1. ACCEPTANCE OF TERMS
For accepted content received on or following the commencement date, the Contributor shall receive a fee in the amount of 50% of the net license fees.
2. LIMITED LICENSE TO USERS
3. NEKTARSTOCK TRADEMARKS
You agree that you will not use any Nektarstock Trademarks or any variant thereof including misspellings, as a domain name or as part of a domain name regardless of the top-level domain, or as a metatag, keyword, or any other type of programming code or data. You may not at any time, adopt or use, without Nektarstock’s prior written consent, any word or mark which is similar to or likely to be confusedwith Nektarstock’s Trademarks.
All other trademarks, product names, and company names or logos used or appearing on the Nektarstock website are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Nektarstock, unless expressly so stated.
You may not use a Nektarstock trademark, logo, Image or other proprietary graphics of Nektarstock to link to the Nektarstock website without the prior written consent of Nektarstock.
You may not frame or hotlink to the Nektarstock website or any image without the prior written consent of Nektarstock.
4. SITE SERVICES
5. RIGHTS TO ACCEPTED CONTENT
5.1 Granting of license to Nektar Design
The Contributor hereby grants the Company world-wide sole and exclusive rights to use, reproduce, disseminate, sub-license, advertise, market, merchandise, distribute/sell, publish, publicly reproduce, present, process, modify, redesign or otherwise commercially utilise the accepted content or create works derived from it, these rights may be exercised through any current or future medium and in any format. The parties acknowledge that the Company will act as principal with respect to the commercial use of the accepted content immediately upon the granting of such sole and exclusive rights. The Company shall have the right to assign, sub-license, sub-contract, encumber, otherwise dispose of or deal with any of its rights under this Section 3 or generally under this Agreement to distributors, customers or other third parties.
5.2 Proprietary right
All accepted content shall remain the property of the Contributor.
5.3 Waiver of moral rights
To the extent permitted by law, the Contributor hereby waives their moral rights in connection with the accepted content, in particular their right:
(a) to be identified as the author or creator of the accepted content or to be recognized in any other manner in its regard;
(b) to raise objection to changes or modifications to, or to a different use of, the accepted content by the Company or otherwise to raise objection;
(c) to withdraw accepted content from commercial use by the Company or other third parties–except following the termination of this Agreement, or in accordance with the terms and conditions stipulated in Section 12.3.
(d) to the extent that such a waiver is not permitted by law, the Contributor hereby irrevocably undertakes not to assert such moral rights against the Company, the distribution companies or customers, or against their respective supervisory staff, employees, members, agents or contractors.
5.4 Copyright notice
The Contributor hereby grants to the Company, distributors, customers or other third parties the right not to identify the Contributor as the author and source of the accepted content and to include a copyright notice on the content at their discretion.
5.5 Exclusive collaboration
An exclusive legal relationship is concluded between the parties, which facilitates the marketing and further licensing of the accepted content. The Contributor may use accepted content and similar contributions for their own works and promotional activities (including the sale of prints to their own customers), provided such activities and use do not compete with the Company’s business. In particular, the Contributor may not, during the term of this Agreement, provide any content identical to accepted or similar content, or duplicate such content, to any other company, distributor or other third party for their marketing and licensing, or offer such content for free or sale on any other stock platforms or on their own websites.
6. SUBMISSION, ACCEPTANCE AND PROCESSING OF CONTENT
6.1 Purpose of submission
Under the provisions of this Section 4, the Contributor may provide content to the Company for inclusion in the Nektar Design collections and its subsequent commercial utilization by the Company in accordance with the contractual regulations in effect, until such time as the Company informs the Contributor that it shall accept no further contributions.
6.2 Submission requirements
(a) The Contributor must fulfil the submission requirements in effect at the time of submission. These are described in detail in Appendix 1 to this Agreement. The Company reserves the right, at any time, to emend the submission requirements, subject to advance notification of the Contributor via email. (b) Depending on the clarification requirements, the individual contents will be provided as accurately as possible with explanatory keywords, descriptions, names or inscriptions on the illustrated or recorded topics and representations on the part of the Contributor. In the case of content containing recognizable persons or certain unmistakable property, the Contributor is obliged to submit valid model and property releases.
6.3 Acceptance of content
Notwithstanding the foregoing in Section,4.2, the Company shall select content for inclusion in its own collections as it sees fit, based on editorial and distribution-oriented criteria. It shall be entitled to reject submitted content, without explanation.
6.4 Processing of content
Following acceptance of content, the Company shall be entitled to process and redesign it in accordance with market requirements and with a view to its subsequent marketing and distribution.
6.5 Loss and replacement of accepted content
The Company shall not be liable, in the event that accepted content or data carriers on which it is stored, are lost, destroyed or rendered unusable in another manner. The Contributor must: (a) ensure that they have/maintain their own backup copies of any submitted content, and (b) be able to resubmit accepted content, should the Company require them to do so. (c) the Contributor is cognizant of the fact that neither the Company nor the distribution companies insure against the loss of accepted content.
7. Marketing and merchandising
7.1 LICENCING MODEL
The Company may, at its sole discretion, market, promote, distribute, and sublicense accepted content through any distributor, license model, or collection. In the event that, for a reasonable period of time (normally eighteen months), distributed content cannot be licensed, the Company shall, where appropriate, be entitled to transfer it to other collections or, as the case may be, to market it via other distribution companies and/or licensing models. Accepted content shall be incorporated into Nektar Design’s collections and be marketed and distributed under its name, under the designation, “Nektarstock”.
7.2 Prices and terms and conditions of licensing
The Company or its distribution companies is/are entitled to negotiate and stipulate all conditions, prices and other terms and conditions under which sub-licenses are granted for accepted content, as it/they see(s) fit.
7.3 Distributed content
The Contributor will be notified by the Company via email of which of the accepted content has been made available to and accepted for sub-licensing by, distributors or customers. A list of distributed content will be created and maintained by the Company.
The Company and the distribution companies shall determine the manner in which accepted content is to be marketed, promoted and advertised. However, neither the Company nor its distribution companies shall be obliged to market-accepted content, carry on merchandising activities for it or post it, and are entitled to cease such activities at any time. No license fees are to be paid for the use of accepted content in marketing, promotional or advertising material produced by the Company or its distribution companies.
7.5 Third-party claims
The Company and its distribution companies are entitled, but not obliged, to solve, carry forward, settle or defend third-party claims. The Contributor agrees, in connection with proceedings concerning third-party claims, to provide comprehensive support and act jointly as a party, and declares that they are prepared to use their name in connection with such proceedings. The Company is entitled to deduct all costs incurred by the Company or by a distribution company in connection with the criminal prosecution of third parties, prior to calculating license fees. In the event that the Company decides not to solve, carry forward, settle or defend a third-party claim, the Contributor shall at any time – following prior consent from the Company– be entitled to institute measures which appear suitable to them.
8. ROYALTIES / LICENSE FEES
8.1 Calculation and payment of license fees
For accepted content received on or following the commencement date, the Contributor shall receive a fee in the amount of 50% of the net license fees (cf. Section 2.1 [j]). Any such percentage shall be referred to in the following as a “license percentage” and any such payment shall be referred to in the following as a “license payment”. The following prerequisites shall apply:
(a) License payments shall not be made to the Contributor until the Company has received payment in full of the net license fee in question.
(b) The Company reserves the right to deduct, from each of the payments, any excess payment previously made by the Company for a previous license fee.
(c) License fees are to be calculated monthly and will be paid out to the Contributor once the total sum due amounts to a minimum of EUR 200,00. The total sum shall be paid at the latest at the end of the following calendar month.
(d) Should the total due amount to less than EUR 200,00, it shall be carried forward to the following calendar month and be paid to the Contributor as soon as the total amount due amounts to a minimum of EUR 200,00. Total amounts of less than EUR 200,00 shall be paid out at the latest at the end of the calendar year.
8.2 Methods of payment
The Company shall pay license fees via bank transfer to a bank account indicated by the Contributor. Any costs incurred from currency conversions shall be deducted from the amount to be paid out, prior to transfer. Such payment shall constitute a valid fulfillment of the payment obligations of the Company pursuant to Section 6.1. The Company is only obliged to transfer the relevant amount due to one bank account.
8.3 Sales accounting
The Contributor shall receive information concerning the license fees due to them, at the latest at the end of the calendar month following a receipt of payment, or alternatively twice annually. If the quantity of content items sold (downloaded by customers) reaches or exceeds 1.000 (one thousand), the Company shall create a so-called supplier account and place at the Contributor’s disposal, through which the Contributor shall obtain access to detailed information concerning content items sold, fees received, the amount of license fees payable, etc. The supplier account shall be closed at such time as the Agreement is terminated.
8.4 Tax; social security contributions
(a) The Company shall be entitled to deduct tax of all types (including VAT and excise tax) from the license fees to be paid to the Contributor, to the extent that it is obliged under law or by virtue of other regulations or agreements to do so.
(b) The parties confirm that no employment relationship exists between them.
(c) The Contributor is cognizant of the fact that the payment of license fees by the Company to them shall be gross, and without deduction of tax or social security contributions, to the extent that the Company is not obliged under law, through a regulation or by a government body to deduct tax or social security contributions from the license fee to be paid. The Contributor shall bear sole responsibility for the payment of tax and social security contributions for license fees. In view of this fact, the Contributor explicitly agrees comprehensively and effectively to indemnify the Company for all complaints, assessments, claims, contributions, costs, deductions, expenses, interest, fines, losses or penalties put forward by the tax or social security authorities of a country concerning the payments which the Company, pursuant to this Agreement, makes to the Contributor or, as the case may be, which are payable to such authorities. The indemnification described in this provision shall continue to apply if the Agreement has for any reason been terminated.
8.5 Assessment of license fees
In the event that the Contributor disputes the amount of the license fees paid pursuant to this article, they shall be entitled to request, by means of written communication to the Company, more detailed information concerning the disputed amount. The Company shall make a reasonable effort to send such information to the Contributor within forty-five days of receipt of the aforementioned communication. Following receipt of the requested information, the Company and the Contributor shall attempt to resolve the dispute. Following a minimum of thirty days’ notification, the Contributor shall be entitled to have a certified chartered accountant, a tax consultant or an auditor assess whether the calculation of their share of the net license fees received from the sale of their content is consistent with the facts. Should it appear from the assessment that this is the case, the Contributor must bear the costs of calling in the assessor; otherwise, the Company shall be required to bear these costs. Such an assessment may only cover the twelve-month time period immediately preceding the assessment and such an assessment for this time period may be executed only once.
9. INFRINGEMENT CLAIMS / DMCA NOTICES
If you believe that any image or other material made available by Nektarstock infringes upon any copyright that you own or control, you must notify Nektarstock in the manner set forth in our Copyright Infringement Notice Policy.
10. DECLARATIONS AND GUARANTEES
10.1 Contributor guarantees
The Contributor hereby declares and guarantees that they are authorized to conclude this Agreement and that, correspondingly, in respect of all content submitted now or in the future:
(a) they are the sole and exclusive owner, and, without spatial or temporal limit, own all copyrights, exploitation rights and other intellectual property rights attached to the content, such that they are entitled to grant the Company the rights as set out in this Agreement, and that they possess all requisite approval, consent, releases or licenses from third parties for transferring such rights to the Company;
(b) there are no other restrictions, claims, assignments or licenses for the content or similar content, nor shall there be any other restrictions, claims, assignments or licenses for the content or similar content in the future, which affect, or could affect, the rights granted to the Company;
(c) the content items are originals and have not previously been published or distributed in another format;
(d) they lawfully obtain and possess all requisite releases (in the form provided for in the submission requirements) for all of the content, and that all such releases are signed, with full legal effect, by the relevant models or their legal representatives or the owners of the property illustrated in the content;
(e) the content infringes no intellectual property rights of third parties;
(f) the content is not libellous, pornographic, obscene or slanderous and does not infringe other rights of third parties;
(g) it is neither the case that the content has been, nor that it is, the object of grievances, claims or complaints.
10.2 Company guarantees
The Company declares and guarantees that it shall not knowingly use accepted content for slanderous, defamatory or pornographic purposes or to sub-license this content for such purposes. To the extent that the Company becomes cognisant of such usage, it shall take all commercially appropriate steps to obstruct it.
11. INDEMNITY OBLIGATION
11.1 Indemnification by the Contributor
The Contributor is obliged to indemnify and compensate the Company, its distribution companies, customers, governing bodies and (authorized) representatives, employees and agents, and all legal successors of those aforementioned (the “indemnified persons”) for all claims, losses and damage, including reasonable legal fees and other costs issuing from or in connection with claims, complaints, obligations or legal disputes due to an infringement of the Contributor guarantees under Section 7.1. The indemnified persons shall themselves be entitled to institute appropriate measures to defend themselves against third-party claims or to pursue their own rights. The Contributor must, in advance, agree to their own measures with the aforementioned persons, and fully cooperate with them.
The Company shall be entitled to retain the sums owed to the Contributor in the amount due to the persons to be compensated pursuant to this Section 8.1 in the context of the indemnification, and to set it off against them.
11.2 Indemnification by the Company
TheCompany is required to indemnify and compensate the Contributor for all costs, which the Contributor incurs directly through, or in connection with, claims, complaints, obligations or legal disputes due to an infringement of the Company guarantees under Section 10.2.
12. LIMITATION OF LIABILITY
****The Company shall not be liable for infringement of copyrights, rights of use or other rights attaching to the content, on the part of its distribution companies, customers or other third parties.
13. PROCESSING OF PERSONAL DATA
****The Company undertakes to strictly observe statutory data protection provisions. The Contributor declares that they have been informed about data processing by the Company in accordance with the requirements of the GDPR. They hereby grant approval to the Company to process personal data transferred by them to the Company during the term of the Agreement, such processing being for the purpose of processing agreements, the fulfilment of legal obligations or the protection of legitimate interests. The Company shall also be entitled to pass on such information to third parties, e.g., in particular, to distribution companies or customers of its choice, to the extent that this is required for the aforementioned purposes. The Company also reserves the right to divulge the Contributor’s personal details, should this be required by law or should the Company act in the good faith that such a measure is necessary for fulfilling statutory requirements, for responding to claims or complaints or for protecting the rights, property or security of the Company, its employees or its customers, or for protecting the public.
Last updated on July 15, 2019