Last updated January 1st 2020 and replaces all prior versions and agreements.
By submitting Content to Cavan, you are granting certain rights to Cavan Images LLC ("Cavan") and are agreeing to the following terms and conditions ("Terms"). These Terms govern your use of the Cavan Images Services and the upload or submission of any Content to Cavan through the Site.
"Content" means all photographs, illustrations, images, templates, 3D assets, videos and other still or moving visual content in any form, and other font, pictorial, graphic, audio, or any other content, in all cases generated by any means and in any format or media that you submit to us or have previously submitted to us (including all associated keywords, descriptions, credits and captions).
"Site" means our websites and applications that facilitate access to these websites, including but not limited to Cavan.art, and Cavanimages.com, and those of our third party distributors ("Distributors").
Each license of Content to end users by Cavan or Distributors shall be deemed an "End User License". If you submit Content on behalf of an entity, then the Terms apply to that entity and its affiliates. In such cases, you represent and warrant that you have the authority to bind the entity to these Terms.
You agree to comply with the applicable submission requirements available on the Site in effect at the time of submission, which requirements may be amended by Cavan from time to time upon notice to you. Cavan will use reasonable efforts to accept or reject Content submitted by you within ninety (90) days after your submission. Cavan may reject any submitted Content in its discretion. Any Content not rejected within ninety (90) days of submission is deemed accepted by Cavan and shall be deemed "Accepted Content" hereunder.
By Cavan's acceptance of any Content, except as set forth below, you hereby grant to Cavan the worldwide, exclusive right (but not the obligation) to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish and otherwise use all or part of such Content, through any analog or digital means now known or hereafter devised. Such rights shall include rights necessary to promote you, your Content, the Sites, Distributors, our business and other products and services, including use in composites that includes content supplied by a third party. Cavan may (but is not obligated to) sublicense any such rights to any Distributor, customer or other third party and may authorize any of them to exercise such rights. Cavan and Distributors will determine the terms and conditions of all End User Licenses.
You may decide at any time to remove any Content from the Site. In such event, you must supply Cavan with written notice and Cavan will use reasonable efforts to remove the Content from the Site, and that of Distributor sites, within 90 days of such notice (the "Notice Period"). Cavan and Distributors may continue to process End User Licenses during the Notice Period so long as Cavan pays to you the Revenue Share required below. All End User Licenses entered into prior to or during the Notice Period and are in effect prior to the end of the Notice Period shall remain in effect. Cavan shall have no responsibility for terminating such End User Licenses. You shall be solely responsible for ensuring that any third party you grant rights to is aware of and accepts such rights subject to any existing End User Licenses.
You shall also have the right to grant rights to use any of your Content and any Similars (defined below) to third parties, other than to third party agencies and otherwise so long as such rights do not include the rights to sublicense rights to such Content or Similars. In the event you decide to grant exclusive rights to any Content or Similars to any third party, such grant shall be treated the same way as a removal of Content from the Site, and you must similarly supply Cavan with written notice and Cavan will use reasonable efforts to remove the Content from the Site, and that of Distributor sites, during the Notice Period described above. Cavan and Distributors may continue to process End User Licenses during the Notice Period so long as Cavan pays to you the Revenue Share required below.
Cavan will notify you in the event any End User Licenses contain a grant of exclusive right to Content, in which case you will immediately remove such Content and any Similars from any of your sites or sales channels and cease granting further rights in such Content and Similars. As used herein, 'Similars' means any content whose principal elements are depicted in a way that, when compared side by side with any Accepted Content created by you, would cause an industry professional to believe they are substantially the same. Content will not be considered Similars based only on its subject matter
You shall retain ownership in the copyright in all Content in all forms unless otherwise separately agreed to. You may use your Content and Similars for promoting or documenting your work, such as in a portfolio without notifying Cavan, so long as such promotional use does not compete with or limit the rights granted to Cavan under this Agreement or any End User License. You may also use your Content and any Similar as fine art.
In consideration for the rights granted to Cavan as set forth in Section 2 above, Cavan shall pay to you forty percent (40%) of the applicable Net Revenue ("Revenue Share"). Cavan will provide you with monthly statements setting forth all End User Licenses granted with respect to the applicable Accepted Content, and the calculation of Net Revenue and the Revenue Share. Payment of Revenue Share shall be made within thirty (30) days from the end of the calendar month in which Cavan actually collects Net Revenue for such End User Licenses.
"Net Revenue" means the gross amount actually received by Cavan from its customers, Distributors, resellers, agents or international subagents for End User Licenses, less any actual costs, taxes, duties, returns or credits.
Cavan reserves the right to deduct from any payments to you any overpayment of Revenue Share previously made by Cavan, including but not limited to End User License fees which are credited or cancelled, in whole or in part, after Cavan has paid you its Revenue Share based on such fees.
Payments of Revenue Share shall be made when the total amount due to you is equal to or greater than a minimum of $50.00. If any payment due to you is less than $50.00, then such amount shall roll over to the next calendar month and shall be paid to you once the aggregate amount of Revenue Share due to you is a minimum of $50.00.
Cavan may withhold taxes and other fees from payments to you if required by applicable law. The foregoing payments shall be your sole compensation for the rights to the Accepted Content granted to Cavan hereunder.
4. Protection of Accepted Content
Cavan shall have the first right, in its sole discretion, to proceed against any third party for any unauthorized use of Accepted Content, but Cavan shall have no obligation to do so.
5. Warranties and Representations
5.1. Ownership. You represent and warrant that you are the sole and exclusive owner of the Content submitted to Cavan or are the authorized representative of the applicable copyright owner(s).
5.2. Infringement. You represent and warrant that all Content submitted to Cavan is original and the use thereof does not and will not infringe on any third party's rights, including but not limited to copyright, other intellectual property rights, right of publicity or the privacy rights of others, and does not defame any third party.
5.3. Releases. You represent and warrant that you have obtained all necessary releases for each person or piece of property that may be the subject of intellectual property and/or other third party rights contained in the Accepted Content (the "Releases"). Before accepting any Content, Cavan may, in its sole discretion, require Artist to obtain one or more Releases. You agree to supply Cavan with all Releases at the time of submission of Content.
Each party (an "Indemnitor") agrees to defend, indemnify and hold harmless the other party and its affiliates, officers, directors, employees and agents (each an "Indemnitee") from and against all third-party claims and accompanying costs arising out of or in connection with, any material breach of the Agreement by the Indemnitor or any duty, representation, or warranty contained herein by, or any act or material omission of the Indemnitor or its employees of agents. Indemnitor may at its option defend such claim at Indemnitor's expense, and Indemnitee shall cooperate fully in defending or settling such claim, provided that Indemnitor may not settle without Indemnitee's prior written consent, which shall not be unreasonably withheld. You agree that Cavan may retain any amounts due to you under this Agreement or any other agreement you may have with Cavan to the extent that Cavan is owed any sum under this Section 6.
7. Limitation of Liability
Under no circumstances shall Cavan be liable for any punitive, special, indirect, incidental, consequential, or exemplary damages (including, without limitation, misuse of content by third parties, loss of profits, data or use, or cost of cover) arising out of or relating to this Agreement, the Site, or any other interactions with Cavan, even if Cavan has been advised of the possibility of such damages. Cavan shall not be liable for the misuse of Content by any third party or for any loss or damage to any Content or other materials submitted to Cavan, and you are required to provide or maintain your own backup files for any Content submitted. You shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of Content or other materials submitted to Cavan. In no event shall Cavan's total liability to you for all damages, losses, and causes of action arising out of or relating to this Agreement (whether in contract, tort (including negligence), warranty, or otherwise) exceed $5,000 in the aggregate.
8. Term and Termination
8.1. Term. The term of this Agreement will be for one (1) year from the Effective Date (the "Initial Term"), and will automatically renew for consecutive periods of one (1) year (each a "Renewal Term," and together with the Initial Term, the "Term"), unless terminated by either party pursuant to Sections 8.2 or 8.3 below.
8.2. Termination for Convenience. You shall have the right to terminate this Agreement after the Initial Term, for any reason or no reason, upon ninety (90) days' prior written notice to Cavan. Cavan shall have the right to terminate this Agreement at any time, for any reason or no reason, upon written notice to you.
8.3. Termination for Breach. Either party may terminate this Agreement in the event of a breach by the other party of a material provision of this Agreement, immediately upon written notice if the alleged breach is incapable of cure, or upon thirty (30) days prior written notice if such breach is reasonably capable of being cured, but is not cured during such notice period.
8.4. Effect of Termination. Upon termination of this Agreement for any reason, each item of Accepted Content shall remain subject to the exclusive grant of rights described in Section 2 above for no less than ninety (90) days after the effective date of termination (the "Deactivation Period"), and Cavan and Distributors may continue to process End User Licenses during the Deactivation Period so long as Cavan pays to you the Revenue Share required hereunder. Notwithstanding anything to the contrary herein, and except as otherwise agreed between the Parties and the relevant User, Cavan shall have no responsibility for terminating any End User Licenses, all unexpired End User Licenses will remain in effect and you shall not grant rights to any Content (or Similars) in a way that conflicts with any unexpired End User Licenses, during or after the Term.
Notwithstanding the foregoing or anything to the contrary in this Agreement, all provisions of this Agreement, which by their terms apply beyond the termination or expiration of this Agreement, shall survive the Term. The rights to the Approved Content granted pursuant to Section 2 of this Agreement shall also survive the expiration or termination of this Agreement solely to the extent and for the purpose of preserving the validity of any End User License extending beyond the Term of this Agreement.
10. Successors and Heirs
The terms of this Agreement are binding upon and inure to the benefit of the parties' successors in interest, assigns and heirs.
11. Moral Rights
To the extent allowed by law, you waive all Moral Rights relating to the Accepted Content. To the extent such waivers are not permitted by applicable law, you agree not to enforce such Moral Rights against Cavan, Distributors, or their respective customers. When you are not the owner of any Moral Rights, you confirm that all Moral Rights have been waived to the same extent or that you have obtained the same commitment not to enforce Moral Rights. Further, you unreservedly acknowledge and accept that it is common business practice for commercial uses that the creator of the Accepted Content is not credited. For the purposes of this Agreement, "Moral Rights" shall include the following rights and all rights of a similar nature: (i) the right to be identified as the creator of the Accepted Content, (ii) the right to object to misrepresentative modification of the Accepted Content, and (iii) the right to withdraw the Accepted Content from the market (except pursuant to the termination provisions of this Agreement).
12. Nature of Relationship
You agree that you are an independent contractor. The parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, principal-agent or other legal identity, and the parties recognize that Cavan has no obligation to find or offer employment to you. Cavan makes no guarantee you will receive any particular amount of Revenue Share or other income by entering into this Agreement.
The parties acknowledge and agree that the terms of this Agreement, all negotiations relating thereto, and all documents or information pertaining to Cavan's creative, technical and business information; products; devices; apparatuses; technology; processes; methods; formulas; and all other proprietary information and know-how; whether such information is in oral, written, graphic, physical or electronic form, and whether such information is patented, trademarked, copyrighted, or categorized as a trade secret, or know-how, or any form of intellectual property or whether any application for patent, trademark or copyright protection is pending or contemplated are confidential ("Confidential Information"). Except for specific exceptions on which the parties agree in writing, the parties agree to maintain the Confidential Information as it would its own confidential information, so long as that standard is reasonable and not negligent for the nature of the Confidential Information; not to disclose the Confidential Information to any third parties, including to employees without a need to know; and to use the Confidential Information only for the purposes of effecting the purposes of this Agreement.
The parties shall provide notices via e-mail. Notices should be sent to email@example.com.
If any provision of this Agreement shall be unlawful, void, or for any reason, unenforceable, it shall be deemed stricken from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement. If any provision of this Agreement shall be determined, under applicable law, to be overly broad in duration, geographical coverage or substantive scope, such provision shall be deemed narrowed to the broadest term permitted by applicable law.
16. Entire Agreement
This Agreement represents the entire agreement and understanding between the parties hereto regarding the subject matter hereunder, and supersedes any and all previous written or oral agreements or discussions between the parties.
17. Governing Law; Venue
This Agreement will be construed and enforced in accordance with the laws of the State of New York, excluding its laws relating to conflict of laws. In any action arising out of this Agreement, you consent to personal jurisdiction and the exclusive venue of the state and federal courts sitting in New York County, NY.
You may not assign your rights or obligations under this Agreement without the prior written approval of Cavan, not to be unreasonably withheld. Cavan may assign its rights, obligations and duties under this Agreement, in whole or in part, without restriction and without notice to you.
Cavan may, upon providing you with thirty (30) days prior notice by email, make amendments to this Agreement, at which time, notwithstanding anything to the contrary in this Agreement, you shall have the right to terminate this Agreement. It is your responsibility to keep Cavan informed of your current email address. Continued submission of Content or failure to terminate this Agreement within thirty (30) days of Cavan notifying you of any amendments to this Agreement will be deemed acceptance by you of such amendments, and such amendments will be incorporated by reference into this Agreement and will supersede any prior conflicting terms contained in this Agreement commencing on the effective date of such amendment.