Submission Policy
AGREEMENT
This is the agreement (“Agreement”) between you, a resident of the greater Eugene Oregon area, as either an individual or as the legal authorized representative of a group residing in the greater Eugene Oregon area (“Member”) and DiscoverEugene, (“DiscoverEugene”) concerning the uploading of Member’s audio, visual, audiovisual and other materials (the “Member Materials” defined below) to the DiscoverEugene.com website or any successor(s) websites and/or websites to which the contents in whole or in part of DiscoverEugene.com are assigned (the “DiscoverEugene Site(s)”) and concerning DiscoverEugene’s use of Member Materials on the DiscoverEugene Site(s). If Member is agreeing on behalf of a group Member or a group of Members then each reference to “Member” in this Agreement refers to each member of the group or the group as a whole, as the case may be. Member and DiscoverEugene acknowledge the exchange of mutual benefits and promises and other consideration and agree as follows with respect to new submissions of Member Materials and any former submissions of Member Materials:
1. Term. The term (“Term”) of this Agreement starts on the date that the Member Materials are initially uploaded to any DiscoverEugene Site(s) and continues until either Member or DiscoverEugene terminates this Agreement in writing, with or without cause or by the removal of Member Materials for the purpose of termination all subject to the survival of certain undertakings in this agreement set out in paragraph 15 (f), below:
a) To the extent this Agreement is terminated by Member, the rights granted in this Agreement will terminate only after Member has requested the removal of all of his or her Member’s Materials from the DiscoverEugene Site(s) excluding those Member Materials that may have been printed in the DiscoverEugene quarterly magazine, and DiscoverEugene has received notice of the removal. If this Agreement is terminated by DiscoverEugene, this Agreement will terminate when DiscoverEugene removes Member’s Materials from the DiscoverEugene website excluding Materials that have been printed. If the Agreement is terminated in these ways, the parties agree to cooperate in providing an orderly termination of the relationship.
b) Member can selectively terminate this agreement with respect to any individual work posted by Member to DiscoverEugene by requesting removal of the posted work from DiscoverEugene and this selective termination with respect to an individual work will become effective when DiscoverEugene receives notice of the removal request. If the Agreement is terminated with respect to an individual work in this way, the parties agree to cooperate in providing an orderly withdrawal of the work to the extent that Member’s Materials have been placed the work in the Print program or similar efforts within DiscoverEugene Sites.
2. Ownership. Member at all times retains all right, title and interest in and to the Member Materials provided by Member hereunder (including, without limitation, the copyrights in and to the Member Materials), subject to the non-exclusive rights in the licenses granted to DiscoverEugene under this Agreement. Member is free to grant similar rights to others during and after the Term of this Agreement.
3. License To Use Member Materials. As and when Member Materials are uploaded to the DiscoverEugene Site(s), Member grants to DiscoverEugene a worldwide, royalty-free, non-exclusive license to do the following things during the Term:
a) to prepare and encode Member Materials or any part of them for digital or analog transmission, manipulation and exhibition in any format and by any means now known or not yet known or invented;
b) to display, copy, reproduce, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, distribute through any electronic means (including analog and digital) or other means, and electronically or otherwise publish any or all of the Member Materials, including any part of them, and to include them in compilations for publication, by any and all means and media now known or not yet known or invented ;
c) to modify, adapt, change or otherwise alter the Member Materials (e.g., change the size) and use the Member Materials as described in Section 3(b); and
d) the right to sublicense to any other person or company any of the licensed rights in the Member Materials, or any part of them, subject to the terms and conditions of this Agreement.
e) Member acknowledges that Member will not have any right, title, or interest in any other materials with which Member Materials may be combined or into which all or any portion of Member Materials may be incorporated.
f) During the Term, DiscoverEugene’s licenses under this Agreement include the right to use any part of the Member Materials in the promotion, advertising or marketing of the DiscoverEugene Sites.
g) As used in this Agreement, the term “Member Materials” means any content uploaded to the DiscoverEugene Site(s) which may include without limitation Member’s name(s) (including professional names), trademarks, trade names, likenesses, photographs, biographical materials, audio-visual materials, artwork, liner notes, and other graphical, textual, video, film or audio materials and any and all “skins,” computer-generated images or other artwork or images that Member submits to DiscoverEugene in any medium or format whatsoever.
4. Name and Likeness. Member also grants to DiscoverEugene:
a) a worldwide, royalty-free, non-exclusive license to use Member’s name(s), group name, photograph and/or likeness(es) and biographical materials in connection with the distribution, exploitation, promotion, marketing and advertising of the Member Materials, and the DiscoverEugene Site(s)as described hereunder, during the Term;
b) Member also agrees not to assert against DiscoverEugene any privacy, publicity, moral or similar rights held by Member and on behalf any other person(s) whose name(s), photographs and/or likeness(es) and/or performances are embodied in the Member Materials. Member also agrees that any persons other than Member appearing recognizably or otherwise in Member Materials will not assert of any privacy, publicity, moral or similar rights) under the laws of the United States and any other country in connection with the exploitation of the materials as described in this Agreement; and,
c) To the extent that the Member Materials contain the name(s), group name, photograph and/or likeness(es) and biographical materials of any other person, Member hereby grants to DiscoverEugene a worldwide, royalty-free, non-exclusive license to use them in connection with the distribution, exploitation, promotion, marketing and advertising of the Member Materials, as described in this Agreement, during the Term.
5. Limitation Of Rights The rights and licenses granted to DiscoverEugene under sections 3 and 4 of this Agreement require DiscoverEugene to obtain Member consent before DiscoverEugene makes any commercial agreement with anyone else to separately buy, license, re-sell or re-publish or commercially use any Member Materials not in association with DiscoverEugene but as an individual work of art or as a group of works from a single Member in isolation from any other works. No additional consent is required for any other licensed uses under this Agreement of Member Materials either as part of the DiscoverEugene Site(s) or in connection with the distribution of content groups from the DiscoverEugene Site(s) and/or for uses of the Member Materials made at the discretion of a visitor to the DiscoverEugene Site(s) or other users under agreements with DiscoverEugene. DiscoverEugene will contact Member in writing about any individual commercial uses of Member Materials instigated by DiscoverEugene.
6. Payment Unless otherwise agreed between Member and DiscoverEugene in a writing from DiscoverEugene, the license granted to DiscoverEugene under this Agreement is royalty-free.
7. Representations and Warranties. Member represents and warrants that:
a) Member has the full right and power to enter into and perform this Agreement and to grant DiscoverEugene all rights to use the Member Materials as contemplated in this Agreement, including, without limitation, the license grants in Sections 3, 4 and 5,
b) Member has obtained all necessary third-party consents, rights, licenses and permissions, if any, required for Member to enter into and perform this Agreement and to grant DiscoverEugene the rights to use the Member Materials set out in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used in the Member Materials),
c) the Member Materials (and DiscoverEugene’s use of them under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
d) all information that Member has provided or will provide to DiscoverEugene is true and complete,
e) the Member Materials do not and will not violate any law, statute, ordinance or regulation,
f) the Member Materials do not and will not be defamatory, libelous, threatening, pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws,
g) the Member Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of DiscoverEugene or any third party, and
h) if Member or any member of Member’s group is a minor, Member hereby warrants that Member has the legal right to execute this Agreement on behalf of the minor Member and guarantee such person’s performance of the terms of this Agreement. These warranties shall survive any termination of this Agreement.
8. Third Party Payments. Member is responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the Member Materials.
9. Indemnity. Member agrees to defend, indemnify, reimburse and hold DiscoverEugene and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to:
a) Member’s use of the DiscoverEugene Site(s);
b) any breach or alleged breach of Member’s representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions of this Agreement; and
c) Member’s violation or alleged or threatened violation of any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of Member Materials as provided in this Agreement
10. DiscoverEugene’s Performance. Member acknowledges and agrees that the operation of the DiscoverEugene Site(s) may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and DiscoverEugene will not be responsible to Member or others for any interruptions, errors or problems or even for an outright discontinuance of the DiscoverEugene service. There are no assurances whatsoever that any of the Member Materials or any part or element of Member materials will actually be used on the DiscoverEugene Site or if used will continue to be available for any particular time. DiscoverEugene has the right, in DiscoverEugene’s sole and absolute discretion, to remove from the DiscoverEugene Site(s) at any time the Member Materials or any part of them and/or to revoke any sublicense granted by DiscoverEugene to any affiliate or unaffiliated third party. Notwithstanding the foregoing, DiscoverEugene does not control the content of the Member Materials and does not have any obligation to monitor the content of the Member materials for any purpose or reason. Member acknowledges that Member is solely responsible for all content submitted to the DiscoverEugene Site(s) by Member. The DiscoverEugene Site may be discontinued at any time, with or without reason and all Member materials uploaded to DiscoverEugene may be removed and unavailable for recovery by any means. Member and only Member is responsible for maintaining at Member’s expense and in facilities owned or controlled only by Member any and all original materials or so-called back-up copies of all or any part of the Member Materials.
11. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DiscoverEugene DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
a) UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE DiscoverEugene SITE, AND
b) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE DiscoverEugene SITE AND ANY SERVICES PROVIDED BY DiscoverEugene HEREUNDER. IN ADDITION, ALTHOUGH DiscoverEugene INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE DiscoverEugene SITE(S), AND WHETHER OR NOT DiscoverEugene IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, DiscoverEugene DOES NOT WARRANT THAT THE DiscoverEugene SITE(S), ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE DiscoverEugene SITE(S) IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
12. No Liability for Third Party Use. DiscoverEugene DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE Member MATERIALS MADE AVAILABLE ON THE DiscoverEugene WEBSITE BY THE Member PURSUANT TO THE TERMS OF THIS AGREEMENT. Member SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF Member MATERIALS BY A THIRD-PARTY, AND NOT FROM DiscoverEugene. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS Member MATERIALS FROM DiscoverEugene (WHETHER OR NOT WITH DiscoverEugene’S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED BY THE LICENSES GRANTED UNDER THIS AGREEMENT Member WILL SEEK REDRESS OR RECOVERY FROM THE OTHER PERSON AND NOT FROM DiscoverEugene, AND THAT Member WILL NOT HOLD DiscoverEugene RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
13. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL DiscoverEugene, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT DEVIANT ART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE DiscoverEugene SITE(S). IN NO EVENT SHALL DiscoverEugene’S TOTAL LIABILITY TO Member UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $5. THE PARTIES ACKNOWLEDGE AND AGREE THAT DiscoverEugene HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN Member AND DiscoverEugene, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES..
14. Copyright and Trademark Notices. DiscoverEugene, the DiscoverEugene logos and mascots, and the layout and design of the DiscoverEugene Site(s), among other marks that may appear on the DiscoverEugene Site(s) are trademarks of DiscoverEugene, LLC (the “DiscoverEugene Marks”). Other trademarks and service marks on the DiscoverEugene Site(s) may be the property of the advertisers, content partners and/or providers, or other third parties. Member may not use any of the DiscoverEugene Marks without DiscoverEugene’s prior written permission, and Member may not use any third-party marks without the third party’s prior written permission.
15. Miscellaneous.
a) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION’S CONFLICT OF LAWS PRINCIPLES. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT SHALL BE THE APPROPRIATE STATE OR FEDERAL COURT LOCATED IN LOS ANGELES, CALIFORNIA, AND Member AND DiscoverEugene BOTH IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
b) Assignment. DiscoverEugene shall have the right to assign this Agreement in whole or in part to any person or business entity. Member may not assign Member’s rights or delegate Member’s obligations under this Agreement without the prior written consent of DiscoverEugene.
c) Notice. All notices, requests and other communications (“Communications”) under this Agreement must be in writing and sent to DiscoverEugene, 1056 Green Acres Road Suite 102-117, Eugene, OR, ATTN: Legal Department. Communications shall be deemed received:
1. for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt or refusal as indicated on the return receipt;
2. for Communications sent by personal delivery, on the date of personal delivery.
3. No other form of notice shall be accepted under this Agreement, other than the electronic notification for individual works under the circumstances specifically described in 1(b).
d) Entire Agreement. This Agreement sets forth the entire understanding and agreement of Member and DiscoverEugene as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter.
e) Modification. DiscoverEugene reserves the right to amend the terms of this Agreement from time to time in its sole discretion. DiscoverEugene will notify Member of any material changes to this Agreement by sending an email to the address listed in Member’s account. If Member continues to upload Member Materials after being notified of the changes to the Agreement, Member will be deemed to have accepted those changes and the new terms of the Agreement will govern all prior and future submissions of Member Materials. If Member does not accept the new terms of the Agreement, Member’s only and exclusive remedy will be to terminate this Agreement. Otherwise, this Agreement may be changed only by a writing signed by both parties that specifically refers to the parties’ intent to amend this Agreement.
f) Survival. The provisions of Sections 1, 3(e), 4(b) 5, 6, 7, 8, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement. In addition, any sublicenses granted to third parties for the display of Member Materials on electronic or other devices pursuant to Section 3 shall survive any termination of this Agreement for such reasonable time as may be necessary to withdraw Member Materials from the particular license; any use of Member Materials pursuant to Section 3 with respect to the making of so-called backup copies or caching of DiscoverEugene Sites or any equivalent activity or function for general site maintenance and protection shall survive any termination of this Agreement; and, Member Materials consisting of comments posted to DiscoverEugene will remain as part of the DiscoverEugene database and available to all users of DiscoverEugene Sites following termination of this Agreement.
