| | Client Artist Visitor Client AgreementRevision Date: December 6 2007
By accessing any photo, graphic design, video and font file from our site, you agree to the following terms and conditions.
This Agreement is between Flyerstarter Services Ltd., doing business as Flyerstarter Services Ltd. (“Flyerstarter Services Ltd.”, “We” or “Us”) and the client (“You” or “Your” or “Client”) who establishes a username and password for the right to access, acquire, and use Content from this website (“Flyerstarter.com” and all it's web domain name aliases).
1. Grant of Rights
a. You may not allow anyone else to use your username and/or password. For the purpose of this Agreement, "Content" is defined as any image, photo, font or graphic file represented on the Flyerstarter Services Ltd. website. You have agreed to be bound by the Terms and Conditions of this Agreement and by downloading any of the Content from Flyerstarter Services Ltd., You acknowledge that You have read, understood, and accepted the Terms and Conditions of this Agreement.
b. Flyerstarter Services Ltd. represents that it owns all rights or has all requisite authority, including all copyrights, in and to the Content, or, is authorized to allow You to access, acquire, and use Content under the Terms and Conditions of this Agreement. The copyright and all other rights of the Content shall remain with Flyerstarter Services Ltd. or Flyerstarter Services Ltd. suppliers. In the case of files provided for free as a service from Flyerstarter Services Ltd., the copyright and rights remain with the original creator and shall be respected according to the individual agreeements that are contained in the downloadable archive file.
c. You agree to access, acquire, and use the Content under the following Terms and Conditions. These Terms and Conditions constitute a legal Agreement between You and Flyerstarter Services Ltd. and Flyerstarter Services Ltd. Flyerstarter Services Ltd. grants You a nonexclusive, nontransferable license to use, reproduce, modify, publish, display, and distribute the Content according to the Terms and Conditions of this Agreement.
d. You may, subject to the Terms and Conditions of this Agreement, access via a purchase the Content via Flyerstarter Services Ltd., and use the acquired Content for the following purposes, provided you do not violate the rights of any third party;
i. in flyers, brochures, magazines, newspapers, book covers, and interiors of books as a design element;
ii. as a design element on a website, video game, or CD-ROM
as part of marketing, advertising, or promotional materials, including print ads, mailers, handouts, and packaging;
iii. in connection with your business or entity, eg corporate identity documents, and letterhead;
iv. as decor in a store, office, restaurant, retail storelobby, or other public area;
v. as design elements in video, film, or television broadcasts
e. You may not;
i. distribute the Content, electronically or in hard copy, except as specifically authorized under paragraph 3 above;
ii. authorize any third party to use the Content for any purpose or resell, sublicense, or otherwise make available the Content for use or distribution separately or detached from a product or Web page;
iii. share Content across a network, on a CD, or in any other way, outside of a good-faith situation such as providing a graphic file to a printing house so they may publish the design as specifically authorized under section 1d above or under any circumstances, use automated or programmatic means or methods to download Content;
iv. use Content in any logo or part of any trademark;
v. use Content in any downloadable format intended for multiple distribution and/or resale, including, without limitation, Web site templates, software products, e-greetings, etc. You may contact Flyerstarter Services Ltd. to find out about a special license for such use;
vi. under any circumstances, use Content in connection with any pornographic, obscene, immoral, or illegal materials.
f. You understand that Content is copyrighted and may be owned by a third party, and any unauthorized use by you may be an infringement of such copyright. You also understand that Canada prohibits export of materials to certain countries and you will abide by such restrictions.
g. You
understand and agree that Flyerstarter Services Ltd. may, in its sole discretion;
i. monitor anything you download from the Flyerstarter Services Ltd. website, as frequently as Flyerstarter Services Ltd. in its sole discretion determines, for any violation of this Agreement;
ii. terminate your account immediately if you are using, or are trying to use any automated means to download content, and;
iii. terminate your account, without notice, if it finds what Flyerstarter Services Ltd. believes to be any violation of this Agreement and/or any abuse of your username and password. If your account is terminated for any violation of this Agreement and/or any abuse of a username or password, you lose all rights to Flyerstarter Services Ltd. Content, must immediately delete all Content acquired from Flyerstarter Services Ltd., and forfeit all fees paid.
2. Indemnification
a. Client agrees to defend, indemnify, and hold harmless Flyerstarter Services Ltd., and it's directors, officers, members, employees, agents, attorneys, and successors, from any and all claims, demands, losses, damage, liability, cost, and expense, including without limitation attorneys’ fees and costs incurred by Flyerstarter Services Ltd., resulting from or arising out of:
i. any inaccuracy of any representation or warranty made by Client;
ii. any failure of Client to perform any obligation, covenant, or agreement hereunder; and ;
iii. any claim by a third party which results in a bona fide settlement, claim, or adjustment which if proved true would constitute a breach of the representations and warranties set forth in this Agreement;
iv. any infraction of terms imposed in section 1e.
b. Flyerstarter Services Ltd. reserves the right to exclusively control the defense of any matter subject to indemnification by Client, at Client’s expense, and in such case, Client agrees to cooperate with Flyerstarter Services Ltd. in the defense of any such claim.
3. Disclaimer of Warranties
FLYERSTARTER SERVICES LTD. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR ANY CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FLYERSTARTER SERVICES LTD. DOES NOT REPRESENT OR WARRANT THAT: THE WEBSITE WILL BE FREE FROM ERROR OR THAT USE OF IT WILL BE UNINTERRUPTED; THE CONTENT WILL BE AVAILABLE FOR LICENSE; THE WEBSITE OR ANY CONTENT THEREIN WILL BE FREE OF VIRUSES OR ANY OTHER CONTAMINATION OR DESTRUCTIVE FEAUTURES.
4. Limitation of Liability
IN NO EVENT SHALL FLYERSTARTER SERVICES LTD. OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY: DIRECT; INDIRECT; CONSEQUENTIAL; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND; LOST PROFITS; LOSS OF PROSPECTIVE COMPENSATION; GOODWILL OR LOSS THEREOF; OR DAMAGES, EXPENDITURES, INVESTMENTS, LEASES, OR ANY TYPE OF COMMITMENT MADE ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE RELIANCE UPON, THE USE OF, ACCESS TO, OR EXPLOITATION OF ANY PART OF THE WEBSITE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR WHERE SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR INDEMNIFICATION CLAIMS ARISING UNDER SECTION 9 AND THE OBLIGATION TO PAY ANY AMOUNTS DUE AND OWING, THE SOLE AND TOTAL REMEDY OF EITHER PARTY TO THE OTHER IS LIMITED TO THE TERMINATION OF THIS AGREEMENT. IF A JURISDICTION DOES NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF ANY PARTICULAR DAMAGES, THE LIABILITY OF LICENSOR OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
5. Intellectual Property
Client agrees that they will not infringe or violate Intellectual Property rights of Flyerstarter Services Ltd.. Client further agrees that Client will not at any time during or after this Agreement assert to claim any interest in or do anything that may adversely affect the validity or enforceability of any Intellectual Property rights belonging or licensed to Flyerstarter Services Ltd..
Client will not register, seek to register, or cause to be registered any of
Flyerstarter Services Ltd.’s trademarks, servicemarks, logos, trade designations, or copyrights without the Flyerstarter Services Ltd.’s prior written consent, nor shall Client adopt or use any trademark that might be confusingly similar to Flyerstarter Services Ltd.’s trademarks, trade names, logos, and copyrights.
6. Governing Law, Jurisdiction and Venue
This Agreement shall be interpreted, construed and governed by the laws of the province of British Columbia, without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Venue for all disputes arising under this Agreement shall lie exclusively in the Provincial Courts of British Columbia in Vancouver.
Users of this website agree that any and all disputes arising from the use of this website, or the ordering of materials from this website, shall be settled by binding arbitration. Notwithstanding the foregoing, however, Flyerstarter Services Ltd. shall have the right to commence and prosecute any legal or equitable action or proceeding before any non-Canadian court of competent jurisdiction to obtain injunctive or other relief in the event that, in the opinion of Flyerstarter Services Ltd., such action is necessary or desirable.
The parties confirm that it is their wish that this Agreement as well as any other documents relating to this Agreement, including notices, has been and shall be written in the English language.
7. Confidentiality
Both parties agree that neither will divulge any specific terms or conditions of this Agreement or any information in relation to the other party’s affairs or method of carrying on business, including but not limited to revenue or other financial details to any person(s) other than those employees of either party, business partners, professional advisors, potential or actual investors, any of their subsidiaries or affiliated companies for whom such information is necessary for the performance of obligations or enforcement of rights under this Agreement; to the extent required by applicable law; or during the course of or in connection with any arbitration, litigation, or other proceeding based upon or in connection with this Agreement.
8. Assignment
Flyerstarter Services Ltd. may assign this Agreement to a successor party or affiliate, which shall be bound by its terms and to the same extent as the original party. This Agreement may be assigned by Artist with Flyerstarter Services Ltd.’s prior written consent, and such successor party shall be bound by its terms and to the same extent as the original party.
9. Force Majeure
a. Neither party shall be deemed to be in breach of its obligations under this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay is beyond its reasonable control, including, without limitation, any:
i. acts of God;
ii. fire, explosion, or unusually severe weather;
iii. acts of terrorism, war, invasion, riot or other civil unrest; iv. labor disputes,
v. governmental laws, orders, restrictions, actions, embargoes or
blockages;
vi. national or regional emergency.
b. If either party is affected by Force Majeure, it shall forthwith notify the other party of the nature and extent thereof and the parties shall enter into good faith discussions with a view to alleviating the effects of the Force Majeure or to agreeing upon such alternative arrangements as may be fair and reasonable for so long as the Force Majeure continues.
c. If either party’s ability to carry out its obligations hereunder is prevented, delayed or substantially interfered with by reason of Force Majeure for a consecutive period of six (6) months or more, either party shall be entitled (but not obliged) to terminate the Agreement.
10. Miscellaneous
a. With the exception of any agreements included by reference in this Agreement, this Agreement supersedes any proposal or previous agreement entered into between the parties for the representation by the Flyerstarter Services Ltd. of Client’s accessed Content. Notwithstanding the foregoing, if there is any inconsistency between this Agreement and any of the agreements included by reference hereto, the terms of this Agreement shall prevail.
The terms of any previous agreements, including any termination and survival provisions therein, shall not be enforceable. The representations and warranties in this Agreement shall govern all Submitted Content provided by Client, regardless of whether they were provided before or after the execution of this Agreement.
b. This Agreement, including any agreements included by reference and any Exhibits hereto, incorporates the entire understanding concerning the Content accessed by Client covered by this Agreement between Client and Flyerstarter Services Ltd., and it can be modified only by a written document signed by both parties.
c. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
d. The headings of this Agreement and of individual paragraphs are for ease of reference only and shall not be taken into account for the purpose of its construction or interpretation.
e. All notices to Flyerstarter Services Ltd. under this Agreement will be deemed given when delivered personally, sent by commercial overnight courier with proof of delivery, or sent by Canadian certified mail with return receipt requested, and shall be directed to the Legal Department. All notices to Client under this Agreement will be deemed given when delivered by mail or email delivered to the address or email address provided in Client’s account, or when posted on the log-in page of Client’s account.
Client agrees to keep all contact information, including mailing address and email address, current in Client’s account. All notices shall be written in the English language.
f. This Agreement shall be binding upon and inure to the benefit of Flyerstarter Services Ltd. and Client and their respective legal representatives, successors and permitted assigns.
g. No provision of this Agreement may be waived on behalf of either party other than in writing under the authority or written delegated authority of either party and in no case shall such waiver be valid on a continuing basis.
h. Neither party shall be considered an agent or legal representative of the other party for any purpose, and both parties acknowledge that they have no authority whatsoever to bind the other party, except in execution of the rights granted in this Agreement. No acts or assistance given by either party shall be construed to alter this relationship.
i. Flyerstarter Services Ltd. shall have the right, in its sole discretion, to modify the terms of this Agreement at any time and shall advise Client of any such modifications in accordance with Section 16e. Client agrees to be bound by all such modifications.
11. Acknowledgement
BY PARTICIPATING ON THIS WEBSITE AS AN CLIENT/BUYER, 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 FOR LICENSOR PROVIDING FOR THE PROMOTION AND LICENSE OF YOUR SUBMITTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. |
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Artist AgreementRevision Date: December 6 2007
By uploading, mailing or otherwise submitting any photo, graphic design, video or font file to our site, you agree to the following terms and conditions.
This is a legal agreement (“Agreement”) between you (“you” or “Artist” or “Seller”) and Flyerstarter Services Ltd. (“Licensor”). By using this website (“Flyerstarter.com” and all it's web domain name aliases) as an Artist, you agree to be bound by the terms of this Agreement.
1. Definitions
a. “Intellectual Property” means;
i. trademarks, service marks, patents, applications, registered designs, and rights to apply for any of those rights, trade, business and company names, internet domain names and email addresses, unregistered trademarks and service marks, copyrights (including, for example, rights in audio-visual works and moral rights), proprietary know-how, database rights, and rights in designs and inventions;
ii. rights under consents, licenses, orders, statutes or otherwise in relation to a right in the foregoing paragraph;
iii. rights of the same or similar effect or nature as to those in paragraphs 1a.i and 1a.ii which now or in the future may subsist; and;
iv. the right to sue for past infringements of any of the foregoing rights.
b. “Licensor End User License Agreement” means the then-current license that is
entered into between the Licensor and the end user of the Royalty-Free Product (as defined below), Rights-Managed Product (as defined below), or Subscription Service (as defined below). Such license terms are hereby incorporated into and made part of this Agreement, which Artist hereby approves. Licensor End User License Agreements may be updated or modified by Licensor from time to time. :
c. “Receipts” means the revenue actually received by Licensor for licenses or sublicenses of the Royalty-Free Product, Rights-Managed Product, and Subscription Service. Receipts shall not include shipping, handling, duties, taxes, other withholdings required by applicable law, research fees, returns or credits, bad debts or other uncollectible sums, and other fees or charges.
d. “Rights-Managed Product” means the content for which rights licensed to a user specify a particular use and may limit the time, manner, and frequency of such use.
e. “Royalty-Free Product” means the content for which rights licensed to a user do not specify a particular use and may limit the time, manner, and frequency of such use. This content may be used in a collection with other images.
f. “Sub-distributor” means any party that Licensor grants the right to market and/or license Submitted Content (as defined below).
g. “Submitted Content” means any Artist image, photograph, illustration,
animation, clipart, footage clip, audio clip, font, or any other visual or audio content, submitted by Artist as a digital file. Licensor may accept or reject any Submitted Content for any reason.
h. “Subscription Service” means a service for which a user pays a flat license fee for access to the content included in the subscription service during the subscription period.
i. “Unique Download” means the download by a registered subscriber of any image, photograph, illustration, animation, clipart, footage clip, audio clip, font, or any other audio or visual content contained in the Submitted Content. A subscriber may download the same item contained in the Submitted Content more than one time; however, Artist will be paid one time for such item.
2. Grant of Rights
a. Subject to this Agreement, Artist grants Licensor a worldwide, non-
exclusive license, with a right to grant sublicenses, advertise, market, distribute, and license Submitted Content in Licensor’s Royalty-Free Product, Rights-Managed Product, and Subscription Service, whether the Submitted Content is distributed individually and/or as a collection. The non-exclusive rights granted by Artist include, but are not limited to, the right to reproduce, publish, transmit, broadcast, display, exhibit, adapt, crop, recast or enhance, and modify any Submitted Content, alone or in combination with any other material, in any media or embodiment, now known or later developed, for any purpose.
Licensor is specifically authorized to employ the services of Sub-distributors throughout the world in its licensing and marketing efforts. Artist acknowledges that this appointment shall in no way limit Licensor’s right to advertise, market, publish, license, distribute, reproduce, and use product other than that of Artist.
b. Licensor may use or grant the use of Artist’s Submitted Content in
promotional materials, including but not limited to print, digital, online materials, and products that promote the Submitted Content and/or Licensor, without consent or payment to Artist. Licensor may use Artist’s name, image, likeness, and Submitted Content to promote, advertise, and market its business.
c. Artist grants to Licensor and its Sub-distributors the right to use
Artist’s trademarks and/or servicemarks in connection with marketing and presenting the Submitted Content for licensing.
d. All Submitted Content submitted pursuant to the terms of this Agreement shall be, and remain, the property of the copyright owner, subject only to the rights granted to Licensor hereunder. Unless approved in writing, Artist shall not provide any digital file or the arrangement of any digital files created by Licensor to any party for any purpose. All digital files created by Licensor remain the property of Licensor.
e. Licensor shall determine, in its sole discretion, the terms and conditions of the licensing, marketing, and distribution of the Submitted Content, including, but not limited to, advertising, promotion, marketing expenditures, packaging, distribution channels, and the pricing of the Submitted Content.
3. Submitting Content
a. Artist agrees to comply with the current practices and policies when
submitting Submitted Content, which are available on and under all the sub-links of the URL www.zymmetrical.com/artists/submissions/. The submission of all Submitted Content is subject to such practices and policies, and such practices and policies are hereby incorporated into and made part of this Agreement, which Artist hereby approves.
b. All Submitted Content that contains a recognizable person requires a model release, and all Submitted Content that contains identifiable property requires a property release. For any Submitted Content that contains a recognizable person, Artist agrees to submit a complete and accurate model release that will allow Licensor to license such Submitted Content as contemplated by the Licensor End User License Agreement.
For any Submitted Content that contains identifiable property or property for which it is necessary for the owner to permit the uses allowed under the Licensor End User License Agreement, Artist agrees to submit a complete and accurate property release that will allow Licensor to license such Submitted Content as contemplated by the Licensor End User License Agreement. Artist is responsible for keeping all original releases and maintaining accurate release records.
c. Artist acknowledges that the intention of the Licensor End User License Agreement is that users are to comply with its terms and conditions; however, Licensor is not responsible for ensuring the compliance of the Licensor End User License Agreement by any user.
d. Artist further acknowledges that Licensor is not responsible for nor has any obligation to pursue legal action against any infringing or alleged infringing party of any of Artist’s rights regarding the Submitted Content. Please visit www.copyright.gov for information regarding registration of your Submitted Content.
e. Artist shall be responsible for the safekeeping of the username and
password associated with Artist’s account. Licensor shall not be responsible for monitoring the submission of content from Artist’s account, and is authorized to accept content submitted from Artist’s account as Submitted Content.
4. Removal of Submitted Content
a. Submitted Content submitted by Artist shall be available for Distributor to license until the expiration of this Agreement, unless licenses will no longer be granted for that Submitted Content for any of the following reasons:
i. if property, material, model, or other releases relevant to that Product
cease to be available;
ii. if any warranties relevant to that Product become incorrect, expire, or are withdrawn;
iii. if there is a defect in that Product;
iv. if that Product has become out of date and/or unmarketable due to changing technical, cultural or social factors; or
b. Within ten (20) business days after receiving notice via mail, email, private site mail, fax or telephone from Artist, Licensor shall use reasonable efforts to remove Submitted Content withdrawn in accordance with Section 4(a) from its websites, and shall use reasonable efforts to cause such Submitted Content to be removed from the websites of any Sub-distributors.
c. Licensor shall be entitled to discontinue marketing and/or licensing any Submitted Content at any time.
d. Any withdrawal or removal of Submitted Content will not affect existing rights or licenses granted by Licensor to end users.
5. Term and Termination
a. This Agreement shall be effective immediately and shall continue for a period of five (5) years. This Agreement shall automatically renew for additional five (5) year terms unless terminated by either party by written notice at least one hundred eighty (180) days prior to the end of the current term, in which case the Agreement will terminate at the end of that term.
b. Either party may terminate this Agreement immediately by giving the other party written notice of termination if the other party fails to cure any material breach or default within thirty (30) days of receipt of written notice.
c. Either party may terminate this Agreement with immediate effect upon the other’s insolvency by giving written notice to the other party. “Insolvency” means commencement by or against a party of insolvency, receivership, bankruptcy or similar proceeding for the settlement of the Party’s debts, which if the proceedings are commenced by a third party, are not dismissed within 90 days filing; a party making an assignment for the benefit of creditors; or a party’s dissolution or ceasing to do business.
d. Licensor may terminate this Agreement without cause, which shall be effective thirty (30) days after notice is given in accordance with Section 16e.
e. If Artist does not accept a modification to this Agreement pursuant to
Section 6g, Artist may terminate this Agreement within thirty (30) days of the date of notice of such modification, and such termination shall be effective thirty (30) days after notice is given in accordance with Section 16e.
f. Licensor may refuse to authorize Artist’s account or close Artist’s
existing account as a result of a breach of any of the terms of this Agreement, fraud, repeated submission of content that does not comply with Licensor’s current practices and policies when submitting content, any material misrepresentation made by Artist regarding the identity or copyright ownership of the Artist or Submitted Content, lack of log-on or other activity in Artist’s account for twelve (12) months, or for any other reason Licensor deems appropriate. If Licensor closes Artist’s account, Artist shall forfeit any account balance and shall obtain approval from Licensor prior to establishing another account. In addition to the foregoing, any material misrepresentation made by Artist regarding the identity or copyright ownership of the Submitted Content will result in the termination of this Agreement and possible prosecution.
g. Licensor acknowledges that the licensing of Submitted Content may result in payments to Artist after termination and shall remit such payments to Artist pursuant to Section 6b of this Agreement. Notwithstanding the foregoing, Licensor shall be entitled to retain any payments due to Artist for a period of sixty (60) days after the termination of this Agreement in order to determine any credits or set-offs.
h. Licensor’s rights hereunder to license any Submitted Content that have been reproduced by Licensor in permanent media such as catalogs, printed advertising, or CDs may continue for a further period of one hundred eighty (180) days following termination or expiration of this Agreement and subject to all the terms of this Agreement. For all other Submitted Content, Licensor agrees that within one hundred twenty (120) days of the effective date of termination or expiration of this Agreement, Licensor will remove such Submitted Content from its websites.
i. The expiration, non-renewal, or termination of this Agreement will not affect existing rights or licenses granted by Licensor to end users.
j. Neither party will be liable to the other party for any compensation, reparations, or damages of any kind, including, but not limited to any incidental or consequential damages as a result of any expiration, non-renewal, or termination of this Agreement.
k. The rights and responsibilities of the parties under sections 6b, 6c, 6d, 7, 8, 9, 10, 11, 12, 13, and all other provisions that may reasonably be construed as surviving the termination or expiration of this Agreement or which are necessary for the interpretation or enforcement of this Agreement, shall survive termination or expiration of the Agreement. Termination or expiration of this Agreement does not affect the parties’ accrued rights and obligations as of the date of termination.
6. Accounting
a. Licensor shall remit payments to Artist upon request via email, website private mail, telephone, or fax within thirty (30) days of such request. Payments shall be based on Receipts, and net of any legal and other reasonable fees incurred in enforcing this Agreement or any agreement incorporated hereto by reference, any other set-offs, and any amounts owing by Artist to Licensor under this Agreement or otherwise. The minimum payout is $20 USD per request. If Artist’s account is closed for any reason before the account balance has reached $20 USD , Artist shall forfeit such account balance.
b. Licensor shall remit to Artist 70% (seventy percent) of Licensor’s Receipts from the licensing of the Submitted Content in a Royalty-Free Product or Rights-Managed Product. Licensor shall remit to Artist $0.60 per Unique Download of its Submitted Content from the licensing of the Submitted Content in a Subscription Service.
If Submitted Content is licensed through a Sub-distributor in a Royalty-Free Product or Rights-Managed Product, Licensor shall remit to Artist 70% (seventy percent) of Licensor’s Receipts from the Sub-distributor from the licensing of the Submitted Content.
If Submitted Content is licensed through a Sub-distributor in a Subscription Service, Licensor shall remit to Artist no less than $0.50 per Unique Download from the Sub-distributor from the licensing of the Submitted Content. Sub-distributors may determine their own pricing. Such payments shall be Artist’s sole compensation for the licensing or use of any Submitted Content.
i. A license for a Royalty-Free Product may contain multiple products from several Artists, and in this case, Licensor will determine the percentage of Submitted Content that was included in the license (Artist’s revenue share) and Artist’s payment will be based on the pro rata share of Licensor’s revenue for that license.
For example, part of Artist’s Submitted Content was used to create a disc that contains 100 images and generates license revenue of $500 USD. If the disc contained 80 images from Artist’s Submitted Content (80% of the total number of images on the disc), Artist’s revenue share is $400 USD (80% of $500 USD), and Artist’s payment is $ (70% of $280 USD).
ii. Any user with a paid subscription to the Subscription Service may
download as much content as the user wishes, subject to the conditions of the subscription program. Artist will be paid one time for each Unique Download of the Submitted Content by a paid subscriber. If
Artist, an immediate or extended family member, any individual under Artist’s direction, or any individual acting with the intent of increasing downloads of Artist’s Submitted Content for the benefit of Artist (the “Parties”) purchases a subscription to the Subscription Service, Artist agrees to notify Licensor via email with the related account details, and further agrees that the Parties will not download Artist’s Submitted Content.
If, however, the Parties download Artist’s Submitted Content, Licensor shall be entitled to close Artist’s account and Artist shall forfeit any account balance. In any event, Licensor shall not remit to Artist any payments for the Submitted Content downloaded by the Parties and Artist shall return to Licensor any such amounts already paid.
c. If a licensing fee is credited or canceled, in whole or in part, after Licensor has paid Artist, then Licensor may deduct that amount or applicable portion thereof (in the case of a partial credit or cancellation) from subsequent payments to Artist. If there are no subsequent payments to Artist, Artist will be obligated to reimburse Licensor the amount of such payment.
d. If Licensor overpays Artist for any reason, then Licensor may deduct that amount from subsequent payments to Artist. If there are no subsequent payments to Artist, Artist will be obligated to reimburse Licensor the amount of such payment.
f. Licensor reserves the right to modify Artist’s compensation amount and shall advise Artist of such modification in accordance with Section 16e. Pursuant to Section 5e, Artist may terminate this Agreement within thirty (30) days of the date of notice of such modification, and such termination shall be effective thirty (30) days after notice is given in accordance with Section 16e, if there is such a modification.
7. Warranties
Artist represents, warrants, and agrees, that by using this website in the context of an Artist:
a. that Artist:
i. has read and understands this Agreement, and has the legal right to enter into this Agreement and perform its obligations hereunder;
ii. owns all rights to the Submitted Content submitted to Licensor necessary for the grant of the rights and licenses in this Agreement, free and clear of any claims, restrictions, or other agreements that conflict with or adversely affect Licensor’s rights under this Agreement; or
iii. has obtained all rights (or waivers of such rights, including, without
limitation, moral rights) to source materials which comprise the Submitted Content and has obtained all necessary permissions, consents, and releases (including, without limitation, property, material, and/or model releases) from all persons and entities in connection with the Submitted Content and that are necessary to permit Licensor to market and distribute the Submitted Content under this Agreement.
b. that any Submitted Content, as submitted to Licensor:
i. shall not infringe upon or misappropriate on any copyright, trademark,
property rights, personal rights, common law rights, rights of privacy or publicity or other rights of any third party;
ii. shall not defame or violate the rights of any third party; and iii. are not libelous, obscene, pornographic, offensive, or otherwise unlawful.
c. that the execution, delivery, and performance of this Agreement do not violate any law, regulation, or agreement applicable to Artist, or its internal regulations, by-laws or any contract, agreement, or commitment to which Artist is bound;
d. that it will comply with all applicable laws and regulations relating to the performance of its obligations under this Agreement; and
e. that Artist shall not publicize, promote, or advertise Artist’s
relationship with Distributor or the license of Submitted Content through the use of search engine advertising, unsolicited emailing, spamming, or by any other means. Artist acknowledges that such promotion may infringe on the intellectual property rights of Distributor, and if Artist violates the terms of this paragraph, in addition to any other rights and/or remedies available to it by law, Distributor shall not be obligated to remit any further payments to Artist.
8. Indemnification
a. Artist agrees to defend, indemnify, and hold harmless Licensor, and their directors, officers, members, employees, agents, attorneys, and successors, from any and all claims, demands, losses, damage, liability, cost, and expense, including without limitation attorneys’ fees and costs incurred by Licensor, resulting from or arising out of:
i. any inaccuracy of any representation or warranty made by Artist; ii. any failure of Artist to perform any obligation, covenant, or agreement hereunder; and
iii. any claim by a third party which results in a bona fide settlement, claim, or adjustment which if proved true would constitute a breach of the representations and warranties set forth in this Agreement.
b. Licensor reserves the right to exclusively control the defense of any matter subject to indemnification by Artist, at Artist’s expense, and in such case, Artist agrees to cooperate with Licensor in the defense of any such claim.
9. Disclaimer of Warranties
LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR ANY CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: THE WEBSITE WILL BE FREE FROM ERROR OR THAT USE OF IT WILL BE UNINTERRUPTED; THE CONTENT WILL BE AVAILABLE FOR LICENSE; THE WEBSITE OR ANY CONTENT THEREIN WILL BE FREE OF VIRUSES OR ANY OTHER CONTAMINATION OR DESTRUCTIVE FEAUTURES.
10. Limitation of Liability
IN NO EVENT SHALL LICENSOR OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY: DIRECT; INDIRECT; CONSEQUENTIAL; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND; LOST PROFITS; LOSS OF PROSPECTIVE COMPENSATION; GOODWILL OR LOSS THEREOF; OR DAMAGES, EXPENDITURES, INVESTMENTS, LEASES, OR ANY TYPE OF COMMITMENT MADE ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE RELIANCE UPON, THE USE OF, ACCESS TO, OR EXPLOITATION OF ANY PART OF THE WEBSITE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR WHERE SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR INDEMNIFICATION CLAIMS ARISING UNDER SECTION 9 AND THE OBLIGATION TO PAY ANY AMOUNTS DUE AND OWING, THE SOLE AND TOTAL REMEDY OF EITHER PARTY TO THE OTHER IS LIMITED TO THE TERMINATION OF THIS AGREEMENT. IF A JURISDICTION DOES NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF ANY PARTICULAR DAMAGES, THE LIABILITY OF LICENSOR OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. Intellectual Property
Artist agrees that they will not infringe or violate Intellectual Property rights of Licensor. Artist further agrees that Artist will not at any time during or after this Agreement assert to claim any interest in or do anything that may adversely affect the validity or enforceability of any Intellectual Property rights belonging or licensed to Licensor.
Artist will not register, seek to register, or cause to be registered any of
Licensor’s trademarks, servicemarks, logos, trade designations, or copyrights without the Licensor’s prior written consent, nor shall Artist adopt or use any trademark that might be confusingly similar to Licensor’s trademarks, trade names, logos, and copyrights.
12. Governing Law, Jurisdiction and Venue
This Agreement shall be interpreted, construed and governed by the laws of the province of British Columbia, without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Venue for all disputes arising under this Agreement shall lie exclusively in the Provincial Courts of British Columbia in Vancouver.
Users of this website agree that any and all disputes arising from the use of this website, or the ordering of materials from this website, shall be settled by binding arbitration. Notwithstanding the foregoing, however, Flyerstarter Services Ltd. shall have the right to commence and prosecute any legal or equitable action or proceeding before any non-Canadian court of competent jurisdiction to obtain injunctive or other relief in the event that, in the opinion of Flyerstarter Services Ltd., such action is necessary or desirable.
The parties confirm that it is their wish that this Agreement as well as any other documents relating to this Agreement, including notices, has been and shall be written in the English language.
13. Confidentiality
Both parties agree that neither will divulge any specific terms or conditions of this Agreement or any information in relation to the other party’s affairs or method of carrying on business, including but not limited to revenue or other financial details to any person(s) other than those employees of either party, business partners, professional advisors, potential or actual investors, any of their subsidiaries or affiliated companies for whom such information is necessary for the performance of obligations or enforcement of rights under this Agreement; to the extent required by applicable law; or during the course of or in connection with any arbitration, litigation, or other proceeding based upon or in connection with this Agreement.
14. Assignment
Licensor may assign this Agreement to a successor party or affiliate, which shall be bound by its terms and to the same extent as the original party. This Agreement may be assigned by Artist with Licensor’s prior written consent, and such successor party shall be bound by its terms and to the same extent as the original party.
15. Force Majeure
a. Neither party shall be deemed to be in breach of its obligations under this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay is beyond its reasonable control, including, without limitation, any:
i. acts of God;
ii. fire, explosion, or unusually severe weather; iii. acts of terrorism,
war, invasion, riot or other civil unrest; iv. labor disputes,
v. governmental laws, orders, restrictions, actions, embargoes or
blockages;
vi. national or regional emergency.
b. If either party is affected by Force Majeure, it shall forthwith notify the other party of the nature and extent thereof and the parties shall enter into good faith discussions with a view to alleviating the effects of the Force Majeure or to agreeing upon such alternative arrangements as may be fair and reasonable for so long as the Force Majeure continues.
c. If either party’s ability to carry out its obligations hereunder is prevented, delayed or substantially interfered with by reason of Force Majeure for a consecutive period of six (6) months or more, either party shall be entitled (but not obliged) to terminate the Agreement.
16. Miscellaneous
a. With the exception of any agreements included by reference in this Agreement, this Agreement supersedes any proposal or previous agreement entered into between the parties for the representation by the Licensor of Artist’s Submitted Content. Notwithstanding the foregoing, if there is any inconsistency between this Agreement and any of the agreements included by reference hereto, the terms of this Agreement shall prevail.
The terms of any previous agreements, including any termination and survival provisions therein, shall not be enforceable. The representations and warranties in this Agreement shall govern all Submitted Content provided by Artist, regardless of whether they were provided before or after the execution of this Agreement.
b. This Agreement, including any agreements included by reference and any Exhibits hereto, incorporates the entire understanding concerning the Submitted Content covered by this Agreement between Artist and Licensor, and it can be modified only by a written document signed by both parties.
c. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
d. The headings of this Agreement and of individual paragraphs are for ease of reference only and shall not be taken into account for the purpose of its construction or interpretation.
e. All notices to Licensor under this Agreement will be deemed given when delivered personally, sent by commercial overnight courier with proof of delivery, or sent by Canadian certified mail with return receipt requested, and shall be directed to the Legal Department. All notices to Artist under this Agreement will be deemed given when delivered by mail or email delivered to the address or email address provided in Artist’s account, or when posted on the log-in page of Artist’s account.
Artist agrees to keep all contact information, including mailing address and email address, current in Artist’s account. All notices shall be written in the English language.
f. This Agreement shall be binding upon and inure to the benefit of Licensor and Artist and their respective legal representatives, successors and permitted assigns.
g. No provision of this Agreement may be waived on behalf of either party other than in writing under the authority or written delegated authority of either party and in no case shall such waiver be valid on a continuing basis.
h. Neither party shall be considered an agent or legal representative of the other party for any purpose, and both parties acknowledge that they have no authority whatsoever to bind the other party, except in execution of the rights granted in this Agreement. No acts or assistance given by either party shall be construed to alter this relationship.
i. Licensor shall have the right, in its sole discretion, to modify the terms of this Agreement at any time and shall advise Artist of any such modifications in accordance with Section 16e. Artist agrees to be bound by all such modifications.
17. Acknowledgement
BY PARTICIPATING ON THIS WEBSITE AS AN ARTIST/SELLER, 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 FOR LICENSOR PROVIDING FOR THE PROMOTION AND LICENSE OF YOUR SUBMITTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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Terms of UseRevision Date: December 6 2007
Welcome to the Flyerstarter Services Ltd. website. Following are the terms and conditions that govern your use of this site.
This Agreement is between Flyerstarter Services Ltd., doing business as Flyerstarter Services Ltd. (“Flyerstarter Services Ltd.”, “We” or “Us”) and the client (“You” or “Your” or “Visitor”) who accesses this website (“Flyerstarter.com” and all it's web domain name aliases).
1. Ownership of This Website
a. This website (“Flyerstarter.com” and all it's web domain name aliases) is owned and operated by Flyerstarter Services Ltd.. All of the content featured or displayed on this website, including, but not limited to, text, graphics, photographs, moving images, sound, illustrations and software ("Content"), is owned by Flyerstarter Services Ltd., its Licensors and its content providers.
b. All elements of the Flyerstarter Services Ltd. website, including, but not limited to, the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. Except as explicitly permitted under this or another agreement with Flyerstarter Services Ltd. or one of its subsidiaries, no portion or element of this website or its Content may be copied or retransmitted via any means and this website, its Content and all related rights shall remain the exclusive property of Flyerstarter Services Ltd. or its licensors unless otherwise expressly agreed.
c. You shall indemnify Flyerstarter Services Ltd., its subsidiaries, its affiliates and licensors against any losses, expenses, costs or damages incurred by any or all of them as a result of your breach of the terms of this Agreement or your unauthorized use of the Content and related rights.
2. Disclaimers
a. THIS WEBSITE AND ITS CONTENT ARE PROVIDED "AS IS" AND FLYERSTARTER SERVICES LTD. EXCLUDES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. FLYERSTARTER SERVICES LTD. WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON, OR IN THE MATERIALS OF, THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU, NOT ZYMMETRICAL.COM, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS WEBSITE.
b. Except as specifically stated in these Terms and Conditions of Use or elsewhere on this website, or as otherwise required by applicable law, neither Flyerstarter Services Ltd. nor its directors, employees, licensors, content providers, affiliates or other representatives will be liable for damages of any kind (including, without limitation, lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental, or punitive damages) arising out of your use of, your inability to use, or the performance of this website or the Content whether or not we have been advised of the possibility of such damages.
c. Flyerstarter Services Ltd. uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content, but we make no representations or warranties as to the Content's accuracy, correctness or reliability.
d. There may be links to other websites from the Flyerstarter Services Ltd. website; however, these other websites are not controlled by Flyerstarter Services Ltd. and we are not responsible for any content contained on any such website or any loss suffered by you in relation to your use of such websites.
e. You waive any and all claims against Flyerstarter Services Ltd. regarding the inclusion of links to outside websites or your use of those websites. Additionally, parties other than Flyerstarter Services Ltd. provide services from this website. For example, you may obtain information regarding certain artist services through the Flyerstarter Services Ltd. Community Page. Flyerstarter Services Ltd. does not evaluate or warrant the offerings or services of these parties, and does not assume any liability for the actions, product, services, or content of these parties.
f. Some Canadian Provinces & Territories and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions.
3. Indemnification
a. Visitor agrees to defend, indemnify, and hold harmless Licensor, and their directors, officers, members, employees, agents, attorneys, and successors, from any and all claims, demands, losses, damage, liability, cost, and expense, including without limitation attorneys’ fees and costs incurred by Flyerstarter Services Ltd., resulting from or arising out of:
i. any inaccuracy of any representation or warranty made by Visitor; ii. any failure of Visitor to perform any obligation, covenant, or agreement hereunder; and
iii. any claim by a third party which results in a bona fide settlement, claim, or adjustment which if proved true would constitute a breach of the representations and warranties set forth in this Agreement.
b. Flyerstarter Services Ltd. reserves the right to exclusively control the defense of any matter subject to indemnification by Visitor, at Visitor’s expense, and in such case, Artist agrees to cooperate with Licensor in the defense of any such claim.
4. Disclaimer of Warranties
FLYERSTARTER SERVICES LTD. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WEBSITE OR ANY CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: THE WEBSITE WILL BE FREE FROM ERROR OR THAT USE OF IT WILL BE UNINTERRUPTED; THE CONTENT WILL BE AVAILABLE FOR LICENSE; THE WEBSITE OR ANY CONTENT THEREIN WILL BE FREE OF VIRUSES OR ANY OTHER CONTAMINATION OR DESTRUCTIVE FEAUTURES.
5. Limitation of Liability
IN NO EVENT SHALL FLYERSTARTER SERVICES LTD. OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY: DIRECT; INDIRECT; CONSEQUENTIAL; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND; LOST PROFITS; LOSS OF PROSPECTIVE COMPENSATION; GOODWILL OR LOSS THEREOF; OR DAMAGES, EXPENDITURES, INVESTMENTS, LEASES, OR ANY TYPE OF COMMITMENT MADE ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE RELIANCE UPON, THE USE OF, ACCESS TO, OR EXPLOITATION OF ANY PART OF THE WEBSITE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR WHERE SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR INDEMNIFICATION CLAIMS ARISING UNDER SECTION 9 AND THE OBLIGATION TO PAY ANY AMOUNTS DUE AND OWING, THE SOLE AND TOTAL REMEDY OF EITHER PARTY TO THE OTHER IS LIMITED TO THE TERMINATION OF THIS AGREEMENT. IF A JURISDICTION DOES NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF ANY PARTICULAR DAMAGES, THE LIABILITY OF FLYERSTARTER SERVICES LTD. OR ANY OF ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6. Intellectual Property
Visitor agrees that they will not infringe or violate Intellectual Property rights of Flyerstarter Services Ltd. Visitor further agrees that Visitor will not at any time during or after this Agreement assert to claim any interest in or do anything that may adversely affect the validity or enforceability of any Intellectual Property rights belonging or licensed to Flyerstarter Services Ltd.
Visitor will not register, seek to register, or cause to be registered any of
Flyerstarter Services Ltd’s trademarks, servicemarks, logos, trade designations, or copyrights without the Flyerstarter Services Ltd’s prior written consent, nor shall Visitor adopt or use any trademark that might be confusingly similar to Flyerstarter Services Ltd.’s trademarks, trade names, logos, and copyrights.
7. Governing Law, Jurisdiction and Venue
This Agreement shall be interpreted, construed and governed by the laws of the province of British Columbia, without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Venue for all disputes arising under this Agreement shall lie exclusively in the Provincial Courts of British Columbia in Vancouver.
Users of this website agree that any and all disputes arising from the use of this website, or the ordering of materials from this website, shall be settled by binding arbitration. Notwithstanding the foregoing, however, Flyerstarter Services Ltd. shall have the right to commence and prosecute any legal or equitable action or proceeding before any non-Canadian court of competent jurisdiction to obtain injunctive or other relief in the event that, in the opinion of Flyerstarter Services Ltd., such action is necessary or desirable.
The parties confirm that it is their wish that this Agreement as well as any other documents relating to this Agreement, including notices, has been and shall be written in the English language.
8. Confidentiality
Both parties agree that neither will divulge any specific terms or conditions of this Agreement or any information in relation to the other party’s affairs or method of carrying on business, including but not limited to revenue or other financial details to any person(s) other than those employees of either party, business partners, professional advisors, potential or actual investors, any of their subsidiaries or affiliated companies for whom such information is necessary for the performance of obligations or enforcement of rights under this Agreement; to the extent required by applicable law; or during the course of or in connection with any arbitration, litigation, or other proceeding based upon or in connection with this Agreement.
9. Assignment
Flyerstarter Services Ltd. may assign this Agreement to a successor party or affiliate, which shall be bound by its terms and to the same extent as the original party. This Agreement may be assigned by Artist with Flyerstarter Services Ltd.’s prior written consent, and such successor party shall be bound by its terms and to the same extent as the original party.
10. Force Majeure
a. Neither party shall be deemed to be in breach of its obligations under this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay is beyond its reasonable control, including, without limitation, any:
i. acts of God;
ii. fire, explosion, or unusually severe weather; iii. acts of terrorism,
war, invasion, riot or other civil unrest; iv. labor disputes,
v. governmental laws, orders, restrictions, actions, embargoes or
blockages;
vi. national or regional emergency.
b. If either party is affected by Force Majeure, it shall forthwith notify the other party of the nature and extent thereof and the parties shall enter into good faith discussions with a view to alleviating the effects of the Force Majeure or to agreeing upon such alternative arrangements as may be fair and reasonable for so long as the Force Majeure continues.
c. If either party’s ability to carry out its obligations hereunder is prevented, delayed or substantially interfered with by reason of Force Majeure for a consecutive period of six (6) months or more, either party shall be entitled (but not obliged) to terminate the Agreement.
11. Miscellaneous
a. With the exception of any agreements included by reference in this Agreement, this Agreement supersedes any proposal or previous agreement entered into between the parties for usage of Flyerstarter Services Ltd.'s website by Visitor. Notwithstanding the foregoing, if there is any inconsistency between this Agreement and any of the agreements included by reference hereto, the terms of this Agreement shall prevail.
The terms of any previous agreements, including any termination and survival provisions therein, shall not be enforceable. The representations and warranties in this Agreement shall govern all Submitted Content provided by Visitor, regardless of whether they were provided before or after the execution of this Agreement.
b. This Agreement, including any agreements included by reference and any Exhibits hereto, incorporates the entire understanding concerning the usage of this website covered by this Agreement between Visitor and Flyerstarter Services Ltd., and it can be modified only by a written document signed by both parties.
c. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
d. The headings of this Agreement and of individual paragraphs are for ease of reference only and shall not be taken into account for the purpose of its construction or interpretation.
e. All notices to Flyerstarter Services Ltd. under this Agreement will be deemed given when delivered personally, sent by commercial overnight courier with proof of delivery, or sent by Canadian certified mail with return receipt requested, and shall be directed to the Legal Department. All notices to Visitor under this Agreement will be deemed given when delivered by mail or email delivered to the address or email address provided in Visitors’s account, or when posted on the log-in page of Visitors’s account.
Visitor's who sign up for website accounts with Flyerstarter Services Ltd. agree to keep all contact information, including mailing address and email address, current in Visitor’s account. All notices shall be written in the English language.
f. This Agreement shall be binding upon and inure to the benefit of Flyerstarter Services Ltd. and Visitor and their respective legal representatives, successors and permitted assigns.
g. No provision of this Agreement may be waived on behalf of either party other than in writing under the authority or written delegated authority of either party and in no case shall such waiver be valid on a continuing basis.
h. Neither party shall be considered an agent or legal representative of the other party for any purpose, and both parties acknowledge that they have no authority whatsoever to bind the other party, except in execution of the rights granted in this Agreement. No acts or assistance given by either party shall be construed to alter this relationship.
i. Flyerstarter Services Ltd. shall have the right, in its sole discretion, to modify the terms of this Agreement at any time and shall advise Flyerstarter Services Ltd. of any such modifications in accordance with Section 16e. Artist agrees to be bound by all such modifications.
12. Acknowledgement
BY PARTICIPATING ON THIS WEBSITE AS A VISITOR, 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 FOR LICENSOR PROVIDING FOR THE PROMOTION AND LICENSE OF YOUR SUBMITTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Privacy Policy
Flyerstarter Services Ltd. and its affiliates respect your ability to make informed choices about the collection and uses of your personal information. This privacy policy tells you about our online collection and uses of information that identifies you personally so that you can make an informed choice about using this site.
The terms of this policy apply to www.Flyerstarter Services Ltd. and other sites which Flyerstarter Services Ltd. hosts or operates, unless different terms are specified in a form or contract provided to you online or off-line. Business users should refer to the terms and conditions of service/sale for any specific conditions governing Flyerstarter Services Ltd.'s use of business information. Those terms and conditions take precedence over this policy, and apply to all businesses, including sole proprietorships and other small business enterprises.
The websites of Flyerstarter Services Ltd.'s third-party content providers may have different privacy policies and practices from those disclosed here, and we encourage you to become familiar with them. This site is operated by Flyerstarter Services Ltd. in Canada. By using this website, you understand and agree that
(1) the information collected from this site may be retained indefinitely, and may be stored, accessed, and used in jurisdictions whose privacy laws may be different and less protective than those of your home jurisdiction;
(2) Flyerstarter Services Ltd. may use this information for a variety of purposes including direct marketing (unless you opt out of receiving direct marketing from Flyerstarter Services Ltd.);
(3) Flyerstarter Services Ltd. may disclose this information to affiliates, subsidiaries, agents, third party content providers, and necessary payment processors, whose privacy policies and practices may be different from those of Flyerstarter Services Ltd., and for which Flyerstarter Services Ltd. assumes no responsibility;
(4) information about our customers, including personal information, may 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 personal information would be transferred as one of the business assets of the company; and
(5) we reserve the right to disclose your personal information if required to do so by law, or in the good faith belief that such action is reasonably necessary to comply with legal process, respond to claims, or protect the rights, property or safety of our company, employees, customers, or the public.
Information Collected From This Website
When you visit this website, some information, such as the site that referred you to us, your IP and email address, and navigational and purchase information, may be collected automatically as part of the site's operation. This information is used to generate user profiles and to personalise the website to your particular interests. On some occasions we may ask you to provide information on online forms.
For example, we may ask for your username, password, place of birth, full name, telephone number, email address and postal address, or other information to register online, or for your credit card number or other personally identifying information to fulfill licensing transactions or to receive products or services.
We may also ask you about your age, hobbies, income, gender or other information to participate in surveys or other online activities. Providing information on online forms is always voluntary, and you are free not to complete any online forms. If you choose not to, however, some products and services may not be available to you.
How We Use Your Information
The information collected online is stored indefinitely and is used for various purposes, including processing your transactions, customer service, product and service development, direct marketing and marketing analysis, facilitating your use of this website, and customizing your image selection to your particular interests. The information we collect on this site is not shared with ANY third parties.
About Cookies
When you visit Flyerstarter Services Ltd., we place a text file called a cookie in the browser directory of your computer's hard drive. A cookie is a small piece of information that a website can store on your web browser and later retrieve. The information that cookies collect includes the date and time of your visit, your registration information and your navigational and purchase activity.
Cookies offer you many conveniences. They allow Flyerstarter Services Ltd., and certain of its subsidiaries and third party content providers, to recognize information, such as your account ID, and assist in determining what content is best suited to your needs.
Most browsers allow you to decline cookies, but if you elect to do so, these pages may not display properly. You are free to delete cookies after your session, and your browser should contain instructions on how to do this.
Opting Out
If you do not want to receive promotional information from Flyerstarter Services Ltd., you can opt out by entering your reigstered email address into the the form on the bottom right of the Flyerstarter Services Ltd. homepage and click 'unsubcribe'. This action will remove you from our mail list instantly.
Reviewing, Updating or Correcting Your Information
If you would like to review or revise information you previously provided on an online form, or believe that what we currently have on record is incorrect, you may update your information in the Account section of this website.
Links to Other Websites
The sites to which we link, including but not limited to the sites of subsidiaries and third party content providers, may have different privacy policies and practices from those disclosed here. We assume no responsibility for the policies or practices of linked sites and encourage you to become acquainted with them.
Children
We do not intend to either solicit or collect personal information from anyone under the age of 13. If you are under 13, you should not use or enter information on this website.
Questions or Concerns
If at any time you believe that Flyerstarter Services Ltd. has not followed the above policy, please let us know by contacting us. We will make reasonable efforts to identify and correct any problem.
Changes to This Online Privacy Policy
We reserve the right to change the terms of this privacy policy at any time, but will not do so without posting the revised policy on this website. We encourage you to review this privacy policy whenever you visit our website to make sure you understand how we use the information we collect.
DMCA Notice
Digital Millennium Copyright Act Policy
Flyerstarter Services Ltd. is an Online Service Provider under Title II of the Digital Millennium Copyright Act, 17 U.S.C. Section 512 ("DMCA"). Flyerstarter Services Ltd. respects the legitimate rights of copyright owners, and has adopted an efficient notice and takedown procedure as required by the DMCA and described herein. This policy is intended to guide copyright owners in utilizing that procedure, and also to guide webmasters in restoring access to websites that are disabled due to mistake.
Notice to Owners of Copyrighted Works
The DMCA provides a legal procedure by which you can request any Online Service Provider to disable access to a website where your copyrighted work(s) are appearing without your permission. There are two parts to the legal procedure: (1) Writing a Proper DMCA Notice, and (2) Sending the Proper DMCA Notice to Flyerstarter Services Ltd.'s Designated Agent.
How to Write a Proper DMCA Notice
A Proper DMCA Notice will notify Flyerstarter Services Ltd. of particular facts in a document signed under penalty of perjury. We refer to this as a 'Proper DMCA Notice.' To Write a Proper DMCA notice, please provide the following information:
1. Identify yourself as either:
a. The owner of a copyrighted work(s), or
b. A person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. State your contact information, including your TRUE NAME, street address, telephone number, and email address.
3. Identify the copyrighted work that you believe is being infringed, or if a large number of works are appearing at a single website, a representative list of the works.
4. Identify the material that you claim is infringing your copyrighted work, to which you are requesting that Flyerstarter Services Ltd. disable access over the World Wide Web.
5. Identify the location of the material on the World Wide Web by providing information reasonably sufficient to permit Flyerstarter Services Ltd. to locate the material.
6. State that you have good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agents, or the law.
7. State that the information in the notice is accurate, under penalty of perjury.
Sign the notice with either a physical or electronic signature.
Sending The Proper DMCA Notice to the Designated Agent
To exercise your DMCA rights, you must send your Proper DMCA Notice to the following agent designated by Flyerstarter Services Ltd. (the 'Designated Agent'.) The contact information for Flyerstarter Services Ltd.'s Designated Agent is:
Mailing Address: Flyerstarter Services Ltd.
207-15025 Victoria Ave
White Rock BC V4B 2G2
Canada.
Fax: 49 (0)16090929135
Email: info ( a t) zymmetrical.com
What We Do When We Receive A Proper DMCA Notice
Flyerstarter Services Ltd. will follow the procedures provided in the DCMA, which prescribed a notice and takedown procedure, subject to the webmaster's right to submit a Counter-notification claiming lawful use of the disabled works.
Notice and Takedown Procedure
It is expected that all users of any part of the Flyerstarter Services Ltd. system will comply with applicable copyright laws. However, if Flyerstarter Services Ltd. is notified of claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing or to be the subject of infringing activity. Flyerstarter Services Ltd. will comply with the appropriate provisions of the DMCA in the event a counter notification is received by its Designated Agent.
Notice to Users of Flyerstarter Services Ltd. Systems
Pursuant to the Terms of Service Agreement you agreed to when you were permitted to become a System User, you are required to use only lawfully-acquired creative works as website content, and your website may be disabled upon receipt of notice that infringing material is appearing there. Flyerstarter Services Ltd. also respects the legitimate interests of webmasters in utilizing media content lawfully, being permitted to present a response to claims of infringement, and obtaining timely restoration of access to a website that has been disabled due to a copyright complaint.
Your System Use privileges will also be suspended. You may protest a DMCA notice by submitting a Counter-notification as described below.
Writing and Submitting a Counter-notification
If access to your website is disabled due to operation of the Flyerstarter Services Ltd. notice and takedown procedure described above, and you believe the takedown was improper, you must submit a Counter-notification.
Writing a Counter-notification
To Write a Proper Counter-notification, please provide the following information:
1. State that access to your website was disabled due to operation of the notice and takedown procedure.
2. Identify the material that has been removed and designate its URL prior to removal.
3. State, under penalty of perjury:
* Your name, address, and telephone number,
* That you have a good faith belief that the material was removed or disabled as result of mistake or misidentification of the material,
* That you consent to the jurisdiction of the Provincial Court for the judicial district in which the address is located.
Sending the Counter-notification
To exercise your DMCA rights, you must send your Counter-notification to the Designated Agent for Flyerstarter Services Ltd., whose contact information is:
Mailing Address: Flyerstarter Services Ltd.
207-15025 Victoria Ave
White Rock BC V4B 2G2
Canada.
Fax: 49 (0)16090929135
Email: info ( a t) zymmetrical.com
Repeat Infringers
If a website user is violating the Company's DMCA Policy or any of the Terms & Conditions, they will be subject to immediate termination. Furthermore, repeat infringers will not be tolerated.
Accommodation of Standard Technical Measures
It is Flyerstarter Services Ltd.'s policy to accommodate and not interfere with standard technical measures it determines are reasonable under the circumstances, i.e., technical measures that are used by copyright owners to identify or protect copyrighted works.
Policy With Regard To Non-Compliant Communications
Flyerstarter Services Ltd. has discretion to handle non-compliant notices in whatever manner appears to be reasonable given the circumstances presented.
Submission of Misleading Information
The submission of misleading information of any sort in a notification or counter-notification submitted to Flyerstarter Services Ltd. voids any claim of right made by the submitting party.
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