sub-licenses granted to third parties for the display of Artist Designs on electronic or other devices pursuant to Section 3 shall survive any termination of this Agreement for such reasonable time as may be necessary to withdraw Artist Designs from the particular license; any use of Artist Designs pursuant to Section 3 with respect to the making of so-called backup copies or caching of Paint It Off Sites or any equivalent activity or function for general site maintenance and protection shall survive any termination of this Agreement; and, Artist Designs consisting of comments posted to Paint It Off will remain as part of the Paint It Off database and available to all users of Paint It Off Sites following termination of this Agreement.