The following Content Supply Agreement ("Agreement") is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement (“you”) and and Priime, Inc. (“Priime”).
When entering into this Agreement, please be aware that certain provisions of this Agreement may only apply when you are acting as a Contributor or when you are acting as a Curator. “Contributors” are copyright holders, licensors or other entities or individuals that have sufficient rights in content, including images, videos and other media formats (collectively, “Content”), to grant Priime the right to grant licenses in such Content to end-users (“Customers”) of Priime’s website (“Site”). “Curators” are users of the Site who curate collections of Content available for license on the Site (“Galleries”), including photos, images and photos. The provisions herein that expressly refer to Contributors shall only apply to the extent you are acting in the capacity as a Contributor, and the provisions herein that expressly refer to Curators shall only apply to the extent you are acting in the capacity as a Curator. Further, it is possible for you to act in the capacity as both a Contributor and an Curator (for example, if you were to submit Content to a Gallery that you created). Any provision that does not expressly reference Contributors or Collaborators shall apply to you, regardless of which capacity you are acting in.
By uploading any Content, creating a Gallery or taking any other action on the Site in the role of a Contributor or Curator, you agree to be bound this Agreement.
Please revisit this Agreement prior to uploading any Content to the Site or creating any Galleries on the Site. Priime reserves the right to modify this Agreement at any time in its sole discretion. Prior to any material change to this Agreement becoming effective, Priime will use reasonable efforts to notify you of any such change. Such notice may be made by email to the email address on file in your Priime account, an announcement on this page, your login page, and/or by other means. Modifications to this Agreement will only apply to prospective activity on the Site (including future licenses of Content to Customers). By making Content available on the Site (including within a Gallery) following any such modifications, you agree to be bound this Agreement as modified.
In this Agreement all capitalized terms used but not otherwise defined herein shall have the meanings set forth below:
“Accepted Content” means any Content that has been delivered by a Contributor to Priime and any Galleries created by a Curator, in each case, which have been accepted by Priime, in its sole discretion, for inclusion on the Site.
“Content License Agreement” means the agreement located at http://priime.com/legal/cla that governs the licensing of Content by Priime to Customers and which may be modified from time-to-time pursuant to its terms.
“Deactivated Content” means any Accepted Content that is removed from the Site by Priime, a Contributor or a Curator and which is no longer available for further license by Priime.
“Descriptive Information” means all descriptions, documents, keywords or software relating to Content supplied by the Contributor or to a Gallery created by a Curator, that is used to commercialize the Content or Gallery and the rights granted in the Content, including but not limited to all caption information reasonably required by Priime in the manner required by Priime, to provide a clear association between the caption information and the associated Content or Gallery (as applicable).
“Net Proceeds” means all proceeds actually collected from the applicable individual or entity (e.g., a Contributor, Curator or Customer) less all (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) refunds or license cancellations; and (iv) credit card and other payment processing fees.
“Rate Schedule” means the schedule of rates for the download and purchase of Accepted Content by Customers located at http://priime.com/pricing.
“Related Content” means any Content that is substantially the same as Accepted Content, including (a) modifications to Accepted Content and (b) any images, illustrations, audio and video that include one or more of the same models, locations or concepts.
2. Supply of Content
Contributor’s Supply Obligations: Contributor agrees to provide Content to Priime, at Contributor’s sole expense, in accordance with this Agreement and Priime’s current submission policy guidelines. The success of Priime and its Contributors will depend on the active participation and contribution of its Contributors. Accordingly, Contributor agrees to use his or her best efforts to provide Accepted Content to Priime on a regular basis throughout the term of this Agreement.
Exclusivity: All Content delivered to Priime pursuant to this Agreement shall: (i) be submitted to Priime on an exclusive basis and shall not be currently licensed to, or otherwise be the subject of any other right given or granted to, any person; and (ii) be original creations and expressions of subject matter. Contributors and Curators shall not provide Priime with Content or Descriptive Information (as applicable) that infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defame or cast into disrepute in any manner any third party.
Related Content: Contributors shall not license or otherwise give or grant any rights to any Related Content except to Priime pursuant to this Agreement.
Releases: Contributors will deliver signed model releases and/or property releases, where relevant, to Priime upon delivery of the respective Content, such releases to be in a form approved by Priime, and Contributors will keep all original releases and provide copies to Priime immediately upon request.
Disabling Features and Viruses: The Content to be supplied by Contributors shall not contain any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way.
Descriptive Information: Contributors and Curators shall include all necessary Descriptive Information, which Descriptive Information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content or Gallery (as applicable).
Accepted Content: Priime reserves the right to reject any Content or Gallery for inclusion on the Site, in its sole discretion. For example, Priime may reject any Content or Gallery that does not comply with this Agreement, that Priime has actual knowledge infringes or violates third party rights, or that is pornographic, obscene or defamatory. Priime may remove any such Content or Gallery and/or suspend (without recourse) the Contributor’s or Curator’s (as applicable) access for uploading further Content or creating additional Galleries, without prior notice and at Priime’s sole discretion.
Additional ContribΩutor Obligations: Contributor shall not: (i) submit Content to any Galleries while any Application (defined below) is pending with another Gallery and (ii) use the Site to spam Galleries with its Content, which shall be determined in Priime’s sole discretion;
Additional Curator Obligations: Curator shall not: (i) spam Contributors with invitations; or (ii) accept or decline Applications for Content to be included in their Galleries in a manner that is intended to generate revenue primarily from Application Fees instead of License Fees, in each case, which shall be determined in Priime’s sole discretion.
3. Rights granted to Priime
License to Priime: As a Contributor of Content to the Site, Contributor hereby grants Priime exclusive right to license, or sublicense Accepted Content to third parties worldwide and to collect and remit funds in connection with such transactions on the terms set forth in this Agreement. Without limiting the foregoing, the Contributor hereby grants Priime:
the exclusive worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage and produce prints or similar image products or publicly perform or display Content to prospective licensees in any and all media now in existence or that may in the future be introduced whether through the Site, through other venues owned or operated by Priime or its affiliates from time to time; and
the right to grant perpetual, worldwide and non-exclusive or exclusive licenses or sublicenses to Customers pursuant to the Content License Agreement. Contributor confirms that he or she has read, understands and agrees with all the provisions of the Content License Agreement as it (by inference) governs the licensing of the Contributor’s Accepted Content. Without limiting the foregoing, Contributor expressly acknowledges and agrees that (A) a Content License Agreement of a Customer may include a period of exclusivity and after the acquisition of Accepted Content by the Customer during which Priime will not grant rights to or further license the Accepted Content (a “Market Freeze Period”) and the Contributor shall therefore not license, reproduce or display any Accepted Content in any manner that is or could be inconsistent with the rights of Customers acquired in and to such Accepted Content under a Content License Agreement; and (B) the Content License Agreement is subject to change pursuant to its terms and Contributors will be provided with advance prior notice of any such changes.
Use by Curators: Contributors hereby consent and agree that Accepted Content submitted to a Gallery may be used by Priime and the Curator in such Gallery and offered for license to Customers by the Curator of such Gallery and Priime.
Priime’s Own Use: On any domain or product controlled by Priime (e.g., Priime’s websites, blogs, products), Priime may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Content for its own business purposes relating to the promotion of the Site, the Content and the licensing of Accepted Content. In the event that Priime wishes to use such Content on other domains or in print materials, Priime shall be required to obtain Contributor’s consent, which shall not be unreasonably withheld. No compensation shall be due to Contributor or any applicable Curator for use of Accepted Content for such business purposes, provided that Priime credits and publishes the Contributor’s name whenever possible.
Retention of Rights: All rights, including title and copyright, in and to the Contributor’s Content will be retained by Contributor, and no title or copyright will be transferred or granted in any way to Priime or to any third party, in each case, except as provided in this Agreement. Notwithstanding the foregoing, Contributor waives all "moral rights" for all Accepted Content and all similar rights existing under the applicable law of any jurisdiction in which any Accepted Content is used or licensed. This Agreement shall not restrict the Contributor from using any Content for personal use, such as maintaining a portfolio of the Contributor’s work (including in print or digital form), provided the Contributor does not license or otherwise grant or give away any rights to the Content.
4. Fees, Pricing and Royalty Payments
Contributor and Curator Fees. In order to create a marketplace of high quality, well curated Content, Priime charges Contributors and Curators modest fees for taking certain actions on the Site. The fee amounts and how they are shared between Priime and the applicable Contributors and/or Curators are detailed on the Rate Schedule. These fees consist of the following:
Gallery Creation Fee. Curators are required to pay Priime a fee to create a Gallery (“Gallery Creation Fees”). Gallery Creation Fees are intended to incentivize Curators to invest time in creating high-quality Galleries that are attractive to Customers and to prevent the mass creation of low-quality or empty Galleries. The Net Proceeds from Gallery Creation Fees are retained solely by Priime.
Application Fee. In order to submit Accepted Content to a Gallery for consideration by a Curator, Contributors are required to submit an application to the Curator of the Gallery (“Application”) and pay Priime an application fee (“Application Fee”). Application Fees are intended to incentivize Contributors to submit only high-quality and germane Content to a Gallery and to prevent Contributors from spamming a large number of Galleries with Applications. The Net Proceeds from Application Fees are shared between Priime and the applicable Curator.
Invitation Fee. Curators may invite Contributors to submit Content to their Gallery for consideration. To do so, Curators must pay Priime an invitation fee (“Invitation Fee”). Invitation Fees are a Gallery-specific credit that is issued to the invited Contributor. Accordingly, Contributors do not need to separately pay an Application Fee for Content a Curator invited them to submit. Invitation Fees are intended to help Curators populate their Gallery with high-quality, germane Content and to prevent Curators from spamming Contributors with requests to submit their Content for consideration. The Net Proceeds from Invitation Fees are retained solely by Priime.
Refunds of Fees. Application Fees and Invitation Fees are refunded to the applicable Contributor or Curator in the event that the other does not take an action on the invitation or Application within the period of time allotted by Priime to do so. For example, if a Contributor submits an Application to a Curator and the Curator does not accept or reject the Application within the specified period of time, the Application Fee will be refunded to the Contributor. However, Application Fees and Invitations Fees are not refunded for Applications or invitations that are expressly declined by the other party.
Content Pricing: Applications for submitting Accepted Content to a Gallery shall include a proposed price for each license type offered to Customers under the Content License Agreement. By accepting the Application and the pricing set forth therein (as originally submitted by the Contributor or as subsequently modified by Contributor and Curator), the Contributor and Curator acknowledge that such pricing will be the pricing offered to Customers of the Site (“License Fee”).License Fees may differ between various types of Content, the types of licenses granted to Customers and the channels through which the Content is distributed or otherwise, in accordance with its terms.
Contributor/Curator Royalty Share: Applications for submitting Accepted Content to a Gallery shall include a proposed percentage split of the License Fees between Contributors and Curators (“Revenue Share”). By accepting the Application and the revenue share forth therein (as originally submitted by the Contributor or as subsequently modified by Contributor and Curator), the Contributor and Curator acknowledge and agree that Net Proceeds of the License Fees shall be split between Contributor and Curator according to the Revenue Share.
Customer Fees: Customers who purchase licenses to Accepted Content will be charged the applicable License Fee plus an additional fee to Priime (“Priime Fee” and together with the License Fee, the “Customer Fee”). The Priime Fee will be calculated in accordance with the Rate Schedule. Priime will be the merchant of record of all Customer transactions.
Distribution of Customer Fees: Priime shall retain 100% of the Priime Fee. Priime will pay the Contributor and Curator royalties equal to the Net Proceeds associated with the License Fee, which shall be split between the Contributor and Curator by Priime according to the Royalty Share. Priime will issue monthly payments to Contributors and Curators at the end of each calendar month provided that the cumulative royalties balance then owing to such Contributor or Curator exceeds one hundred United States Dollars (U.S. $100.00). Without limiting the generality of the foregoing, Priime is entitled to set-off against any amount owing to Contributor or Curator (as applicable), all amounts to which Priime is or may be entitled under this Agreement or otherwise, including (i) cancellations or refund of a license where the original sale has been reported to the Contributor and Curator, including but not limited to where due to a fraudulent transaction, (ii) overpayment of royalties in a prior period, (iii) any amounts owing by the Contributor or Curator (as applicable) to Priime, whether under this Agreement or otherwise and (iv) 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 the Contributor or Curator (as applicable) under this Agreement.
Changes to the Rate Schedule: The Rate Schedule is subject to change in the sole discretion of Priime upon giving Contributors and Curators 30 days’ notice by email at the last address provided by Contributor and Curator on the Site and by posting such changes on the Site.
Limitation on Payments: The Contributor acknowledges and agrees that Priime will not be required to pay royalties to a Contributor or Curator if Priime is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other rights of a third party or if the Contributor or Curator is otherwise in breach of any of the provisions of this Agreement.
Administration Fee: Priime will be entitled to further charge and deduct an administrative fee in respect of all payments made by way of wire transfer.
5. Access to Site and Accepted Content
Contributor and Curator Name: Contributors and Curators will each be issued an account identified by an assigned name and password for accessing and uploading Content to the Site (“Account”).
Access to Site and Passwords: Contributors and Curators acknowledge and agree that he or she will be responsible for each and every access or use of the Site, including for uploading any Content, through their Account. Contributors and Curators agree that Priime is authorized to accept all submissions (including, uploaded Content, Applications and invitations) provided under their Account as conclusive evidence that the Contributor wishes to provide such materials to Priime, pursuant to this Agreement. Priime shall have no liability or responsibility to monitor the Content provided under this Agreement.
Managing Content: Priime reserves the right, in its sole discretion, to accept or decline any Content. Accordingly, Priime may delete, move, refuse to accept or edit any Content or Descriptive Information that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual property or other rights of others, any of its policies or is otherwise unacceptable in its sole discretion. Priime shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. Notwithstanding that Priime has the right (but not an obligation) to review Content for the purposes of determining whether it will be Accepted Content for the purposes of this Agreement, Priime cannot and does not review all Content uploaded to the Site. Priime shall not be responsible for the Content, including its quality or consequences of the Contributor uploading such Content.
Credit for Accepted Content: Priime requires Customers to adhere to Priime’s attribution requirements. However, Priime shall have no liability to Contributor for a Customer’s failure to make proper attribution. Contributor acknowledges and agrees that it is common business practice in commercial uses that the creator of Content is not credited and that, in accordance with and subject to the terms of a Content License Agreement, Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial. Accordingly, Contributor, on behalf of itself and its licensors, therefore expressly waives any right to object to a Customer’s failure to adhere to Priime’s attribution requirements for commercial uses.
Deactivated Content: Contributor shall be prohibited from licensing or granting any rights to any Deactivated Content to individual or entity, other than Priime, for so long as:
the Deactivated Content has Related Content which has been submitted to Priime; or
the Deactivated Content is subject to a Market Freeze Period pursuant to a Customer’s Content License Agreement, in both cases, the obligations of the Contributor under this Agreement shall continue to apply with respect to the Deactivated Content. Further, in order to allow Priime to conclude or renew any permitted licensing of Accepted Content (including but not limited to any applicable Market Freeze Period) following deactivation, Priime will retain electronic or digital archive copies of such Deactivated Content on its servers (or other active media to enable download) following termination, but will not promote, publish or offer such Deactivated Content to any other party for any other purposes whatsoever.
6. Representations and Warranties; Disclaimer
Contributor and Curator Representations and Warranties: In addition to any other representations and warranties contained in this Agreement, Contributors and Curators hereby represent and warrant as follows:
they each have the legal capacity and authority to enter into this Agreement;
by entering into this Agreement, they will not be in breach of any prior or extant representation agreement or licensing agreement with any stock image library, licensee, representative, agency, or other person in the world; and
none of the Content or Descriptive Information provided by Contributor or Curator (as applicable) infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, intellectual property rights or other rights of any third party; and
none of the Content or Description Information is obscene, pornographic, defamatory or otherwise unlawful.
Contributor Representations and Warranties: Whenever the Contributor provides Content to Priime, the Contributor is representing and warranting that:
Contributor is the sole and exclusive owner (or has been granted sufficient rights by the sole and exclusive owner) of all Content and Descriptive Information delivered to Priime;
the Contributor has the exclusive right, with full power, to license the Content as contemplated in this Agreement;
the Content is an original creation by the Contributor (or Contributor’s licensors);
the Content has not been licensed to, or is not otherwise the subject of any rights given or granted to, any other person;
all necessary permissions and releases have been obtained in order to permit the licensing of the Content, as contemplated in this Agreement and the Content License Agreement; and
the Contributor has not given or granted to any other person any right to or interest in any Content which conflicts with any of the rights granted to Priime under this Agreement.
Disclaimer: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY PRIIME “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; AND (B) PRIIME DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
Indemnification: The Contributor and Curator (as applicable) agree to indemnify and hold harmless Priime and its affiliates, and their respective directors, officers, employees, Contributors, owners, agents and licensees of Content from and against all claims, damages, obligations, judgments, losses, liabilities or any other expenses (including attorney fees and disbursements) or other liability arising from: (i) any breach of this Agreement by the Contributor or Curator (or by any user of their respective Accounts); or (ii) any claim threatened or asserted against any Indemnitee to the extent such claim is based upon a contention that any of the Content or Descriptive Information (x) infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other rights of any third party or (y) is pornographic, obscene, defamatory or is otherwise unlawful.
Control of Disputes/Litigation: Priime reserves the right, at the Contributor’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Contributor, and in such case, the Contributor agrees to cooperate with Priime's defense of such claim.
8. Enforcement of Customer License Agreement
Responsibility for Customers: Priime cannot take responsibility for the compliance by Customers of the terms of the Content License Agreements, and Contributor acknowledges and agrees to the possibility of Content being used in a manner that is not contemplated in this Agreement. Contributor also agrees that notwithstanding any rights that Contributor may have to pursue a Customer at law, Priime shall have no liability to the Contributor, any Curator or any person claiming to have intellectual property rights in the Content for any breach by a Customer of the terms of the Customer’s Content License Agreement. Priime, at the Contributor’s request and sole expense, will reasonably cooperate with Contributor in connection with Contributor’s protection of its intellectual property rights in such Content.
Enforcement Rights: Priime shall have the right but not an obligation to enforce the Content License Agreement against Customers who are in breach. Contributor is a third party beneficiary to the Content License Agreement and may enforce all terms and conditions set forth in the Content License Agreement against Customers who are in breach; provided, however, as between Priime on the one hand and Contributors on the other hand, Priime shall have the sole and exclusive right to enforce the payment obligations under the Content License Agreement against Customers. Contributor and Curator hereby release Priime from any and all claims that Contributor or Curator might have, either directly or indirectly, arising out of or in connection with a determination by Priime to proceed or not to proceed against any Customer in any instance.
Enforcement by Priime: Priime hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any Customer, to the extent such monies are intended to compensate Priime, Contributor and/or Curator for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, attorney’s fees and expenses) incurred by or on behalf of Priime in connection with such action, be divided on a pro rata basis between Contributor, Curator and Priime pursuant to the Rate Schedule.
9. Term and Termination
Term: This Agreement will remain effective until terminated.
Termination: Priime may immediately terminate this Agreement with respect to any Collaborator or Curator by providing written notice to such Collaborator or Curator, in the event that Priime reasonably believes that such Collaborator or Curator has breached this Agreement. Additionally, Priime, on the one hand, or Contributor or Curator, on the other hand, may terminate this Agreement in its sole discretion by providing at least 30 days prior written notice to the other.
Transition Period: Upon the termination of this Agreement, the grant of authority given to Priime shall cease provided that:
Priime shall remove Accepted Content from the Site within sixty (60) days of the termination of this Agreement (it being understood that except as otherwise permitted under this Agreement, Priime will erase digital files following termination but will not return nor provide any digital files to the Contributor following termination);
in order to allow Priime to conclude or renew any permitted licensing of Accepted Content (including but not limited to any applicable exclusivity period) following termination, Priime will retain electronic or digital archive copies of Accepted Content on its servers (or other active media to enable download) following termination, but will not promote, publish or offer such Accepted Content to new Customers;
the licensing of Accepted Content may result in payments to Priime after termination, and Priime will be entitled to retain its regular fee from such payments and will remit any royalty payments due to the Contributor and Curator pursuant to Section 4(e), notwithstanding the minimum royalty threshold set forth therein.
Effect of Termination:
Rights Not Affected: Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Priime pursuant to this Agreement and the applicable Content License Agreements and the obligations of the Contributor in Section 3(a)(ii) shall survive the termination of this Agreement for so long as any Accepted Content of the Contributor is subject to a Market Freeze Period pursuant to a Customer’s Content License Agreement. Further, Priime shall be permitted to renew any licenses granted to a Customer under a Customer License Agreement, notwithstanding the termination of this Agreement or the removal of the applicable Content from the Site, provided it complies with its payment obligations set forth in Section 4(e).
Set-Off Rights: Upon termination, Priime will be entitled to retain all amounts owing to the Contributor for a period of thirty (30) days to determine any applicable rights of set-off.
Survival: Sections 4(e), 4(g), 4(h), 5(d) and 6-11 shall survive any expiration or termination of this Agreement. The termination of this Agreement shall operate without prejudice to Priime's rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement.
10. Exclusion of Consequential Damages; Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PRIIME NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OWNERS, AGENTS, REPRESENTATIVES, LICENSORS (OTHER THAN ANY CONTRIBUTORS OR CURATORS, AS APPLICABLE), SHALL BE LIABLE FOR ANY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR A CONTRIBUTOR’S OR CURATOR’S (AS APPLICABLE) USE OR INABILITY TO USE THE SITE OR THE CONTENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED HEREUNDER, EVEN IF CONTRIBUTOR OR CURATOR (AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PRIIME’S TOTAL MAXIMUM AGGREGATE LIABILITY TO CONTRIBUTOR OR CURATOR (AS APPLICABLE) SHALL NOT EXCEED THE GREATER OF (1) ONE THOUSAND DOLLARS ($1,000.00) AND (2) PAYMENTS MADE TO THE CONTRIBUTOR OR CURATOR (AS APPLICABLE) WITH RESPECT TO THE CONTENT AT ISSUE IN THE LAST 12 MONTHS, REGARDLESS OF THE NUMBER OR TYPE OF CLAIMS AND REGARDLESS OF THE NUMBER OF TIMES THAT ACCEPTED CONTENT IS LICENSED. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
Governing Law; Venue. This Agreement and all matters relating to this Agreement shall be construed in accordance with and controlled by the laws of the State of California, without reference to its conflict of law principles. The parties agree to submit to the exclusive jurisdiction and venue of the courts located in San Francisco, California and hereby waive any objections to the jurisdiction and venue of such courts.
Relationship. The relationship between Priime, on the one hand, and Contributor or Curator (as applicable), on the other hand, under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
Third Party Beneficiary. No third party shall have any right to enforce any provision of this Agreement against either Party, nor is anything in this Agreement (express or implied) intended to confer on upon any third party, any rights, remedies or obligations or liabilities under or by reason of this Agreement. For example, a Curator shall not be permitted to enforce this Agreement against a Contributor, nor shall it be permitted to enforce this Agreement, when entered into as between a Contributor and Priime, against Priime.
Severability. If any provision contained in this Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions will not be affected. Such provisions will be revised only to the extent necessary to make them enforceable.
Waiver. No action by Priime, other than an express written waiver, may be construed as a waiver of any provision of this Agreement.
Modifications. Priime reserves the right to modify these terms as needed from time to time. Unless Priime determines a change alters the material understanding of how the Customer may use the Content, Priime will not be obligated to notify Customer of minor changes.
Assignment. Priime shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. Contributors and Curators shall have no right to assign any of their respective rights or obligations under this Agreement; provided, however, Contributors may assign this Agreement in connection with the sale or transfer of the intellectual property rights in Content. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Entire Agreement. This Agreement constitutes the entire agreement between Priime, on the one hand, and Contributor or Curator (as applicable), on the other hand, as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any terms presented to Contributor or Curator (as applicable) on the Site, such terms shall govern. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Contributor-supplied or Curator-supplied (as applicable) invoices or other documentation are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.