Artist Agreement
This Artist agreement is between BUILTMORE PRODUCTIONS (the “Company”), and
you, the Artist signing up at www.builtmore.com (the “Artist”).
The Company owns and operates the websites located at www.builtmore.com
(collectively, the “Website”), which is a content hosting, distribution, and
display platform (the “platform”).
The Artist wants to participate in the platform. The parties therefore
agree as follows:
1. Enrollment
1.1Eligibility
To be eligible to register as an Artist, the Artist must meet the following
requirements:
(a) The Artist is at least 18-years old and the age of majority where the
Artist resides;
(b) The Artist has the legal capacity to enter into legally binding
contracts, is of sound mind and body, is not under the influence of drugs or
alcohol, and is acting of the Artist’s own free will;
(c) The Artist has read, understands, and agrees to be bound by this
agreement, the Terms of Use and the Privacy Policy; and
(d) The Artist has independently evaluated the desirability of
participating in the platform, and the Artist has not relied on any
statement other than those set out in this agreement (collectively, the
“requirements”).
1.2 Application
To begin the enrollment process, the Artist must submit the following:
(a) an accurate application;
(b) one piece of government issued picture identification for age and
identity verification purposes that contains full name and birth date (the
Company may request additional pieces of identification on one or more
occasions); and
(c) a W9-Form (for U.S. Artists).
1.3 Evaluation of Application
(a) The Company will evaluate the Artist’s application and notify the
Artist of the Company’s acceptance or rejection of the application by email
to the email address that the Artist supplied as part of the enrollment
process.
(b) The Company may reject the Artist’s application or terminate the
Artist’s access to the platform at any time and for any reason, including if
the Company determines in its sole discretion that:
(i) The Artist is in breach of this agreement or the Terms of Use;
(ii) The content made available by the Artist is unsuitable for any reason,
including where the content consists of material that could be considered
unlawful, harmful, threatening, defamatory, libelous, obscene, harassing, or
otherwise objectionable; or
(iii) The Artist is conducting commercial activities that do not comply
with governing law.
2. Artist Account
2.1 Account Creation
To participate in the platform, the Artist must create an account. To
create an account, the Artist must complete the enrollment process by
providing the Company with accurate information as prompted by the
registration form. The Artist also will choose a password and a username.
2.2 Responsibility for Account
The Artist is responsible for maintaining the confidentiality of the
Artist’s password and account. Further, the Artist is responsible for all
activities that occur under the Artist’s account. The Artist will promptly
notify the Company of any unauthorized use of the Artist’s account or any
other breach of security.
2.3 Liability for Account Misuse
The Company will not be liable for any loss that may incur as a result of
someone else using the Artist’s password or account, either with or without
the Artist’s knowledge. The Artist could be held liable for losses incurred
by the Company or another person due to someone else using the Artist’s
account or password.
2.4 Use of Other Accounts
The Artist will not use anyone else’s account at any time.
2.5 Account Security
The Company cares about the integrity and security of the Artist’s personal
information. But the Company cannot guarantee that unauthorized persons will
never be able to defeat the Website’s security measures or use any personal
information the Artist provides to the Company for improper purposes. The
Artist acknowledges that the Artist provides the Artist’s personal
information at the Artist’s own risk.
3. Company Proprietary Rights
3.1 License
The Company hereby grants the Artist a nonexclusive, nontransferable,
non-sublicensable license to access the Website, the platform, and the
software for the Artist’s use in accordance with this agreement, including
to create one or more Artist stores (the “Artist Store”). The Artist will
not reproduce, distribute, modify, create derivative works of, publicly
display, publicly perform, republish, download, store, or transmit any of
the material on the Website.
3.2 Intellectual Property Rights
The Website and its entire contents, features, and functionality (including
all information, software, text, displays, images, video, and audio, and the
design, selection, and arrangement of it) are owned by the Company, its
licensors, or other provides of the material and are protected by United
States and international copyright, patent, trademark, trade secret, and
other intellectual property or proprietary rights laws.
3.3 Trademarks
The Company’s name, the terms BUILTMORE CLIP STORE, BMP CLIP STORE, the
Company’s logo, the Company’s domain names, and all related names, logos,
product and service names, designs, and slogans are trademarks of the
Company or its affiliates or licensors. The Artist will not use these marks
without the Company’s advance written permission. All other names, logos,
product and service names, designs, and slogans on the Website are the
trademarks of their respective owners.
4. Artist Store
4.1 The Platform
The platform may allow the Artist to use various interactive features in
the Artist Store, including messaging, email, and comments sections designed
to foster interactions between the Artist and the Artist’s customers. The
Artist will remain responsible for all feedback transmitted by the Artist or
the Artist’s customers through the interactive services.
4.2 Services Rendered
While the Artist’s customers must submit payment through the platform’s
billing interface, the Artist is solely responsible for setting the prices
of the items and services the Artist wishes to offer in the Artist’s Store.
The Company is not required to review, endorse, police, or enforce any
relationships, interactions, or content shared between the Artist and the
Artist’s customers. The Company is not required to resolve any dispute
between the Artist and any customer or other third party. The Artist remains
responsible for addressing any billing concerns raised by any customer.
4.3 Federal Law Compliance
The Artist will comply with the federal record keeping and labeling
requirements
codified at 18 U.S.C. §§ 2257–2257A
(https://www.law.cornell.edu/uscode/text/18/2257 - https://www.law.cornell.edu/uscode/text/18/2257A) (and 28 C.F.R. Part 75 (https://www.law.cornell.edu/cfr/text/28/part-75). The Artist will obtain and keep all records necessary to demonstrate that the Artist’s submissions comply with 18 U.S.C. §§2257–2257A (https://www.law.cornell.edu/uscode/text/18/2257 - https://www.law.cornell.edu/uscode/text/18/2257A) and 28 C.F.R. Part 75 (https://www.law.cornell.edu/cfr/text/28/part-75), including legible copies of picture
identification cards (as defined by 28 C.F.R.
75.1 https://www.law.cornell.edu/cfr/text/28/75.1) for each artist appearing
in the submission on the date of the production of the submission. The
Artist will act as the “Custodian of Records” as required by 28 C.F.R. Part
75 (https://www.law.cornell.edu/cfr/text/28/part-75), and will keep all
required records at the Artist’s primary address. The Artist will make
available to the Company or any government official, and copy at the
Company’s request, all records required to be kept under 18 U.S.C. §§
2257–2257A
(https://www.law.cornell.edu/uscode/text/18/2257 - https://www.law.cornell.edu/uscode/text/18/2257A) and 28 C.F.R. Part 75 (https://www.law.cornell.edu/cfr/text/28/part-75).
4.4 Interruptions & Down Time
The Artist acknowledges that access to, and the functionality of, the
Artist Store, the Website, or the platform may be interrupted and limited,
and might not be error free. The Company is not making any warranty about
the availability and functionality of the Artist, the Website, or the
platform.
4.5 Content Responsibility
The Artist acknowledges that the Artist is solely responsible for the
content, feedback, and other information, products, or services that the
Artist offers, publishes, transmits, or posts on the Artist Store.
5. Artist Submissions
5.1 Ownership
The Company does not claim any ownership rights in the Artist’s submissions
to the Artist Store. After making a submission to the Artist Store, the
Artist continues to retain any ownership rights that the Artist may have in
the Artist’s submissions, subject to the license granted in section 5.2.
5.2 License
By making a submission to the Artist Store, the Artist hereby grants the
Company, its affiliates, and service providers, and each of their and the
Company’s respective licensees a sub-licensable, transferable, worldwide
license to:
(a) display on, and distribute through, the platform, the Website, and the
Artist Store, the content, products, and any other information posed on or
otherwise made available on or through the Artist Store by the Artist;
(b) offer products for sale through the Artist Store; and
(c) use any associated trademarks, service marks, trade names, or copyright
material that the Artist provides to the Company to promote the Artist Store
and the Artist’s content or as otherwise determined by the Company subject
to this agreement, including the right use the Artist’s content to promote
and redistribute any part of the Website—and derivative works of it—in any
media formats and through any media channels.
The license granted here will continue for the duration of this agreement.
5.3 Use of Name and Likeness
The Artist hereby grants the Company, its affiliates, and service providers
a license to use the Artist’s name and likeness in any manner and in any
media, throughout the world, at any time, for advertising and promotional
purposes and for any other lawful purpose. The Artist’s name and likeness
may appear on websites that contain pornographic materials, including
material that the Artist might consider obscene, offensive, or otherwise
objectionable. The Artist hereby waives any right to inspect or approve the
Company’s use of the Artist’s name and likeness.
5.4 Moral Rights Waiver
The Artist hereby waives all moral rights in the Artist’s submissions that
may be available to the Artist in any part of the world, and the Artist
states that no moral rights have been asserted.
5.5 Statements of Fact
For each submission the Artist makes to the Website, the Artist states that
the following facts are accurate:
(a) The Artist owns or controls all interest in the submission, and has the
right to grant the licenses granted in sections 5.2 and 5.3 to the Company
and its affiliates and service providers, and each of their and the
Company’s respective licensees, successors, and assigns;
(b) The Artist is not submitting any content depicting any person under
18-years old and the age of majority in their place of residence;
(c) The Artist has and will continue to comply with 18 U.S.C. §§ 2257–2257A
(https://www.law.cornell.edu/uscode/text/18/2257 - https://www.law.cornell.edu/uscode/text/18/2257A) and 28 C.F.R. Part 75 (https://www.law.cornell.edu/cfr/text/28/part-75), including inspecting and keeping all required written documents, including written documents sufficient to confirm that all subjects of the submission were at least 18-years old at the time of the production of the submission as required by 18 U.S.C. §§ 2257–
2257A
(https://www.law.cornell.edu/uscode/text/18/2257 - https://www.law.cornell.edu/uscode/text/18/2257A) and 28 C.F.R. Part 75 (https://www.law.cornell.edu/cfr/text/28/part-75), and will provide the Company with copies of all required written documents on request;
(d) The Artist has a signed written consent or release for each
identifiable person in the submission to use their name and likeness to
allow inclusion and use of the submission in the way contemplated by this
agreement; and
(e) The submission complies with this agreement, including section 5.6, and
the Terms of Use.
5.6 Content Standards
(a) These content standards apply to all content submissions. Content
submissions must in their entirety comply with federal, state, local, and
international laws and regulations. Content will not:
(i) Contain any material that is defamatory, obscene, indecent, abusive,
offensive, harassing, violent, hateful, inflammatory, or otherwise
objectionable;
(ii) Depict or portray minors, incest, rape or nonconsensual sex, extreme
violence, torture, nonconsensual pain, blood, cutting, erotic asphyxiation,
torture, necrophilia, sado-masochistic abuse or bondage, genital mutilation,
bestiality, urination, defecation, enema play, vomiting, menstrual bleeding,
or paraphilia;
(iii) Promote violence or discrimination based on race, sex, religion,
nationality, disability, sexual orientation, or age;
(iv) Infringe any copyright, patent, trademark, trade secret, or other
intellectual property or other rights of any other person;
(v) Violate the legal rights (including the rights of publicity and
privacy) of others or contain any material that could give rise to any civil
or criminal liability under governing laws or regulations or otherwise may
be in conflict with this agreement, the Terms of Use
,
or the Privacy Policy;
(vi) Be likely to deceive any person;
(vii) Promote or solicit any illegal activity, or advocate, promote, or
assist any unlawful act, including prostitution and human trafficking;
(viii) Cause annoyance, inconvenience, or needless anxiety or be likely to
upset, embarrass, alarm, or annoy any other person;
(ix) Impersonate any person, or misrepresent the Artist’s identity or
affiliation with any person or organization;
(x) Display any telephone numbers, street addresses, last names, URLs,
email addresses, or any confidential information of any person;
(xi) Involve commercial activities or sales, including contests,
sweepstakes, and other sales promotions, barter, or advertising;
(xii) Give the impression that they emanate from or are endorsed by the
Company or any other person or entity, if this is not the case; or
(xiii) Contain technically harmful material, including computer viruses,
logic bombs, Trojan horses, worms, malware, ransomware, harmful components,
corrupted data, or other malicious software or harmful data.
(b) The Artist acknowledges that the Artist is responsible for each
submission to the Website and that the Artist, not the Company, has full
responsibility for the submission, including its legality, reliability,
accuracy, and appropriateness.
5.7 Monitoring and Enforcement
(a) The Company may do any of the following:
(i) Remove or block any submission for any reason or no reason in the
Company’s sole discretion;
(ii) Take any action with respect to any submission that the Company
considers necessary or appropriate in its sole discretion, including if the
Company believes that the submission breaches this agreement, infringes any
intellectual property right of any person, threatens the personal safety of
users of the Website or the public, or could create liability for the
Company;
(iii) Disclose the Artist’s identity or other information about the Artist
to any person who claims that the material posted by the Artist violates
their rights, including their intellectual-property rights or their right to
privacy;
(iv) Take appropriate legal action, including referral to law enforcement,
for any illegal or unauthorized use of the Website; or
(v) Terminate or suspend the Artist’s access to all or part of the Website
or platform for any reason, including breach of this agreement or breach of
the Terms of Use.
(b) The Company fully cooperates with law enforcement authorities and court
orders requesting or directing the Company to disclose the identity or other
information of anyone posting any content on the Website. The Artist hereby
waives any claims the Artist might have against the Company—including its
affiliates, licensees, and service providers—resulting from any action taken
by the Company during or because of the Company’s investigations and from
any actions taken as a consequence of investigations by either the Company
or law enforcement authorities.
(c) The Company does not endorse the opinions expressed in any submission.
The Company cannot and does not review content before it is posted by the
Artist, and cannot ensure prompt removal of objectionable content after it
has been posted. The Company will not be liable for any action or inaction
regarding transmissions, communications, or content provided by any person.
The Company will not be liable to anyone for performance or nonperformance
of the activities described here.
6. Artist Support Services
6.1 Tracking & Reporting Tools
The Company may provide the Artist with access to reporting tools to be
used for monitoring the Artist Store activities. The reporting tools may
include the tracking of revenues, if applicable, the number of customers,
and the number of visitors that access the Artist Store.
6.2 Support Services
The Company may also provide the Artist with the following support service:
Up to one hour of technical integration and setup telephone support for
each Artist Store established with the platform.
7. Compensation
7.1 Non-Exclusive Content Compensation
(a) The Company will pay the Artist
(i) 65% of the revenues received from the sale of video clips, audio clips,
pictures, and digital goods;
7.2 Exclusive Content Compensation
(a) The Company will pay the Artist 65% of the revenues received from the
sale of exclusive video clips, audio clips, pictures, and digital goods.
(b) The Artist will not sell the item on any other websites. If the Artist
does, the Artist will pay the Company $1,000 for each breach of this section
7.2.
7.3 Payouts
The Company will make payouts in accordance with the payout policy located
at www.Builtmore.com.
7.4 Taxes
The Artist is responsible for paying all taxes owed for revenues earned
under this agreement.
7.5 Adjustments
The Company may adjust the amount owed to the Artist for any reason, at any
time, without advance notice, including retroactively. The most common
reasons for adjustments include refunds, chargebacks, fraud, breach of this
agreement, and technical errors. In addition, the Artist acknowledges that
the Company may offer coupons and related promotional tools as it considers
appropriate in limited circumstances to encourage consumer usage, on
condition that the promotions will not exceed 15% off of the gross purchase
price.
7.6 Disputes
If the Artist disputes any payment made by the Company, the Artist will
notify the Company in writing no later than 15 days after the disputed
payment. Failure to notify the Company within this period will result in the
Artist’s waiver of any claims related to the disputed payment.
8. Statements of Fact
8.1 By Artist
The Artist states that the following facts are accurate and will continue
to be accurate during this agreement:
(a) The Artist has the power or the legal capacity to enter into this
agreement and to perform the Artist’s obligations under this agreement.
(b) The Artist is duly licensed and authorized by all governmental and
regulatory authorities to perform the Artist’s duties under this agreement.
(c) The Artist has independently evaluated the desirability of
participating in the platform, and the Artist has not relied on any
statement other than those set out in this agreement.
(d) The Artist’s signing and performance of this agreement will not
conflict with or violate:
(i) any order, judgment, or decree that applies to the Artist;
(ii) any provision of the Artist’s corporate bylaws or certification of
incorporation, if applicable; or
(iii) any agreement that applies to the Artist.
(e) The Artist’s performance under this agreement will not:
(i) invade the right of privacy or publicity of any nonparty;
(ii) involve any libelous, obscene, indecent, or otherwise unlawful
material;
(iii) violate any law, including section 2257; or
(iv) otherwise infringe on the rights of any nonparties, including those of
copyright, patent, trademark, service mark, trade secret, or other
intellectual property rights, or engage in false advertising, unfair
competition, defamation, invasion of rights of celebrity, violation of
antidiscrimination law, or violation of any other right of any person or
entity.
(f) The Artist has sufficient interest in the Artist’s content and products
as necessary to display or offer them and to grant the licenses to the
Company, as contemplated in this agreement.
(g) With respect to all content submissions uploaded by the Artist to, or
Artist products offered for sale through, the Artist Store, whether of
actual sexually explicit conduct, non-sexually explicit conduct, stimulated
sexual conduct, or otherwise, all persons in those visual or audio
depictions were at least 18-years old when the visual or audio depictions
were created.
(h) The Artist’s content submissions will comply with section 5.6.
(i) The Artist is solely responsible for the submissions made available on
the Website.
(j) The Artist is generally familiar with the nature of the Internet and
complies with all laws and industry standards.
(k) The Artist’s collection and use of personally identifiable information
does not breach the Website’s privacy policy or violate any law that governs
the Artist’s collection and use of personal information.
(l) The Artist complies with 18 U.S.C. §§ 2257–2257A, including the
implementing regulations codified at 28 C.F.R. Part 75.
8.2 By Company
The Company states that the following facts are accurate:
(a) It is duly organized, validly existing, and in good standing as a
corporation under the laws of the state of Wyoming.
(b) It has the power to enter into this agreement and to perform its
obligations under this agreement.
(c) It owns or has the right to operate the Website and the platform.
(d) It has the right to grant the licenses granted under this agreement.
9. Termination
9.1Termination on Notice
Either party may terminate this agreement at any time by notifying the
other party. If the Artist terminates this agreement, the Company may
continue to make the Artist’s content available on the Website to any
customer that paid for that content.
9.2 Termination by Company
The Company may suspend, disable, or terminate the Artist’s access to the
Website or the platform if the Company determines, in its sole discretion,
that the Artist breached this agreement or that the Artist’s conduct would
tend to damage the Company’s reputation and goodwill.
9.3 Effect of Termination
On termination, the Artist’s right to access the Website and the platform
and all licenses granted by the Company terminates. If the Artist’s
participation in the platform terminates or is suspended for any reason, the
Company may, without notice, terminate or suspend the Artist Store and
promptly remove any associated content and products or, in the Company’s
discretion, at any time afterwards. If the Artist wants to continue to
syndicate the Artist’s content and products post-termination, the parties
may pursue that relationship through a separate agreement.
9.4 Survival
Any part of this agreement that imposes an obligation after termination
will survive the termination, including all disclaimers and limitations of
liability.
10. Privacy
10.1 For information about how the Company collects, uses, and shares the
Artist’s information, please review the Privacy Policy.
10.2 The Artist acknowledges that by using the platform the Artist consents
to the collection, use, and sharing (as set out in the privacy policy) of
this information, including the transfer of this information to the United
States or other countries for storage, processing, and use by the Company.
10.3 By accessing the platform, the Artist acknowledges that Internet
transmissions are never
completely private or secure. The Artist also acknowledges that others may
read or intercept any message or information the Artist sends to the Company
even if there is a special notice that a particular transmission is
encrypted.
11. Non-solicitation
During this agreement and for two years after its termination, the Artist
will not, either directly or indirectly,
11.1 solicit, divert, or hire away or try to solicit, divert, or hire away
any person employed by the Company;
11.2 solicit any Artist or induce any Artist to terminate or reduce his or
her relationship with the Company; or
11.3 solicit the business of any Company affiliate, customer, or partner,
including soliciting or inducing any affiliate, customer, or partner to
terminate or reduce its relationship with the Company.
12. Non-disparagement
During this agreement and for two years after its termination, the Artist
will not take any action that is intended, or would reasonably be expected,
to harm the Company or its reputation or that would reasonably be expected
to lead to unwanted or unfavorable publicity to the Company. But nothing
will prevent the Artist from making any truthful statement in connection
with any legal proceeding or investigation by the Company or any
governmental body.
13. Disclaimers
13.1 The Company is not making any guarantee of profitability or about the
amount of money the Artist will earn under this agreement. The Artist
acknowledges that past Artist earnings does not guarantee or suggest similar
future earnings.
13.2 The Artist assumes sole responsibility for all risks, consequences,
and damages resulting from the Artist’s interaction and association with the
Website, including risks associated with the publicity of appearing on the
Website, the risk of recording, piracy, or unauthorized dissemination of the
Artist’s submissions, or the risk of publication of the identity of the
Artist, including the publication of the Artist’s personal information.
13.3 The Company is not making any warranty—express or implied—that
(a) the use of the Website, the Artist Store, or the platform will be
timely, uninterrupted, or error-free (whether as a result of technical
failure, acts or omissions of nonparties, or other causes) or will operate
in combination with any other hardware, software, system, or data;
(b) the Website, the Artist Store, or the platform will meet the Artist’s
requirements or expectations;
(c) the Website, the Artist Store, or the platform will be accurate or
reliable;
(d) errors or defects in the Website, the Artist Store, or the platform
will be corrected; or
(e) the servers that make the Website, the Artist Store, or the platform
available are free of viruses or other harmful components.
13.4 The Company offers the Website and the platform “as is.” The Company
is not making any warranty, either express or implied, including implied
warranty of merchantability, fitness for a particular purpose, title,
privacy, and noninfringement for the Website, the Artist Store, or the
platform. No advice or information, whether oral or written, obtained from
the Company, the Website, or elsewhere will create any warranty not
expressly stated here.
14. Limit of Liability
14.1 The Website, the Artist Store, or the platform may be subject to
limitations, delays, and other problems inherent in the use of the Internet
and electronic communications. The Company will not be liable for any
delays, delivery failures, or other damages resulting from these problems.
14.2 The Company will not be liable to the Artist for any of the
following:
(a) Errors, mistakes, or inaccuracies of the Website or the platform;
(b) Personal injury or property damage resulting from the Artist’s access
to or use of the Website or the platform;
(c) Content or conduct that is infringing, inaccurate, obscene, indecent,
offensive, threatening, harassing, defamatory, libelous, abusive, invasive
of privacy, or illegal;
(d) Unauthorized access to or use of the Company’s servers and any personal
or financial information stored in them, including unauthorized access or
changes to the Artist’s account, submissions, transmissions, or data;
(e) Interruption or cessation of transmission to or from the Website or the
platform;
(f) Denial-of-service attack (DoS) or distributed denial-of-service attack
(DDoS);
(g) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling
code that may be transmitted to or through the Website or the platform by
any person or that might infect the Artist’s computer or affect the Artist’s
access to or use of the platform, the Website, the Artist Store, or the
Artist’s other services, hardware, or software;
(h) Incompatibility between the platform or the Website and the Artist’s
other services, hardware, or software;
(i) Delays or failures the Artist might experience in starting, conducting,
or completing any transmissions to or transactions through or with the
Website or the platform; or
(j) Loss or damage incurred because of the use of any content posted,
emailed, sent, or otherwise made available through the Website, the
platform, or the Artist Store.
14.3 The Company will not be liable to the Artist for breach-of-contract
damages that the Company could not reasonably have foreseen on entry into
this agreement. The Company also will not be liable to the Artist—regardless
of theory of liability and even if the Artist advised the Company of the
possibility of these damages—for damages for any of the following:
(a) personal injury;
(b) pain and suffering;
(c) emotional distress;
(d) loss of use;
(e) loss of services;
(f) loss of profits;
(g) loss of revenue;
(h) loss of goodwill;
(i) loss of contracts;
(j) loss of data;
(k) loss of privacy;
(l) loss of business or opportunity; or
(m) cost of obtaining substitute services related to the Website, the
Artist Store, or the platform.
14.4 Except as stated in this agreement, neither party will be liable to
the other party for indirect, incidental, special, statutory, exemplary, or
punitive damages arising from or relating to this agreement, regardless of
theory of liability and even if that party has been advised of the
possibility of these damages, including loss of revenue or anticipated
profits or lost business.
15. Scope of Disclaimers and Limitations
The disclaimers and limits stated in sections 13 and 14 apply to the
greatest extent allowed by law, but no more. The Company does not intend to
deprive the Artist of any mandatory protections provided to the Artist by
law. Because some jurisdictions may prohibit the disclaimer of some
warranties, the limitation of some damages, or other matters, one or more of
the disclaimers or limitations might not apply to the Artist.
16. Loss Payment (aka Indemnification)
16.1 In General
The Artist will pay the Company for any loss of the Company’s that is
caused by the
Artist’s actual or alleged:
(a) use of the platform, the Artist Store, or the Website;
(b) failure to pay taxes in connection with the Artist’s use of the
platform;
(c) dispute with any customer, Artist, or other person;
(d) breach of this agreement, including any statement of fact;
(e) infringement of nonparty intellectual property rights;
(f) violation of any other nonparty rights;
(g) violation of any law, including 18 U.S.C. § 2257;
(h) fraudulent or deceptive conduct;
(i) negligent conduct;
(j) intentional conduct; or
(k) criminal conduct.
But the Artist is not required to pay if the loss was caused by the
Company’s intentional misconduct.
16.2 Definitions
(a) “Loss” means an amount that the Company is legally responsible for or
pays in any form. Amounts include, for example, a judgment, a settlement, a
fine, damages, injunctive relief, staff compensation, a decrease in property
value, and expenses for defending against a claim for a loss (including fees
for legal
counsel, expert witnesses, and other advisers). A loss can be tangible or
intangible; can arise from bodily injury, property damage, or other causes;
can be based on tort, breach of contract, or any other theory of recovery;
and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have occurred
without the event, even if the event is not a proximate cause of the loss.
16.3 Company’s Duty to Notify
The Company will notify the Artist before the 15th business day after the
Company knows or should reasonably have known of a claim for a loss that the
Artist might be obligated to pay. The Company’s failure to give the Artist
timely notice does not terminate the Artist’s obligation, except to the
extent that the failure prejudices the Artist’s ability to defend the claim
or mitigate losses.
16.4 Legal Defense of a Claim
(a) Company’s Control
The Company has control over defending a claim for a loss (including
settling it), unless the Company directs the Artist to control the defense.
(b) Direction to Control
If the Company directs the Artist to control the defense, each of the
following applies:
(i) The Artist may choose and retain legal counsel.
(ii) The Company may retain its own legal counsel at its expense.
(iii) The Artist will not settle any litigation without the Company’s
written consent if the settlement
(1) imposes a penalty or limitation on the Company,
(2) admits the Company’s fault, or
(3) does not fully release the Company from liability.
(c) Good Faith
The Artist and the Company will cooperate with each other in good faith on
a claim.
16.5 No Exclusivity
The Company’s rights under this section do not affect other rights that the
Company might have.
17. Dispute Resolution
17.1 Litigation Election
Either party may elect to litigate the following type of case or
controversy:
(a) an action seeking injunctive relief, or
(b) a suit to compel compliance with dispute resolution.
17.2 Negotiation
Each party will give the other a reasonable opportunity to comply before it
claims that the other has not met the obligations under this agreement. The
parties will first meet and negotiate with each other in good faith to try
to resolve all disputes between the parties arising out of this agreement or
relating to the subject matter of this agreement. The party raising a
dispute will submit to the other party a written notice and supporting
material describing all issues and circumstances related to the dispute (a
“dispute notice”). A primary representative designated by each party will
try to resolve the dispute.
17.3 Mediation
(a) If the parties’ primary representatives are unable to resolve the
dispute no later than 30 days after receiving the dispute notice, either
party may, by notice to the other party and the American Arbitration
Association, demand mediation under the Commercial Mediation Rules of the
American Arbitration Association.
(b) Mediation will take place in Scottsdale, Arizona, U.S.A., unless the
parties otherwise agree in writing. The language of the mediation will be
English. Each party will bear its own costs in mediation, and the parties
will share equally between them all third-party mediation costs unless the
parties agree differently in writing.
(c) Each party will participate actively and constructively in mediation
proceedings once started and will attend at least one joint meeting between
the mediator and the parties. Any party may terminate mediation at any time
after an initial meeting between the mediator and the parties.
17.4 Arbitration
(a) If the parties fail to settle a dispute through mediation, the parties
will settle any unresolved dispute arising out of or relating to this
agreement, or the breach of it, by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules. The
arbitrator, and not any federal, state, or local court or agency, will have
exclusive authority to resolve all disputes arising out of or relating to
the interpretation, enforceability, or formation of this agreement,
including any claim that all or any part of this agreement is void or
voidable.
(b) A single arbitrator will preside over the arbitration. The arbitrator
will be empowered to grant whatever relief would be available in a court
under law or in equity, except that the arbitrator must not award punitive
or exemplary damages, or damages otherwise limited or excluded in this
agreement. The arbitrator will issue a final award on all issues submitted
to the arbitrator. The arbitrator’s award will be binding on the parties and
may be entered as a judgment in any court of competent jurisdiction.
(c) Arbitration will take place in
Los Angeles
, U.S.A., unless the parties otherwise agree in writing. Subject to section
17.7, the parties will bear equally the costs of arbitration, including the
fees and expenses of the arbitrator, and each party will bear the costs
associated with its case.
(d) The Federal Arbitration Act, 9 U.S.C. §§ 1–16, governs the
interpretation and enforcement of this agreement, plus any post-award
proceedings. The arbitrator’s authority to grant relief will be subject to
the provisions of this agreement and the American Arbitration Association
Code of Ethics for Arbitrators in Commercial Disputes.
(e) Unless required by law, neither a party nor an arbitrator will disclose
the existence, content, or results of any arbitration under this agreement
without the advance written consent of both parties.
17.5 Equitable Remedies
The Artist acknowledges that breach by the Artist of the Artist’s
obligations under this agreement could cause irreparable harm for which
damages would be an inadequate remedy. If any breach occurs or is
threatened, the Company may seek an injunction, a restraining order, or any
other equitable remedy, in each case without posting a bond or other
security.
17.6 Jurisdiction
(a) If a party brings any proceeding seeking an injunction, a restraining
order, or any other equitable remedy to which that party is entitled under
this agreement, that party will bring that proceeding only in the United
States District Court for the District of Arizona or in any state court in
Maricopa County, Arizona, U.S.A., and each party hereby submits to the
exclusive jurisdiction of those courts for purposes of any proceeding.
(b) Each party hereby waives any claim that any proceeding brought in
accordance with section 17.6(a) has been brought in an inconvenient forum or
that the venue of that proceeding is improper.
17.7 Jury Trial Waiver
Each party hereby waives its right to a trial by jury in any proceedings
arising out of or relating to this agreement. Either party may enforce this
waiver up to and including the first day of trial.
17.8 Class Action Waiver
The parties will conduct all proceedings to resolve a dispute in any forum
on an individual basis only. Neither the Artist nor the Company will seek to
have any dispute heard as a class action or participate in any other
proceeding in which either party acts or proposes to act in a representative
capacity. The parties will not combine any proceeding with another without
the advanced written consent of all parties to all affected proceedings.
17.9 Limited Time to Bring Claims
A party will not bring a claim arising out of, or related to the subject
matter of, this agreement more than one year after the cause of action
arose. Any claim brought after one year is barred.
18. General
18.1 Entire Agreement
(a) This agreement, the Terms of Use, and the Privacy Policy constitutes
the entire agreement of the parties with respect to the subject matter of
this agreement. It supersedes all earlier written or oral discussions,
negotiations, proposals, undertakings, understandings, and agreements
between the parties concerning the transactions contemplated in this
agreement. No party may use any of the earlier or contemporaneous
negotiations, preliminary drafts, or previous versions of this agreement
leading up to its signature and not stated in this agreement to construe or
affect the validity of this agreement. Each party acknowledges that no party
made or relied on a representation, inducement, or condition not stated in
this agreement.
18.2 Amendment
The Company may change the terms of this agreement on one or more
occasions, on condition that changes will not apply to ongoing disputes or
to disputes arising out of events occurring before the posted changes. The
Company will notify the Artist through the Website or by email of any
changes to this agreement. Changes will become effective when posted on this
page. It is the Artist’s responsibility to check this page periodically for
changes to this agreement. If the Artist continues to participate in the
platform after any change, the Company will consider the Artist’s continued
participation as acceptance of the change unless the Artist notifies the
Company in writing of the Artist’s disagreement and the reasons for the
Artist’s disagreement no later than 15 days after the change. The Company
will contact the Artist no later than 15 days after receiving the notice to
address the notice and try to reach a mutually amicable resolution. If
Company is unable to resolve the Artist’s disagreement, the Artist’s sole
remedy is to terminate the Artist’s participation in the platform.
18.3 Assignment and Delegation
(a) Assignments
The Company may assign its rights under this agreement without the Artist’s
consent. The Artist will not assign any of the Artist’s rights under this
agreement, except with the Company’s advance written consent.
(b) Delegations
The Company may delegate any performance under this agreement without the
Artist’s consent. The Artist will not delegate any performance under this
agreement, except with the Company’s advance written consent.
(c) Ramifications of Purported Assignment or Delegation Any purported
assignment of rights or delegation of performance in breach of this section
18.3 is void.
18.4 Waivers
(a) No Oral Waivers
The parties may waive any provision in this agreement only by a writing
signed by the party or parties against whom the waiver is sought to be
enforced.
(b) Effect of Failure, Delay, or Course of Dealing
No failure or delay in exercising any right or remedy, or in requiring the
satisfaction of any condition, under this agreement, and no act, omission,
or course of dealing between the parties, operates as a waiver or estoppel
of any right, remedy, or condition.
(c) Each Waiver for a Specific Purpose
A waiver made in writing on one occasion is effective only in that instance
and only for the purpose stated. A waiver once given is not to be construed
as a waiver on any future occasion or against any other person.
18.5 Severability
The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable,
then that provision will be modified to the minimum extent necessary to make
it enforceable, unless that modification is not permitted by law, in which
case that provision will be disregarded;
(b) that if modifying or disregarding the unenforceable provision would
result in failure of an essential purpose of this agreement, the entire
agreement will be held unenforceable;
(c) that if an unenforceable provision is modified or disregarded in
accordance with this section, then the rest of the agreement will remain in
effect as written; and
(d) that any unenforceable provision will remain as written in any
circumstances other than those in which the provision is held to be
unenforceable.
18.6 Notices
(a) Form
All notices and other communications between the parties will be in
writing.
(b) Method
(i) Sending Notice to Company
The Artist may send notice to the Company by email. The Company may change
its contact information on one or more occasions by posting the change on
the Website. Please check the Website for the most current information for
sending notice to the Company.
(ii) Sending Notice to Artist
The Artist consents to receiving any notice from the Company in electronic
form either (1) by email to the email address listed in the Artist’s account
or (2) by posting the notice on a place on the Website chosen for this
purpose. The Artist may change the Artist’s contact information by updating
the contact information in the Artist’s account.
(c) Receipt
The Company will consider an email notice received by it only when the
Company’s server sends a return message to the Artist acknowledging receipt.
The Company will consider notices sent to the Artist by email received when
the Company’s email service shows transmission to the Artist’s email
address. All other notices will be effective on receipt by the party to
which notice is given, or on the fifth day after posting, whichever occurs
first.
18.7 Rights and Remedies Cumulative
A party’s exercise of any right or remedy under this agreement does not
preclude the exercise of any other right or remedy. All of the parties’
rights and remedies are cumulative and are in addition to any other right or
remedy set out in this agreement, any other agreement between the parties,
or which may now or later exist at law or in equity, by statute or
otherwise.
18.8 Governing Law
The laws of the state of
California
—without giving effect to its conflicts of law principles— govern all
matters arising out of or relating to this agreement, including its
validity, interpretation, construction, performance, and enforcement.
18.9 Force Majeure
(a) If a force majeure event prevents a party from complying with any one
or more obligations under this agreement, that inability will not constitute
a breach if (1) that party uses reasonable efforts to perform those
obligations, (2) that party’s inability to perform those obligations is not
due to its failure to (A) take reasonable measures to protect itself against
events or circumstances of the same type as that force majeure event or (B)
develop and keep a reasonable contingency plan to respond to events or
circumstances of the same type as that force majeure event, and (3) that
party complies with its obligations under section 18.9(c).
(b) For purposes of this agreement, “force majeure event” means, for any
party, any event or circumstance, whether or not foreseeable, that was not
caused by that party (other than a strike or other labor unrest that affects
only that party, an increase in prices or other change in general economic
conditions, a change in law, or an event or circumstances that results in
that party’s not having sufficient funds to comply with an obligation to pay
money) and any consequences of that event or circumstance.
(c) If a force majeure event occurs, the noncomplying party will promptly
notify the other party of occurrence of that force majeure event, its effect
on performance, and how long the noncomplying party expects it to last. From
then on, the noncomplying party will update that information as reasonably
necessary. During a force majeure event, the noncomplying party will use
reasonable efforts to limit damages to the other party and to resume its
performance under this agreement.
18.10 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any
rights or remedies on any person other than the parties to this agreement.
18.11 Relationship of the Parties
The parties intend that their relationship will be that of independent
contractors and not business partners. This agreement does not, and the
parties do not intend it to, create a partnership, joint venture, agency,
franchise, or employment relationship between the parties and the parties
expressly disclaim the existence of any of these relationships between them.
Neither of the parties is the agent for the other, and neither party has the
right to bind the other on any agreement with a third party.
18.12 Successors and Assigns
This agreement binds and inures to the benefit of the parties and their
respective successors and assigns. This section 18.12 does not address,
directly or indirectly, whether a party may assign its rights or delegate
its obligations under this agreement. Section 18.3 addresses these matters.
18.13 Further Assurances
The parties will take any further actions, or sign any further documents,
as may be necessary to implement and carry out the intent of this agreement.
18.14 Counterparts
The parties may sign this agreement in any number of counterparts. The
parties will consider each counterpart an original, and all counterparts,
when taken together, will form the same agreement.
18.15 Signatures; Electronic Signatures
(a) The parties may sign this agreement by fax or electronically instead of
an original signature. The parties will consider fax or electronic
signatures as original signatures that bind them to this agreement.
(b) The Artist acknowledges that any affirmation, assent, or agreement the
Artist sends through the Website or platform in response to a prompt binds
the Artist. The Artist further acknowledges that when the Artist clicks on a
“Create
”
or other similarly worded “button” or entry field using a finger (for
touchscreen devices), mouse, keystroke, or other device, this action is the
legal equivalent of the Artist’s handwritten signature and binds the Artist
in the same way.
18.16 Entity Authority
(a) Each individual that signs this agreement for an entity states that the
following facts are accurate:
(i) he or she has full authority to sign this agreement for that entity,
and
(ii) that entity has taken all necessary actions to authorize the signing
of this agreement.
(b) Each entity states that this agreement does not breach that entity’s
articles, certificates, bylaws, or any other agreement or law that binds
that entity.
18.17 Voluntary Agreement
(a) The parties have signed this agreement voluntarily and for valid
reasons.
(b) The parties acknowledge that they
(i) have carefully read this agreement,
(ii) discussed it with their attorneys or other advisors,
(iii) understand all of the terms, and
(iv) will comply with it.
(c) The parties have relied on the advice of their attorneys or other
advisors about the terms of this agreement and waive any claim that the
terms should be construed against the drafter.
18.18 No Reliance
Each party acknowledges that in signing this agreement, that party does not
rely and has not relied on any statement by the other party or its agents,
except those statements contained in this agreement.
18.19 Permission to Send Emails to the Artist
The Artist grants the Company permission to email notices, advertisements,
and other communications to the Artist, including emails, advertisements,
notices, and other communications containing adult oriented material, sexual
content and language, and images of nudity unsuitable for minors. The
Artist’s permission will continue until the Artist asks the Company to
remove the Artist from the Company’s email list.
18.20 Feedback
The Company encourages the Artist to give feedback about the Company, the
Website, or the platform. But the Company will not treat as confidential any
suggestion or idea the Artist gives, and nothing in this agreement will
restrict the Company’s right to use, profit from, disclose, publish, or
otherwise exploit any feedback, without payment to the Artist.
18.21 English language
The Company has drafted this agreement in the English language and no
translation into any other language will be used to interpret or construe
this agreement. All services, support, notices, designations,
specifications, and communications will be provided in the English language.
18.22 Usages
In this agreement, the following usages apply:
(a) Actions permitted under this agreement may be taken at any time and on
one or more occasions in the actor’s sole discretion.
(b) References to a statute will refer to the statute and any successor
statute, and to all regulations promulgated under or implementing the
statute or successor, as in effect at the relevant time.
(c) References to numbered sections in this agreement also refer to all
included
sections. For example, references to section 6 also refer to 6.1, 6.1(a),
etc.
(d) References to a governmental or quasi-governmental agency, authority,
or instrumentality will also refer to a regulatory body that succeeds to the
functions of the agency, authority, or instrumentality.
(e) “A or B” means “A or B or both.” “A, B, or C” means “one or more of A,
B, and C.” The same construction applies to longer strings.
(f) “Including” means “including, but not limited to.”
(g) “$” means United States Dollars.
(h) Garner’s Modern American Usage (3d ed. 2009) applies to interpret
usage, grammar, and syntax not otherwise addressed by this section 18.22.
I swear to, and further promise to abide by, the “
Builtmore Clip Store
” Artist Agreement and the overall Terms of Use of this site.
By Clicking on the
CREATE
button below you agree to the Terms above.