This is a legal agreement (the “Agreement”) between you, or the “Artist,” and Big Motion Studio, LLC, a Florida limited liability company, d/b/a “PLACEART,” with its principal office located at 1680 W. 33RD Place, Hialeah, FL 33012 (also referred to as “PlaceArt”). “You” or “Your” shall also shall refer to the Artist. Artist and PlaceArt may also each be referred to as a “Party,” and together as the “Parties.”
PlaceArt owns and operates this website, or placeart.app, and related mobile applications (together, the “Website”). This Agreement states the terms and conditions that govern Artist’s use of this Website, and the services provided or sold to Artist by PlaceArt through the Website. Further, this Agreement describes and controls the rights You are granting to PlaceArt in any photographs, images, vectors, moving images, animations, films, videos, audiovisual works or other media together with any associated keywords, metadata, descriptions, and/or titles submitted by You to PlaceArt (collectively, "Content").
This Agreement shall incorporate and include all information provided by You, as the Artist, to PlaceArt through the Website, and through third-party applications used by the Website to obtain Artist information; upload and obtain Content from Artist; obtain payment and billing information from Artist; check-out and process payments of Artist (together, the “Online Application Process”). For certain types of features available through the Website, including the Online Application Process, create usernames and passwords, upload your Content and to create your user account ( your "User Account"), and You agree that we may do so.
This Agreement shall therefore incorporate all information and content provided by Artist through the Website and the Online Application Process, including all Content, User Account information; Artist’s name, email and address; and any consents, acknowledgements or any other information provided by Artist through the Online Application Process. This Agreement, which includes the Online Application Process, shall constitute and shall be part of one agreement between Artist and PlaceArt.
This Agreement is subject to changes, updates and additional terms, rules and policies, which are effective upon posting on the Website. You agree to be bound to any changes to this Agreement when You use this Website.
PlaceArt offers services (the “Services”) to Artist that allows Artist to create a User Account, upload Content and exhibit Content on our Website to third party customers of PlaceArt (the “Customers”). The Services are sold by PlaceArt to Artist through the Website and Online Application Process, and vary according to selection purchased by Artist (the “Subscription”).
Artist’s Subscription is a thirty (30) day subscription commencing from the date of purchase that renews automatically every thirty days thereafter. By selecting the Subscription, Artist agrees to pay the Subscription fee for the Subscription selected by Artist (the “Subscription Fee”). The Subscription Fee auto-renews every thirty-days thereafter (the “Renewal Period”), and Artist agrees to pay the Subscription Fee for every Renewal Period thereafter through automatic payments from your User Account. Artist consents to having PlaceArt obtain all necessary information from Artist’s User Account to process and make auto-payments for each Renewal Period.
Artist agrees to pay for any and all Subscription Fees and that PlaceArt may charge Artist’s User Account for all Subscription Fees and debit Artist during any Renewal Period.
Termination of Subscription and Services
Artist or PlaceArt may terminate Subscription, with or without cause, at least thirty days before commencement of the next Renewal Period. Automatic payments of the Subscription Fee will continue through the next Renewal Period if Artist terminates less than 30 days before commencement of the next Renewal Period. Failure of Artist to pay Subscription Fee, will terminate Subscription immediately.
For the sake of clarity, your Content will remain available to Customers during the Renewal Periods until termination of your Subscription becomes effective as described above. If your subscription is terminated immediately by PlaceArt, your Content, at PlaceArt’s sole discretion, may remain available to Customers for an additional 30 day period after the immediate termination.
For each Subscription you will require to create your own User Account. Your User Account will be used by Artist to create your username and password, upload and manage Content and create your user portfolio, input your credit card or debit card, or banking information for processing Subscription Fee payments and Compensations, monitor Customer purchases of your Content.
You agree to provide true and complete information relating to your User Account and Content, including but not limited to information relating to the date, location and equipment used in connection with creation of the Content, your personal information, and banking and payment information. You warrant and represent that the information relating to your User Account and Content is true and correct, and complete.
Artist is solely responsible for updating banking, credit card, debit card or any other information regarding payments or payment processing, email or contact information. Artist must ensure that any such information is current and up to date at all times.
PlaceArt has the right to refuse to establish a User Account or to close any existing User Account, for fraud, intellectual property infringement, violation of a third party's rights including those of privacy or publicity, artificially inflating downloads, submission of material that is obscene in nature, violent or that might be construed as defamatory, failure to comply with PlaceArt’s guidelines as may be amended from time to time, for any breach of the terms of this or any other agreement that you have with PlaceArt. Termination of your User Account by PlaceArt under this paragraph terminates your Subscription immediately, and Artist shall not be entitled to reimbursement of any Subscription Fees paid by Artist.
You may remove Content from your User Account at any time, provided that in any ninety (90) day period, you remove no more than 20% of your Content.
If your User Account is terminated for any reason, you must obtain written authorization from PlaceArt prior to establishing another account. You may not have more than one active User Account at any time without the written consent of PlaceArt in each instance.
If you do not upload any Content, or upload new Content during any Renewal Period, or if you do not use your User Account, or continue to use your User Account during any Renewal Period, you are still required to pay your Subscription Fees, and you will be debited for any such payments, unless and until you terminate your Subscription as provided above.
You agree to follow PlaceArt’s Content Guidelines, which are attached hereto and made part of this Agreement, or deemed incorporated herein by its reference. The submission of Content that does not adhere to PlaceArt’s Guidelines is a breach of this Agreement, and PlaceArt shall be entitled, without waiving any other rights, claims or remedies that PlaceArt may otherwise be entitled to under this Agreement or applicable laws, to terminate this Agreement and Artist’s use of the Website.
Rights of PlaceArt to Content
By submitting any Content to PlaceArt, you grant to PlaceArt a worldwide, non-exclusive right and license to copy, reproduce, prepare derivative works incorporating, publicly display, sublicense, sell, advertise, market, and any Content uploaded by You and accepted by PlaceArt, until this Agreement is terminated as herein provided. You also give permission to PlaceArt to add, modify or remove information related to your Content in order to manage such Content.
By submitting any Content to PlaceArt, you grant to PlaceArt a worldwide, non-exclusive right and license to use your name, display name and Content in connection with PlaceArt's marketing and promotional activities without the payment of any compensation to you. PlaceArt, in the exercise of its discretion, may refrain from any or all of the foregoing without any liability to you.
By submitting any Content to PlaceArt, PlaceArt may exhibit or showcase the Content of Artist in conjunction with, next to, or as a series or collection with Content from other artists. PlaceArt, in the exercise of its discretion, may refrain from any or all of the foregoing without any liability to you.
By submitting any Content to PlaceArt, You expressly waive any artists' authorship rights or any droit moral that you would otherwise have under applicable laws, including the United States Copyright Act or similar laws of any jurisdiction, so that customers may use your Content in accordance with PlaceArt terms.
The Parties understand and agree that the rights heretofore granted to PlaceArt by Artist shall include, without limitation the following: (i) the right to photograph, film and/or record Content, digitally or through any other electronic means; (ii) to gather and/or store digitally or through other electronic means, the recorded images of Content; (iii) to copy recorded images of Content or to reproduce images of Content; (iv) to duplicate, edit, alter or otherwise use recorded images and other reproductions of Content in any manner and/or in any medium; and (v) sell, or otherwise exploit those recorded images, reproductions, or derivative works incorporating Content, in any manner and in any medium. This paragraph shall not be construed in any way limiting the rights heretofore granted to PlaceArt by Artist, and shall be interpreted, if the situation so requires it, as expanding on those rights.
Ownership of Content
The copyrights in all Content remain with the copyright owner, and nothing in this Agreement shall be construed as a transfer of copyright to PlaceArt.
PlaceArt has the right to refuse to accept or to remove Content from the Website for any reason. PlaceArt will remove Content if PlaceArt believes that such Content may (in PlaceArt's sole discretion) subject PlaceArt or any of its officers, managers, directors or employees to legal action, if the Content violates this Agreement, or if the PlaceArt deems the Content inappropriate or offensive.
Promotional Use of Content
PlaceArt may advertise, promote and/or market your Content on other websites, catalogues, promotional materials, or on social media platforms including Facebook, Instagram, Tumblr, Twitter, and similar sites and the applications related thereto.
Representations and Warranties
Artist represents and warrants that:
Artist has the full right, power and authority to enter into this Agreement and to fully perform all of your obligations hereunder;
Artist is under no legal disability or contractual restriction that prevents Artist from entering into this Agreement;
Artist is at least 18 years of age;
The Content and all parts thereof are owned and/or controlled by you, unencumbered and original works and are capable of copyright protection in all countries where copyright or similar protection is available;
Artist possesses title to the Content that is unencumbered, marketable and insurable, and has full right and authority to grant such licenses as provided hereunder;
If the Content consists in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools and the like that are included in design programs (e.g., Photoshop, Adobe), the end user license agreement, terms of service or the equivalent license held by you permits you to incorporate such elements in Content created by you, and to license such Content to PlaceArt for the purposes set forth herein.
The Content is neither obscene nor defamatory, does not violate any applicable laws and/or regulations, and does not infringe the copyright or any other rights of any third party, including, without limitation, trademark rights and the rights of privacy and publicity.
There is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect the Content or which might in any way impair the rights granted by Artist hereunder; and
Artist agrees that you are legally able to enter into this Agreement, and that none of the content you submit will violate any laws or infringe any third party's rights.
Artist will not transmit unsolicited emails or engage in so-called "spamming" to publicize or promote your relationship with PlaceArt or the sale of your Content - nor will you falsely advertise or deceptively publicize your relationship with PlaceArt in a manner that mischaracterizes or implies sponsorship, endorsement, employment or any other affiliation that exceeds the actual scope of your relationship to PlaceArt, nor will you use PlaceArt's Trademarks through the use of search engine advertising and/or marketing.
PlaceArt represents and warrants that:
it has the power and authority to enter into this agreement and to fully perform all of its obligations.
You agree to provide valid and accurate model releases for all Content you contribute to PlaceArt that, in PlaceArt's judgment, contains an identifiable face or identifiable human figure or other identifiable attribute including, without limitation, voice, appearance, or likeness. You also agree to provide valid and accurate property releases to PlaceArt for all Content that requires such releases, which determination shall be made in PlaceArt's sole discretion. All releases shall be electronically delivered to PlaceArt with the Content.
You agree that You are solely responsible for retaining all original releases and maintaining complete and accurate release records.
The submission of falsified, inaccurate or otherwise defective model releases is a material breach of this Agreement. Releases submitted by you shall not contain any terms inconsistent with this Agreement.
You agree that PlaceArt may furnish copies of releases to customers, as necessary, in order to respond to any potential or actual legal action, to comply with applicable laws, regulations, and/or union reporting requirements, or any other reason PlaceArt deems reasonable in its sole discretion.
For each unique Customer purchase of Content for which Artist/ PlaceArt receives payment, Artist/ PlaceArt will be compensated according to the current royalty/compensation rates are set forth on the Earnings Schedule, which schedule is incorporated herein by reference (the “Compensation”). If a Customer purchases the same item of Content more than once, Artist/ PlaceArt will be paid once only.
Compensation payments and accompanying statements will be paid and issued monthly, on or about the 15th day of each month, for the previous month's downloads (the “Accounting Period”). Compensation payments are automatic and do not need to be requested.
There is a minimum payout rate per Accounting Period of Fifty US Dollars (US$50.00). If during an Accounting Period the payout minimums has not been reached, the Compensation payment will be rolled over into the next Accounting Period until the payout minimum is met or if Subscription is terminated.
Artist agrees to pay for any and all Compensation to PlaceArt, and PlaceArt may charge Artist’s User Account for any Compensation owed to Artist as per the terms of this Agreement.
By subscribing to our Services or by submitting Content, You acknowledge that You will acquire certain confidential and proprietary information of PlaceArt, including but not limited to Compensation rates, payments, and earnings data (collectively, "Confidential Information"). You agree to keep Confidential Information confidential and to not disclose Confidential Information to any third party other than representatives, agents, attorneys, accountants, auditors and advisors with a bona fide need to know, who shall first agree to keep the terms confidential.
For the purposes of this Agreement, the term "Trademark(s)" means all common law or registered trademarks, logos, service marks, trade names, Internet domain names, or other indications of origin now or in the future used by PlaceArt.
Nothing contained herein grants or shall be construed to grant Artist any rights to use any Trademarks of PlaceArt.
You agree that you will not use PlaceArt's Trademarks in any manner that might tarnish, disparage, or reflect adversely on such Trademarks or PlaceArt, nor will You contest or otherwise challenge (e.g., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of any of PlaceArt’s Trademarks or the Trademark rights claimed by PlaceArt.
You agree that you will not use any PlaceArt’s Trademarks or any variant thereof including misspellings) as a domain name or as part of a domain name regardless of the top-level domain, as part of a blog name or social media handle or channel, or as a metatag, keyword, or any other type of programming code or data.
You may not at any time, adopt or use, without PlaceArt's prior written consent any word or mark which is similar to or likely to be confused with PlaceArt’s Trademarks.
The look and feel of this Website, including all page headers, custom graphics, button icons, and scripts, is the trade dress and/or trademark or service mark of PlaceArt and may not be copied, imitated or used, in whole or in part, without the prior written consent of PlaceArt.
You may not use PlaceArt’s Trademarks in any form without permission.
You may not frame or hotlink to Website or to any item of Content other than your own without the prior written consent of PlaceArt. You may not copy, frame, or hotlink to the Websites without permission of PlaceArt.
All rights in and to PlaceArt's Trademarks not expressly granted to you hereunder are reserved by PlaceArt.
Copyright Infringement Claims
You hereby grant PlaceArt the right and authority to take such steps as PlaceArt deems commercially reasonable to protect PlaceArt's rights in the Content.
In the event that you believe that your Content is being misused, you shall take no action against a PlaceArt without providing notice of such misuse to PlaceArt and receiving PlaceArt's prior written consent to such action.
PlaceArt has no obligation to pursue legal action against any alleged infringer of any of Artist’s rights in and to any Content.
In the event PlaceArt receives a complaint about your Content, PlaceArt may suspend access to such Content and terminate your Subscription and disable or delete your User Account.
If you knowingly or repeatedly submit false copyright infringement claims and takedown notices to PlaceArt, PlaceArt reserves the right to terminate your Subscription and disable or delete your User Account with no further notice to you.
This Agreement shall not be construed in any way as making PlaceArt an agent, publicist, or consultant of Artist, or for any other art work of Artist. PlaceArt shall not be responsible in any way for promoting or marketing Artist, Artist Content or other art works, services or products of Artist. PlaceArt is not obligated to accept any specific content from Artist, and may refuse to accept or remove any Content as provided herein.
Effect of Termination
Termination of your Subscription terminates this Agreement and your User Account. Your User Account and your Content will be removed after the effective day of termination. However, You agree that PlaceArt may use, keep or store any Content or any other User Account information after termination of your Subscription, or after it is removed by You or by PlaceArt, for record-keeping, monitoring, and administrative purposes, or for any other purpose that is reasonable and fair. The using, keeping or storing of any Content by PlaceArt after termination of Subscription shall not entitle Artist to any Compensation that is not already specified herein.
Any provisions in the Agreement that should, by its very nature, should survive termination, shall so survive termination of your Subscription and/or of this Agreement.
You agree to indemnify and hold PlaceArt, its subsidiaries, affiliates, directors, officers, and employees harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys' fees and disbursements) arising out of any breach or claimed breach of any of your representations or warranties or any of your obligations under the Agreement. Except in the case of third party claims, You will not be liable for any incidental, consequential, or special damages.
PlaceArt shall indemnify and hold You harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys' fees and disbursements) arising out of any breach or claimed breach of any of PlaceArt's representations or warranties or any of PlaceArt's obligations pursuant to the Agreement. Except in the case of third party claims, PlaceArt will not be liable for any incidental, consequential, or special damages.
If PlaceArt is the indemnifying party, it shall defend such claims, control litigation, and settle claims in its sole discretion. If a settlement creates a financial obligation for You, it shall require your written consent, which you will not unreasonably withhold or delayed. If you are the indemnifying party, PlaceArt shall have the right but not the obligation to assume control of any litigation.
When indemnification is sought due to a legal claim by a third party, the indemnified party shall: promptly notify the indemnifying party of the claim. If the indemnified party does not notify the indemnifying party, the indemnifying party must still meet its indemnification obligations under this Agreement, unless the failure to notify causes material prejudice to the indemnifying party; and give the indemnifying party the opportunity to defend the claim with counsel reasonably acceptable to the indemnified party. Counsel that is acceptable to indemnifying party's errors and omissions insurance carrier shall be deemed to be acceptable to indemnified party. The indemnified party agrees to cooperate with the indemnifying party in the defense of any claim, at the indemnified party's expense. If for any reason the indemnifying party does not elect to or fails to defend a claim, the indemnified party may do so at the indemnifying party's sole expense
Governing Law, Venue, Jurisdiction
This Agreement is made and accepted and shall be construed, interpreted and enforced in accordance with the laws of the state of Florida, without giving effect to principles of conflict of laws. All disputes hereunder shall solely be resolved in the applicable state or federal courts of in Miami-Dade County, Florida. The Parties consent to the jurisdiction of such courts, and waive any jurisdictional or venue defenses otherwise available.
The Website, the Online Application Process, and User Accounts are controlled and operated in whole or in part by PlaceArt in the United States. PlaceArt makes no representation that the content in the Website, Online Application Process, and User Account are appropriate or available for use in other locations, and access to it from territories where the content may be illegal is prohibited.
Communications and Notices
You agree and consent to receive all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that PlaceArt provides in connection with your Content, Subscription, and your User Account by posting them on the PlaceArt Website or by email at the primary email address on file in your User Account. Communications include agreements and policies you agree to, updates to the Agreements or policies, account statements, tax statements, and any other information relating to your Content, your Subscription and your User Account.
In order to access and retain electronic Communications, you will need a computer or mobile device with an Internet connection, a web browser; and a valid email address (your email address with PlaceArt in your User Account). By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records.
It is your responsibility to keep your primary email address up to date so that PlaceArt can communicate with you electronically. You understand and agree that if PlaceArt sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive or open electronic Communications, PlaceArt will be deemed to have provided the Communication to you. You can update your primary email address or street address at any time by updating the information in your User Account.
If your User Account is not active, has been deleted or removed, you must notify PlaceArt if you wish to receive future Communications to your email or to a physical address by providing PlaceArt with your updated contact information. Any notice to PlaceArt shall delivered to PlaceArt by email to [email protected].
Unless otherwise provided in this Agreement, days shall mean calendar days.
The relationship of the Parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties.
This Agreement shall be binding on, and shall inure to the benefit of, each of the Parties and their respective past, present and future, successors, subsidiaries, affiliates, officers, directors, employees, insurers, agents, representatives and permitted assigns.
Any electronic signatures, or consents given by electronic submissions, shall be deemed and accepted as original submissions as if validly given in writing.
This writing is an integrated Agreement and represents the entire understanding of the Parties relative to the subject matter described herein. No prior or contemporaneous agreements, whether written or oral, shall be enforceable if they materially alter, vary, or add to the terms of this Agreement.
Each provision of this Agreement shall be interpreted in such a manner as to be valid, legal and enforceable. A determination that any provision of this Agreement is for any reason invalid, illegal, or unenforceable shall not affect the validity of this Agreement and any other provisions herein, and this Agreement shall be interpreted and construed as if such invalid, illegal, or unenforceable provisions were not contained herein. If the scope of any of the provisions of the Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the Parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.
Either Party's failure to insist, in any one or more instances, upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any of its rights or obligations under this Agreement.
Artist may not assign, resell, or transfer to any other person or the rights allowed or obligations required by this Agreement. PlaceArt, however, reserves the right to sell, assign or transfer any right or obligation under this Agreement.
PlaceArt will not be liable for any damages, including actual, indirect, special, or consequential damages arising from the submission or use of your Content or the termination of your Subscription, or your User Account.
PlaceArt reserves the right to modify the terms of this Agreement at any time in its sole discretion. PlaceArt will notify you of any such change by an announcement on this page, by email, your User Account.
Modifications to this Agreement will not apply retroactively, but will commence on the next Renewal Period after posting. By continuing to make your Content available through PlaceArt, you agree to be bound by all such changes. If you do not agree with any of the changes, please remove from PlaceArt, pursuant to the terms herein, all or that portion of your Content to which you do not wish the changes to apply, or terminate your Subscription.
In the event that you breach any of the terms of this or any other agreement with PlaceArt PlaceArt shall have the right to terminate your User Account and/or Subscription without further notice, in addition to PlaceArt's other rights at law and/or equity.
It is expressly understood and agreed that this Agreement is entered into solely for the mutual benefit of the Parties herein and that no benefits, rights, duties, or obligations are intended by this Agreement as to third parties.
Artist acknowledges that it has read and understood the contents of this Agreement (which includes this Agreement, the Website, and the “Online Application Process,” and all consents, permission, grants, authorizations and information provided therein), and warrants and represents that all the consents, permissions, grants, authorizations, and/or any other statements or representations given herein, have been voluntarily made by Artist and are true and correct. No oral representations, statements or inducements, apart from this Agreement have been made by Artist. By completing the Online Application Process, Artist agrees to provide, and does hereby provide, all the consents, permissions, grants, authorizations, statements and/or representations made herein, electronically. Artist acknowledges that Artist’s consents and electronic submissions provided through the Website and the Online Application Process will have the same legal force and effect as if given by written instrument and signed by Artist with a handwritten signature. The Artist acknowledges that his or her information, as provided through the Online Application Process, will be stored electronically, and Artist consents to having his or her information stored electronically.
IF YOU OBJECT TO ANY TERMS OF THIS AGREEMENT OR ANYTHING IN THIS WEBSITE, DO NOT USE THE WEBSITE, AND YOU MUST IMMEDIATELY CEASE FROM COMPLETING YOUR ONLINE APPLICATION PROCESS.
PlaceArt Content Guidelines
The following guidelines supplements and are incorporated into PlaceArt’s Artist Agreement. Any Content uploaded by you must adhere to the following guidelines:
You will not upload or provide any Content that is pornographic, defamatory or deceptive, or in a manner that could be considered libelous, obscene, or illegal in nature, or that it infringes on or violates the intellectual property rights of others.
You must own or control the copyright to all content you submit to PlaceArt. This means that you cannot submit work obtained from other sources (e.g., online image search results or websites), or incorporate such work into your content submissions, unless you have permission to do so.
Public domain content cannot be submitted under any circumstances. If you do not have complete rights to the content, you may not submit it.
Content submissions may not contain trademarks, service marks or other indication of origin, including logos, owned by third parties.
If submitted Content contains copyrighted material and/or trademarks, you must submit releases from the copyright and/or trademark owners.
You may not submit content created in a manner that violates human rights, including but not limited to activities such as debt bondage, forced labor, child slavery, or other oppressive practices.
We reserve the right to remove any previously accepted Content submission.
Any Content featuring an identifiable person must be accompanied by a model release. Submissions depicting a minor must be accompanied by a model release that was signed by that minor's parent or legal guardian.
Any image clearly depicting private property must be accompanied by a completed release from the property owner.
Nudity -- For submissions containing nude content of artistic value, the model must be at least 21 years of age and the release must be accompanied by a photo ID of the model. The decision to accept or reject an image containing nudity will be made according to the sole discretion of PlaceArt. Never submit any explicit material. Submissions must not contain x-rated content or any illegal content according to US laws.