This is the agreement ("Agreement") between you as either an individual artist or as the legal authorized representative of a group artist ("Photographer") and BoardLocker.com, ("BoardLocker") concerning the uploading of Photographer's audio, visual, audiovisual and other materials (the "Photographer Materials" defined below) to the BoardLocker.com website or any successor(s) websites and/or websites to which the contents in whole or in part of deviantArt.com are assigned (the "BoardLocker Site(s)") and concerning BoardLocker' use of Photographer Materials on the BoardLocker Site(s). If Photographer is agreeing on behalf of a group artist or a group of artists then each reference to "Photographer" in this Agreement refers to each member of the group or the group as a whole, as the case may be. Photographer and BoardLocker acknowledge the exchange of mutual benefits and promises and other consideration and agree as follows with respect to new submissions of Photographer Materials and any former submissions of Photographer Materials:
- Term. The term ("Term") of this Agreement starts on the date that the Photographer Materials are initially uploaded to any BoardLocker Site(s) and continues until either Photographer or BoardLocker terminates this Agreement in writing, with or without cause or by the removal of Photographer Materials for the purpose of termination all subject to the survival of certain undertakings in this agreement set out in paragraph 15 (f), below:
- To the extent this Agreement is terminated by Photographer, the rights granted in this Agreement will terminate only after Photographer has removed all of his or her Photographer's Materials from the BoardLocker Site(s) excluding those Photographer Materials that cannot be removed by Photographer (e.g. comments posted to BoardLocker), and BoardLocker has received notice of the removal. If this Agreement is terminated by BoardLocker, this Agreement will terminate when BoardLocker removes Photographer's Materials from the BoardLocker website excluding comments posted to BoardLocker by Photographer. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship.
- Photographer can selectively terminate this agreement with respect to any individual work posted by Photographer to BoardLocker by removing the posted work from BoardLocker and this selective termination with respect to an individual work will become effective when BoardLocker receives notice of the removal. BoardLocker provides a removal function with respect to individual works posted by Photographer 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 Photographer has placed the work in the Print program or similar commercial efforts within BoardLocker Sites.
- Ownership. Photographer at all times retains all right, title and interest in and to the Photographer Materials provided by Photographer hereunder (including, without limitation, the copyrights in and to the Photographer Materials), subject to the non-exclusive rights in the licenses granted to BoardLocker under this Agreement. Photographer is free to grant similar rights to others during and after the Term of this Agreement.
- License To Use Photographer Materials. As and when Photographer Materials are uploaded to the BoardLocker Site(s), Photographer grants to BoardLocker a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
- to prepare and encode Photographer Materials 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;
- 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 Photographer Materials, 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 ;
- to modify, adapt, change or otherwise alter the Photographer Materials (e.g., change the size) and use the Photographer Materials as described in Section 3(b); and
- the right to sublicense to any other person or company any of the licensed rights in the Photographer Materials, or any part of them, subject to the terms and conditions of this Agreement.
- Photographer acknowledges that Photographer will not have any right, title, or interest in any other materials with which Photographer Materials may be combined or into which all or any portion of Photographer Materials may be incorporated.
- During the Term, BoardLocker' licenses under this Agreement include the right to use any part of the Photographer Materials in the promotion, advertising or marketing of the DeviantART Sites.
- As used in this Agreement, the term "Photographer Materials" means any content uploaded to the BoardLocker Site(s) which may include without limitation Photographer'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 Photographer submits to BoardLocker in any medium or format whatsoever.
- Name and Likeness. Photographer also grants to BoardLocker:
- a worldwide, royalty-free, non-exclusive license to use Photographer'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 Photographer Materials, and the BoardLocker Site(s) as described hereunder, during the Term;
- Photographer also agrees not to assert against BoardLocker any privacy, publicity, moral or similar rights held by Photographer and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Photographer Materials. Photographer also agrees that any persons other than Photographer appearing recognizably or otherwise in Photographer Materials 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,
- To the extent that the Photographer Materials contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Photographer hereby grants to BoardLocker a worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Photographer Materials, as described in this Agreement, during the Term.
- Limitation Of Rights The rights and licenses granted to BoardLocker under sections 3 and 4 of this Agreement require BoardLocker to obtain Photographer consent before BoardLocker makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Photographer Materials not in association with BoardLocker but as an individual work of art or as a group of works from a single Photographer in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Photographer Materials either as part of the BoardLocker Site(s) or in connection with the distribution of content groups from the BoardLocker Site(s) and/or for uses of the Photographer Materials made at the discretion of a visitor to the BoardLocker Site(s) or other users under agreements with BoardLocker. BoardLocker will contact Photographer in writing about any individual commercial uses of Photographer Materials instigated by BoardLocker.
- Payment Unless otherwise agreed between Photographer and BoardLocker in a writing from BoardLocker, the license granted to BoardLocker under this Agreement is royalty-free.
- Representations and Warranties. Photographer represents and warrants that:
- Photographer has the full right and power to enter into and perform this Agreement and to grant BoardLocker all rights to use the Photographer Materials as contemplated in this Agreement, including, without limitation, the license grants in Sections 3, 4 and 5,
- Photographer has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Photographer to enter into and perform this Agreement and to grant BoardLocker the rights to use the Photographer Materials set out in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Photographer Materials),
- the Photographer Materials (and BoardLocker' 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,
- all information that Photographer has provided or will provide to BoardLocker is true and complete,
- the Photographer Materials do not and will not violate any law, statute, ordinance or regulation,
- the Photographer Materials do not and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
- the Photographer Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of BoardLocker or any third party, and
- if Photographer or any member of Photographer's group is a minor, Photographer hereby warrants that Photographer 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.
- Third Party Payments. Photographer is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Photographer Materials.
- Indemnity. Photographer agrees to defend, indemnify, reimburse and hold BoardLocker 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:
- Photographer's use of the BoardLocker Site(s);
- any breach or alleged breach of Photographer's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
- Photographer'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 Photographer Materials as provided in this Agreement
- BoardLocker' Performance. Photographer acknowledges and agrees that the operation of the BoardLocker 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 BoardLocker will not be responsible to Photographer or others for any interruptions, errors or problems or even for an outright discontinuance of the BoardLocker service. There are no assurances whatsoever that any of the Photographer Materials or any part or element of Photographer materials will actually be used on the BoardLocker Site or if used will continue to be available for any particular time. BoardLocker has the right, in BoardLocker' sole and absolute discretion, to remove from the BoardLocker Site(s) at any time the Photographer Materials or any part of them and/or to revoke any sublicense granted by BoardLocker to any affiliate or unaffiliated third party. Notwithstanding the foregoing, BoardLocker does not control the content of the Photographer Materials and does not have any obligation to monitor the content of the Photographer materials for any purpose or reason. Photographer acknowledges that Photographer is solely responsible for all content submitted to the BoardLocker Site(s) by Photographer. The BoardLocker Site may be discontinued at any time, with or without reason and all Photographer materials uploaded to BoardLocker may be removed and unavailable for recovery by any means. Photographer and only Photographer is responsible for maintaining at Photographer's expense and in facilities owned or controlled only by Photographer any and all original materials or so-called back-up copies of all or any part of the Photographer Materials.
- No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVIANTART DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
- UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE DEVIANTART SITE, AND
- IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE DEVIANTART SITE AND ANY SERVICES PROVIDED BY DEVIANTART HEREUNDER. IN ADDITION, ALTHOUGH DEVIANTART INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE DEVIANTART SITE(S), AND WHETHER OR NOT DEVIANTART IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, DEVIANTART DOES NOT WARRANT THAT THE DEVIANTART SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DEVIANTART SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
- No Liability for Third Party Use. DEVIANTART DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE ARTIST MATERIALS MADE AVAILABLE ON THE DEVIANTART 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 MATERIALS BY A THIRD-PARTY, AND NOT FROM DEVIANTART. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS ARTIST MATERIALS FROM DEVIANTART (WHETHER OR NOT WITH DEVIANTART'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 DEVIANTART, AND THAT ARTIST WILL NOT HOLD DEVIANTART RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
- Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL DEVIANTART, 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 DEVIANT ART 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 DEVIANTART SITE(S). IN NO EVENT SHALL DEVIANTART'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 DEVIANTART HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN ARTIST AND DEVIANTART, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Copyright and Trademark Notices. BoardLocker, the BoardLocker logos and mascots, and the layout and design of the BoardLocker Site(s), among other marks that may appear on the BoardLocker Site(s) are trademarks of BoardLocker Inc., LLC (the "BoardLocker Marks"). Other trademarks and service marks on the BoardLocker Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Photographer may not use any of the BoardLocker Marks without BoardLocker' prior written permission, and Photographer may not use any third-party marks without the third party's prior written permission.
- 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 DEVIANTART BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
- Assignment. BoardLocker shall have the right to assign this Agreement in whole or in part to any person or business entity. Photographer may not assign Photographer's rights or delegate Photographer's obligations under this Agreement without the prior written consent of BoardLocker.
- Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to BoardLocker Inc., LLC, 7095 Hollywood Blvd #788 Hollywood, CA 90028, 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).
- Entire Agreement. This Agreement sets forth the entire understanding and agreement of Photographer and BoardLocker as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
- Modification. BoardLocker reserves the right to amend the terms of this Agreement from time to time in its sole discretion. BoardLocker will notify Photographer of any material changes to this Agreement by sending an email to the address listed in Photographer's account. If Photographer continues to upload Photographer Materials after being notified of the changes to the Agreement, Photographer will be deemed to have accepted those changes and the new terms of the Agreement will govern all prior and future submissions of Photographer Materials. If Photographer does not accept the new terms of the Agreement, Photographer'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.
- 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 sublicenses granted to third parties for the display of Photographer Materials 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 Photographer Materials from the particular license; any use of Photographer Materials pursuant to Section 3 with respect to the making of so-called backup copies or caching of BoardLocker Sites or any equivalent activity or function for general site maintenance and protection shall survive any termination of this Agreement; and, Photographer Materials consisting of comments posted to BoardLocker will remain as part of the BoardLocker database and available to all users of BoardLocker Sites following termination of this Agreement.
|100 Golf Balls, Excellent Quality|
|100 Golf Balls, Excellent Quality|
|100 Golf Balls, Excellent Quality|
|100 Golf Balls, Excellent Quality|
|100 Golf Balls, Excellent Quality|