DESIGNER’S SUBMISSION & LICENSING AGREEMENT
Effective Date: April 10, 2017
This Designers Submission and Licensing Agreement (“Agreement”) governs the terms and conditions between you (“Designer” or “you”) and VIDA & Co., Inc., a Delaware corporation (“VIDA”) regarding your participation as a Designer on shopvida.com and its associated applications (collectively referred to as the “Platform”).
By clicking the “I Agree to VIDA’s Terms of Service” box, by initiating any transaction, or by using any part of the Platform you agree to be bound by the terms of this Agreement.
1. VIDA Designers
VIDA offers its account holders the opportunity to become a Designer (“Designer”) so that they may submit their images, photos, designs, drawings, creations (collectively the “Designs”) and associated text, data and information (collectively the “Content”) for consideration by VIDA to incorporate onto a range of products offered on shopvida.com and to earn commissions on the sale of those products. Eligibility to become a Designer does not guarantee acceptance of submitted Designs and Content.
To become a Designer, you must be at least 18 years of age, establish a VIDA account, and designate a valid PayPal account to receive commissions in accordance with the terms of this Agreement.
3. Creating a Branded Page
To create a branded page on the Platform, Designers must upload their Designs, Content and name/signature. Designers may also designate applicable product categories for incorporation of Designer’s Designs and Content. Once all necessary information is submitted, VIDA shall review the Designs and Content in accordance with Section 5.
4. Content Representations and Warranties
For all Designs and Content submitted to the Platform, you represent and warrant as follows:
- Proprietary Rights: You represent and warrant that you have all right, title, license and authority to upload, submit, post, copy display, perform, create derivative works from distribute, transmit and sublicense the Designs and Content, including the right to publish and distribute by electronic and digital means.
- Non-Infringing: You represent and warrant that the Designs and Content do not (i) violate, infringe or misappropriate on the rights associated with any third parties, including, but not limited to, privacy rights, copyright, trademark, trade secrets, patents or other intellectual property rights, or (ii) violate any statute, law, ordinance or regulation.
5. Submission Review
All Designs and Content submitted to the Platform will have to be reviewed and approved by VIDA ’s internal review process. Submission does not guarantee acceptance of Designs and Content.
All Designs and Content will be evaluated by VIDA for use on the fashion accessory, apparel, home accessory, decorative accent and other product categories offered now or in the future by VIDA (“Products”). Designer may designate particular products categories (e.g., only fashion accessories) for consideration of merchandising opportunities (“Designated Products”).
Submissions will be reviewed by VIDA to determine whether Designs and Content:
- Are suitable for adaptation on Products.
- Meet’s VIDA’s style and editorial guidelines; and/or
- Correlates to VIDA’s marketing and business model.
VIDA will email Designers to advise whether Designs and Content have been accepted for merchandising purposes.
6. Designs and Content Licenses
Non-Exclusive Designs & Content License – Branded Page: For all submitted Designs and Content, Designer grants to VIDA a worldwide, non-exclusive, revocable, royalty-free right and license to use, copy, display, perform, create derivative works from, distribute, transmit and sublicense Designs and Content in any form, in all media now known or hereinafter created, anywhere in the world for purposes of creating, displaying and promoting Designer’s branded page and for the promotion and marketing of Designs and Content on Products.
Exclusive Merchandising License – Designated Product Categories: Once an order for the purchase of Designer’s Designated Products has been placed on the Platform and in consideration for the receipt of commissions arising from the sale of any Designated Products on the Platform, Designer’s non-exclusive license shall immediately be converted to an exclusive merchandising license for that particular product category in accordance with the terms of this subsection. Upon the consummation of any order for the purchase of Designer’s Designated Products on the Platform, Designer grants to VIDA a limited, worldwide, exclusive, royalty-free (except for the payments set forth herein) right and license to use, copy, display, perform, create derivative works from, distribute, transmit and sublicense Designs and Content in any form, in all media now known or hereinafter created, anywhere in the world, to: (1) incorporate Designs and Content onto Designer’s Designated Products manufactured on behalf of, and sold by, VIDA, (2) manufacture, market and distribute Designs and Content on Designer’s Designated Products, (3) publish, distribute and publicly display Designs and Content on the Platform, (3) modify Designs and Content for purposes of conforming Designs and Content to Designer’s Designated Products’ size, dimensions, or for image quality purposes. (4) modify or adapt Designs and Content for purposes of responding to seasonal or other market-driven changes or preferences, and/or (5) republish or reuse Designs and Content on VIDA’s social media, promotional and marketing services and materials. Designer hereby irrevocably waives any claims based on moral rights, if any.
The exclusive merchandising license shall apply solely to the Designated Products selected by Designer. Designer shall retain the right to license the Designs and Content for other non-merchandising purposes or for product categories not otherwise designated by Designer. This exclusive merchandising license shall be in effect for the term of this Agreement and continue for one (1) year following receipt of written notice of termination by Designer in accordance with Sections 8 and 16 of this Agreement.
To help build Designer’s brand, VIDA will incorporate Designer’s name/signature on all Products containing Designer’s Designs and Content. Designers may upload their signature/name to accompany Products when establishing an account profile.
8. License Termination
Non-Exclusive License – Branded Page: Designer may terminate the non-exclusive license granted herein as to any specific Designs and Content, or all of the Designs and Content, at any time upon thirty (30) days prior written notice to VIDA. VIDA will cease using the designated Designs and Content in a commercially reasonable time, to enable VIDA to remove Designs and Content from the Platform.
Exclusive Merchandising License: Designer may notify VIDA of its intent to terminate any Exclusive Merchandising License as to any and all Designated Products upon written notice to VIDA. Upon receipt of notice of termination, the exclusive merchandising license shall terminate one (1) year following the date of Designer’s notice of termination.
Notice of termination of any license granted herein can be sent directly to: firstname.lastname@example.org. VIDA will send notice of confirmation of termination in a commercially reasonable time.
Please be advised that, although VIDA shall remove Designs and Content from its Platform, Products may still appear in search results for a little while. Although such Products will no longer be available on the Platform, VIDA has no control over the appearance of Products on third party search engines or social media platforms and shall not be liable for damages arising from the continued use of the images by third party search engines or social media platforms.
9. Content, Product & License-Related Communications
VIDA will make every effort to communicate with Designer regarding production quality-related issues. Should you need to communicate with VIDA to obtain information regarding Product manufacturing, sales or commission calculation, please email VIDA directly at email@example.com.
10. Marketing & Promotional License
By becoming a VIDA Designer, VIDA will seek to build Designer’s brand by highlighting and cross promoting the Products and Designer’s Branded Page. To do this, VIDA require certain permissions and licenses as follows:
- Permission to Use Name and Logo for Promotional Purposes: You grant to VIDA the unrestricted right and license to use your individual and/or company name, logo and/or relevant trademarks (“Properties”) to market and promote Designer, the Products and VIDA’s Platform. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Properties as incorporated into VIDA’s marketing and promotional materials.
- Limited License: VIDA is granted no other rights to the Properties and acknowledges that it shall not gain any proprietary interest in the Properties.
- No Compensation: VIDA is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. VIDA shall be the exclusive owner of all right, title, and interest, including copyrights, in VIDA’s marketing and promotional materials.
Vida’s permission and license to use the Properties shall expire upon termination of all of the Designs and Content licenses granted herein.
11. Curated Collection Opportunities
VIDA may offer a Designer the opportunity to associate certain Designs and Content with VIDA’s Curated Collection Products, in which VIDA will create a unique product line that provides its customers with a distinct collection not otherwise available in the marketplace. Curated Collections can be seasonal, thematic, or personality driven. If Designs and Content are accepted for a Curated Collection opportunity, VIDA reserves editorial & stylistic control over the Designs and Content and/or its given title and/or description in order to best position Curated Collection Products for the marketplace. Such editorial and stylistic control includes, but is not limited to, changes in grammar, title, color and size for purposes of facilitating brand positioning and development, as deemed necessary in VIDA’s sole and absolute discretion. If a given title is altered to facilitate the marketing of a Curated Collection Product, VIDA will tag the Curated Collection Product to Designer’s original titled Products to enable a customer to see all of Designer’s Products and associated Curated Collection Products in their search results.
12. Other Merchandising & Licensing Opportunities
VIDA will also seek to promote Designer’s Designs and Content by exploring partnerships with third parties to foster additional exclusive marketing & licensing opportunities. Any sale or licensing of Designer’s Designs and Content in association with such third party partnership opportunities shall be subject to a separate agreement in writing between Designer, VIDA and such other third party. VIDA does not guarantee that it will identify or provide any additional sale or licensing opportunities other than those provided directly through the Platform.
13. Payments and Processing
VIDA shall process payments and pay Commissions to Designer as follows:
- Commissions. Designer shall receive a 10% commission on the Net Revenues generated by each of Designer’s Designated Products purchased through the Platform.
- “Net Revenues” shall be defined as the gross purchase price paid by a customer for each of Designer’s Designated Products purchased on the Platform, less applicable discounts, shipping, taxes, product returns, VAT assessed by governmental agencies, import fees and related third party fees associated with a sale.
- Dashboard: Designers can view the sales of Designer’s Designated Products on their account dashboard.
- Payment Frequency. At the end of each calendar quarter, VIDA shall initiate payment to Designer’s designated PayPal account the Commissions generated in the preceding calendar quarter.
- Taxes: Designer is solely responsible for the payment of any and all taxes associated with any Commissions received from VIDA.
14. Product/Design & Content Termination
VIDA reserves the right to cease (a) manufacturing, distribution, or offering for sale any Products, or (b) incorporating any Designs or Content into any Products, at any time in its sole and absolute discretion. In the event of a Product /Design & Content Termination, VIDA shall not be liable for any damages incurred by Designer as a result of such termination and Designer shall only be entitled to receive Commissions on any Products purchased up through the date of said termination.
15. VIDA’S Intellectual Property
Copyright: The Platform and its logos, design, data, text, graphics, images and other files, and the selection, arrangement and organization thereof, are owned by VIDA. You may not use such materials without permission. © 2016 VIDA & CO., INC. ALL RIGHTS RESERVED
Trademarks: VIDA and its logos are trademarks owned by VIDA. All page headers, custom graphics, button icons, scripts and service names are trademarks or trade dress of VIDA.
Ownership and Use: Unless otherwise stated herein, nothing in this Agreement or your use of the Platform gives you a right or license to use any of VIDA’s copyrights, trade names, trademarks, service marks, logos, domain names, or any other intellectual property rights.
16. Termination. This Agreement may be terminated as follows:
- Automatic Termination. This Agreement shall automatically terminate upon the bankruptcy or insolvency of either party.
- Breach. Either party may terminate this Agreement if the other party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
- Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days prior written notice. For purposes of the Designs and Content Licenses granted herein, receipt by VIDA of a notice to terminate for convenience shall be treated as a notice to terminate the licenses and such licenses shall terminate in accordance with the terms and timeframes set forth in Section 8 herein. Designer shall be entitled to receive all commissions generated on the sale of Designated Products for the remaining term of the exclusive merchandising license granted herein.
Survival. The following Sections survive termination of the Services: Designs & Content License, Marketing & Promotional License, Arbitration, Disclaimer of Warranties and Third Party Conduct, Limitation of Liability, Indemnification, and Governing Law.
Designer agrees to indemnify, defend and hold harmless VIDA and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, attorneys’ fees and costs) incurred in connection with any claim, demand or action (the “Claim”) brought or asserted against any of the Indemnified Parties (i) alleging facts or circumstances that would constitute a breach of any provision of this Agreement, or (ii) arising from, related to, or connected with the use of the Services, or (iii) arising from a breach of any of the representations or warranties under this Agreement.
18. DISCLAIMER OF WARRANTIES:
TO THE EXTENT PERMITTED BY APPLICABLE LAW, VIDA, THIS PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VIDA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES (I) WILL BE UNINTERRUPTED, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, VIDA EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THIS PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES.
19. DISCLAIMER OF THIRD PARTY CONDUCT:
VIDA DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF OR CONNECTED WITH THE THIS PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES. VIDA DOES NOT CONTROL ANY THIRD PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION ON THE PLATFORM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, VIDA MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES, GOODS, RESOURCES AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD PARTY SERVICES, GOODS, RESOURCES OR INFORMATION
20. Limitation of Liability:
YOU EXPRESSLY AGREE THAT YOUR USE OF THE THIS PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, VIDA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES, EVEN IF VIDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21. Aggregate Liability.
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF VIDA, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, VOLUNTEERS, ATTORNEYS, MANAGERS, LICENSORS, BUSINESS PARTNERS, SUPPLIERS, OR VENDORS, ARISING FROM, RELATING TO, OR CONNECTED WITH THIS PLATFORM, PRODUCTS, INFORMATION, CONTENT, MATERIALS, SOFTWARE OR SERVICES EXCEED THE COMMISIONS ACRRUED TO DESIGNER FOR THE THIRTY (30) DAYS PRECEDING THE EVENT GIVING RISE TO THE ALLEGED LIABILITY.
22. Individual Arbitration
EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with VIDA arising out of or relating to the Platform, services, products, information, content, materials and/or the terms of this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org. When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: 1177 Polk St #303, San Francisco, CA 94109.
Unless otherwise agreed to in writing by the parties, any dispute arising from this Agreement shall be conducted in English at the following location: SAN FRANCISCO County, California.
Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.
If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the enforceability of the remaining provisions and portions of this Agreement, and the invalid, illegal, or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable law.
Our employees, volunteers or agents are not authorized to vary this Agreement. No modification of this Agreement shall be effective unless it is in writing and either signed by an authorized representative of VIDA or posted on this Platform by VIDA.
25. No Agency
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
You shall not assign any of the rights or obligations under this Agreement without the prior written consent of VIDA. VIDA may at any time assign, transfer or subcontract any or all of its rights or obligations under these Terms without your consent.
27. Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
28. Governing Law
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the exclusive jurisdiction of the State of California, and venue in the County of San Francisco, with regard to any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof and waive all rights to contest this exclusive jurisdiction and venue of such Courts.
29. No Waiver
The failure or delay of either party to exercise any right, power or privilege under this Agreement will not operate as a waiver thereof.
Headings are for reference purposes only and do not limit the scope or extent of such section.
31. Force Majeure
VIDA will not be liable or responsible for any delays in service, for failing to provide any services or to operate the Platform as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight embargoes, terrorism, natural disaster, war or acts of God.
All notices required or permitted to be given under this Agreement will be in writing and delivered to: VIDA, 1177 Polk St #303, San Francisco, CA 94109 and/or by email at firstname.lastname@example.org. All notices by VIDA will be sent to you by email or will be conspicuously posted on the Platform.
33. Entire Agreement
This Agreement comprises the entire agreement between you and VIDA and supersedes all prior or contemporaneous agreements, written or oral, between the parties regarding the subject matter contained herein.