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Signup Agreement

EXCLUSIVE ARTIST SUPPLY AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS.

1.  Summary of Agreement

This Legal Agreement ("Agreement”) governs the terms by which artists (photographers, videographers, graphic artists, etc)  provide stock media content to members of Phostoxer.com ("Exclusive Content”), on an exclusive basis through the web site located at www.phostoxer.com (the "Site"). This Artist's Exclusive Supply Agreement is in addition to the Terms of Use applicable to the Site and that all persons providing content to or downloading content from the Site have previously entered into. 

The Artist ("Supplier”) agrees to appoint Phostoxer LLC ("Phostoxer”) as its exclusive agent to license, sublicense and distribute Exclusive Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement, as such agreement may be amended or modified from time to time.

Upon accepting the terms of this Agreement, you may make Exclusive Content available to Phostoxer by following the "Upload" procedures identified on the Site. Each upload of Exclusive Content will be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each upload.

2.  Exclusive Content

In this Agreement, "Exclusive Content" means, as applicable to Supplier, media content together with descriptive and other information, documents (such as model or property releases) or otherwise required to enable Phostoxer to realize the commercial potential of the rights granted in the Content ("Descriptive Information"); but shall not include (1) Content that is produced as "work for hire" within the meaning of United States law or is otherwise the result of a specific commission by a client of the Supplier evidenced by written agreement where the Content deliverable from such commission is for the personal use of such client and not for resale or license to any other person or entity; (2) Content that is produced for "Editorial" purposes except to the extent the Supplier is certain that such Content may be licensed, sub-licensed and/or distributed on a royalty free basis as in the Content License Agreement, where "Editorial" means visual reporting to illustrate general interest and specialty stories for information, documentary or photojournalism (but not advertorial) purposes only; (3) Content that is "Rights Managed," which is defined as Content produced by the Supplier and licensed for a fee that is based on one or more limited uses and for which usage history is tracked; (4) Content that is of a category not currently offered for sale by Phostoxer; or (5) other Content specifically designated by the Supplier and agreed by Phostoxer as being non-exclusive Content.

Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict the Supplier from (i) establishing or maintaining a personal portfolio on the Internet where Exclusive Content is posted for the purposes of art display but not the sale or licensing or transfer of rights to the digital Content (except where a license is granted to the website owner solely for the purposes of the display).

The Supplier will provide Exclusive Content to Phostoxer using the Upload procedures and policies of the Site. Phostoxer, in its sole discretion, may determine which of such Exclusive Content is suitable for posting on the Site, and only such Exclusive Content as it deems suitable will be considered "Accepted Exclusive Content" for the purposes of applicable provisions of this Agreement.

3.  Grant of Authority

Supplier hereby appoints Phostoxer as Supplier's exclusive agent and distributor to sell, license or sublicense Exclusive Content to third parties worldwide, and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Exclusive Content, Supplier grants Phostoxer:  The exclusive right and license to use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products, or display the Exclusive Content to prospective purchasers and licensees through the Site.

Phostoxer may post, reproduce, modify, display, make derivative works or otherwise use any Exclusive Content for their own business purposes relating to the promotion of the Site, the Exclusive Content and their distribution programs, and expand the market for the sale or licensing of Exclusive Content. The Supplier agrees that Phostoxer shall have exclusive rights to design marketing literature for the Exclusive Content, at its own expense, and the Supplier agrees to cooperate in that regard. 

The Parties agree that all rights, including title and copyright, in and to the Exclusive Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Phostoxer or any third party except as provided in this Agreement and license agreements which Phostoxer is authorized to enter into on the Supplier's behalf.

4.  Warranty
The Supplier hereby represents and warrants as follows:

The Supplier hereby represents and warrants as follows:

Supplier warrants that Supplier has the legal capacity and authority to enter into this Agreement; 

Supplier is the sole and exclusive owner of the Exclusive Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Exclusive Content or any other intellectual property that would conflict with this Agreement;

Supplier warrants that Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects;

Supplier has obtained as part of the Descriptive Information a model release from all required parties in substantially the same form as [model release] that will permit the uses for such Exclusive Content contemplated in this Agreement. Supplier has also obtained a property release for identifiable property contained in the Exclusive Content that might reasonably lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement.

5.  Compensation

Phostoxer agrees to pay a portion of the fees collected in respect of Accepted Exclusive Content that is downloaded or otherwise purchased by end-users according to the Rate Schedule. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of Phostoxer in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, Supplier may refrain from providing additional Exclusive Content or terminate this Agreement in accordance with its terms.

In response to a written request, Phostoxer will endeavor to make payment of fees in respect of purchased downloads of Accepted Exclusive Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Exclusive Content, except when sales reporting from a distribution partner is delayed, in which case payments will be made in the month following the date such sale is reported, provided such fees aggregate a minimum of US$100, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Supplier will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method; (iv) returns and refunds; (v) legal and other reasonable fees incurred in enforcing this Agreement or the agreements contemplated herein; and (vi) any amounts owing by the Supplier to Phostoxer under this Agreement or otherwise.

Without limiting the generality of the foregoing, Phostoxer is entitled to set-off against any amount owing to Supplier, all amounts to which Phostoxer is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement.

The parties further agree that Phostoxer shall not be required to pay royalties or fees to the Supplier if Phostoxer is restrained or otherwise prevented from using rights granted under this Agreement relating to Exclusive Content because those rights are found to be an infringement or contravention of the intellectual property or other rights of a third party, or if Phostoxer discovers or determines in its reasonable discretion that the Exclusive Content provided by the Supplier appears for sale or license or give-away elsewhere in contravention of this Agreement.

6.  Passwords

You acknowledge and agree that you will be responsible for each and every access or use of the Site that occurs in conjunction with your Member Name and such passwords, and that Phostoxer is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Exclusive Content pursuant to this Agreement. Phostoxer shall have no liability or responsibility to monitor the provision of Exclusive Content under your member name and password.

7.  Managing Exclusive Content

Phostoxer reserves the right to delete, move, refuse to accept or edit any Exclusive Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Phostoxer or as it may direct. Phostoxer shall have the right but not the obligation to correct any errors or omissions in any Exclusive Content or Descriptive Information, as it may determine in its sole discretion. 

You acknowledge and agree to the possibility of Exclusive Content being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Exclusive Content at law, Phostoxer shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Exclusive Content.


8.  Indemnification

Supplier shall defend, indemnify and hold harmless Phostoxer and its parent, subsidiaries, commonly owned or controlled affiliates, and content providers and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), arising out of or as a result of claims by third parties relating to: (i) any use or alleged use of the Site or provision of Content under Supplier’s Member Name by any person, whether or not authorized by Supplier; (ii) or resulting from any communication made or Content uploaded under Supplier’s Member Name; (iii) any breach by Supplier of this Agreement; or (iv) any claim threatened or asserted against any Phostoxer Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement infringes any copyrights, trademarks, trade secrets, right of privacy, right of publicity or other intellectual or other property rights of any third party.

The party seeking indemnification pursuant to this Section 8 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

9. Termination

Supplier may terminate this Agreement with respect to Exclusive Content at any time by giving sixty (60) days written notice to Phostoxer using [photographer-relations@phostoxer.com] or such other means of written notice acceptable to 

Phostoxer which enables confirmation of Supplier’s identity and intention to terminate. Phostoxer may also terminate this Agreement with respect to Exclusive Content for any reason by giving Supplier sixty (60) days notice by e-mail or written notice at the last address provided to Phostoxer. 

Either party may terminate this Agreement if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.

10. Effect of Termination

Upon the termination of this Agreement, the grant of authority given to Phostoxer shall cease subject to the following conditions: (i) Phostoxer shall remove the applicable Accepted Exclusive Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, Phostoxer shall have the right to continue licensing Accepted Exclusive Content until it is removed from the Site for up to one year following termination where such Accepted Exclusive Content has previously appeared in Phostoxer's promotional materials; and (iii) regardless of the termination of this Agreement, Phostoxer will continue, in accordance with this Agreement, to pay compensation due to the Supplier at the applicable royalty rate set out in the Rate Schedule in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.

Upon termination, Phostoxer will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.

Notwithstanding any other provision in this Agreement, the termination of this Agreement shall not alter or reduce the obligations of the Supplier and Phostoxer respecting any remaining category of Content, and in any event, shall not alter or affect the rights granted to licensees or sub-licensees by Phostoxer pursuant to this Agreement.

In the event Supplier terminates this Agreement and subsequently wishes to re-enter the exclusivity program and provide Exclusive Content, the Supplier may re-apply with respect to that category of Content ninety (90) days after the termination date of the original Exclusive Artist Supply Agreement

11.  Disclaimer of Warranties

THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY PHOSTOXER "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PHOSTOXER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.

12.  Limitation of Liability

SUPPLIER ASSUMES ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.

IN NO EVENT SHALL PHOSTOXER BE LIABLE FOR PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF PHOSTOXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. PHOSTOXER SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.

13.  Governing Law

This Agreement will be governed in all respects by the laws of the State of Nevada, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be finally settled by binding arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association ("AAA") or of the International Chamber of Commerce ("ICC") (the applicable rules to be at Licensee’s discretion) to be held in Las Vegas, Nevada. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Phostoxer shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Supplier in the event that, in the opinion of Getty Images, such action is necessary or desirable.

14.  General

Supplier agrees and acknowledges that Supplier has, in addition to the terms of this Agreement, reviewed the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.

This Agreement can be amended by the written agreement of the parties or by Phostoxer posting amendments on the Upload portion of the Site. Continued provision of Exclusive Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.

15.  Contact

If you have concerns relating to this Agreement, please contact Phostoxer at photographers@phostoxer.com.

16.  Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND PHOSTOXER, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND PHOSTOXER RELATING TO THE SUBJECT OF THIS AGREEMENT.