SPECIFIC CONDITIONS TO BE READ IN CONJUNCTION WITH THE GENERAL TERMS AND CONDITIONS
CONTRACT TO GRANT SCULPTEO CERTAIN POWERS AND LICENSE TO USE AND REPRODUCE THE IMAGE
This contract, including its exhibits, schedules, attachments, annexes and any amendments hereto, (collectively referred to hereinafter as the “Contract”) is signed when the Designer as defined below clicks on the “accept the seller contract on Sculpteo” option on the SCULPTEO website: “http:// www.sculpteo.com”.
SCULPTEO, a simplified joint-stock company with a capital of 2,370,010.50 Euros, registered in the Créteil trade and companies register (RCS) under number 514 971 654, whose head office is situated at 10 Rue Auguste Perret, 94800 Villejuif, hereinafter referred to as “SCULPTEO”,
The Designer, as identified upon its registration in accordance with article 6 of this Contract, hereinafter referred to as “The Designer”,
Hereinafter referred to collectively as the “Parties” and each individually as “Party”.
- SCULPTEO has dreamt up the creation and operation of a website offering a personalized 3D reproduction service. Based on a design, image or drawing supplied, in 3D or not (hereinafter referred to as the “Image”), SCULPTEO will create a concrete object, for example, and without this list being exhaustive: interior decoration, figures, robots, miniatures, mock-up (hereinafter referred to as the “Object”).
- SCULPTEO also makes a catalogue of 3D images (hereinafter referred to as the “Catalogue”) available to potential Customers through the website “http:// www.sculpteo.com” (hereinafter referred to as the “Website”);
- SCULPTEO also enables his partners to embed or present part of the Site, (in particular the Catalogue) into their own website, in order to promote the Service and Objects printing.
- The Designer, who establishes contact with SCULPTEO to have an Object made based on an Image, wishes to authorize SCULPTEO to reproduce the Image in its Catalogue and grants SCULPTEO the authority to manage all aspects of its commercial relationship with potential Customers in order to sell the right to use its Image. Potential customers can also buy the right to use the Designer’s Image available in the Catalogue and have SCULPTEO create an Object based on this Image.
ARTICLE 1 : SUBJECT AND DURATION OF THE CONTRACT
Right of reproduction and use
The aim of this Contract is to determine the conditions according to which the Designer of an Image authorizes SCULPTEO to reproduce it in the Catalogue and to create an Object based on this Image.
Through this Contract, the Designer authorizes SCULPTEO to reproduce the Image annexed to this Contract in the Catalogue and, as a consequence, to circulate it on its Website and on his partners Website and allow access and downloading of the Image in accordance with article L 122-5 of the French Intellectual Property Code.
Grant of Powers
The aim of this Contract is also to determine the conditions according to which the Designer grants SCULPTEO, who accepts, the power to manage, in its name and on its behalf, all aspects of its commercial relationship with potential Customers, i.e.:
- Establishing contact with potential Customers who wish to buy the right to use the Designer’s Image in order to have SCULPTEO create an Object based on this Image. This contact is established by reproducing the Image in the Catalogue, thus offering potential Customers the possibility of buying the right to use the Image;
- Management of the financial aspect of the commercial relationship with the end Customer, i.e. the collection, on behalf of the Designer, of the amount corresponding to the purchase by the end Customer of the right to use the Image;
- Payment by SCULPTEO to the Designer of a percentage of the price paid by the end Customer to purchase the right to use the Image.
This Contract is signed for an initial duration of 6 months and shall be renewed automatically for an additional period of 6 months, except if the Designer or SCULPTEO decide to remove the Image from the Catalogue in accordance with the provisions of Articles 2 and 3 below.
ARTICLE 2 : DESIGNERS’ RIGHTS AND OBLIGATIONS
The Designer declares and guarantees that it has full power to enter into this Contract.
With regards to the right of reproduction and use
- The Designer guarantees that he is the original author of the Image or that he holds exclusive copyrights over Images sent.
If this is not the case, the Designer risks legal proceedings by SCULPTEO or the eventual purchaser(s) of Objects produced by SCULPTEO, as well as by the Image’s original author(s).
- If an Image represents an architectural monument, work, person, object or brand protected by specific copyrights (Intellectual Property Code, Image and ownership rights, Civil Code, design and model rights, registered trademarks), it is the Designer’s responsibility to obtain the necessary approval from the holders of these rights for the free dissemination, use and exploitation of this Image.
- Images must not be commercial or promotional in character.
- The Designer undertakes not to propose any Image which, in particular, is harmful, violent, obscene or pedophilic or, in a more general sense, contravenes current laws and regulations. The Image proposed by the Designer must not infringe the rights of any third parties, in particular intellectual property and privacy rights.
- The Designer guarantees that the Image’s medium does not contain any IT program designed or liable to damage or intercept an IT system or nominative data and information.
With regards to the grant of powers
- Through this Contract, the Designer grants SCULPTEO the power to manage, in its name and on its behalf, all aspects of its commercial relationship with potential Customers, as specified in Article 1 above and in the annexes attached.
- The Designer must simply specify the price in return for which it wishes to grant potential Customers the right to use its Image.
- The Designer also grants SCULPTEO the authority to manage its financial relationship with the final Customer.
- The Designer may, at any time, and without justification, request elimination of its Images from the Catalogue. This request must be made through the form dedicated to this use on the Site and will be attended to within a seven day timeframe starting from receipt of the message. The elimination of one or more Images will not, however, cancel nor have any effect upon the eventual sale of Objects concluded by SCULPTEO based on this Image before receipt of the request. Any transaction carried out before the elimination request will thus remain unchanged.
In this vein, the elimination of an Image will only apply from the end of the seven day notice period required for the change in status of the Image concerned to be taken into account. Thus, sales of Objects carried out prior to this date will retain their full validity and will not be called into question.
ARTICLE 3 : SCULPTEO’S RIGHTS AND OBLIGATIONS
SCULPTEO reserves the right to refuse any Image which, due to its content or for any other reason, which SCULPTEO is not required to justify, it deems unsuitable for inclusion in the Catalogue.
SCULPTEO reserves the right to exclude an Image or a Designer and thus refuse it access to all or part of the Website’s services.
SCULPTEO does not, at any time, hold rights over the Image provided by the Designer. In this vein, the Designer, when sending its Image to SCULPTEO, recognizes expressly that the Website and its administrators are not responsible for any improper use which may be made of the Images or Objects reproduced based on these Images.
SCULPTEO is an intermediary acting on behalf of the Designer in managing its commercial relationship with potential Customers and Partners, allowing the Designer to assign the right to use its Image. SCULPTEO’s actions are limited to putting the Designer in contact with potential Customers and managing these commercial relationships, through its own Website as well as Partners websites or other commerce channels.
ARTICLE 4 : SCOPE OF THE LICENSE
The Designer grants SCULPTEO a non-exclusive, international right to reproduce and publish the Image and to produce Objects based on this Image, in any form or representation, by any process, both current and future, and for any recipient, for the duration of this Contract.
More specifically, the license granted under this Contract confers upon SCULPTEO the following rights:
- The right to reproduce the Image in its Catalogue [on any graphic, magnetic, optical, digital or electronic medium, whether current or future] and in any other condensed or extended form;
- The right to reproduce the Image in the form of an Object in any modified, condensed or extended form.
- The right to adapt the Image in terms of size, color, etc.
- The right to use the Image to manufacture an Object by any process.
- The right to transfer a copy of the Image to a third party in case defined in the amendment attached in annex 1
ARTICLE 5 : SCOPE OF THE POWER
SCULPTEO acts on behalf of the Designer to manage its commercial relationship with potential Customers and with the end Customer. Its role is to establish contact between the Designer and an end Customer allowing the Designer to sell the end Customer the right to use its Image.
SCULPTEO will manage all financial aspects of the commercial relationship between the Designer and the end Customer.
In carrying out its task as intermediary, SCULPTEO undertakes to act in the Designer’s interests and in accordance with its instructions with regard to the set price for the use of its Image.
Nevertheless, SCULPTEO has no results-based obligation towards the Designer and carries out its task in accordance with the limits set out in Article 8 of this Contract.
ARTICLE 6 : DESIGNERS’ REGISTRATION MODALITY
The Designer’s registration in SCULPTEO’s Designer list, which is effectuated the first time it sends an Image, allows its personal page to be put together based on the information provided on the form to this effect. Out of all the Images sent to SCULPTEO, the Designer is free to choose which one(s) it wishes to be reproduced in the Catalogue, selecting the “For Sale” sharing mode for Images it wishes to see in the Catalogue.
The Image sent by the Designer will be referenced in the Catalogue which SCULPTEO puts online on its website, accompanied by its name or pseudonym, with a link providing access to its personal page.
All Designers wishing to make an Image available in the Catalogue, and thus grant SCULPTEO the power to manage their relationship with potential Customers wanting to purchase an Object produced based on the Image, must provide valid contact details upon registering on the Website to allow proceeds from the sale of an Object reproduced based on the Image to be sent. SCULPTEO shall not be responsible in the event of loss or non-receipt of payment due to the transmission of false or incorrect contact details.
ARTICLE 7 : DESIGNERS’ REMUNERATION
Once the Image has been sent, SCULPTEO will propose it in the Catalogue, and the Object produced from this Image will be sold, where appropriate, on a non-exclusive basis, free of copyright, in accordance with article L 131-4 of the Intellectual Property Code.
SCULPTEO proposes a price to potential Customers defined in accordance, on the one hand, with the price set by the Designer for the transfer of the right to use its Image and, on the other hand, with the size and other specificities of the Object to be manufactured based on the Images appearing in the Catalogue.
Through some specific commercial agreement, SCULPTEO may define a sales price below the public price as shown on the Site.
On this basis, the Designer receives remuneration from the final Customer, with SCULPTEO as an intermediary, payment being made via SCULPTEO. SCULPTEO deducts its remuneration as intermediary in the form of a commission amounting to 10% of the price set by the Designer for the right to use its Image.
The Designer is automatically credited monthly on its account for each assignment of the right to use its Image(s) based on the price set by the Designer for the right to use its Image(s), minus SCULPTEO’s commission. SCULPTEO will transfer the amounts calculated in this way after the 20th of the month following SCULPTEO’s cashing of the amounts payable by end Customers.
ARTICLE 8 : SCULPTEO’S LIABILITY
SCULPTEO does not provide the Designer with any guarantees as regards the selection of the Designer’s proposed Image by a final Customer or a partner.
As a consequence, SCULPTEO may not in any way be held responsible for any direct, accessorial, indirect or immaterial damages suffered by the Designer due to use or non-use of the Image, even if the Parties have been informed of the possibility of such damage.
Upon termination of this Contract, SCULPTEO must stop using the Image and delete it from its IT system and peripheral storage devices.
ARTICLE 9 : INFORMATION – WARNING
The Designer recognizes that, through this Contract, it has been informed that the sale of rights pertaining to the use of its Image to produce Objects based on this Image is liable to establish the Designer in the capacity of trader, as per article L121-1 of the French Code of Commerce. This requires compliance with certain specific obligations, such as registration in the Trade and Companies Register (Registre du Commerce et des Sociétés), the keeping of private accounts, payment of VAT and other applicable taxes and duties, and adherence to rules regarding invoicing.
As a consequence, the Designer undertakes, in particular, to meet all fiscal and social obligations linked to the sale of its Images.
ARTICLE 10 : APPLICABLE LAW AND SETTLING OF DISPUTES
This Contract is governed by French law.
The parties will endeavor to resolve any disagreements which may arise between them concerning the interpretation, partial or total execution or non-performance of this Contract in an amicable fashion.
If the parties are unable to settle their disagreement amicably, the said disagreement will be submitted to a mediator from the Professional Chamber of Mediation and Negotiation (Chambre Professionnelle de la Médiation et de la Négociation - CPMN), due to its professional, independence, neutrality and impartiality guarantees. To submit the case, one of the parties should give the mediator the authority to organize a meeting which the other party must attend within one month of the request. To organize this meeting, the mediator will send a registered letter with acknowledgement of receipt to each of the parties. The parties will share the costs of involvement of the mediator between them in an equitable manner and undertake to participate in at least one meeting with the mediator, seeking to resolve the dispute using the most appropriate solution, with his/her agreement. If the parties cannot come to an agreement, this arbitration clause will be reputed as honored.
With no amicable agreement being found, the disagreement will be brought before the competent jurisdiction of the Versailles Appeal Court.
Last Update: Oct 20. 2014
ANNEX 1: Amendment to agreement between Designer and SCULPTEO
Reference is made to that certain agreement (the “Agreement”), dated as of October 20th 2014, between the Designer and SCULPTEO, a simplified joint-stock company, registered in the Créteil trade and companies register (RCS) under number 514 971 654, whose head office is situated at 10 Rue Auguste Perret, 94800 Villejuif - FRANCE, VAT Number FR48.514.971.654 ("SCULPTEO"), in connection with SCULPTEO’s production and sale of 3D products (collectively, the “Products”) based upon and derived from certain designs, images and drawings created by Designer (collectively, the “Images”).
For good and valuable consideration, the sufficiency of which is hereby acknowledged, Company and Designer agree to amend the Agreement as follows:
- Notwithstanding any of the terms of the Agreement, the parties agree that Designer grants to SCULPTEO the worldwide right, during the term of the Agreement, to sell, license, sub-license, re-produce, manufacture, distribute and otherwise exploit the Products and/or the Images on and through Amazon.com and/or any of its subsidiaries, licensees and affiliates (collectively, the “Amazon Parties”), subject to and in accordance with the terms of the Amazon Services Business Solutions Agreement (the “Amazon Agreement”), a copy of which is available at : http://sellercentral.amazon.com/gp/seller/registration/participationAgreement.html
- The parties agree that SCULPTEO, and not Designer, shall be the party to the Amazon Agreement. As such, in the event of any breach of the Amazon Agreement by any of the Amazon Parties, Designer shall have no legal recourse against the Amazon Parties, and SCULPTEO may elect, but shall not be obligated, to enforce the terms of the Amazon Agreement under applicable law. As such, Designer, on behalf of itself and any of its heirs or successors, releases SCULPTEO from any damages, claims or other liability which Designer may incur as a result of any breach of the Amazon Agreement by any of the Amazon Parties. Designer agrees that SCULPTEO may rely on this release in making the Products and/or Images commercially available through the Amazon Parties.
- In the event of any conflict between the terms of this Amendment, and the terms of the Agreement, the conflicting terms of this Amendment shall control. Except as expressly amended herein, all terms and conditions of the Agreement are hereby ratified and shall remain in full force and effect.
- This Amendment may be executed in counterparts, or by facsimile, PDF or other electronic means, which shall not affect its validity.
Last Update: Oct 20. 2014