Shufflesome Artwork Supply Agreement

Introduction

This agreement should convey to you what I intend to do with your artwork, and what not. Here is where to look should questions arise, such as: Is Shufflesome (i.e. Alexander Schneider) allowed to create derivate works?

All this serves to ensure your rights as copyright holder to the artwork you provide. I do not want to buy your artwork. It remains your property. However, for Shufflesome to work, you have to permit usage to a certain extend. By the way, Creative Commons is a good place to learn more about copyright.

This Agreement governs the terms by which graphic designers, illustrators, or other artists provide digital Shufflesome Artwork (as defined below under "Provision of Artwork"), on a non-exclusive basis, for the purpose of producing stickers (often also called skins, covers, or wrappers) for iPods (in this agreement referred to as "Shufflesome Stickers") to be offered through the web site at www.shufflesome.com (the "Site"). This Artwork Supply Agreement is in addition to the Terms of Service applicable to the Site. In the event of any inconsistency between this Agreement and the Terms of Service, the terms of this Agreement shall govern.

Background of Agreement

This is a legal agreement between any artist intending to supply materials for the production and sale of Shufflesome Stickers through the Site (in this agreement referred to as "you" or the "Supplier") and Alexander Schneider (in this Agreement referred to by Shufflesome), the operator of the Site.

The Supplier wishes to appoint Shufflesome as its non-exclusive agent to produce and sell Shufflesome Stickers based on the Shufflesome Artwork provided by the Supplier on the terms and conditions set forth in this Agreement.

Upon accepting the terms of this Agreement, you may obtain the design templates from the Site and make your Shufflesome Artwork available to Shufflesome by sending it via e-mail attachement to alex AT shufflesome DOT com (or any other email address provided by Shufflesome), or specifying in your e-mail a download link to the corresponding Shufflesome Artwork files or else specifying in your e-mail how to transfer your Shufflesome Artwork.

With each such transfer of Shufflesome Artwork you thereby agree to be bound by the terms of this Agreement.

Each such transfer of Shufflesome Artwork will be regarded as a proposal to be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each such transmittal containing your Shufflesome Artwork or else the instructions for Shufflesome to obtain it.

This document contains many important provisions that affect your rights and obligations. We encourage you to print a copy of the Agreement for your records.

This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under "Term and Termination".

Provision of Artwork

The parties acknowledge that the Supplier may, from time to time, provide sticker design compositions for the iPod shuffle to Shufflesome, on the condition that any of the Supplier's graphic designs, illustrations and other material (collectively, "Original Artwork") are adapted and tailored to iPod shuffle design templates initially supplied by Shufflesome (collectively, "Shufflesome Artwork"). Any artwork not appropriated to these design templates will not satisfy the quality standards and therefore not be regarded as relevant artwork to be considerd for producing Shufflesome Stickers through Shufflesome.

Besides Shufflesome Artwork being the main object sought after by Shufflesome, other supplemental artwork or written information may be transmitted between Supplier and Shufflesome, to serve corresponding marketing and promotional purposes and may be processed by Shufflesome or a third party appointed by Shufflesome in order to create promotional items (hence "Promotional Artwork"). This includes images to present the Shufflesome Stickers on the Site. Where not otherwise stated, the provisions in this Agreement apply to Original Artwork, Promotional Artwork and Shufflesome Artwork.

Where not otherwise differenciated, all three definitions of artwork (Original Artwork, Shufflesome Artwork and Promotional Artwork) will be referred to simply as Artwork.

You may not use the design templates provided by Shufflesome for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of the authors or others.

In addition to the terms of this Agreement, the parties acknowledge that the provision of all Shufflesome Artwork is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Shufflesome Artwork outlined in the Site will be deemed to be a breach of this Agreement.

Means of distribution

Shufflesome, in its sole discretion, may determine which of the proposed Shufflesome Artwork is suitable for offering Shufflesome Stickers on the Site.

Shufflesome may seek means of distribution beyond the Site, online or offline, and agrees to notify the Supplier via e-mail or telephone about any intended promotion, marketing or sales activities, at least three (3) days before any such activities ensue. Failiure to respond with any objections within this time period will be deemed to be acceptance by the Supplier. The permissions and restrictions for handling the Supplier's Artwork that apply to affiliates of Shufflesome, which it may determine from time to time, or third parties are included below, under "Permitted uses of Artwork " and "Prohibited uses of Artwork".

Production cycles

Independent of when Shufflesome Artwork has been supplied, Shufflesome, in its sole discretion, may determine if and when it will be included in a print run. The timing of a print order depends on demand, amount and variety of Shufflesome Artwork provided, requests by resellers and thus no fixed production cycles are followed. The Supplier may wish to obtain Shufflesome Stickers through Shufflesome to use or resell by himself outside the jurisdictions of Shufflesome's business. In this case, the compensation schedule details how to proceed.

Grant of Authority

The Supplier hereby appoints Shufflesome as Supplier's non-exclusive agent to produce and offer Shufflesome Stickers, based on the Supplier's Shufflesome Artwork, within the jurisdictions of Shufflesome's business.

The Supplier agrees to provide Artwork under the terms set forth below under "Permitted uses of Artwork" and "Prohibited uses of Artwork", which remain in effect and full force, wether the provided Shufflesome Artwork is actually used for Shufflesome Stickers or not. While Shufflesome Artwork is the main object addressed, the conditions thereunder also apply to any other Artwork or Promotional Artwork transferred to Shufflesome, if not stated otherwise.

The Parties agree that all rights, including title and copyright, in and to the provided Artwork will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Shufflesome or any third party except as provided in this Agreement.

Questions regarding the usability for any purpose or proposed use by Shufflesome that is not covered by this Agreement, will be directed to the Supplier who provided the Artwork.

Permitted uses of Artwork

Supplier hereby grants to Shufflesome a perpetual, non-exclusive license to use the Artwork on the terms and conditions as follows.

Shufflesome may:

(a) use any Shufflesome Artwork to produce Shufflesome Stickers and offer these for sale via the Site or other means of distribution;

(b) transfer Artwork to its production partners involved in producing Shufflesome Stickers, and to affiliates or third parties appointed to produce promotional items, who shall have no further rights to use the Artwork. They may use the material solely for the purposes related to supporting Shufflesome's business;

(c) make one (1) copy of Artwork for backups;

(d) may reproduce, resize, reframe and crop the Artwork in order to create images that can be used to present the Shufflesome Artwork on the Site;

(e) use Artwork in virtually any kind of promotional item or image products related to Shufflesome Stickers offered on the Site: websites, advertising, packaging, CD or DVD packaging, film and video presentations, multimedia presentations, commercials, books, greeting cards, posters, postcards, business cards, articles, etc.. Any such promotional items, that require Original Artwork to be processed, reproduced or modified, will not be released without prior permission by the Supplier. Any such promotional items, that contain Shufflesome Artwork or modifications thereof, do not require the additional permission by the Supplier.

Prohibited uses of Artwork

Shufflesome may not:

(a) do anything with the Artwork that is not expressly permitted by this Agreement or by subsequent agreements with the Supplier. Shufflesome may not provide a copy of the Artwork, or any portions thereof, to anyone or allow anyone to gain access to the Artwork, except as permitted above;

(b) use the Artwork in any design template applications for resale, other than those provided by Shufflesome to the Supplier and which are then used to create Shufflesome Artwork;

(c) diplay your Artwork larger than 640 * 480 on the web;

(d) use the Artwork for resale, rent, sub-license or otherwise distribute the Artwork in a manner that is not covered by this Agreement, including, but not limited to, the distribution of Artwork to any third party for the purpose of resale or re-license.

(e) use the Artwork in any other medium or products for distribution apart from the application on vinyl foils, for display on the Site and for corresponding promotional items, all of which are relevant to offering Shufflesome Stickers;

(f) transfer the rights to the Artwork or accompanying materials (if applicable), except as specifically provided for elsewhere in this Agreement, or as may be permitted at a later time by the Supplier;

(g) create modifications of the Artwork beyond the purpose stated in section (d) and (e) above unter "Permitted uses of Artwork", and use, display, release or distribute it, without obtaining prior permission by the Supplier. Modified Artwork that has been permitted, may be used in the same manner as stated above, under "Permitted uses of Artwork";

(h) create derivative works (namely an original work, which incorporates but is not substantially similar to the Artwork) and release it, without obtaining prior permission by the Supplier;

(i) use the Artwork or any part thereof as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo.

Intellectual Property Matters

a) The Supplier acknowledges that Shufflesome prohibits any Artwork or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be proposed for offer through Shufflesome.

By providing Artwork, you are warranting that you own all proprietary rights, including copyright, in and to the Artwork.

In addition, to the extent that the Artwork contains images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties in substantially the same form as modelrelease.pdf that will permit the uses for the Artwork contemplated in this Agreement.

The Supplier acknowledges that neither Shufflesome nor any of its partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of any Shufflesome Stickers and pertinent material, such as packaging, after they are sold and shipped.

All Promotional Artwork produced by Shufflesome and used for display on the Site, may be used and copied by the Supplier for corresponding commercial and promotional purposes. You may modify the material and create derivative works from it.

b) The design templates are provided under a share alike provision. You may copy them, distribute them, make amendments to them and use them commercially, provided that you give attribution to Shufflesome and provide the same licensing terms, when you release or produce any of your derivative work (share alike). Attribution requires you to make clear that the templates are originated by Shufflesome (do link back to http://www.shufflesome.com). The share alike provision requires you to adhere to the same licensing terms and append a notice to your offer and any template files intended for reuse, that says: "This work is released under the Shufflesome licensing terms (http://www.shufflesome.com/sasa/index.html#share-alike)".

Compensation

Shufflesome agrees to pay a portion of the proceeds collected in respect of Shufflesome Stickers sold through the Site or other means of distribution according to the compensation schedule (the "Compensation Schedule").

The parties acknowledge that the Compensation Schedule may be amended at any time in the sole discretion of Shufflesome, effective upon e-mailing the amendments to the Supplier. Continued provision of Shufflesome Artwork or failure to terminate this Agreement within thirty (30) days of emailing 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.

If at any time the Compensation Schedule is not acceptable to the Supplier, you may refrain from providing additional Artwork or terminate this Agreement in accordance with its terms.

Shufflesome will endeavor to make payment of receipts in respect of Shuffle Sticker sales on a monthly basis on or about the 15th day of the month following the purchase of iPod shuffle vinyl stickers.

Payment of receipts 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) legal and other reasonable fees incurred in enforcing this Agreement; and (iv) any amounts owing by the Supplier to Shufflesome under this Agreement or otherwise.

Without limiting the generality of the foregoing, Shufflesome is entitled to set-off against any amount owing to Supplier, all amounts to which Shufflesome 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.

Managing Artwork

Shufflesome reviews all communications and Artwork supplied and is responsible for selecting Shufflesome Artwork that satisfies minimum quality requirements to produce high quality Shufflesome Stickers. In addition, the selection of Shufflesome Artwork is based on Shufflesome's subjective judgement regarding appeal of and demand for the proposed designs.

Shufflesome reserves the right to remove Shufflesome Stickers offered on the Site or other channels of distribution, that it may determine, in its sole discretion, violate or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or otherwise appear inappropriate or unsuitable.

Shufflesome reserves the right to elect at a later date to replace already offered Shufflesome Stickers on the Site with alternative Shuffle Sticker offers for any reason and without notice, and to reissue Shufflesome Stickers again at any time.

Shufflesome may not edit and display Artwork for any other purpose than provided for above under "Permitted uses of Artwork" and "Prohibited uses of Artwork".

Confidential Information

The Supplier acknowledges that the Confidential Information (defined below) which it obtains through entering into of this Agreement, constitutes valuable, confidential, proprietary information of Shufflesome, and agrees that during the term of this Agreement and thereafter it shall not, without the express consent of Shufflesome, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.

For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of Shufflesome, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, personnel, clients, methodologies.

Representations and Warranties

The Supplier hereby represents and warrants as follows:

(a) the Supplier has the authority to enter into this Agreement, is the sole and exclusive owner of the Artwork supplied, 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 Artwork or any other intellectual property or technology that would conflict with this Agreement; (b) no portion of the Artwork as delivered to Shufflesome from time to time, contains any disabling mechanism or protection feature designed to prevent its use in the manner contemplated in this Agreement, and all Artwork will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Artwork or the hardware or computer system, or which would otherwise render inaccessible or impair the use of the Artwork in any way; (c) the Shufflesome Artwork will include all necessary descriptive information to enable its effective processing; and (d) the Artwork delivered to Shufflesome hereunder represents original creations and expressions of subject matter, and no Artwork infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.

Indemnity

You agree to indemnify, defend and hold Shufflesome and its affiliates, and their respective directors, officers, employees (collectively, the "Shufflesome Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Shufflesome Party as a result of or in connection with: (i) any provision or alleged provision of Artwork through your e-mail by any person, whether or not authorized by you; (ii) or resulting from any communication made or Artwork provided through your e-mail; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Shufflesome Party to the extent such claim is based upon a contention that any of the Artwork used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks or other intellectual property rights of any third party.

Shufflesome reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Shufflesome's defense of such claim.

Term and Termination

This Agreement is effective until terminated. You may terminate this Agreement at any time by emailing alex AT shufflesome DOT com or such other means of written notice acceptable to Shufflesome which enables confirmation of your identity and your intention to terminate. Shufflesome may also terminate this Agreement for any reason by giving you notice by e-mail at the address or contact information provided by you at the time you send the Artwork, or such other address as you may advise us in writing to use, or the address used for your PayPal transactions.

Shufflesome may change, suspend or discontinue all or any aspect of the Site at any time, including the availability of any feature or Shuffle Sticker offer, without prior notice or liability.

Upon the termination of this Agreement, the grant of authority given to Shufflesome shall cease subject to the following conditions:

(i) Shufflesome shall discontinue to produce Shufflesome Stickers derived from the Supplier's Shufflesome Artwork; (ii) notwithstanding termination, Shufflesome shall have the right to continue selling Shufflesome Stickers left in stock until all items are sold and may continue to use corresponding physical promotional items, such as packaging, that was produced before termination; and (iii) regardless of the expiration or termination of this Agreement, Shufflesome will continue, in accordance with this Agreement, to pay compensation due to the Supplier in respect of Shufflesome Stickers sold during any transitional period, subject to any rights of set-off under this Agreement or at law.

Upon termination of the Agreement, and after all remainig Shufflesome Stickers are sold, Shufflesome may still retain copies and archives of the Artwork, but may not continue to distribute and display any of it, and any derivative works related thereto, for commercial purposes.

Termination of this Agreement shall operate without prejudice to Shufflesome's rights, defenses and limitations of liability provided under this Agreement or the Terms of Service which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.

Warranties

Shufflesome does not represent or warrant that the Site, the Shufflesome Stickers or the design templates will meet your requirements or that their use will be uninterrupted or error free.

Limitation of Liability

In no event shall Shufflesome or any of its partners or agents be liable for any incidental, indeirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceedings arising under or out of this agreement, including without limitation the ude of, reliance upon, or access to the site, the artwork, or any rights granted to you hereunder, even if Shufflesome has been advised of the possibility of such damages, wether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise.

In any event, Shufflesome's total maximum aggregate liability under this Agreement or in respect to the use of any or all part of the site or the artwork in any manner whatsoever shall be limited to the profits collected by Shufflesome for the Shuffle Sticker that is the subject matter of the claim, but in any event will not exceed thirty (30.00) Euros.

Some jurisdictions do not allow for the limilation or exclusion of liability for incidental or consequential damages, so the above limitaion or exclusion may not apply to you. In such jurisdictions, the liability of Shufflesome or any of its partners or agents shall be limited to the greatest extent permitted by law.

Applicable law

The Site is controlled, operated and administered by Shufflesome from Cologne, Germany. The Site can be accessed from countries around the world. As each of these jurisdictions has laws that may differ from those of Germany, you acknowledge and agree that this Agreement will be governed under the laws of Germany. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of Cologne, Germany with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

You consent to service of any required notice or process upon you by e-mail, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you send the Artwork, or such other address as you may advise us in writing to use, or the address used for your PayPal transactions.

You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Shufflesome related to the Site or this Agreement.

If Shufflesome is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Shufflesome for its legal fees, costs and disbursements if Shufflesome is successful.

General

You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the Terms of Service 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.

Shufflesome's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

This Agreement is personal to you and is not assignable by you without Shufflesome's prior written consent. Shufflesome may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

This Agreement can be amended by the written agreement of the parties or by Shufflesome emailing amendments to the Supplier. Continued provision of Shufflesome Artwork or failure to terminate this Agreement within thirty (30) days of emailing 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.

Contact

If you have concerns regarding this Agreement, please contact Alexander Schneider at alex AT shufflesome DOT com or via phone at +49 (0)2234 8096577.

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. In consideration of Shufflesome agreeing to provide means for the sale of your Shufflesome Artwork, 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 Shufflesome, which supersedes any proposal or prior agreement, oral or written, and any other communication between you and Shufflesome relating to the subject of this agreement.