Submission Agreement
AGREEMENT
This is the agreement ("Agreement") between you as either an individual model, photographer or artist (“Creator”) or as the legal authorized representative of a group of creators ("Creators") and Model Society LLC., ("Model Society") concerning the uploading of Creators’ visual materials (the "Creator Works" defined below) to the Model Society website or any successor(s) websites or digital magazines and/or websites or digital magazines to which the contents in whole or in part of Model Society are assigned (the "Model Society Site(s)") and concerning Model Society's use of Creator Works on the Model Society Site(s). If Creator is acting on behalf of a group of Creators then each reference to "Creator" in this Agreement refers to each member of the group or the group as a whole, as the case may be. All Creators must be Community Members of the Model Society Site as defined in Model Society’s Terms and Conditions, which is incorporated herein. Creator and Model Society acknowledge the exchange of mutual benefits and promises and other consideration and agree as follows with respect to new submissions of Creator Works and any former submissions of Creator Works:
1. Term. The term ("Term") of this Agreement starts on the date that the Creator Works are initially uploaded to any Model Society Site(s) and continues until either Creator or Model Society terminates this Agreement in writing, with or without cause or by the removal of Creator Works 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 Creator, the rights granted in this Agreement will terminate only after Creator has removed all of his or her Creator's Works from the Model Society Site(s) excluding those Creator Works that cannot be removed by Creator (e.g. comments posted to Model Society). If this Agreement is terminated by Model Society, this Agreement will terminate when Model Society removes Creator's Works from the Model Society website excluding comments posted to Model Society by Creator. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship.
b) Creator can selectively terminate this agreement with respect to any individual work posted by Creator to Model Society by removing the posted work from Model Society and this selective termination with respect to an individual work will become effective when Model Society receives notice of the removal. Model Society provides a removal function with respect to individual works posted by Creator 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 Creator has placed the work in the Print program or similar commercial efforts within Model Society Sites.
2. Ownership. Creator at all times retains all right, title and interest in and to the Creator Works provided by Creator hereunder (including, without limitation, the copyrights in and to the Creator Works), subject to the non-exclusive rights in the licenses granted to Model Society under this Agreement. Creator is free to grant similar rights to others during and after the Term of this Agreement.
3. License To Use Creator Works. As and when Creator Works are uploaded to the Model Society Site(s), Creator grants to Model Society a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
a) to prepare and encode Creator Works 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, 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 Creator Works, 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 Creator Works (e.g., change the size) and use the Creator Works as described in Paragraph 3(b); and
d) the right to sublicense to any other person or company any of the licensed rights in the Creator Works, or any part of them, subject to the terms and conditions of this Agreement.
e) Creator acknowledges that Creator will not have any right, title, or interest in any other materials with which Creator Works may be combined or into which all or any portion of Creator Works may be incorporated.
f) During the Term, Model Society's licenses under this Agreement include the right to use any part of the Creator Works in the promotion, advertising or marketing of the Model Society Sites.
g) As used in this Agreement, the term "Creator Works" means any content uploaded to the Model Society Site(s) which may include without limitation Creator's name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, artwork, liner notes, and computer-generated images or other artwork or images that Creator submits to Model Society in any medium or format whatsoever.
4. Name and Likeness. Creator also grants to Model Society:
a) a worldwide, royalty-free, non-exclusive license to use Creator'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 Creator Works, and the Model Society Site(s)as described hereunder, during the Term;
b) Creator also agrees not to assert against Model Society any privacy, publicity, moral or similar rights held by Creator and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or actions are embodied in the Creator Works. Creator also agrees that any persons other than Creator appearing recognizably or otherwise in Creator Works 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 Creator Works contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Creator hereby grants to Model Society a worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Creator Works, as described in this Agreement, during the Term.
5. Limitation Of Rights. Aside from Creator’s participation in the Print-On-Demand Program as set forth in Paragraph 9 below and all rights and licenses associated therewith, the rights and licenses granted to Model Society under Paragraphs 3 and 4 of this Agreement require Model Society to obtain Creator consent before Model Society makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Creator Works not in association with Model Society but as an individual work of art or as a group of works from a single Creator in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Creator Works either as part of the Model Society Site(s) or in connection with the distribution of content groups from the Model Society Site(s) and/or for uses of the Creator Works made at the discretion of a visitor to the Model Society Site(s) or other users under agreements with Model Society. Model Society will contact Creator in writing about any individual commercial uses of Creator Works instigated by Model Society.
6. Payment. Unless otherwise agreed between Creator and Model Society in a writing from Model Society, the license granted to Model Society under this Agreement is royalty-free.
7. Representations and Warranties. Creator represents and warrants that:
a) Creator has the full right and power to enter into and perform this Agreement and to grant Model Society all rights to use the Creator Works as contemplated in this Agreement, including, without limitation, the license grants in Paragraphs 3, 4 and 5,
b) Creator has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Creator to enter into and perform this Agreement and to grant Model Society the rights to use the Creator Works set out in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Creator Works),
c) the Creator Works (and Model Society'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 Creator has provided or will provide to Model Society is true and complete,
e) the Creator Works do not and will not violate any law, statute, ordinance or regulation,
f) the Creator Works 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 Creator Works do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of Model Society or any third party, and
h) Creator acknowledges that Model Society does not accept Creator Works in which a person under the age of 18 has contributed to the Creator Works as Model, Photographer or Artist regardless of the local rules and laws from Creator’s locality. Creator hereby represents, warrants, and affirms that no such underage person has participated in the creation or submission of the Creator Works.
8. Quality Approval. Model Society reserves the sole and irrevocable discretion to deny any Creator Works for the addition to the Model Society Site(s) for any reason whatsoever. The acceptance of any individual Creator Works to the Model Society Site(s) does not guarantee acceptance of any subsequent Creator Works submitted to Model Society by Creator(s). Model Society may, at its sole discretion, provide feedback to Creator as to why a particular Creator Works has not been accepted for inclusion on the Model Society Site(s).
9. Print-On-Demand Option. When uploading the Creator Works, Creators are given the option to participate in Model Society’s Print-On-Demand Program (“Print-On-Demand”). If Creators select to participate in Print-On-Demand, Creators agree that the Creator Works will be offered for sale through Model Society Sites to all visitors of the Model Society Sites. Consistent with the license and rights granted to Model Society in Paragraph 3(d) of this Agreement, Creators agree that Model Society may use a third-party to fulfill orders made through the Model Society Sites.
10. Revenue for Print-On-Demand. For all sales of Creator Works made through the Model Society Sites, Creator will receive one third (1/3) of the retail price collected by Model Society for the sale of the Creator Works (“Creator Revenue”). Creator Revenue will be divided equally amongst any and all revenue share partners assigned by the Creator to the image associated with the sale. The calculations to Creator Revenue may, from time to time, change to accommodate fluctuating costs to Model Society. Changes in revenue will also be reflected in changes to this Submission Agreement. In the case of any changes to Creator Revenues published in the Submission agreement, Creator will receive the Creator Revenue that had been published at the time of the sale. For purposes of accurate record keeping, Model Society will keep an thorough archive of the Submission agreement.
11. Model Citizen. When participating in Print-On-Demand, Creators are given the option to participate in Model Society’s Model Citizen Program (“Model Citizen”). By selecting to participate as a Model Citizen, Creator agrees to donate 5% of all Creator Revenue to a charity selected by Model Society. Model Society will match all amounts donated through the Model Citizen Program.
12. Collaborations. When uploading a Creator Work, Creators are given the option to add other Community Members as collaborators to the Creator Work being submitted (“Collaboration(s)”). Any Community Member added as a collaborator (“Collaborator”) will be notified through the Site and must first accept the Collaboration and agree to the terms of this Agreement before any attribution to the Collaboration is assigned to Collaborator. The Creator who originally uploads the Creator Work and opts to participate in Print-On-Demand has the opportunity to share any “Creator Revenue” resulting from the sale of the Collaboration with attributed Collaborators (“Revenue Share Rights”). All Creator Revenue will be split evenly amongst all Collaborators who have been given Revenue Share Rights. Only the Creator who initially uploads the Creator Work may assign Collaborators and Revenue Share Rights. The Creator who uploads the Creator Work may, at any time, delete a Collaborator from a Creator Work and/or revoke Revenue Share Rights for a Creator Work. A Collaborator may, at any time, remove themselves as a Collaborator or withdraw from receiving a Revenue Share from the sale of the Creator Work. All disputes amongst Collaborators must be settled in a private setting, outside of the Model Society Sites. For purposes of this Agreement, all Collaborators are considered Creators and are thus subject to all of the same terms and conditions of this Agreement.
13. Third Party Payments. Creator is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Creator Works outside of the Collaboration Agreement.
14. Indemnity. Creator agrees to defend, indemnify, reimburse and hold Model Society 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) Creator's use of the Model Society Site(s);
b) any breach or alleged breach of Creator's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
c) Creator'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 Creator Works as provided in this Agreement
15. Model Society's Performance. Creator acknowledges and agrees that the operation of the Model Society 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 Model Society will not be responsible to Creator or others for any interruptions, errors or problems or even for an outright discontinuance of the Model Society service. There are no assurances whatsoever that any of the Creator Works or any part or element of Creator Works will actually be used on the Model Society Site or if used will continue to be available for any particular time. Model Society has the right, in Model Society's sole and absolute discretion, to remove from the Model Society Site(s) at any time the Creator Works or any part of them and/or to revoke any sublicense granted by Model Society to any affiliate or unaffiliated third party. Notwithstanding the foregoing, Model Society does not control the content of the Creator Works and does not have any obligation to monitor the content of the Creator Works for any purpose or reason. Creator acknowledges that Creator is solely responsible for all content submitted to the Model Society Site(s) by Creator. The Model Society Site may be discontinued at any time, with or without reason and all Creator Works uploaded to Model Society may be removed and unavailable for recovery by any means. Creator and only Creator is responsible for maintaining at Creator's expense and in facilities owned or controlled only by Creator any and all original materials or so-called back-up copies of all or any part of the Creator Works.
16. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODEL SOCIETY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
a) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE MODEL SOCIETY SITE, AND
b) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE MODEL SOCIETY SITE AND ANY SERVICES PROVIDED BY MODEL SOCIETY HEREUNDER. IN ADDITION, ALTHOUGH MODEL SOCIETY INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE MODEL SOCIETY SITE(S), AND WHETHER OR NOT MODEL SOCIETY IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, MODEL SOCIETY DOES NOT WARRANT THAT THE MODEL SOCIETY SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE MODEL SOCIETY SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
17. No Liability for Third Party Use. MODEL SOCIETY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE CREATOR WORKS MADE AVAILABLE ON THE MODEL SOCIETY WEBSITE BY THE CREATOR PURSUANT TO THE TERMS OF THIS AGREEMENT. CREATOR SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF CREATOR WORKS BY A THIRD-PARTY, AND NOT FROM MODEL SOCIETY. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS CREATOR WORKS FROM MODEL SOCIETY (WHETHER OR NOT WITH MODEL SOCIETY'S PERMISSION), AND USES THOSE WORKS IN A WAY NOT AUTHORIZED BY THE LICENSES GRANTED UNDER THIS AGREEMENT CREATOR WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON AND NOT FROM MODEL SOCIETY, AND THAT CREATOR WILL NOT HOLD MODEL SOCIETY RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
18. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL MODEL SOCIETY, 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 MODEL SOCIETY SITE(S). IN NO EVENT SHALL MODEL SOCIETY'S TOTAL LIABILITY TO Creator UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5. THE PARTIES ACKNOWLEDGE AND AGREE THAT MODEL SOCIETY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN CREATOR AND MODEL SOCIETY, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES..
19. Copyright and Trademark Notices. Model Society, the Model Society logos, and the layout and design of the Model Society Site(s), among other marks that may appear on the Model Society Site(s) are trademarks of Model Society LLC (the "Model Society Marks"). Other trademarks and service marks on the Model Society Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Creator may not use any of the Model Society Marks without Model Society's prior written permission, and Creator may not use any third-party marks without the third party's prior written permission.
20. Miscellaneous.
a) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF FLORIDA 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 SOUTH FLORIDA, AND CREATOR AND MODEL SOCIETY BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
b) Assignment. Model Society shall have the right to assign this Agreement in whole or in part to any person or business entity. Creator may not assign Creator's rights or delegate Creator's obligations under this Agreement without the prior written consent of Model Society.
c) Notice. All notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to physical address and fax if I have one and don’t expect to). Communications shall be deemed received:
1. 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;
2. for Communications sent by personal delivery, on the date of personal delivery; and
3. for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt.
4. 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 Creator and Model Society 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. Model Society reserves the right to amend the terms of this Agreement from time to time in its sole discretion. Model Society will notify Creator of any material changes to this Agreement by sending an email to the address listed in Creator's account. If Creator continues to upload Creator Works after being notified of the changes to the Agreement, Creator will be deemed to have accepted those changes and the new terms of the Agreement will govern all prior and future submissions of Creator Works. If Creator does not accept the new terms of the Agreement, Creator'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 Paragraphs 1, 3(e), 4(b) 5, 6, 7, 13, 14, 15, 16, 17, 18, 19 and 20 shall survive any termination of this Agreement. In addition, any sublicenses granted to third parties for the display of Creator Works on electronic or other devices pursuant to Paragraph 3 shall survive any termination of this Agreement for such reasonable time as may be necessary to withdraw Creator Works from the particular license; any use of Creator Works pursuant to Paragraph 3 with respect to the making of so-called backup copies or caching of Model Society Sites or any equivalent activity or function for general site maintenance and protection shall survive any termination of this Agreement; and, Creator Works consisting of comments posted to Model Society will remain as part of the Model Society database and available to all users of Model Society Sites following termination of this Agreement.
