Artist Supply Agreement

This Agreement governs the terms by which a designer (the "Supplier") provides website templates, designs, themes, logos, or other products (the "Exclusive Content") to Template Harvest on an exclusive basis to be licensed to customers through the web site located at www.templateharvest.com (the "Site"). This Artist Supply Agreement is in addition to the Terms of Use applicable to the Site.

Provision of Exclusive Content

The Supplier will provide Exclusive Content to Template Harvest according to procedures and policies of the Site or such other procedures and policies as the parties may mutually agree. Template Harvest, in its sole discretion, may determine which of such Exclusive Content is suitable for posting on the Site or other means of distribution, and only such Exclusive Content as it deems suitable will be considered "Accepted Exclusive Content" for the purposes of applicable provisions of this Agreement.

Grant of Authority

The Supplier hereby appoints Template Harvest as Supplier's exclusive agent and sole distributor to license Exclusive Content to third parties within the jurisdictions of Template Harvest's business, and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement.

In addition to the foregoing grant, Template Harvest may post, reproduce, modify, display, make derivative works or otherwise use any Exclusive Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the sale or licensing of Exclusive Content (including, without limitation, the use of the Exclusive Content and the Supplier's registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). The Supplier agrees that Template Harvest shall have exclusive rights to design marketing literature for the Exclusive Content, at its own expense, and the Supplier agrees to cooperate in that regard. No compensation shall be due to the Supplier for use of Exclusive Content for such business purposes.

The Parties agree that all rights, including title and copyright, in and to the Exclusive Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Template Harvest or any third party.

Intellectual Property Matters

The Supplier acknowledges that Template Harvest prohibits any Exclusive Content, Descriptive Information or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Sites.

By uploading Exclusive Content, you are warranting that you own all proprietary rights, including copyright, in and to the Exclusive Content with full power to grant the rights contemplated to be provided in the Content License Agreement in such Exclusive Content, and that you are not making any of the Exclusive Content available to or through any other distributor, website or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein.

The Supplier agrees that neither Template Harvest nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Exclusive Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Exclusive Content or Descriptive Information.

Compensation

Template Harvest agrees to pay a portion of the fees collected in respect of Accepted Exclusive Content that is purchased by end-users according to the Rate Schedule. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of Template Harvest in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, you may refrain from providing additional Exclusive Content or terminate this Agreement in accordance with its terms.

The parties further agree that Template Harvest shall not be required to pay royalties or fees to the Supplier if Template Harvest is restrained or otherwise prevented from using rights granted under this Agreement relating to Exclusive Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party, or if Template Harvest discovers or determines in its reasonable discretion that the Exclusive Content provided by the Supplier appears for sale or license or give-away elsewhere in contravention of this Agreement.

In the event Template Harvest facilitates a sale or license of Exclusive Content that requires an amendment to the standard Content License Agreement to facilitate such transaction, Template Harvest shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale.

Free Template Downloads

Template Harvest Members will earn a download credit with each new product upload that is approved by Template Harvest Admins and put for sale at templateharvest.com.

Members can use the credit to download a template of similar type to the product they uploaded to earn the credit (if a member uploads a website template, then the credit they earn will be good for another website template, not a logo design or other product type).

When a Free Download Credit is used, the product author will not receive any kind of commission, payment, or other compensation for the Free Download.

Passwords

You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Email Address and such passwords, and that Template Harvest is authorized to accept your Email Address and password as conclusive evidence that you wish to upload Exclusive Content pursuant to this Agreement. Template Harvest shall have no liability or responsibility to monitor the provision of Exclusive Content under your member name and password.

Managing Exclusive Content

Template Harvest has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license, and Template Harvest agrees to give priority to the posting of Exclusive Content within the general constraints of its business. Notwithstanding that some qualitative standards are required to be met, Template Harvest does not and cannot review all Exclusive Content or Descriptive Information uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Exclusive Content or Descriptive Information. Notwithstanding the foregoing, Template Harvest reserves the right to delete, move, refuse to accept or edit any communication or Exclusive Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Template Harvest or as it may direct. Template Harvest shall have the right but not the obligation to correct any errors or omissions in any Exclusive Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Exclusive Content or Descriptive Information performed by Template Harvest to determine Accepted Exclusive Content is done as a courtesy only.

You further agree that any Exclusive Content that is not accepted by Template Harvest and does not form Accepted Exclusive Content cannot be sold, licensed or otherwise made available to purchasers, licensees or other potential users without the prior written consent of Template Harvest. Template Harvest reserves the right to sell non-accepted Exclusive Content through another site or distribution venue determined by it, the compensation for which will be subject to a new rate schedule agreed between the parties.

NOTICE: You acknowledge that the Exclusive Content you provide pursuant to this Agreement that becomes Accepted Exclusive Content may be purchased or licensed by customers with the intention that they will adhere to the terms of the Content License Agreement. Where Template Harvest becomes aware of the breach of a license agreement by a user of Exclusive Content, it agrees that it will take initial steps in accordance with its usual business practices for the exclusivity program to request that the offending party refrain from its prohibited use of such Exclusive Content. Template Harvest will use commercial efforts to further assist in the protection of your intellectual property rights, at your request and expense.

Notwithstanding the foregoing, Template Harvest cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Exclusive Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Exclusive Content at law, Template Harvest shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Exclusive Content.

Content License Agreement

The Supplier agrees to allow Template Harvest customers to use purchased products according to the Content License Agreement.

Confidential Information

The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Exclusive Content constitutes valuable, confidential, proprietary information of Template Harvest and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Template Harvest, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.

For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of Template Harvest, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.

Representations and Warranties

The Supplier hereby represents and warrants as follows:

  1. The Supplier has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Exclusive Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Exclusive Content or any other intellectual property or technology that would conflict with this Agreement;
  2. no portion of the Content as delivered to Template Harvest from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
  3. the Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content; and
  4. the Content delivered to Template Harvest hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.

    5. You represent and warrant that you shall not: (i) license your own Exclusive Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another Template Harvest member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph Template Harvest may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.

    Indemnity

    You agree to indemnify, defend and hold Template Harvest and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Exclusive Content (collectively, the "Template Harvest Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Template Harvest Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Email Address by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Email Address; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Template Harvest Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement and the Content License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.

    Template Harvest reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Template Harvest's defense of such claim.

    The Supplier agrees that Template Harvest shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of the Content License Agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases Template Harvest from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by Template Harvest to proceed or not to proceed against any Infringer in any instance. Template Harvest hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Template Harvest for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of Template Harvest in connection with such action, be divided between the Supplier and Template Harvest pursuant to the provisions of the Compensation section above. In the event Template Harvest elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between the Supplier and Template Harvest pursuant to the provisions of the Compensation section above.

    Term and Termination

    This Agreement is effective until terminated. You may terminate this Agreement with respect to a specific Product by removing it from the Upload system.

    Either party may terminate this Agreement upon written notice effective immediately sent to the last address included on the Site, if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.

    In addition, Template Harvest may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of Template Harvest, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Supplier provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Supplier based on the information provided through the Site as part of the account profile of such Supplier.

    Effect of Termination

    Upon termination, Template Harvest will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.

    Termination of this Agreement shall operate without prejudice to the Template Harvest's rights, defenses and limitations of liability provided under this Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Exclusive Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.

    DISCLAIMER OF WARRANTIES

    THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY Template Harvest "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Template Harvest DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.

    Template Harvest DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

    LIMITATION OF LIABILITY

    YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.

    IN NO EVENT SHALL Template Harvest OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF Template Harvest HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

    IN ANY EVENT, Template Harvest'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY Template Harvest FOR THE EXCLUSIVE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($5.00) UNITED STATES DOLLARS.

    SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF Template Harvest OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

    Applicable law

    The Sites are controlled, operated and administered by Template Harvest from within the state of California, United States. The Sites can be accessed from all states in the US, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the Province of Alberta, you acknowledge and agree that this Agreement will be governed under the laws of the state of California and the federal laws of United States applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the state of California, United States with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

    You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Template Harvest related to the Site, this Agreement or any agreements contemplated hereby.

    Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Los Angeles, California.

    If Template Harvest is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Template Harvest for its legal fees, costs and disbursements if Template Harvest is successful.

    General

    You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.

    Template Harvest's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

    This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without Template Harvest's prior written consent. Template Harvest may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

    If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

    This Agreement can be amended by the written agreement of the parties or by Template Harvest posting amendments on the Upload portion of the Site. Continued provision of Exclusive Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.

    Contact

    If you have concerns relating to this Agreement, please contact Template Harvest at support[at/@]templateharvest.com.

    Acknowledgement

    YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF Template Harvest AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR EXCLUSIVE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND Template Harvest, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND Template Harvest RELATING TO THE SUBJECT OF THIS AGREEMENT.