This Designer License Agreement (the “Agreement”) applies if you create and/or submit Designs to Gantri, Inc. (“Gantri”) for Products on or through Gantri Technology. For the purposes of this Agreement, “Designs” means any and all artwork, photographs, drawings, text, media file, and product specifications that you send to Gantri through the Gantri Technology; “Gantri Technology” means Gantri’s proprietary technology to manufacture and provide Products, including, but not limited to, certain software, applications, and websites (including, but not limited to, the e-commerce site http://www.gantri.com); and “Products” means design and lifestyle products. Users of the Gantri Technology who submit or upload Designs for Products are referred to as “Designer” “you”, “your”, and “yours”. You and Gantri are each referred to as a “Party” and collectively as the “Parties” for purposes of this Agreement.
Designer agrees to provide the following services: (a) create and develop Designs (“Submitted Designs”) for Products offered by Gantri; (b) provide such Submitted Designs to Gantri for review and potential inclusion in Gantri’s online catalogue; and (c) ensure that each Submitted Designs complies with Gantri’s written design policies. Designer acknowledges that Gantri does not guarantee that Gantri will review any or all Submitted Designs nor will any Submitted Designs will be accepted as a Qualified Design.
Gantri, at its sole discretion, may review a Submitted Design and/or accept a Submitted Design for inclusion in its Products catalogue (each such accepted Submitted Design, a “Qualified Design”). With respect to each Qualified Design, the Parties agree as follows: a) Gantri shall (i) provide prototypes of end-product of the Qualified Designs (the “End Product”); (ii) provide promotional and marketing material for the Qualified Designs; (iii) provide all electronic components for each End Product; (iv) manufacture the End Products as ordered by Gantri’s customers and end-users; and (v) shipping all customer support for such End Products. b) Designer agrees to make each Qualified Design exclusive to Gantri for a time period as determined by Gantri, in Gantri’s sole discretion. Designer further acknowledges and agrees that Gantri shall have the sole control and discretion on any and all marketing and promotion of the Qualified Design, the retail price of any and all End Products, and the inclusion of a Qualified Design on Gantri’s active catalogue available to Gantri’s end-users. c) Designer may remove a Qualified Design from Gantri’s catalogue at any time after the expiration of twelve (12) months from the date that such Qualified Design is offered to Gantri’s end users. Gantri may remove a Qualified Design from Gantri’s online catalogue at any time.
Gantri shall be responsible for collecting all revenue arising from the sale of the End-Products. Designer will be entitled to receive a royalty payment (the “Royalty Fees”) equal to the amount specified on the then-current fee policy (the “Designer Fee Policy”), as posted here. Gantri may amend the Fee Policy at any time in accordance with Section 11(i) of this Agreement. Designer shall be solely responsible for all state and federal income taxes, unemployment insurance and social security taxes and for maintaining adequate workers’ compensation insurance coverage for itself. Any such Royalty Fee shall be paid in accordance with the Company’s policy then in effect, but in no event less frequent than on a quarterly basis. Upon the termination of this Agreement, Designer shall be entitled to receive the Royalty Fees for so long as Gantri uses a Qualified Design.
(a) Gantri Technology. Gantri retains all right, title and interest in and to the Gantri Technology and any and all of its proprietary technology, products and promotional materials developed or provided prior to and after the date of this Agreement, using solely Gantri’s resources. Designer, on behalf of itself and on behalf of the Designer Website, acknowledges that, except for the limited license expressly granted in this Agreement, Designer has not acquired and will not acquire any right, interest or title to the Gantri Technology by reason of this Agreement. (b) Submitted Designs. Designer retains all right, title and interest in and to the Submitted Designs and any and all of its proprietary technology, products and promotional materials developed or provided prior to and after the date of this Agreement, using solely Designer’s resources. Gantri acknowledges that, except for the limited license expressly granted in this Agreement, Gantri has not acquired and will not acquire any right, interest or title to the Submitted Designs by reason of this Agreement. (c) License. (i) Licensed to Qualified Designs. Designer hereby grants Gantri a perpetual, worldwide, transferable license to use, copy, produce, modify, distribute, and otherwise commercially exploit the Qualified Design and End Products. Designer hereby grants Gantri’s users and customers a perpetual, royalty-free, worldwide license to use the Qualified Designs in the End Products. (ii) Use of Likeness. Designer hereby consents to the use by Gantri of Designer’s name, likeness and biographical material for Gantri’s promotional, advertising and marketing or trade purposes and for all media, including but not limited to, print, video, electronic, internet, and digital formats whether now known or hereafter created (collectively, the “Marketing Material”). Designer acknowledges and agrees that any and all Marketing Material shall be the sole and exclusive property of Gantri. Designer hereby releases Gantri from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced, or any unintentional misspellings or inaccuracies. Designer waives any right to inspect or approve any photo, video, or film taken by Gantri. (iii) Downloadable Materials. Subject to the terms of this Agreement and as further set forth in the Gantri Terms & Conditions, Gantri: (1) hereby grants Designer a limited, personal, non-transferable, non-sublicensable, non-exclusive license to use the materials that Designer downloads through the Gantri Technology (including, but not limited, to Design templates), along with any documentation that might accompany such materials (collectively, the “Downloadable Materials”); (2) provides the Downloadable Materials “AS IS” and without warranty of any kind; and (3) Gantri hereby disclaims all express or implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, performance, accuracy, reliability, and non-infringement.
Designer (for Designer and for any of Designer’s affiliate, assigns, and heirs) hereby generally, irrevocably, unconditionally and completely releases and forever discharges each of Gantri, its successors and past, present and future assigns, directors, officers, employees, contractors, agents, end-users, attorneys and representatives (collectively with Gantri, the “Releasees”), from any and all claims, liabilities, demands, causes of action, attorneys’ fees, damages, or obligations of every kind and nature, whether they are known or unknown, arising from or related to each Submitted Design, each Qualified Design, and all Marketing Material, including, but not limited to, any claims of infringement of intellectual property or proprietary rights. In releasing claims unknown to Designer at present, Designer hereby waives all rights and benefits under Section 1542 of the California Civil Code, and any law or legal principle of similar effect in any jurisdiction: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Unless prior written consent is obtained from a Party hereto, the other Party will keep in strictest confidence all information identified by the first Party as confidential. A Party shall be excused from these nondisclosure provisions if the information has been, or is subsequently, made public by the disclosing Party, is independently developed by the other Party, if the disclosing Party gives its express, prior written consent to the public disclosure of the information, or if the disclosure is required by any law or governmental or quasi-governmental rule or regulation. Each Party agrees that violation of this Section would result in irreparable injury and the injured Party shall be entitled to seek equitable relief, including injunctive relief and specific performance in the event of any breach hereof.
Each Party (the “Indemnifying Party”) will indemnify and hold harmless the other Party (the “Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and expenses of attorneys, accountants, and experts (collectively, the “Damages”), arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, the “Claims”) brought against the Indemnified Party (a) alleging that the services, content and materials provided pursuant to this Agreement by the Indemnifying Party infringes any patents, copyrights or other proprietary rights of any third party; (b) arising from or related to any violation by the Indemnifying Party’s of any applicable federal, state, or local law, rules, and/or regulation; and/or (c) for any Damages arising from or resulting from the services provided by the Indemnifying Party. The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (the “Actions”) that is the subject of this Section 7. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(a) Term. The initial term of this Agreement shall commence on the date that Designer enrolls as “Designer” (the “Effective Date”) and shall continue for twelve (12) months following the Effective Date, unless sooner terminated pursuant to Section 8(b) below (such period, the “Initial Term”). Following the Initial Term, the term of this Agreement shall automatically renew for an additional twelve (12) months (each such additional term, the “Renewal Term”, and collectively with the Initial Term, the “Term”). (b) Termination. This Agreement may be terminated by either Party at any time upon written notice to the other Party. This Agreement shall terminate immediately in the event a Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such Party, or if a receiver or trustee is appointed for all or any part of the property or assets of such Party. The date on which this Agreement terminates pursuant to this Section 8(b) shall be the “Termination Date”. (c) Effect of Termination. Notwithstanding anything to the contrary in this Agreement, any termination of this Agreement shall not relieve either Party hereto of any of its obligations or liabilities accrued hereunder prior to the Termination Date. Within ten (10) days following the Termination Date, each Party shall return to the other Party or destroy, as instructed by the other Party, all copies of confidential information of the other Party then in the Party’s possession. Upon the termination of this Agreement, Designer shall be entitled to receive the Royalty Fees for so long as Gantri uses a Qualified Design. The definitions of this Agreement and the respective rights and obligations of the Parties under Sections 2 through 11 shall survive any termination or expiration of this Agreement.
EACH PARTY makes no express or implied warranties or representations with respect to SUCH PARTY’S WEBSITE, CONTENT, OR SERVICES, including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, EACH PARTY makes no representation that the operation of SUCH PARTY’S SERVICES will be uninterrupted or error-free, and NEITHER PARTY will Be liable for the consequences of any interruptions or errors. NEITHER PARTY REPRESENTS OR WARRANTS THAT SUCH PARTY’S SERVICES OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH SUCH PARTY’S SERVICES WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
EXCLUSIVE OF LIABILITY UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH OF THE PARTY’S RESPECTIVE TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER.
(a) Independent Contractors. The Parties and their respective personnel are and shall be independent contractors and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party. (b) Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. (c) Severability. In the event that any one or more of the provisions contained herein shall for any reason be held invalid, unenforceable, or void in any respect under the laws of the jurisdiction governing the entire Agreement, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. (d) Notice. All notices required or permitted under this Agreement shall be in writing (including by email) and shall be deemed effective (a) upon personal delivery; (b) upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the shipping shown on the signature page hereto, or at such other shipping or addresses as either party shall designate to the other in accordance with this section; or (c) if sent by email to the shipping shown below, upon sender’s receipt of an acknowledgement from the recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that, if such email is not sent during the recipient’s regular business hours on a regular business day, then such email notice shall be deemed to have been sent at the opening of business on the recipient’s next business day. Notice to Gantri may be sent to Gantri, Inc., 170 Capp Street, Suite 3B, San Francisco, CA 94110 or at by email at [email protected] Notice to Designer may be sent to Designer’s shipping and/or email on Designer’s account with Gantri. (e) Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by either Party without the express prior written consent of the other Party or its successors (which consent will not be unreasonably withheld), except for an assignment by either Party to another entity acquiring such Party through direct acquisition, merger or similar transaction, and which entity has expressly agreed to assume all rights and obligations of such acquired Party hereunder, and any purported assignment in derogation of the foregoing shall be without any effect. (f) Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of California. Each of the Parties hereto irrevocably consents to the exclusive jurisdiction and venue of any court within San Francisco County, State of California, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of California for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process. (g) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, successors, assigns, administrators, executors and other legal representatives. (h) Force Majeure. Except for payment obligations hereunder, neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers. (i) Amendment. Gantri may modify this Agreement at any time, and such modification will be effective immediately upon either (i) posting the modified Agreement or (ii) notifying Designer (the “Modification Effective Time”). If Designer does not agree to an amendment to this Agreement, Designer will not submit any new Submitted Designs using the Gantri Technology, and all previously Submitted Designs will continue under the terms of the Agreement and Designer Fee Policy that was in effect immediately prior to the Modification Effective Time. (j) User Agreement. This Agreement supplements the Gantri Terms & Conditions, which is incorporated by this reference; provided, however, if any of the terms in the Gantri Terms & Conditions conflict with any terms in this Agreement, the terms in this Agreement shall prevail. (k) Entire Agreement. This Agreement, together with all attachments hereto and/or documents referenced herein, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.