This is the agreement (“Agreement”) between you as either an individual designer or as the legal authorized representative of a group designer (“Designer”) and Arcadian Lighting Inc., (“Arcadian Lighting “) concerning the uploading of Designer’s audio, visual, audiovisual and other materials (the “Designer Materials” defined below) to the DesignShuffle.com website or any successor(s) websites and/or websites to which the contents in whole or in part of DesignShuffle.com are assigned (the “Arcadian Lighting Site(s)”) and concerning DesignShuffle’s use of Designer’s Materials on the Arcadian Lighting Site(s). If Designer is agreeing on behalf of a group designer or a group of designers then each reference to “Designer” in this Agreement refers to each member of the group or the group as a whole, as the case may be. Designers and DesignShuffle.com acknowledge the exchange of mutual benefits and promises and other consideration and agree as follows with respect to new submissions of Designers Materials and any former submissions of Designers Materials:
1. Term. The term (“Term”) of this Agreement starts on the date that the Designers Materials are initially uploaded to any Arcadian Lighting Site(s) and continues until either Designer or DesignShuffle terminates this Agreement in writing, with or without cause or by the removal of Designers Materials for the purpose of termination all subject to the survival of certain undertakings in this agreement set out in paragraph 15 (f), below:
a) To the extent this Agreement is terminated by Designer, the rights granted in this Agreement will terminate only after Designer has removed all of his or her Designer’s Materials from the Arcadian Lighting Site(s) excluding those Designer Materials that cannot be removed by Designer (e.g. comments posted to DesignShuffle), and Arcadian Lighting has received notice of the removal. If this Agreement is terminated by DesignShuffle, this Agreement will terminate when Arcadian Lighting removes Designer’s Materials from the DesignShuffle excluding comments posted to DesignShuffle by Designer. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship.
b) Designer can selectively terminate this agreement with respect to any individual work posted by Designer to DesignShuffle by removing the posted work from DesignShuffle and this selective termination with respect to an individual work will become effective when DesignShuffle receives notice of the removal. DesignShuffle provides a removal function with respect to individual works posted by Designer and the proper use of this function shall serve as notice of removal. If the Agreement is terminated with respect to an individual work in this way, the parties agree to cooperate in providing an orderly withdrawal of the work to the extent it has been licensed to third parties under this agreement or to the extent that Designer has placed the work in the Print program or similar commercial efforts within DesignShuffle Sites.
2. Ownership. Designer at all times retains all right, title and interest in and to the Designer Materials provided by Designer hereunder (including, without limitation, the copyrights in and to the Designer Materials), subject to the non-exclusive rights in the licenses granted to DesignShuffle under this Agreement. Designer is free to grant similar rights to others during and after the Term of this Agreement.
3. License To Use Designer Materials. As and when Designer Materials are uploaded to the DesignShuffle Site(s), Designer grants to DesignShuffle a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
a) to prepare and encode Designer Materials or any part of them for digital or analog transmission, manipulation and exhibition in any format and by any means now known or not yet known or invented;
b) to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital) or other means, and electronically or otherwise publish any or all of the Designer Materials, including any part of them, and to include them in compilations for publication, by any and all means and media now known or not yet known or invented ;
c) to modify, adapt, change or otherwise alter the Designer Materials (e.g., change the size) and use the Designer Materials as described in Section 3(b); and
d) the right to sublicense to any other person or company any of the licensed rights in the Designer Materials, or any part of them, subject to the terms and conditions of this Agreement.
e) Designer acknowledges that Designer will not have any right, title, or interest in any other materials with which Designer Materials may be combined or into which all or any portion of Designer Materials may be incorporated.
f) During the Term, DesignShuffle’s licenses under this Agreement include the right to use any part of the Designer Materials in the promotion, advertising or marketing of the DesignShuffle Sites.
g) As used in this Agreement, the term “Designer Materials” means any content uploaded to the DesignShuffle Site(s) which may include without limitation Designer’s name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, audio-visual materials, artwork, liner notes, and other graphical, textual, video, film or audio materials and any and all “skins,” computer-generated images or other artwork or images that Designer submits to DesignShuffle in any medium or format whatsoever.
4. Name and Likeness. Designer also grants to DesignShuffle:
a) a worldwide, royalty-free, non-exclusive license to use Designer’s name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Designer Materials, and the DesignShuffle Site(s)as described hereunder, during the Term;
b) Designer also agrees not to assert against DesignShuffle any privacy, publicity, moral or similar rights held by Designer and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Designer Materials. Designer also agrees that any persons other than Designer appearing recognizably or otherwise in Designer Materials will not assert of any privacy, publicity, moral or similar rights) under the laws of the United States and any other country in connection with the exploitation of the materials as described in this Agreement; and,
c) To the extent that the Designer Materials contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Designer hereby grants to DesignShuffle a worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Designer Materials, as described in this Agreement, during the Term.
5. Limitation Of Rights The rights and licenses granted to DesignShuffle under sections 3 and 4 of this Agreement require DesignShuffle to obtain Designer consent before DesignShuffle makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Designer Materials not in association with DesignShuffle but as an individual work of art or as a group of works from a single Designer in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Designer Materials either as part of the DesignShuffle Site(s) or in connection with the distribution of content groups from the DesignShuffle Site(s) and/or for uses of the Designer Materials made at the discretion of a visitor to the DesignShuffle Site(s) or other users under agreements with DesignShuffle. DesignShuffle will contact Designer in writing about any individual commercial uses of Designer Materials instigated by DesignShuffle.
6. Payment Unless otherwise agreed between Designer and DesignShuffle in a writing from DesignShuffle, the license granted to DesignShuffle under this Agreement is royalty-free.
7. Representations and Warranties. Designer represents and warrants that:
a) Designer has the full right and power to enter into and perform this Agreement and to grant DesignShuffle all rights to use the Designer Materials as contemplated in this Agreement, including, without limitation, the license grants in Sections 3, 4 and 5,
b) Designer has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Designer to enter into and perform this Agreement and to grant DesignShuffle the rights to use the Designer Materials set out in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Designer Materials),
c) the Designer Materials (and DesignShuffle’s use of them under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
d) all information that Designer has provided or will provide to DesignShuffle is true and complete,
e) the Designer Materials do not and will not violate any law, statute, ordinance or regulation,
f) the Designer Materials do not and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
g) the Designer Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of DesignShuffle or any third party, and
h) if Designer or any member of Designer’s group is a minor, Designer hereby warrants that Designer has the legal right to execute this Agreement on behalf of the minor Designer and guarantee such person’s performance of the terms of this Agreement. These warranties shall survive any termination of this Agreement.
8. Third Party Payments. Designer is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Designer Materials.
9. Indemnity. Designer agrees to defend, indemnify, reimburse and hold DesignShuffle and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to:
a) Designer’s use of the DesignShuffle Site(s);
b) any breach or alleged breach of Designer’s representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
c) Designer’s violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of Designer Materials as provided in this Agreement
10. DesignShuffle’s Performance. Designer acknowledges and agrees that the operation of the DesignShuffle Site(s) may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and DesignShuffle will not be responsible to Designer or others for any interruptions, errors or problems or even for an outright discontinuance of the DesignShuffle service. There are no assurances whatsoever that any of the Designer Materials or any part or element of Designer materials will actually be used on the DesignShuffle Site or if used will continue to be available for any particular time. DesignShuffle has the right, in DesignShuffle’s sole and absolute discretion, to remove from the DesignShuffle Site(s) at any time the Designer Materials or any part of them and/or to revoke any sublicense granted by DesignShuffle to any affiliate or unaffiliated third party. Notwithstanding the foregoing, DesignShuffle does not control the content of the Designer Materials and does not have any obligation to monitor the content of the Designer materials for any purpose or reason. Designer acknowledges that Designer is solely responsible for all content submitted to the DesignShuffle Site(s) by Designer. The DesignShuffle Site may be discontinued at any time, with or without reason and all Designer materials uploaded to DesignShuffle may be removed and unavailable for recovery by any means. Designer and only Designer is responsible for maintaining at Designer’s expense and in facilities owned or controlled only by Designer any and all original materials or so-called back-up copies of all or any part of the Designer Materials.
11. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DESIGNSHUFFLE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
a) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE DESIGNSHUFFLE SITE, AND
b) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE DESIGNSHUFFLE SITE AND ANY SERVICES PROVIDED BY DESIGNSHUFFLE HEREUNDER. IN ADDITION, ALTHOUGH DESIGNSHUFFLE INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE DESIGNSHUFFLE SITE(S), AND WHETHER OR NOT DESIGNSHUFFLE IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, DESIGNSHUFFLE DOES NOT WARRANT THAT THE DESIGNSHUFFLE SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DESIGNSHUFFLE SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
12. No Liability for Third Party Use. DESIGNSHUFFLE DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE DESIGNER MATERIALS MADE AVAILABLE ON THE DESIGNSHUFFLE WEBSITE BY THE DESIGNER PURSUANT TO THE TERMS OF THIS AGREEMENT. DESIGNER SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF DESIGNER MATERIALS BY A THIRD-PARTY, AND NOT FROM DESIGNSHUFFLE. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS DESIGNER MATERIALS FROM DESIGNSHUFFLE (WHETHER OR NOT WITH DESIGNSHUFFLE’S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED BY THE LICENSES GRANTED UNDER THIS AGREEMENT DESIGNER WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON AND NOT FROM DESIGNSHUFFLE, AND THAT DESIGNER WILL NOT HOLD DESIGNSHUFFLE RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
13. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL DESIGNSHUFFLE, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT DESIGNSHUFFLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE DESIGNSHUFFLE SITE(S). IN NO EVENT SHALL DESIGNSHUFFLE’S TOTAL LIABILITY TO DESIGNER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5. THE PARTIES ACKNOWLEDGE AND AGREE THAT DESIGNSHUFFLE HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN DESIGNER AND DESIGNSHUFFLE, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES..
14. Copyright and Trademark Notices. DesignShuffle, the DesignShuffle logos and mascots, and the layout and design of the Arcadian Lighting Site(s), among other marks that may appear on the Arcadian Lighting Site(s) are trademarks of Arcadian Lighting Inc., LLC (the ” Arcadian Lighting Marks”). Other trademarks and service marks on the Arcadian Lighting Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Designer may not use any of the Arcadian Lighting Marks without Arcadian Lighting prior written permission, and Designer may not use any third-party marks without the third party’s prior written permission.
a) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION’S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN SAN BERNARDINO, CALIFORNIA, AND DESIGNER AND DESIGNSHUFFLE BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
b) Assignment. DesignShuffle shall have the right to assign this Agreement in whole or in part to any person or business entity. Designer may not assign Designer’s rights or delegate Designer’s obligations under this Agreement without the prior written consent of DesignShuffle.
c) Notice. All notices, requests and other communications (“Communications”) under this Agreement must be in writing and sent to Arcadian Lighting Inc., 14820 Central Ave, Chino, CA 91710, ATTN: Legal Department (fax 909.323.0922 ). Communications shall be deemed received:
1. for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt or refusal as indicated on the return receipt;
2. for Communications sent by personal delivery, on the date of personal delivery; and
3. for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt.
4. No other form of notice shall be accepted under this Agreement, other than the electronic notification for individual works under the circumstances specifically described in 1(b).
d) Entire Agreement. This Agreement sets forth the entire understanding and agreement of Designer and DesignShuffle as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
e) Modification. DesignShuffle reserves the right to amend the terms of this Agreement from time to time in its sole discretion. DesignShuffle will notify Designer of any material changes to this Agreement by sending an email to the address listed in Designer’s account. If Designer continues to upload Designer Materials after being notified of the changes to the Agreement, Designer will be deemed to have accepted those changes and the new terms of the Agreement will govern all prior and future submissions of Designer Materials. If Designer does not accept the new terms of the Agreement, Designer’s only and exclusive remedy will be to terminate this Agreement. Otherwise, this Agreement may be changed only by a writing signed by both parties that specifically refers to the parties’ intent to amend this Agreement.
f) Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement. In addition, any sublicenses granted to third parties for the display of Designer Materials on electronic or other devices pursuant to Section 3 shall survive any termination of this Agreement for such reasonable time as may be necessary to withdraw Designer Materials from the particular license; any use of Designer Materials pursuant to Section 3 with respect to the making of so-called backup copies or caching of Arcadian Lighting Sites or any equivalent activity or function for general site maintenance and protection shall survive any termination of this Agreement; and, Designer Materials consisting of comments posted to DesignShuffle will remain as part of the DesignShuffle database and available to all users of DesignShuffle Sites following termination of this Agreement.