UFOCUS Artist's Supply Agreement (Non-Exclusive)
UFOCUS Artist's Supply Agreement (Non-Exclusive)
1. Background of Agreement
a. By confirming your acceptance of this Agreement this becomes a binding legal agreement between any member intending to upload data or materials to ufocus (in this agreement referred to as “you”) and UFOCUS, INC. (in this agreement referred to as “ufocus”). If you are a corporation or other entity or a minor you may be subject to further filing requirements. We encourage you to print a copy of the Agreement for your records. b. You wish to appoint ufocus as its non-exclusive agent to license, sublicense and distribute Content (as defined below) on the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, you may make Content available to ufocus by following the "upload" procedures identified by ufocus from time to time. Each upload of Content will be governed by the terms and conditions of this Agreement. c. This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must follow the termination procedures set forth below under "Term and Termination".
2. Provision of Content
a. Because ufocus offers different categories of content, this agreement may differentiate among categories of content that you produce, such as still photography, which includes 3D renders (collectively, “Photo Content”), illustrations (for greater clarity, illustrations include all vector files and raster files, including but not limited to scans of works of art that otherwise meet ufocus standards and digital scans) (“Illustration Content”), or video files, animations (“Video Content”) and related material produced by you. Exclusivity with respect to one or more categories of Content (as defined below) depends on your qualification under each such category, your application for exclusivity and ufocus’s acceptance of such application. You may, from time to time, provide one or more of (i) Photo Content, (ii) Illustration Content, or (iii) Video Content (collectively, “Content”); together in any case with other information, documents (such as model or property releases) or software relating to same, as the case may be or otherwise required to enable ufocus to realize the commercial potential of the rights granted in the Content (“Descriptive Information”). ufocus, in its sole discretion, may determine which of such Content is suitable for posting on the ufocus Site or other means of direct or indirect distribution, and only such Content as it deems suitable will be considered "Accepted Content" for the purposes of applicable provisions of this Agreement. Although ufocus may permit Content to be submitted pursuant to certain applications from time to time, your ability to submit further Content under this Agreement shall be subject to policies and procedures outlined by ufocus from time to time. b. In addition to the terms of this Agreement, the parties acknowledge that the provision of all Content is subject to the policies and procedures outlined by ufocus from time to time, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to Content will be deemed to be a breach of this Agreement.
3. Grant of Authority
a. You hereby appoint ufocus as your non-exclusive distributor to sell, license or sublicense Content to third parties worldwide and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Content, you grant ufocus:
i. The worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products, or publicly perform or display Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the ufocus Site; (ii) through other venues owned or operated by ufocus or its affiliates from time to time, and(iii) through Distribution Partners (defined in Section 3(c)); and ii. The right to grant perpetual, worldwide, licenses or sublicenses to end-users. ufocus and its Distribution Partners will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal.
b. In addition to the foregoing grant ufocus and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for their own business purposes relating to the promotion of the ufocus Site, the Content and their distribution programs, and promote the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and your registered and unregistered trademarks for marketing, sales and promotional efforts whether on the ufocus Site or through third parties). No compensation shall be due to you for use of Accepted Content for such business purposes. c. Accepted Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by ufocus or third party distributors (each a “Distribution Partner”). ufocus will determine the Collection and may subsequently move and license Accepted Content through a Collection on notice to you either through the Site or otherwise. For Content that moves into another Collection, the Royalties (defined below) paid to you shall be as set out in the Rate Card (defined below). d. The Parties agree that all rights, including title and copyright, in and to the Accepted Content will be retained by you, and no title or copyright is transferred or granted in any way to ufocus or any third party except as provided in this Agreement. e. ufocus and its Distribution Partners may offer license models through an application program interface (API) or other utility that will make Accepted Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Accepted Content to the total number of individual items of content licensed together; or (b) in ufocus’s discretion, the relative value of your individual items of Accepted Content compared to all other content licensed together with it.
4. Intellectual Property Matters
a. You acknowledge that ufocus prohibits any Content, Descriptive Information or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded under this Agreement. b. By uploading Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement. In addition, unless the Accepted Content is identified as ‘for editorial use’ in the manner and form prescribed by ufocus, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as the model release found on the ufocus contributor website that will permit the uses for such Content contemplated in this Agreement and that you will keep the original release and provide a copy to ufocus if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as the property release found on the ufocus contributor website relating to identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by ufocus and its Distribution Partners’ customers. If your Accepted Content was taken with an unmanned aerial vehicle (drone) or other unmanned device, you represent and warrant that you have adhered with all local laws and access requirements in the operation of the drone and capture of the Accepted Content, including any necessary licenses, permissions and permits to own and operate such unmanned device. Where the Accepted Content is identified as ‘for editorial use’ you represent and warrant that the AcceptedContent has not been manipulated, modified or processed in any manner that might distort the contextual integrity of the Content. For greater clarity, cropping and brightness/contrast corrections are permissible where the integrity of the Content has not been distorted. c. You agree that neither ufocus nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information. d. Using the name identified by you in your contributor account profile, ufocus shall use commercially reasonable efforts to credit you as the source of Accepted Content, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Content is not credited, that Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
5. Compensation
a. ufocus agrees to pay you royalties (the “Royalties”) within 30 days after the end of each month in which the license or sale was made (except for royalties payable on subscription downloads, which shall be paid in the month following the end of the applicable subscription term, and when sales reporting is delayed, whether made by a Distribution Partner or otherwise, in which case payments will be made in the month following the date such sale is reported) (a “Sales Month”) by electronic funds transfer (as may be supported by ufocus from time to time) or such other method as may be agreed by the parties. No payment will be made unless a minimum of $100USD, after Royalty Deductions (defined below), is due to you in accordance with the Rate Card posted on the ufocus contributor website (the “Rate Card”). Within the same time period as payment of the Royalties set out in this Section, ufocus shall provide a report of all licenses and Royalties related to such licenses of Content during that Sales Month (the “Sales Report”). Royalties are paid on “License Fees” which are (a) the amount charged by ufocus or a Distribution Partner to each of their Clients (or in the case of certain Distribution Partners, the amount charged by ufocus to those Distribution Partners for royalty free licenses); or (b) the amount of revenue, including advertising revenue, that is allocated to the Accepted Content pursuant to Section 3(e). The parties acknowledge that the Rate Card may differ among various types of Content, such as Photo Content, Illustration Content and Video Content and among the ufocus Sites/Distribution Partners through which the Content is distributed. The parties acknowledge that the Rate Card is subject to change in the sole discretion of ufocus upon providing you 30 days' notice by e-mail as set out in Section 11(a). If at any time the Rate Card is not acceptable to you, you may terminate this Agreement in accordance with its terms. Continued submission of Content or failure to terminate this Agreement will be deemed acceptance by you of changes to the Rate Card, and the amended Rate Card will be incorporated by reference into this Agreement. b. In all cases, the following deductions are made from License Fees before Royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by ufocus from any current or future sums due to you by any law, regulation, or treaty (excluding: (A) any taxes on the net profits of ufocus or any Distribution Partner; and (B) any withholding taxes imposed on remittances to ufocus; (ii) unauthorized use detection/enforcement fees and expenses; (iii) currency hedging fees and costs; and (iv) shipping charges, insurance charges, fees for materials, and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, distribution or fulfillment fees, and advertising sales commissions, in all cases arising out of or resulting from any license of the same Accepted Content. c. ufocus may deduct the following amounts from the Royalties payable to you (together the “Royalty Deductions”): (i) cancellations of a license where the original sale has been reported to you including where the cancellation is due to a fraudulent transaction; (ii) overpayment of Royalties in a prior Royalty period; and (iii) amounts that may be deducted or withheld in accordance with the Section 10 Indemnity. d. ufocus will use its best efforts to provide real time reporting of downloads of Accepted Content from the ufocus Site and ufocus.com for your information. Please note that the official report of licenses of Accepted Content and corresponding Royalties shall be the Sales Report. e. Without limiting the generality of the foregoing, ufocus is entitled to set-off against any amount owing to you, all amounts that ufocus is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of your representation, warranty or indemnity under this Agreement. f. The parties further agree that ufocus shall not be required to pay Royalties to you if ufocus is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party. g. In the event ufocus facilitates a sale or exclusive license of Accepted Content, ufocus shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale or license, which share shall be based on the royalty payable pursuant to the Rate Card at the time of the transaction.
6. Passwords You acknowledge and agree that you will be responsible for each and every access or use of the ufocus contributor enrollment website, ufocus contributor site or any other upload website, tool or application that occurs in conjunction with your account and such passwords, and that ufocus is authorized to accept your login and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. ufocus shall have no liability or responsibility to monitor the provision of Content under your login and password.
7. Managing Content
a. ufocus has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, ufocus does not and cannot review all Content or Descriptive Information uploaded to the ufocus Site and is not responsible for the content, quality, or consequences of your uploading such Content or Descriptive Information. Notwithstanding the foregoing, ufocus reserves the right to delete, move, refuse to accept or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to ufocus or as it may direct. ufocus shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content or Descriptive Information performed by ufocus to determine Accepted Content is done as a courtesy only. NOTICE: You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members of the ufocus Site or Distribution Partner sites with the intention that they will adhere to the terms of the applicable license agreement. b. Notwithstanding the foregoing, given the exigencies of the stock photography business and the prevalence of royalty-free content, ufocus cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, ufocus shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. ufocus will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
8. Confidential Information
a. You acknowledge that the Confidential Information (defined below) that it obtains through the entering into of this Agreement and the provision of Content constitutes valuable, confidential, proprietary information of ufocus and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of ufocus, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement. b. For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of ufocus, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, ufocus Site and ufocus.com content belonging to others and other intellectual property.
9. Representations and Warranties
a. You hereby represent and warrant as follows:
i. You have the legal capacity and authority to enter into this Agreement and perform your obligations hereunder and that you will comply with all applicable laws, including without limitation the Foreign Corrupt Practices Act and the U.K. Bribery Act, are not on the US Department of Treasury's List of Specially Designated Nationals, are the sole and exclusive owner of the Content or are the authorized representative of the applicable copyright owner(s) of such Content, have the right to grant all of the license rights contemplated to be provided under this Agreement, and have not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement; ii. if the Content consists in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by you for such design program software allows you to incorporate such elements in Content created by you, and to license such Content to ufocus for the purposes set forth herein; iii. no portion of the Content as delivered to ufocus from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the ufocus Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the ufocus Site in any way; iv. the Content will include all necessary Descriptive Information to enable its effective marketing on the ufocus Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content; v. the Content delivered to ufocus hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and vi. the Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Content being used by ufocus, its customers or Distribution Partners as contemplated under this Agreement.
b. You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another ufocus member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph ufocus may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
10. Indemnity
a. You agree to indemnify, defend and hold ufocus and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the “ufocus Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any ufocus Party as a result of or in connection with: (i) any use or alleged use of the ufocus Site or upload application or process or provision of Content under your account by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your account; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any ufocus Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party. b. ufocus reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with ufocus's defense of such claim. c. You agree that ufocus shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer”) for any violation of a license agreement or alleged infringement of any other of your rights. You hereby release ufocus from any and all claims you might have, either directly or indirectly, arising out of or in connection with a determination by ufocus to proceed or not to proceed against any Infringer in any instance. ufocus hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate ufocus for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery ( including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of ufocus in connection with such action, be divided between you and ufocus pursuant to the provisions of Section 5 (Compensation). In the event ufocus elects not to proceed against an Infringer, you shall have the right to proceed against such Infringer for such license violation or infringing action. You hereby agree that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate you for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between you and ufocus pursuant to the provisions of Section 5 (Compensation section) above.
11. Term and Termination
a. This Agreement is effective until terminated. You may terminate this Agreement with respect to the whole (but not part of) one or more of Photo Content, Illustration Content or Video Content at any time by giving thirty (30) days written notice specifying the category or categories of Content to which termination applies to ufocus by filing a ticket through your account profile or such other means of written notice acceptable to ufocus which enables confirmation of your identity and your intention to terminate. ufocus may also terminate this Agreement with respect to one or more of Photo Content, Illustration Content or Video Content, for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If ufocus terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement with respect to all Content, as well. b. Either party may terminate this Agreement upon written notice effective upon being sent in the manner set forth in Section 11(a), if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement. c. In addition, ufocus may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of ufocus, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or you provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact you based on the information provided as part of your account profile.
12. Effect of Termination
a. Upon the termination of this Agreement with respect to one or more of Photo Content, Illustration Content or Video Content, the grant of authority given to ufocus shall cease with respect to the relevant category of Content subject to the following conditions: (i) ufocus shall remove the applicable Accepted Content from the ufocus Site and distribution partners within ninety (90) days of the termination of this Agreement; (ii) notwithstanding termination, ufocus and its distribution partners shall have the right to continue licensing Accepted Content until it is removed from the ufocus Site or other sites where Accepted Content is distributed and for up to (1) year following termination where such Accepted Content has previously appeared in ufocus's promotional materials, or Distribution Partner marketing programs; (iii) regardless of the expiration or termination of this Agreement, ufocus will continue, in accordance with this Agreement, to pay compensation due to you at the applicable non-exclusive royalty rate set out in the Rate Card in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law; and (iv) where a customer reports a license of your Content that was delivered to the customer prior to the termination of this Agreement, ufocus shall pay such applicable royalties to you within 60 days of reporting of a license by the customer. b. Upon termination, ufocus will be entitled to retain all amounts owing to you for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account. c. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement with respect to one category of Content shall not alter or reduce your obligations and ufocus respecting any remaining category of Content, and in any event, shall not alter or affect the rights granted to licensees or sub-licensees by ufocus pursuant to this Agreement. d. Termination of this Agreement shall operate without prejudice to the ufocus's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
13. DISCLAIMER OF WARRANTIES
a. THE UFOCUS SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY UFOCUS "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. UFOCUS DOES NOT REPRESENT OR WARRANT THAT THE UFOCUS SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE. b. UFOCUS DOES NOT REPRESENT OR WARRANT THAT THE UFOCUS SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE UFOCUS SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
14. LIMITATION OF LIABILITY
a. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE UFOCUS SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN. b. IN NO EVENT SHALL UFOCUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE UFOCUS SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF UFOCUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. c. IN ANY EVENT, UFOCUS'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE UFOCUS SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY UFOCUS FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS. d. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF UFOCUS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. Applicable law
a. This Agreement will be governed in all respects by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Center for Dispute Resolution ("ICDR") in effect on the date of the commencement of the arbitration (the applicable rules to be at your discretion) to be held in one of the following jurisdictions (whichever is closest to you): Seattle, Washington; New York, New York; Los Angeles, California; London, England; Paris, France; Frankfurt, Germany; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, ufocus shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of ufocus, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim. b. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you as set out in section 11(a). You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against ufocus related to the ufocus Site, this Agreement or any agreements contemplated hereby. c. If ufocus is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse ufocus for its legal fees, costs and disbursements if ufocus is successful.
16. General
a. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them. b. ufocus's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. c. This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without ufocus's prior written consent. ufocus may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms. d. If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision. e. This Agreement can be amended by the written agreement of the parties or by ufocus providing you 30 days' notice by e-mail at the address set out in section 11(a) and posting amendments on the ufocus contributor website. Continued provision of Content or failure to terminate this Agreement within 30 days of such notice will be deemed to be acceptance of the amendment by you and it will be incorporated by reference into this Agreement. f. You understand and agree that information relating to you or any other person such as a model that you may provide to ufocus may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of your home country. ufocus, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting you, and may disclose this information to necessary service providers in accordance with the ufocus Privacy Policy. Any personal information you do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. ufocus reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distribution Partners and their employees, customers or the public.
17. If and to the extent you are submitting Content to ufocus as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable. 18. Contact If you have concerns relating to this Agreement, please file a ticket through the ufocus contributor site. 19. Acknowledgement YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF UFOCUS AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND UFOCUS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND UFOCUS RELATING TO THE SUBJECT OF THIS AGREEMENT.