Licence agreement
Recitals
A. Eyeka hosts, edits and broadcasts fixed images (photographs), animated sequences (videos) and, generally, all types of illustrations on its platform which is accessible by mobile phone at the address m.eyeka.com and by Internet at the address http://www.eyeka.com (hereinafter referred to as "Eyeka’s Platform");
B. Eyeka’s Platform allows Contributors to post photographic, audiovisual and multimedia works to which they hold the intellectual property rights (hereinafter referred to collectively as the "Works") on the Internet free of charge in order to broadcast and convey them to members of the public;
C. Moreover, Eyeka promotes and distributes Works, directly or indirectly, to its Customers and Partners, including but not limited to providers of electronic communications services (such as mobile phone operators), online service providers, audiovisual communication companies (such as television channels) and radio companies, press agencies, advertisers, advertising agencies and end customers (such as mobile phone and Internet users) (hereinafter referred to collectively as the "Customers");
D. The Contributor holds the intellectual property rights to one or more Works, which he/she/it would like Eyeka to host and broadcast during and after the Beta Testing period.
E. The Parties concerted with each other in order to agree on the terms and conditions of their contractual relationship.
Now, therefore, it is agreed as follows
1. DEFINITIONS
Within the scope of this Licence Agreement, the following capitalised terms and expressions, used in the singular or plural, shall have the meaning ascribed thereto hereinbelow: "Customers" means all individuals and legal entities to whom Eyeka promotes and distributes Works; "Agreement" means this Licence Agreement; "Works" means all of the photographic, audiovisual and/or multimedia works which the Contributor makes available to Eyeka on the terms and under the conditions provided for herein; "Editing" means the selection of Works chosen at Eyeka’s discretion;
"Hosting" means the services involving the storage and computer processing of the Works made available by the Contributor enabling Users who access Eyeka’s Platform via one of the Media to securely view and purchase a copy of the Works; "Lightbox" means an album created by Eyeka, a User, the Contributor or a Partner which includes several Works made available to Eyeka by various Contributors. This album showcases the Works concerned in the form of a slideshow of photographs or looped sequence of video content. Eyeka may change the name of the album without changing its main characteristics. "Media" means all methods of electronic communication used to access Eyeka’s Platform or the Works broadcasted or distributed by Eyeka, including but not limited to (i) electronic communication networks (including the Internet and mobile phone networks, satellite networks and analogue networks), electronic communications services within the meaning of Section L. 32 of the French Postal and Electronic Communications Code (Code des postes et des communications électroniques) on the one hand, and (ii) the services and methods used to communicate to the public using electronic and audiovisual methods within the meaning of Section 2 of French Act no. 86-1067 of 30 September 1986, on the other; "Audiovisual Work" means a work consisting of animated sequences of images, with or without sound; "Multimedia Work" means a work consisting of a combination of different types of works of the mind (such as texts, photographs, animated sequences and music), including photomontages, montages of various types of fixed images and animated sequences of images (i.e., video montages). "Photographic Work" means a work consisting of a fixed image captured using an optical device equipped with an analogue or digital recording system. "Collection" or "Catalogue" means a set of Works, of any kind whatsoever, of an identical or different genre, put together or collected by Eyeka or one of its Partners, based on criteria defined by Eyeka or such Partner in their discretion. "Partner" means a party that enters into a partnership agreement with Eyeka in order to use Eyeka’s Platform to communicate to members of the public and/or to distribute, under its own brand, its own collections or a selection of Works created with Eyeka. Eyeka’s Partners shall include, in particular, producers, electronic communications service providers (such as mobile phone operators), online service providers, audiovisual communications companies (such as television channels) and radio companies, press agencies, etc. "Eyeka’s Platform" means the technical environment, comprised of hardware, software and databases, created and set up by Eyeka in order to host, select, index, control, edit, broadcast and distribute the Works to Users and Customers who access the said Platform via the Media. Access to this technical environment may be given directly by Eyeka or indirectly by one of its Partners under the brand, trade name or domain name of such Partner.
"User(s)" means the individual (or individuals) who access Eyeka’s Platform, directly or indirectly, via one of the Media.
2. PURPOSE
The purpose of this agreement is to define the terms and conditions under which: The Contributor makes available to Eyeka the Works to which he/she/it holds the intellectual property rights; The Contributor grants to Eyeka the right to host, convey and distribute the said Works to the public; Eyeka hosts, edits and distributes the said Works placed at its disposal by the Contributor on Eyeka’s Platform free of charge; Eyeka distributes the Works in application of the intellectual property rights granted to it hereunder and pays the Contributor the applicable remuneration.
3. CONTRACTUAL DOCUMENTS
The provisions of the Agreement cancel and replace any and all previous written or verbal agreements between the Parties having the same subject-matter. They set forth all of the Parties’ rights and obligations and may be only amended by virtue of a supplemental agreement duly signed by both Parties.
4. EFFECTIVE DATE AND TERM
The Agreement shall take effect on the date on which the Contributor accepts the Agreement by ticking the box below the Agreement. The Agreement shall remain in effect for the duration of the intellectual property rights covering the Works.
5. RULES REGARDING THE WORKS
5.1. Terms and conditions under which the Works will be made available The Contributor shall make the Works available to Eyeka as from the effective date of the Agreement in accordance with Article 4, by uploading the said Works to Eyeka’s server using Eyeka’s Platform which can be accessed via the Internet at http://www.eyeka.com or via a mobile phone at m.eyeka.com.
Files containing the Works made available to Eyeka by the Contributor must conform to the applicable technical specifications [resolution, format, type of file, measurements, size, length, etc.], which are set out on the eyeka.com website. The Contributor acknowledges that the files and data he/she/it provides to Eyeka shall not be originals, but a copy of the originals which shall be retained by the Contributor. The Contributor acknowledges and accepts that Eyeka shall not incur any liability for the loss of the files or data provided to it by the Contributor. The Contributor provides Eyeka with all the information it requires in order to index each Work. This indexation process consists inter alia of providing a description of the Work, allocating key words and tags to each Work, providing a title and caption for each Work as well as a synopsis where applicable.
5.2. Prohibited contributions The Contributor undertakes to ensure that all of the Works made available to Eyeka comply with the statutes and regulations in force, in particular, the French Act of 29 July 1881 on freedom of the press. The Contributor warrants to Eyeka that the Works he/she/it places at the latter’s disposal shall not constitute any of the following (on the understanding that this list is not exhaustive): a violation of human dignity, a violation of public order or decency, defamation or an injurious insult, infringement of an intellectual property right or any other prohibited contributions as stated in the "Site Usage" available on www.eyeka.com. By agreeing to this Licence Agreement, the CONTRIBUTOR acknowledges states that he/she/it has taken cognizance of the prohibited contributions stated in the "Site Usage".
5.3. Eyeka’s selection of contributions The Contributor acknowledges and accepts that Eyeka and its Partners may select the Works provided by the Contributor at their discretion as part of the selection process implemented by Eyeka prior to the circulation and distribution of the Works, on the one hand, and within the scope of Eyeka’s editorial policy in order to broadcast and distribute same to Eyeka’s Users, Partners and target Customers, on the other. The Contributor acknowledges and accepts that Eyeka may reject a Work made available to it by the Contributor, without the need to give a reason for such rejection or to give the Contributor prior notice thereof.
6. SERVICES PROVIDED BY EYEKA
6.1. Hosting service Eyeka shall host the Works placed at its disposal by the Contributor on Eyeka’s Platform free of charge. In accordance with the provisions of the agreement entered into with the technical service provider responsible for hosting data, Eyeka may access the web space twenty- four (24) hours a day seven (7) days a week. Moreover, the service provider undertakes to promptly take the necessary action with regard to the hosting equipment upon Eyeka’ request, as follows: within 50 minutes Monday to Friday between 8 a.m. and 5 p.m. and within 4 hours outside this timeframe.
6.2. Indexation service Eyeka shall enhance the index created by the Contributor for each Work free of charge in accordance with Article 5.1. This process shall consist inter alia in adjusting, enhancing and indexing the Works and classifying same in accordance with the editorial policy defined by Eyeka in order to seek out and potentially broadcast and distribute the Works.
6.3. Promotion service Eyeka shall promote and advertise the Works placed at its disposal by the Contributor free of charge. 6.4. Distribution service Eyeka shall distribute the Works on Eyeka’s Platform and to its Partners in application of the distribution right granted to it by the Contributor pursuant to Article 1.18.2.2 of this Licence Agreement.
The Contributor acknowledges and accepts that Eyeka is under no obligation to commercialise the Works, and that it is only bound by a best-endeavour obligation (obligation de moyen) in respect of the potential distribution of the Works. 6.5. Waiver of the right of withdrawal With regard to the services provided by Eyeka pursuant to Article 6 and in accordance with Section L. 121-20-2 1°) of the French Consumer Code (Code de la consommation), where an agreement is entered into in the absence of one or more Parties, the Contributor is not entitled to exercise the right of withdrawal provided for in Section L. 121-20 of the said Code. The Contributor hereby waives such right and expressly accepts that Eyeka shall provide the services set out in Article 6 of this Licence Agreement within seven days of the effective date hereof.
7. Screening and verification measures implemented by Eyeka
7.1. The Contributor acknowledges and accepts that Eyeka shall control, screen, select, edit and verify the Works placed at its disposal by the Contributor.
7.2. These measures may consist inter alia in Eyeka adding a comment or note for certain Works or highlighting same, or withdrawing certain elements as provided for in Article 7.4 hereinbelow, and the Contributor may not dispute or object to the application of such measures.
7.3. Eyeka’s liability with regard to the hosted Works In accordance with Section 6.I.2 of the French Act of 21 June 2004, Eyeka shall not incur liability with regard to the Works it hosts if it was not actually aware of the unlawful nature of the Work involved or if it promptly removed the Work or denied access thereto as soon as it became aware of the unlawful nature thereof.
7.4. Removal of unlawful Works In accordance with Section 6 of French Act no. 2004-575 of 21 June 2004, as soon as Eyeka becomes aware of the unlawful nature of a Work or of facts or circumstances that bring to light the unlawful nature thereof, Eyeka shall remove the Work at issue or deny access thereto. 7.5. Monitoring Works Eyeka is not bound by a general obligation to monitor the Works it hosts or to reveal any unlawful facts or circumstances.
However, Eyeka shall assist in the fight against the justification of crimes against humanity, incitation to racial hatred and child pornography, as well as the offences referred to in the fifth and eighth paragraphs of Section 24 of the French Act of 29 July 1881 on freedom of the press and Section 227-23 of the French Penal Code (Code pénal). In this respect, in accordance with Section 6.I.7 of the French Act of 21 June 2004, Eyeka has implemented a function entitled "This media may be offensive" (the title of this function may change). This function, which is easily accessible and clearly visible, enables any individual to notify Eyeka of the unlawful nature of Works such that Eyeka may implement the measures referred to in Article 7.4 hereinabove and inform the competent public authorities of any unlawful activities mentioned in the foregoing paragraph. The Contributor acknowledges, firstly, that Eyeka may implement any targeted surveillance activity on a temporary basis at the request of a court, and secondly, that Eyeka holds and shall retain information that may be used to identify the Contributor or any individual who provides Eyeka with Works to add to Eyeka’s Platform, for the sole purpose of providing such information to the competent authorities by virtue of a court order, to the exclusion of any other third party, in accordance with Section 6.II. of the French Act of 21 June 2004.
8. LICENCE FOR INTELLECTUAL PROPERTY RIGHTS
8.1. The Contributor shall remain the proprietor of his/her/its intellectual property rights THE PARTIES EXPRESSLY AGREE THAT THE CONTRIBUTOR SHALL BE THE EXCLUSIVE PROPRIETOR OF ALL OF HIS/HER/ITS INTELLECTUAL PROPERTY RIGHTS AND THAT SUCH RIGHTS ARE NOT TRANSFERRED TO EYEKA UNDER THIS AGREEMENT INASMUCH AS THE CONTRIBUTOR IS ONLY GRANTING A LICENCE AS PROVIDED FOR HEREINBELOW.
8.2. The Contributor hereby grants Eyeka a non-exclusive licence to broadcast and distribute his/her/its works The Contributor hereby authorises Eyeka to broadcast and distribute the Works in consideration for a fee payable to the Contributor in accordance with Article 10. The Licence is granted on a worldwide basis from the effective date of the Agreement in accordance with Article 0 for the entire term of the Agreement. The Contributor acknowledges and accepts that the broadcasting Licence set out in Article 8.2.1 hereinbelow is granted for no consideration and that the distribution Licence set out in Article 8.2.2 is granted in consideration for a fee. 8.2.1 Broadcasting licence
The Licence granted by the Contributor relates to the following: the right to reproduce or cause the reproduction of the Works
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in whole or in part, on a temporary or permanent basis, either together with or separately from any other type of work, including musical, whether of an identical or different genre, free of charge or for valuable consideration, by any currently existing or future method, on any media, including but not limited to those derived from minerals, plants, animals, synthetic or composite materials including paper and related products (daily publications, weekly publications, magazines, reviews, catalogues, brochures, leaflets, prospectuses, notices, mailings, point-of-sale advertisements, advertising or promotional files including press and instructional files, posters, advertisements, cards, boards, signs, packaging and packing materials for products, publications and works of any kind, including those intended for educational, scientific, promotional or commercial purposes, record sleeves or music books, CDs, DVDs or tapes), photographs or demo-photo albums, made of metal or a similar product, plastic or a similar product, fabric or natural fibres, synthetics or mixtures, leather or a similar product, photographic film (negatives, slides, duplicates, internegatives, prints), analogue and digital devices (phonograms, videograms, tapes, microfiches, microfilms, films, including those used for corporate or promotional clips and adverts, video-clips, advertisements etc.), electronic, digital or opto-digital devices (including but not limited to floppy disks, tapes, hard drives, databases, Internet sites, Intranet sites, extranet sites, CDs, CD-Rs, CD-RWs, CD-ROMs, CD-WORMs, DVDs, DVD-Rs, DVD+Rs, DVD-RWs, DVD+RWs, DVD-ROMs, DVD-RAMs, DVD-R DLs, DVD- RW DLs, DVD+R DLs, DVD+RW DLs, SACDs, Blu-Ray discs, HD-DVDs, FVDs, HVDs, EDVs, RAMs, DRAMs, SDRAMs, DDR-SDRAMs, XDR DRAMs, ROMs, USB keys, Flash memories (including but not limited to CFs, SMs, MMCs, SDs, MemorySticks, Duo MemorySticks, Pro Memorysticks, Micro M2 Memorysticks, xDs, Micro SDs, Transflashes), MDs, Hi-MDs, WORMs, UDOs, UDO true WORMs, etc.); all of the foregoing by any technical process, including but not limited to printing, reprography, mastering, photography, holography, heliography, scanography and all other processes involving graphic design, plastics and applied methods, machine-made, tape, digital, computer or cinematographic recordings, for the purposes of hosting, circulating, communicating to the public and distributing the Works, in particular on or via Eyeka’s Platform; and for the purpose of promoting and advertising Eyeka, Eyeka’s Platform, the products and services offered or provided by Eyeka and the trade marks owned by the latter; the right to represent or cause the representation of the Works, by communicating same to the public, in whole or in part, either together with or separately from any other type of work, of an identical or different genre, free of charge or for valuable consideration, by showing same to the public by any broadcasting method existing now or in the future, via one of the Media, in particular by showing, exhibiting, projecting, transmitting or broadcasting same to the public by any method of electronic communication, via the Internet, via mobile phone networks, via satellite networks, via analog networks, via paying or non-paying television services, encoded or not, via radio services, or by means of broadcasting inter alia via Lightboxes, linear broadcasting (e.g. linear schemes and channels, slideshows), broadcasting on demand (e.g. video on demand, pay per view), broadcasting via streaming involving temporary reproduction, by downloading, showing on the screens of mobile phones, fixed telephones, computers or mobile phones, broadcasting via "Eyeka’s player" (a screen that reproduces and displays Eyeka’s logo and trade mark) etc.; in order to host, broadcast, communicate and distribute the Works to the public, in particular on and via
Eyeka’s Platform; and in order to promote and advertise Eyeka, Eyeka’s Platform, the products and services offered or provided by Eyeka and the trade marks owned by the latter; Works may be broadcasted via Lightboxes on the Eyeka platform as well as on other internet web sites thanks to links created by Eyeka users. the right to create or cause the creation of adaptations, transformations, arrangements, modifications, corrections, additions or deletions which Eyeka deems necessary, due inter alia to technical constraints relating to the technical standards applicable to the circulation of the Works on the Internet and on mobile phones, in particular with regard to the format and size of the Works, the compression of files containing the Works and the display of the Works on screens of any kind. This right includes the right for Eyeka to convert the format of the file containing the Works, to adapt the format and resolution of the file, to crop, resize, provide with a caption and comment freely on the Works. This right also includes the right inter alia to restore the Works with a view to recreating their original quality, luminosity, colours and contrasts or to enhance their quality, correct or modify the colouring of the Works, enhance and save details, and correct defective, faulty or deteriorated elements. This right also includes the possibility to add a fixed image or sequence of animated images to the Work for advertising purposes; all of the foregoing in order to host, broadcast, communicate and distribute the Works to the public, in particular on and via Eyeka’s Platform; and in order to promote and advertise Eyeka, Eyeka’s Platform, the products and services offered or provided by Eyeka and the trade marks owned by the latter; the right to translate or cause the translation of the Works into any language in order to host, broadcast, communicate and distribute the Works to the public, in particular on and via Eyeka’s Platform and in order to promote and advertise Eyeka, Eyeka’s Platform, the products and services offered or provided by Eyeka and the trade marks owned by the latter; the right to use protective technical measures for the Works with a view to preventing or restricting the unauthorised use thereof as defined in Section L. 331-5 of the French Intellectual Property Code, in particular using DRM (Digital Right Management), branding, tattooing and watermarking measures and measures to prevent or restrict copying, in order to prevent and restrict acts of infringement pertaining to the Works in the interests of the Contributor; the right to grant a sub-licence, or any other type of agreement to Customers and Partners or to any other third party (hereinafter referred to collectively as the "Third Parties"), free of charge or for valuable consideration, in respect of some or all of the intellectual property rights to the Works granted by the Contributor and which are the subject-matter of this Article 8.2.1, by any means whatsoever, on a temporary or permanent basis, to enable the said Third Parties inter alia to exploit the said rights and Works and to reproduce, broadcast, communicate and distribute the Works to the public, as well as to promote and advertise the Third Parties, the products and services offered or provided by the Third Parties and the trade marks owned by the latter. This right also includes the right for the Third Parties to grant to any other third party the rights which are the subject-matter of the sub-licence granted by Eyeka for the same purposes, in accordance with the provisions of the Agreement.
8.2.2 Distribution licence The Licence granted by the Contributor also relates to the following: the right to distribute or cause the distribution
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by means of the sale or otherwise, on a temporary or permanent basis, of a copy of some or all of the Works, either together with or separately from any other type of work, of an identical or different genre. The Works may be distributed by any means existing now or in the future, on any media existing now or in the future, via the Media, in particular via Eyeka’s Platform, for the purpose of exploiting the Works. the right to grant a sub-licence to one of its Partners, the right to distribute or to cause the distribution, by means of the sale or otherwise, on a temporary or permanent basis, of a copy of some or all of the Works, together with or separate from any other type of work, of an identical or different genre. The Works may be distributed by any process existing now or in the future, on any media existing now or in the future, via the Media, using inter alia Eyeka’s Platform, for the purpose of exploiting the Works. In this respect, Eyeka must have granted the Partner concerned some or all of the intellectual property rights to the Works provided by the Contributor in accordance with the authorisation to grant a sub-licence in that respect as provided for in Article 8.2.1, hereinabove. 8.3. No infringement of Contributor’s moral rights Eyeka undertakes to preserve the Contributor’s moral rights. Accordingly, Eyeka shall uphold the rights of title to the Work concerned by indicating the author’s name when the Work is displayed on Eyeka’s Platform. The Contributor is hereby informed that each licence granted by Eyeka to a Third Party shall entail the obligation for the latter to mention the Contributor’s name, the source of the Work and the prohibition on reproducing the Work, in whole or in part, without the authorisation of the Contributor’s beneficiaries. The Contributor is hereby informed of the fact that Eyeka prohibits the Third Party concerned from modifying the Work, other than to reduce or adjust the format and colour thereof in accordance with the constraints inherent in formatting and circulating Works by e-mail. However, Eyeka shall not be liable vis-à-vis the Contributor in the event these obligations are breached by a Third Party. If, during the term of the Agreement, the Contributor objects to Eyeka using the Works claiming, in good faith, that such use constitutes an infringement of his/her/its moral rights, the Contributor undertakes to negotiate the conditions under which such use must cease in good faith with Eyeka without terminating the Agreement.
9. WARRANTIES
9.1. The Contributor warrants that Eyeka shall peacefully enjoy and exercise all of the rights attaching to the Works set out in Article 8.
Accordingly, the Contributor shall hold Eyeka harmless against any disturbance, legal action, complaint, opposition, claim and eviction instigated by a third party claiming that one of the Works breaches his/her/its rights, as well as against any loss or liability incurred in connection with the exercise of the rights attaching to the Works. 9.2. In this respect, the Contributor warrants as follows: He/she/it is the sole proprietor of the intellectual property rights granted to Eyeka pursuant to Article 8 of this Licence Agreement; in the event the Contributor is not the sole proprietor of the aforementioned rights, it irrevocably warrants to Eyeka that, before making its Works available to Eyeka, it obtained all of the authorisations and rights required for the licence mentioned in Article 8 hereinabove in writing from all proprietors of intellectual property rights to the Works or from the copyright collecting societies representing such proprietors allowing the Contributor to make commitments under this Agreement in its own name and, where applicable, in the name and on behalf of the aforementioned individuals. In this respect, the Contributor irrevocably undertakes to provide Eyeka at any time, at the latter’s request, with written proof or a copy of all written documents confirming such authorisations; as a result, the Contributor shall pay all amounts owing to the said proprietors of intellectual property rights and said copyright collecting agencies in respect of the reproduction, representation and exploitation, free of charge or for valuable consideration, of the Works. The Contributor undertakes to fully reimburse to Eyeka, at the latter’s first request, any fees, damages or legal costs which Eyeka may be compelled to incur on account of the reproduction, representation or exploitation of the Works pursuant to the Agreement; He/she/it has not contributed some or all of the rights to the Works to a copyright collecting society mentioned in Section L. 321-1 of the French Intellectual Property Code such as to prevent it from entering into this Agreement; He/she/it has not assigned, licensed or transferred to a third party, by any means, some or all of the rights to the Works, including any right of first refusal, preferential right or option under conditions that would prevent it from entering into the Agreement, in particular Article 8 hereof, and undertakes to refrain from doing so for as long as the Contributor makes its Works available on Eyeka’s Platform. In this respect, if the Contributor wishes to enter into an agreement with a publisher, producer or copyright collecting society, before signing such agreement, it must remove the Work or Works concerned from Eyeka’s Platform under the conditions set out in Article 12.2 and notify the other party of the fact that the Work or Works has/have already been broadcasted and used on Eyeka’s Platform. none of the Works constitute infringements of intellectual property rights, in whole or in part; the Works do not contain any element to which a third party may claim a right of title, in particular a copyright, related right or personality rights;
the Works do not contravene the statutes and regulations in force, nor do they contain any of the unlawful content listed in Article 5.2 hereof. 9.3. The Contributor is hereby informed that it may incur liability should any of its representations be inaccurate. Eyeka shall be entitled to demand that the Contributor reimburse any amount payable, on any ground whatsoever, by Eyeka to a beneficiary on account of the reproduction and/or the representation and/or the making available or communication to the public of the Works by Eyeka. 9.4. As a result, the Contributor shall pay all of the costs incurred by Eyeka to defend itself, including lawyer’s fees, damages, costs and expenses not included in the costs which Eyeka may be ordered to pay by virtue of a final or enforceable court decision which witnesses and records the violation of a copyright, trade mark, patent, commercial or manufacturing secret or any other right of title or exclusive right. 9.5. In the event a final or enforceable court decision is issued which prohibits Eyeka from using the Works, in whole or in part, the Contributor shall be responsible for the following, at its own expense and without prejudice to the damages payable to Eyeka on account of the loss sustained: - obtaining authorisation to continue to use the Works or procuring the withdrawal of the claimant’s application, on the understanding that Eyeka shall incur no further expense; or - modifying or replacing the Works with works of an identical quality to ensure that they do not constitute infringing material. If the Contributor is unable to achieve the results set out hereinabove, Eyeka may cancel or terminate the Agreement by operation of law in accordance with Article 12.
10. CONTRIBUTOR’S REMUNERATION
In consideration for the distribution licence granted by the Contributor pursuant to Article 8.2.2, Eyeka undertakes to pay the Contributor remuneration equalled to fifty per cent (50 %) of the pre-tax turnover exclusive of commission fees and expenses actually received by Eyeka in respect of the distribution of each Work. No payment shall be due to the Contributor for his Works being used for Eyeka's online promotional purposes. In case Eyeka is likely to print Works for promotional purposes, Eyeka shall get in touch with the Contributor as soon as such case arises in order to discuss the remuneration issue.
Remuneration payable by copyright collecting societies The Contributor is hereby informed that if his/her/its Works are exploited by Eyeka or one of its Partners, the Contributor may receive a fee from the copyright collecting societies defined in Sections L. 321-1 et seq. of the French Intellectual Property Code with which he/she/it may be registered. The Contributor is informed that such remuneration shall not replace the remuneration provided for in Article 10.
11. LIABILITY
Eyeka shall be liable solely for any direct damage caused on account of a fault committed within the scope of the Agreement. Eyeka shall under no circumstance incur liability for any indirect damage, including but not limited to a loss of income or clientele, any pecuniary or business loss, any business disturbance, any shortfall in earnings or any consequential loss, even in the event Eyeka was aware of the fact that such indirect damage could be caused. Eyeka shall not be held liable for any misuse of the Works by Users, Customers, Partners or any other third party.
12. END OF THE AGREEMENT
12.1. Eyeka’s right to cancel or terminate the Agreement Eyeka may terminate the Agreement, in whole or in part, by operation of law at any time as from the date of execution hereof, without the need to provide a reason for termination, by e-mail, subject to thirty (30) days’ notice from the date of issue of the said e-mail, without prejudice to the damages that may be payable to it by the Contributor. Eyeka may also, at its discretion, terminate the Agreement, in whole or in part, by operation of law as from the effective date hereof, without prejudice to any damages that may be owed to it by the Contributor in the following cases: if the Contributor breaches any one of its obligations hereunder if a formal notice to remedy such breach sent to the Contributor by e-mail or registered letter with advice of receipt requested remains without effect for eight (8) calendar days; if the Contributor is unable to obtain one of the results mentioned in Article 9.5 in the event Eyeka is evicted; if the Contributor is the subject of court-ordered reorganisation or liquidation proceedings, subject to the statutory and regulatory provisions in force, in particular, the right for the court-appointed administrator or receiver to demand that the Agreement remain in effect.
12.2. Termination by the Contributor The Contributor may terminate the Agreement by registered letter with advice of receipt six (6) months after Eyeka receives such letter. If Eyeka fails to pay the amounts owed under the Agreement and a statement has been sent to it, the Contributor may terminate the Agreement by registered letter with advice of receipt requested if a formal notice served on Eyeka to remedy the breach at issue remains without effect for fifteen (15) calendar days. 12.3. Consequences of termination of the Agreement Eyeka shall use its best efforts to remove the Contributor’s Works from Eyeka’s Platform within ninety (90) days of the effective date of cancellation or termination of the Agreement or when the Agreement ends for any reason whatsoever. The Contributor acknowledges that when the Agreement expires or ends for any reason whatsoever, the Works distributed prior to the date of termination of the Agreement shall not be called into question.
13. GENERAL CLAUSES
13.1. Sub-contracting The Contributor expressly authorises Eyeka to sub-contract some or all of its commitments arising hereunder.
13.2. Evidentiary value The Parties agree that they may exchange the information they require to perform the Agreement by e-mail. Any e-mails exchanged between the Parties shall be deemed to have the same evidentiary value as a written hard copy document.
13.3. Independent contractors The provisions of this Agreement by no means constitute a partnership agreement, agency agreement, relationship of subordination or joint venture between the Parties.
13.4. Assignment of the Agreement Eyeka may assign its rights and obligations arising hereunder, in whole or in part, to any legal entity of its choice without the prior consent of the Contributor. However, Eyeka undertakes to notify the Contributor in writing of any such assignment and to inform the latter of the type of legal entity that will be taking over its rights and obligations, the latter’s contact details and the nature and scope of the rights assigned thereto.
13.5. Tolerance In the event either Party fails to rely on a breach by the other Party of any of its obligations hereunder, it shall not be deemed to have waived the obligation at issue.
13.6. Severability If any substantive provision of the Agreement shall be held to be invalid or non-existent, in whole or in part, by virtue of a statutory or regulatory provision or final court order, the other provisions hereof shall remain in force and shall remain fully binding on the Parties. In such event, the Parties shall endeavour to negotiate in good faith in order to agree on the terms of a new clause that is in keeping with the Parties’ original intention in order to replace the clause concerned.
13.7. Amendments Any amendment to this Agreement shall be accepted by both Parties and shall be set out in a supplemental agreement signed by the Parties.
13.8. Surviving provisions The following provisions shall survive expiry or termination of this Agreement for any reason whatsoever:
14. GOVERNING LAW
The Agreement shall be governed by French law, to the exclusion of international law rules.
15. VOLUNTARY SETTLEMENT OF DISPUTES
15.1. In the event a problem arises in connection with the performance of the Agreement, before the Agreement is terminated, cancelled and/or the subject of legal proceedings, the Parties agree to attempt to settle the matter out of court.
15.2. In this respect, the Party that wishes to implement the voluntary conciliation procedure shall notify the other Party by registered letter with advice of receipt requested of its intention to do so and specify the problems that have arisen.
15.3. Throughout the duration of the problem, the Parties agree that the continued provision of the services provided for herein shall be the most important consideration.
15.4. If the Parties fail to reach an agreement within fifteen (15) days of the notice referred to in Article 15.2, the Parties shall recover all of their rights.
16. JURISDICTION
In the event the Parties fail to amicably settle any dispute which arises in connection with the preparation, interpretation or performance of the Agreement, the Parties agree that the courts of Paris shall have exclusive jurisdiction, notwithstanding multiple defendants or third party proceedings, including for urgent proceedings.
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