ART OF LUMOS A.Ş. ARTIST CONTRACT
Parties and Definitions
1-ART OF LUMOS A.Ş.
Tax No : ……
Address : ……
2- ………………………..(hereinafter to be referred to as” ARTIST”)
Identity No / Tax No : ……
Address : ……
E-Mail Address : ……
Phone No : ……
Each of the persons named above will be referred to individually as “Party” and collectively as “Parties”.
Following terms and expressions shall have the meanings ascribed to them hereunder, unless the context requires otherwise and unless it is otherwise stated elsewhere in this contract.
v "PLATFORM":The software infrastructure comprising of integrated components including digital portals, web sites, mobile applications, Smart TV applications and media players operated under DEARTIUM brand and deartium.com domain name.
v “Artwork”: Any digital works and other types of work defined in FSEK (Law on Intellectual and Artistic Works) designed as a drawing, musical composition, video, program or in another format, which meets the relevant conditions stipulated in FSEK; listed in the table attached to this contract and to be updated from time to time with the mutual agreement of the Parties.
v "Certificate":The certificate of authenticity that will be presented to the customer buying content on the platform of ART OF LUMOS A.Ş.
v "Advertising Rights": Rights of adaptation, reproduction, distribution, representation and publication available to ART OF LUMOS A.Ş. as well as rights of exhibition, advertising and marketing at any place including workplace to be displayed and marketed.
v“Membership Start Date”:The date on which Platform membership of ARTIST is approved by ART OF LUMOS A.Ş.
v"Account Period": Each calendar month during the term of the Contract.
v "Progress Payment Period":Each quarterly period during the term of the Contract, starting on the beginning date of the calendar year.
v “Subscription Fee”:Monthly fees charged by ART OF LUMOS A.Ş. to the PLATFORM members in consideration for the utilization of PLATFORM and playing the Artworks as part of the rights available to the members. These fees are calculated according to the types of membership published on the web site of DE ARTIUM and are determined and revised by ART OF LUMOS A.Ş. during the term of the Contract.
v "Relevant Deductions":Any and all deductions including but not limited to value added tax and other sales taxes, transaction costs, third party costs, expenses and commissions, additional taxes to be enacted by the government/administration, all amounts paid to the customers including refunds/returns and income share.
v “Social Media”:Any web or internet based or mobile platform, application and service (including other platforms to be reasonable determined from time to time during the term of this Contract by ART OF LUMOS A.Ş. including but not limited to Facebook, Twitter, Google+, Youtube, LinkedIn, Instagram etc.).
Article 1- Subject of the Contract
This Contract includes the terms and conditions of the display, sale, accessing and utilization of the Artworks developed by the ARTIST on the digital and physical exhibitions and platforms of ART OF LUMOS A.Ş. This Contract also contains provisions on the publication/renting and selling the Artistic Works to be displayed on all digital and/or physical media currently in use or to be developed in the future including specifically the Platform, Smart TVs, Led Screens, Computers, Mobile Phones or Tablets and on providing facilities for the second-hand sale of purchased Artworks; providing the virtual/physical/social environment for the Artists and Art Lovers to come together with a focus on digital arts; providing means to the artists to regularly update their profile data and introduce and exhibit themselves exclusively, using their Artworks in advertising and marketing activities and transfer of the copyrights to the purchased Artworks to the art lovers.
Article 2- Membership, Term, Utilization, Sales, Publication, Renting and Display Conditions
This Contract is made for a term of 2 (two) years starting on the Membership Start Date. The Contract shall be renewed for further periods of 1 (one) year on the same terms and conditions unless the Parties serve a written notice 1 (one) month before the end of the term in order to terminate the Contract or ART OF LUMAS A.Ş. cancels the membership of the ARTIST or ARTIST cancels his/her Membership on the Platform.
1. After his/her Platform Membership is approved, the ARTIST shall upload his/her Artworks to the Platform by using the Platform or alternative transfer methods be agreed on by the Parties.
2. The ARTIST irrevocably agrees that financial rights relating to his/her Artworks uploaded to the Platform shall pass to ART OF LUMOS A.Ş. throughout the worldwide for an indefinite period and he/she shall not claim any payment from ART OF LUMOS A.Ş. in consideration for these rights except for the fee set forth in this Contract.
3. Artworks, that uploaded to the Platform will be evaluated and then accepted or refused by ART OF LUMOS A.Ş. Financial rights relating to the Artworks refused by ART OF LUMOS A.Ş. shall be deemed to have returned to the ARTIST.
4. The ARTIST may choose which Artworks he/she accepts to sale by using the Artwork Management screen available on the Platform or by giving a notice to ART OF LUMOS A.Ş. Regarding the Artworks permitted to be sold, the ARTIST may determine number of Editions to be sold, sale price and those parameters to be used to determine the sale price. However, these consents and parameters may not be revised later by the ARTIST.
5. The ARTIST may not publish or sell the Artworks that permitted to be sold in any media other than the Platform. The ARTIST hereby transfers the right of distribution of these Artworks to ART OF LUMOS A.Ş. and agrees and declares that he has exclusively authorized ART OF LUMOS A.Ş. in respect to distribution, renting and selling of the Artworks during the term of this Contract.
6. The ARTIST agrees and declares to refer the Platform in his/her social media posts and during his/her advertising and marketing activities executed in connection with the Artwork permitted to be sold on the Platform.
7. The ARTIST agrees that his/her Artworks may be displayed in variable environments, exhibitions or platforms to be selected by ART OF LUMOS A.Ş. and may be freely used in the advertising and marketing activities of ART OF LUMOS A.Ş. or the Platform.
8. ART OF LUMOS A.Ş. may suspend the display and publication of the Artworks based on certain criteria to be determined by ART OF LUMOS A.Ş., including insufficient interest to the Artworks of the ARTIST or Artworks not being displayed or purchased by the other members.
9. The ARTIST agrees, declares and undertakes that he/she shall be subject to all revisions that may be made from time to time by ART OF LUMOS A.Ş. to the digital and physical platforms developed by ART OF LUMOS A.Ş. and to any additional terms and conditions of use to be stipulated by ART OF LUMOS A.Ş.
Article 3- Revenue Sharing
Subject to the terms and conditions stipulated below, ART OF LUMOS A.Ş. will make payments to the ARTIST from the revenues to be generated with the publication and sale of the Artworks uploaded to the Platform.
1. In connection with the Artworks uploaded to the Platform by the ARTIST, ART OF LUMOS A.Ş. shall make following payments:
·Based on each type of membership, 22% of net membership income which is taxes and charges deducted from total Subscription Fee, will be prorated by display time of the Artworks created by the ARTIST to the total display time on the Platform as “Membership Revenue Progress Payment”,
·55% of the net sales income remaining after deduction of taxes and charges for the sale of each Artwork created by the ARTIST as “Sales Revenue Progress Payment”
to the ARTIST
2. Calculations related to these incomes will be made in the next Account Period for each Account Period and payments for each Progress Payment Period will be made in the next Account Period following the relevant Progress Payment Period.
3. Records maintained by ART OF LUMOS A.Ş. will accepted as primary and final evidence. ART OF LUMOS A.Ş. may revised these incomes and progress payment rates at any time by announcing this revision at its web sitewww.deartium.com. The ARTIST is obliged to follow-up these revision by checking this web site. The ARTIST agrees, declares and undertakes not to make any claim against ART OF LUMOS A.Ş. alleging that he was not aware of these revisions. A certificate granting a legal right of use will be given to the members when they purchase/rent the Artworks on long term basis.
Article 4- Personal Data and Confidentiality
1. This agreement and contents hereof are totally confidential. The Parties may not disclose the terms which they agreed on or any other information relating to this agreement to any third person or their affiliates and customers.
2. ART OF LUMOS A.Ş. (or third parties acting on behalf of ART OF LUMOS A.Ş.) may collect information about the regular use of the Platform. To access the Platform, ART OF LUMOS A.Ş. may collect information about the third-party platforms that used by the ARTIST and request information about the agreement concluded between the relevant third party platform and the ARTIST.
3. All kinds of personal data such as identity and contact details collected in connection with the use of the Platform of ART OF LUMOS A.Ş. (such as name, surname, phone number, e-mail, IP address, etc.) will be processed in line with the conditions and purposes of processing of personal data as contemplated under articles 5 and 6 of the Law numbered 6698, including but not limited to the purposes of uninterrupted provision of products and services on the Platform; determination of the relevant transaction holder; execution of operational, accounting, financing and risk management processes of the transaction holder; preparation of all records and documents that will serve as legal basis for the transaction performed electronically or physically; compliance with all obligations required under the local and international legislation and with all requirements set forth by the competent authorities in respect to the safe-keeping, reporting and notification of information; transfer of the important information that must be shared with the data owner; execution of corporate sustainability, corporate management, strategic planning and information security processes and provision of information to the authorized establishments pursuant to the applicable legislation.
4. Personal data of the ARTIST may be shared with the consultants and companies from whom ART OF LUMOS A.Ş. obtains services or with whom ART OF LUMOS A.Ş. makes business and enters into cooperation in order to for us to carry out all activities with the persons, companies and organizations permitted by Law and under the applicable legislation provided that such sharing is made in line with the personal data processing conditions and purposes contemplated under articles 8 and 9 of the Law numbered 6698 and in the manner announced in The Policy of Art of Lumos A.Ş. for the Protection and Processing of Personal Data that was shared with the public at the internet addresshttp://www.deartium.com/and further provided that provisions of GDPR are reserved and that data is shared only for the purposes mentioned above within the framework relations established between the ARTIST and ART OF LUMOS A.Ş. The ARTIST are entitled to forward their requests about the processing, archiving, making anonymous and destruction/deletion of their personal data by using the application form provided in that web site and the application channels provided on this form. Necessary technical and lawful measures are taken in order to prevent infringement of rights during sharing information with the third parties. Finally the ARTIST hereby grants consent to the processing of his/her personal data by the local and foreign servers run by the firms from which cloud service are obtained in order to carry out the operational activities relating to the personal data.
Article 5- Warranty Conditions, Risks and Obligations
1. The ARTIST agrees, declares and undertakes to irrevocably and immediately indemnify harmless and compensate theART OF LUMOS A.Ş. and its subsidiaries, affiliates, licensors, employees, representatives, third party information providers, participants providing Artworks and independent contractors against any and all claims, damages, losses, costs, liabilities and expenses (including but not limited to attorney fees) arising from or in connection with the use of the Artwork and platform by the ARTIST and his/her other actions and non-use of the platform; breach or claimed for breach of this contract or any of the representations and warranties provided hereunder by the ARTIST; unauthorized utilization of theART OF LUMOS A.Ş. contents or infringement of any rights held by another userby the ARTIST.
2. At any time and with his absolute discretion ART OF LUMOS A.Ş. may prevent, restrict, suspend on temporary or permanent basis or terminate the access of the ARTIST to all or part of the Platform and/or contents ofART OF LUMOS A.Ş. without serving prior notice thereof to the ARTIST or without assuming any obligation toward the ARTIST. Any action of the ARTIST that might prevent or restrict the use or enjoyment of the Platform by any person or entity is strictly banned and the ARTIST agrees in advance that his/her access to the Platform may be terminated without any prior notice due to such an action.
3. Upon execution of this contract between the ARTIST andART OF LUMOS A.Ş., ART OF LUMOS A.Ş. will become and remain the sole owner of all rights and benefits that may be provided by the Platform and reserves its right to exercise the above mentioned financial rights(i.e. rights of adaptation, reproduction, distribution, representation and publication).At any time and with his absolute discretionART OF LUMOS A.Ş. may revise the Platform whole or partly or upload other contents to the Platform or terminate the Platform whole or partly without giving prior notice of this revision ART OF LUMOS A.Ş. is hereby providing the Platform “as is” and “to the extent usable”.
Article 6- Intellectual Property and Competition Conditions
When necessary or upon a request the ARTIST who is aiming to exhibit his/her Artwork, is obliged to prove that the content belongs to him in writing. (before a notary public or with the execution of a registration certificate, letter of consent, contract etc.). IfART OF LUMOS A.Ş. becomes obliged to pay moral/material damages to the 3rd persons alleging to own the moral and financial rights in and to the Artwork, ART OF LUMOS A.Ş. hereby reserves its right and will be entitled to take recourse against the ARTIST in respect to all damages and other sums paid on this basis.
1. All contents on the Platform including but not limited to visuals, Video, music, movable items with artistic value, new artistic products created with the development of technology and relevant meta data (collectively “ART OF LUMOS A.Ş. Content”) as well as selection and arrangement ofART OF LUMOS A.Ş. Content are protected by copyrights and by the applicable laws and agreements enacted in connection with the trademarks, patents, industrial designs, trade secrets and other intellectual and industrial property. Any unauthorized use of ART OF LUMOS A.Ş. Content shall be considered as breach of these laws and of this contract. Except for those circumstances explicitly provided in this contract or in any other patent contract that may have been concluded between the ARTIST and ART OF LUMOS A.Ş., ART OF LUMOS A.Ş. does not grant any explicit or implicit permission for the use of the Platform and of the Artworks. in advance the ARTIST agrees that he/she shall not be involved in any kind of copying, republication, framing, link provision, downloading, transfer, revision, adaptation, creation of derivate work, renting, borrowing, sales, assignment, distribution, display, performance, licensing, sub-licensing or reverse engineering activity in connection with the Platform or any of the contents. The ARTIST further agrees that he/she shall not use the methods of data mining, robot software or similar data and/or visual collection or segregation in connection with the Platform or contents. None of the watermarks or copyright notice may be removed from the content by the ARTIST without the prior written consent of ART OF LUMOS A.Ş.
2. Following warranties and undertakings are provided in respect to any visual, vireo record, text, audio record or other content uploaded or sent to the Platform by the ARTIST:
·The ARTIST agrees that he/she has all rights to upload/send the contents to the Platform and grant the licenses set forth in this contract.
·The ARTIST agrees and undertakes that the contents uploaded by him to the Platform do not and will not infringe any third-party rights including moral/material rights, intellectual and industrial property rights and confidentiality rights and that contents are in consistency with the provisions of this Contract.
3. Once his/her Artworks are uploaded to the Platform, the ARTIST agrees that he has transferred his/herfinancial rights (i.e. rights of adaptation, reproduction, distribution, representation and publication)to ART OF LUMOS A.Ş. throughout the worldwide and for an indefinite period. In order to be used in any dispute process, legal disagreements or criminal investigations ART OF LUMOS A.Ş. will be also entitled to make archives of and maintain contents uploaded to the Platform by the ARTIST even after termination of this Contract
4. The ARTIST shall not upload, send or share any of the videos, visuals, texts, audio records or other contents described below:
·Contents that are infringing the intellectual and industrial property rights of a third party or breaching any advertisement or right of confidentiality;
·Contents that could be described as pornographic, humiliating, illegal or immoral;
·Contents that abuse under age persons;
·Contents describing illegal activities or violent/destructive actions;
·Contents showing torture or violence applied to the animals;
·Contents encouraging the viewers to tricky behaviors or causing a claim about misleading advertisements or unfair competition; or
·Contents that are in breach of any law, legislation or other legal arrangement.
5. The ARTIST shall not use any ART OF LUMOS A.Ş.’s Content for any purpose without obtaining a license for its use (the right to grant the license under a separate agreement is hereby reserved).
6. The ARTIST agrees, declares and undertakes that he/she shall not use the Trademarks of ART OF LUMOS A.Ş. in such manner that would impair its reputation or cause its humiliation or make any negative impact to these Trademarks or to ART OF LUMOS A.Ş.; he/she shall not competite the validity of or make a claim about invalidity of the Trademarks of ART OF LUMOS A.Ş. or Trademark rights belonging to ART OF LUMOS A.Ş. and shall not provide any assistance to another person, entity or organization in challenging or making claim against the same; he/she shall not use the Trademarks of ART OF LUMOS A.Ş. or any variation thereof (including writing errors) as a domain name or part of a domain name irrespective of whether it is a high level domain name or notor shall not use them as meta label, keyword or other program code or date type; he/she shall not use the trademark, logo, visuals or registered graphics enabling link to the web site of ART OF LUMOS A.Ş. without the prior written consent of ART OF LUMOS A.Ş. and no framework or active link will be provided to these visuals without prior written consent.
7. trademarks, product names and business names, logos provided in ART OF LUMOS A.Ş. web site and other physical or digital platforms belong to the relevant owners. Any reference made to trade name, trademark, producer or supplier or any other product, service, process or other information shall not be construed as a consent given to or sponsorship/recommendation provided to the same by ART OF LUMOS A.Ş.. The ARTIST is only entitled to carry out his/her personal or artistic advertising but not entitled to display any commercial advertisement or promotion in his/her contents.
Article 7- Miscellaneous Provisions (Validity, Transfer, Disputes, Force Major and Termination)
1. At any time or upon breach of this Contract by the ARTIST ART OF LUMOS A.Ş. shall be entitled to unilaterally terminate this Contract without any compensation and/or giving any prior notice or warning. The ARTIST provided that ART OF LUMOS A.Ş. reserves its right to be compensated against and take recourse against the ARTIST in respect to the losses suffered, including any payments made to the ARTIST until the termination date. The ARTIST shall be entitled to terminate this Contract by serving a 2 (two) months prior written notice and providing an explanation about the reasons of termination (the right of the service fees and paid compensation by ART OF LUMOS A.Ş. is reserved).
Termination of the contract will only prevent the ARTIST to present new Artworks after the termination date. ART OF LUMOS A.Ş.'s financial rights (such as adaptation, reproduction, distribution, representation and publication rights) and third-party rights arising from the sale / lease agreement, which were already uploaded to the Platform under this Agreement, will continue to exist.
2. Any dispute, claim or breach arising from or in connection with this Contract shall be exclusively referred to the Turkish Courts and be resolved according to the Turkish Law. Books, records, documents, digital records and fax records ofART OF LUMOS A.Ş. shall serve as final evidence in all disputes that might arise between the Parties in connection with the procedures to be implemented hereunder pursuant to the Civil Procedure Law numbered 6100 and the ARTIST agrees not object the validity of these records.
3. In case of any discrepancy between the terms and conditions of this Contract or terms and conditions of any license agreement concluded betweenART OF LUMOS A.Ş. or other platforms and the ARTIST, this Contract shall be considered as the Master Agreement and its conditions will be applicable between the Parties. Any contrary provision must be reserved under a special contract.
4. The notification addresses of the Parties are given above and all notices sent to these addresses shall be deemed to have been directly made to the respective Party unless a change in this address is duly notified to the other party in writing 15 days before the change. If any provision or part of this Contract is found to be invalid or unenforceable, this shall not affect the validity and enforceability of its remaining provisions.
5. ART OF LUMOS A.Ş. reserves its right to amend this contract and its conditions at any time in the future. The ARTIST declares that he/she will accept all of these amendments during the term of this Contract and as long as he/she uses the Platform. Access and utilization shall be subject to the current version of this Contract and other rules and principles to be published on the Platform during its utilization. The ARTIST should regularly check the link of “Conditions of Use” provided on the main page of the web sitewww.deartium.com. The ARTIST agrees not to make any representations that he was not aware of these amendments. Breach of this Contract or its Conditions that will published on the Platform will result the automatic termination of the license that granted to access the Platform or use all other activities provided on the Platform without any right of compensation for the benefit of the ARTIST.
6. "Force Major":Any circumstance or condition that prevents or delays any of the Parties in the performance of its liabilities or obligations arising from this Contract and that develops out the reasonable control or will of the Parties without any ability to foresee or avoid, including but not limited to natural disasters such as earthquake, fire, flood, inundation, land slide and state of war, immobilization, epidemics/pandemic, rebellion, riot, interruptions in the supply of electric or internet preventing the services hereunder, decisions of the government/state/local management/ administrative authorities/police and similar events shall be considered as force major. However a Force Major event will bear legal consequences in terms of this Contract only if it prevents the fulfillment of responsibilities and obligations arising from this Contract and the request to be made to benefit from the force major conditions is notified to the other Party in writing, via e-mail or letter of warning to be issued by a notary public not later than 15 (fifteen) days after termination of the relevant force major event.
7. The ARTIST may not transfer or assign its status or any of his/her rights and obligations to a third person in part or in whole without the prior written consent ofART OF LUMOS A.Ş.
This Contract is made on the date of ………………………………. in 2 copies and each copy is signed and kept by the Parties.
ART OF LUMOS A.Ş. ARTIST