This is the Agreement (Thereafter "Agreement") between you as either an individual artist or as the legal authorized representative of a group artist (Thereafter "User") and be next Ltd. company registered in Stuttgart - Germany (Thereafter "Be Next") concerning the uploading and display of User's materials (Thereafter "User Materials") on the artfocus.com website or any associated websites and/or websites to which the contents in whole or in part of artfocus.com are assigned (Thereafter "artfocus Site(s)").
The term ("Term") of this Agreement starts on the date that the User Materials are uploaded for the first time to one of the artfocus Site(s) or transmitted (e.g. via email) to Be Next.
User retains all rights in the User Materials provided by User hereunder (including the copyrights in the User Materials), which are subject to the non-exclusive rights in the licenses granted to Be Next under this Agreement. User is free to grant similar rights to third party during the Term of this Agreement.
3. License to use User Materials
As User Materials are uploaded to the artfocus Site(s) or transmitted to Be Next, User grants to Be Next a worldwide, royalty-free, non-exclusive license during the Term:
a) to display, exhibit, any or all of the User Materials, including any part of them, and to include them in compilations for publication and promotion, by any and all means and media for the purpose of this Agreement;
b) to modify and adapt the User Materials (e.g., change the size) and use the User Materials for the purpose described in Section 3(a);
c) Be Next's licenses under this Agreement include the right to use any part of the User Materials in promotion or advertisent of the artfocus Site(s).
d) The rights and licenses granted to Be Next under provisions 3 and 4 of this Agreement require Be Next to obtain User consent before Be Next makes any commercial agreement with anyone to buy, license or resell any User Materials not in association with the artfocus Site(s).
4. Name and likeness
User also grants to Be Next a non-exclusive and royalty-free license to use User's name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the User Materials, and the artfocus Site(s) as described hereunder, during the Term.
5. No fees
The license granted by User to Be Next under this Agreement is royalty-free and worldwide.
The capability to upload and display User Materials on the artfocus Site(s) under this Agreement is free of charge.
6. Representations and warranties
User represents and warrants that:
a) User has the full right and power – as the case may be, obtained all necessary third-party consents, rights, licenses and permissions, if any, required for User - to enter into and perform this Agreement and to grant Be Next all rights to use the User Materials as contemplated in this Agreement,
b) the User Materials do not and will not infringe 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.
User agrees to defend, indemnify, reimburse and hold Be Next and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, 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) User's use of the artfocus Site(s),
b) any breach of User's representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement,
c) User's violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, traderight of privacy or moral rights of any third party, arising from the submission and/or use of User Materials as provided in this Agreement.
8. Be Next's Performance
Be Next shall display User Materials on artfocus Site(s), however,
a) here are no assurances whatsoever that any of the User Materials or any part or element of User materials will actually be used on the artfocus Site(s) or if used will continue to be available for any particular time,
b) rtist acknowledges and agrees that the operation of the artfocus Site(s) may from time to time be interrupted due to technical issues and/or maintenance operations.
9. No warranty
To the maximum extent permitted by applicable law, Be Next disclaims all warranties, either express or implied, including but not limited to
a) uninterrupted or continuous availability of the artfocus Site(s), and
b) Implied warranties of merchantability, fitness for a particular purpose, and non infringement with respect to the artfocus Site(s) and any services provided by Be Next hereunder.
10. No liability for third party use
Be Next disclaims all responsibility and liability for any third-party use of the User Materials made available on the artfocus Site(s) by the User pursuant to the Terms of this Agreement. User shall be solely responsible for seeking relief for any unauthorized use of User Materials by a third-party, and not from Be Next. This means, among other things, that if another person obtains User Materials from Be Next (whether or not with Be Next's permission), and uses those materials in a way not authorized by the licenses granted under this Agreement User will seek redress or recovery from the other person and not from Be Next, and that User will not hold Be Next responsible or liable for such unauthorized use.
11. Exclusion of damages
To the maximum extent permitted by applicable law, in no event (including negligence) shall Be Next, its officers, directors, members, parents, affiliates, subsidiaries, licensees, 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, consequential damages, punitive damages, exemplary damages), whether or not Be Next 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 artfocus Site(s).
12. Copyright and trademark notices
artfocus, the artfocus logos, and the layout and design of the artfocus Site(s), are copyrighted by Be Next. User may not use any of these without Be Next's prior written permission.
User or Be Next may terminates this Agreement in writing, with or without cause or by the removal of User Materials for the purpose of termination all subject to the survival of certain undertakings in this Agreement set out thereafter.
The provisions of Sections 6, 7, 9, 10, 11 and 12 shall survive any termination of this Agreement.
In case this Agreement is terminated by User, the rights granted in this Agreement will terminate only after User has removed all of his or her User's Materials from the artfocus Site(s) excluding those User Materials that cannot be removed by User. In case User Materials cannot be removed by User the Agreement will terminate 14 working days after Be Next has received notice of the removal from User in written form.
If this Agreement is terminated by Be Next, this Agreement will terminate when Be Next removes User's Materials from the artfocus Sites(s).
a) This Agreement shall be governed by the laws of Germany without regard to its or any other jurisdiction's conflict of laws principles. The sole jurisdiction for disputes arising from this Agreement shall be the appropriate court located in Stuttgart. User and Be Next both irrevocably agree to submit to the jurisdiction of such courts. The “United Nations Convention on Contracts for the International Sale of Goods“ is explicitly excluded.
b) All notices, requests and other communications under this Agreement must be in writing and sent to "be next Ltd, Kirchheimer Str. 27, 70619 Stuttgart" (fax +49 3212 - 1148674).
c) This Agreement sets forth the entire understanding and agreement of User and Be Next as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
d) The inoperativeness of one or several provisions in the Agreement does not affect the validity of the remaining provisions. In such case a provision is applicable which meets best the legal and economic aim of the inoperative provision.