Membership Agreement (Artists)
This MEMBERSHIP AGREEMENT ("Agreement") is made between ZHONRA, LLC, a California limited liability company (the "Company") and the undersigned hereto (the "Artist") with respect to Artist's use and access of "www.zon26.com" (the "Site" or "Website") and any Materials (as defined below) of Artists posted or to be posted on the Site.
1. Definitions. Except as otherwise provided herein, when used in this Agreement, the following terms shall have the meanings set forth below. All terms used in this Agreement that are not defined in this Paragraph 1 shall have the meanings set forth elsewhere in this Agreement.
(a) "Agents" shall mean principals, owners, shareholders, directors, members, managers, officers, employees, staff, representatives, agents and successor and assigns.
(b) "Force Majeure" shall mean any prevention, delay or stoppage in any of the obligations hereunder due to Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, acts of war, terrorism, terrorist activities, inability to obtain services, labor, or materials or reasonable substitutes therefore, governmental actions, civil commotions, fire, flood, earthquake or other casualty, and other causes beyond the reasonable control of the party obligated to perform, except with respect to the obligations imposed with regard to any fees, charges, compensation or other monetary sums to be paid by Artist pursuant to this Agreement.
(c) "Materials" shall mean any data, content, written works, audio, visual, audiovisual or other materials of Artist, including, without limitation, any data, content or other material that Artist delivers or provides to Company or Company's Agents for transmitting, uploading or otherwise submitting to the Site or that Artist transmits, uploads or otherwise submits to the Site. Material shall include, without limitation, Artist's trademarks, copyrights, name(s) and likeness, biographic materials, trade names, photographs, audio materials, visual materials, audiovisual materials, written materials, artwork, film, music, photographs, paintings, sculptures, or computer-generated, graphical or textual materials.
(d) "Membership Program" shall mean the services and program provided by the Company as more particularly set forth on the Site, as selected by Artist, as the same may be amended by the parties from time to time in writing.
(e) "Permitted Purposes" shall mean the uploading, submission and transmission of the Artist's Materials onto the Site, and the marketing, promoting and selling of such Artist's Materials on the Site, together with the matters, services and undertakings set forth in the Membership Program and such other matters, services and undertakings as contemplated in this Agreement, and any amendments thereto.
(f) "Privacy Policy" shall refer to terms set forth on the Site, and any amendments thereto.
(g) "Terms of Use" shall refer to the provisions contained on the Site, and any amendments thereto.
2. Membership Program. Subject to the terms and conditions of this Agreement, Artist shall be enrolled in the program and shall receive from Company the services for such Membership Program as set forth on the Site, including a platform or venue for uploading, submitting, transmitting, marketing, promoting and selling Artist's Materials.
3. Artist's Obligations. Subject to the terms and conditions of this Agreement, in exchange for its membership in the Membership Program and the services to be provided by Company in connection therewith, Artist agrees by the terms of this Agreement, the Privacy Policy and the Terms of Use, and any amendments or modifications to such agreements. Artist acknowledges, understands and agrees that if, for any reason or no reason at all, this Agreement is terminated or if Artist's account on the Site is terminated or closed, Artist remains and shall remain obligated to pay Company for any and all unpaid fees, charges and compensation required of it hereunder, together with any penalties and accrued interest that may apply. In addition, Artist agrees that Artist shall be responsible to pay Company for any and all fees and costs, including, without limitation, collection and reasonable attorneys' fees, incurred by Company to collect any unpaid fees, charges or compensation from Artist.
4. Term; Termination. Except as otherwise provided herein, the Membership Program or the Site, as applicable, this Agreement and Artists membership shall be effective as of the date first set forth above. This Agreement shall remain in effect until (a) terminated in writing by either party in accordance with the terms of this Agreement; (b) the removal of Artist's Materials by Company due to an Event of Default by Artist, and/or in its reasonable discretion under the circumstances.
5. Event of Default. The occurrence of any of the following for whatever reason, shall constitute an "Event of Default" under this Agreement:
(a) Artist fails to pay an amount owing to Company under the Agreement, or fails to perform any other obligation under this Agreement, the breach of which can be cured by the payment of money, within five (5) Business Days after notice; or
(b) Any representation or warranty in any loan document proves to have been incorrect in any respect when made; or
(c) Except as otherwise provided herein, Artist is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Artist applies for or consents to the appointment of any rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar officer is appointed without the application or consent of Artist, as the case may be, and the appointment continues undischarged or unstayed for thirty (30) days; or Artist institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment, or death, dissolution, custodianship, conservatorship, liquidation, rehabilitation, or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Artist, as the case may be, and continues undismissed or unstayed for thirty (30) days; or any judgment, writ, warrant, or attachment or execution, or similar processes issued or levied against any property of Artist and is not released, vacated, or fully bonded within thirty (30) days after its issuance or levy.
6. Ownership.
(a) Company does not claim ownership of Artist's Materials.
(b) Except to the extent provided herein, the contents of the Site, including all software, text, characters, images, videos, photographs, designs, illustrations, audio and video files, artwork, graphics, databases, logos, proprietary information, and copyrightable or otherwise legally protective elements of the Site, including, without limitation, the sequence, arrangement, and selection thereof, and all trademarks, service marks and trade names (collectively, the "Company's IP") are the property of Company and/or its subsidiaries, licensors, affiliates, assigns or other respective owners. The copying, distribution, redistribution, use, preparation of derivative works or publication by Artist and/or Artist's Agents of the Company's IP or any part of the Site is strictly prohibited unless Artist or Artist's Agents, as applicable, first obtain the express written consent(s) of Company or the appropriate owner. Except as otherwise agreed to herein or by the parties in writing, Artist does not and shall not acquire any ownership rights to the Company's IP or other content viewed or accessed through the Site.
(c) Artist agrees or itself and its Agents that it shall not copy, distribute, redistribute, prepare derivative works or publish any of the Company's IP or any part of the Site other than Artist's Materials unless Artist and/or Artist's Agents first obtains the express written consent of the Company or the appropriate owner.
7. Use. Company and/or Company's Agents shall use the Artist's Materials and such other items as Artist or Artist's Agents may deliver to Company in connection with this Agreement, for the Permitted Purposes set forth herein.
8. Representations and Warranties.
(a) Of Artist. Artist represents and warrants to Company and Company's Agents, that: (i) Artist has full right, power and authority to enter into this Agreement and perform all of the undertakings and obligations required of it herein and to grant to Company any rights to use the Materials as set forth in or contemplated by this Agreement; (ii) the Materials submitted or uploaded or to be submitted or uploaded by Artist on the Site, and/or the Materials delivered or to be delivered to Company or Company's Agents do not violate and will not violate any domestic or international laws, statutes, ordinances and regulations; (iii) all information provided or to be provided to Company by Artist or Artist's Agents is and will be truthful, accurate and complete and Artist's Materials will not contain any virus or other harmful component; (iv) Artist has not and will not interfere or attempt to interfere with the functionality of the Site or any of the activities conducted or services offered on the Site and Artist has not and will not create compilations or derivative works of any content and materials from the Site; (v) Artist has not and will not steal, exploit, distribute, or otherwise use, in whole or part, another artist's ideas or concepts without first obtaining the express consent of such applicable artist; (vi) Artist has not and will not remove, change, obscure or otherwise alter any copyright notice, or other proprietary notice or other legal notice contained on the Site and, to the extent applicable, has or will obtain all necessary authorizations, consents, licenses or sublicenses to permit it to use the Site or upload the Artist's Materials thereon; and (vi) Artist has not and will not use the Site in a manner that violates any local, state, federal or international law (collectively "Applicable Law") and has not done and will not do anything on or through the Site in violation of Applicable Law.
(b) Of Company. Company represents and warrants to Artist as follows: (i) Company is the owner of the Site; (ii) Company has full right, power and authority to enter into this Agreement and perform all of the undertakings and obligations required of it herein; and (iii) execution by Company of this Agreement and performance by Company of the terms and conditions of this Agreement does not and will not violate any existing contract, agreement, or arrangement between Company and a third party.
9. Covenants. The parties acknowledge, understand and agree that the representations, warranties, covenants and statements made by each party herein, including, without limitation, the representations and warranties contained in Paragraph 8, above, are, and will remain true and accurate, and shall survive the termination of this Agreement.
10. Other Binding Documents. Artist acknowledges, understands and agrees that the Privacy Policy, the Terms of Use and any other legal notices posted or to be posted on the Site, and any changes which Company may make to such instruments shall be binding of Artist (collectively, the "Other Agreements").
11. Indemnification. Artist agrees to indemnify, defend and hold harmless Company, its subsidiaries, affiliates, consultants, advisors and Agents, from and against any liability, loss, claim, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and accosts, arising out of, caused by or in any way related to (a) Artist's use of the Site; (b) Artist's violation of this Agreement or the Other Agreements; (c) Artist's violation or purported, alleged or threatened violation of any third party's rights, including without limitation, any third party's right of privacy, publicity, trademark, copyright, patent, trade secret, trade name; and (d) use by a third party of Artist's Materials in contravention of the Agreement of the Other Agreements.
12. Disclaimers. Company makes no representations or warranties regarding the success of its members, including Artist, or the acceptance of Artist's Materials by users or potential users of the Site. Company reserves the right in its absolute and sole discretion to edit or delete any of Artist's Materials from the Site. Except as otherwise set forth in this Agreement or the Other Agreements, Company shall have no obligation to supervise, police, monitor, endorse or Artist's Materials on the Site. Company does not endorse, guarantee or be responsible for the accuracy, truthfulness or appropriateness of any content, information or postings of the members or users of the Site.
13. Limitation of Liability. Artist understands and agrees that Company and its Agents shall not be liable for any loss, injury, claim or damage of any kind or nature resulting from, caused by or in any way related to (a) any errors in or omissions from the Site or any services or products obtainable therefrom; (b) the unavailability or interruption of the Site or any features thereof; (c) Artist's use of the Site and account information; (d) the content contained on the Site, except as expressly provided herein or in the Other Agreements; (e) the submission of Artist's Materials and/or the content contained therein; (f) the purchase, attempted purchase, the sale or attempted sale, or use by third parties of Artist's Materials, or any portion thereof; and (g) any delay or failure in performing its obligations hereunder where such delay or failure is caused in whole or in part by the act or omission to act of Agent, a third party or Force Majeure.
14. Survival of Obligations. The parties, and each of them, understand and agree that, notwithstanding anything contained herein or in the Other Agreements to the contrary, the following Paragraphs of this Agreement, together with any accrued payment obligations and/or any other provision herein which by its nature extends beyond the termination of this Agreement, shall survive any expiration or termination of this Agreement: 3, 6, 8, 9, 10, 11, 12, 13, and 16.
15. Miscellaneous. This Agreement, together with the Privacy Policy and Terms of Use, constitutes the entire and complete agreement between the parties concerning hereto with respect to the subject matter hereof and supersedes all prior agreements and representations between the parties with respect thereto. No claim of waiver, modification, consent or acquiescence with respect to any provision of this Agreement shall be made against either party except on the basis of a written instrument executed by or on behalf of such party. Unless waived in writing by Company, no duty or obligation of Artist under this Agreement may be assigned or delegated without the prior written consent of Company, which consent may be granted or withheld in Company's sole and absolute discretion. This Agreement shall be binding upon, and inure to the benefit of, Company and its successors, assigns, heirs, legal representatives, executors, and administrators. The failure of either party to enforce any of its rights under this Agreement shall not constitute a waiver or modification of this Agreement and either party may, within the time provided by applicable law, take appropriate action to enforce any such rights. Should any part of this Agreement be declared void or unenforceable, such part shall be considered to be independent and severable from the remainder of this Agreement, the validity of which shall remain unaffected. This Agreement is to be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws provisions of that state. In the event of any litigation between the parties arising out of this Agreement, the parties agree to submit the matter to the appropriate state court sitting in San Francisco County, California, and the parties agree to submit to the exclusive venue and jurisdiction of such courts.
By clicking "I ACCEPT" you, the Artist are acknowledging that you read and to the foregoing terms and conditions and that you agree to be bound by the same.
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