Brain Candy, LLC (“BRAIN CANDY” or “We” or “Us” or “Our”) was founded on the belief that creativity is not limited to individual efforts. We believe that creating, maintaining, and continually adding to a collection of ideas for the creative community (“Artisans”) can be an effective way to generate high-quality, interesting, and dynamic Works. That belief led us to create the Runes of Gallidon website (“Site”) and fantasy world, where Artisans have an opportunity to play in a new world of creativity.
By submitting content to us for publication as a Work on the Site, you are helping us expand the pool of ideas for other Artisans and Site Visitors – and ultimately helping us make Runes of Gallidon a better, richer source of creative content. If we choose to accept your submission and post it on the Site, you will receive certain benefits. This Artisan Agreement (“Agreement”) details the rights and responsibilities you and we will have if we accept your submission for publication as a Work on the Site.
While we have tried to make our licensing and revenue sharing model as understandable as possible, copyright law and legal licenses can be confusing – please do not enter into this Agreement unless you understand the terms and language. If you do not, please contact us or have this Agreement reviewed by a qualified professional.
1. Effective Date. This Agreement is effective, and you will be treated as an Artisan under this Agreement, only as of the date the BRAIN CANDY accepts and publishes your submission as a Work on the Site. If BRAIN CANDY does not accept and publish your submission as a Work on the Site, BRAIN CANDY will not publish your submission unless you resubmit it for publication as Content under the Site Terms of Service, in which case the Terms of Service, not this Agreement, will apply to your submission.
(a) Licensing Model. BRAIN CANDY uses a dual licensing model for works of authorship created by BRAIN CANDY or Artisans that we publish on the Site (each, a "Work" and collectively, "Works"). If we accept your submission and publish it as a Work on the Site, your published submission will be treated as a Work under this Agreement, and will fall under two licenses:
(i) The Creative Commons Attribution Non-Commercial Share Alike (BY-NC-SA) License (“CC License”). You authorize BRAIN CANDY to publish your Work on the Site under the CC License. This means that you will license all Site users, including other Artisans and BRAIN CANDY visitors ("Visitors"), registered guests ("Guests") and registered paying members ("Patrons"), to use and distribute your Work under the CC License. The CC License allows recipients of your Work to copy your Work, create derivative works based on your Work and distribute, display and perform your Work and any derivative works based on your Work in any medium for non-commercial purposes. They must give you attribution, and if they distribute your Work or any derivative work, they must distribute it under the CC license, so all recipients receive the same rights to your Work and any derivative work. We urge you to review the information on the Creative Commons website about this particular license (http://creativecommons.org/licenses/by-nc-sa/3.0). This license is necessary to allow your Work to be legally available for use by Site Visitors, Guests, Patrons and other Artisans if they want to use your Work when they create new Works and other content and materials set in the Runes of Gallidon world.
(ii) Form of Attribution. Given the collaborative nature of the Site and the potential number of Artisans who will contribute Works to the Site, you agree that BRAIN CANDY will determine the key elements of each Work that will receive attribution and the form and content of each such attribution, and that such attribution will be sufficient to meet the attribution requirements under the CC License.
(iii) Ideas Can Be Freely Used. The CC License applies only to works that are protected by copyright law, such as text, scripts, blogs and any other forms of writings; drawings, photographs and other visual images; films, video games and other visual materials; musical compositions, sound recordings and other audio works. The CC License does not apply to things such as ideas, factual information or other items that are not protected by copyright law. All such items embodied in your Work that are not protected by copyright law (collectively, "Ideas") will be freely available for use by anyone for any purpose, including other Artisans if they want to use them when they create new Works set in the Runes of Gallidon world. "Ideas" include, for example, characters, objects and locations and their names and attributes.
(iv) This Artisan Agreement. You will also license your Work to BRAIN CANDY under this Agreement to enable BRAIN CANDY to use your Work for commercial purposes. If BRAIN CANDY receives money from the commercial sale or licensing of one or more Artisan's Work(s) individually or as part of a collection, anthology or compendium, BRAIN CANDY will pay the Artisan(s) fifty percent (50%) of the gross revenue BRAIN CANDY receives, as explained below (the "Artisan Revenue Share"). The Artisan Revenue Share will be determined by BRAIN CANDY based on gross revenue received by BRAIN CANDY that clearly results from commercialization of the Artisan's Work as a whole (not commercialization of Ideas embodied in the Work).
(b) Commercial Use Rights.
(i) Overview. You agree to give BRAIN CANDY the non-exclusive right to commercially profit (make money) from your Work. How we may use your Work commercially may vary (examples include but are not limited to: publishing and selling your Work; licensing another party to use your Work in exchange for money or services; selling your Work or using your Work as part of a merchandising offering). BRAIN CANDY agrees that you may also commercially profit (make money) from your Work under the revenue sharing terms below.
(ii) Licensed Rights. In order to grant BRAIN CANDY these rights, you hereby grant BRAIN CANDY (and any BRAIN CANDY successors-in-interest, subsidiaries, or parent companies) a royalty-free (except as expressly provided herein), worldwide, perpetual, irrevocable, transferable, non-exclusive, sublicensable right and license to use, copy, modify, adapt, translate, create derivative works based on, publicly perform, publicly display, broadcast, publish, license (or sell with your authorization) and/or distribute and otherwise transmit your Work, any element or portion thereof and derivative works based on your Work or any element or portion thereof: (A) on the Site or in any other medium now or in the future known for use by third parties under the CC License and (B) in any medium now or in the future known for commercial purposes under the terms of this Agreement, including, without limitation, in connection with publications, broadcasts, merchandise and other products and services relating to the Runes of Gallidon world and related advertising (collectively, the "Licensed Rights"). BRAIN CANDY's Licensed Rights include, without limitation, the right to make editorial revisions to your Work that do not substantially affect the content of your Work (for example, revisions relating to spelling, punctuation, grammar and formatting), to use the Work and/or portions thereof in any way, to license your Work and/or portions thereof to third parties, for our own internal business purposes, and/or to reproduce and distribute your Work or any portion thereof and derivative works based thereon for BRAIN CANDY's marketing and publicity purposes.
(iii) Other Rights, Waivers and Consents. BRAIN CANDY also needs the following rights, waivers and consents, to the extent they are applicable to your Work, in order to be able to commercialize your Work.
(A) You irrevocably waive:
(1) any and all rights of privacy, publicity and other rights of a similar nature;
(2) any right to inspect and/or approve any use of your Work or any portion thereof; and
(3) any claim that any version of the Work or any portion thereof constitutes a distortion, mutilation or disparagement or contains unauthorized variations of the Work
in connection with the commercialization of your Work or any portion thereof that is consistent with the Licensed Rights, the waivers and consents granted under this Section 2(b)(iii) and any advertising or publicity relating to the commercialization of your Work. You acknowledge and agree that BRAIN CANDY and others may alter, modify or combine the Work or portions thereof with other Works, content or materials.
(B) You irrevocably consent to the use of:
(1) your own name;
(2) any fictitious name or pseudonym that you provide;
(3) your likeness;
(4) your performance, voice and identity; and
(5) the use of your signature in connection with the Work (for example, if you sign your Work for publication on the Site)
in connection with the commercialization of your Work or any portion thereof that is consistent with the Licensed Rights, the waivers and consents granted under this Section 2(b)(iii) and any advertising and publicity relating to the commercialization of your Work.
You expressly release and hold harmless BRAIN CANDY, its affiliates, licensors, licensees, business partners, and their respective officers, directors, shareholders, employees, agents, customers and those in contract with any of them of and from any and all claims, demands and liabilities by reason of their exercise of the Licensed Rights. You shall not have the right to approve or enjoin the use of the Work or any portion thereof or to rescind any consent, waiver or other right granted to BRAIN CANDY hereunder.
(iv) Your Personal Information. BRAIN CANDY may collect personal information from you, such as your social security number and other personal information, for tax and other legal and regulatory purposes related to collection and payment of the Artisan Revenue Share, compliance with any applicable laws, rules and regulations, performance under this Agreement and exercise of the Licensed Rights. Without limiting any of the rights, consents or waivers granted by you to BRAIN CANDY under this Agreement, you acknowledge and agree that BRAIN CANDY may use your personal information to post your designated name or pseudonym in connection with your Work, to give you attribution for your Work, to pay you any Artisan Revenue Share and to discuss publication and other commercialization of and merchandising and other arrangements and activities relating to your Work with publishers and other third parties. For example, BRAIN CANDY may share your personal information with a publisher or other third party in connection with and as necessary for negotiating an agreement to publish all or a portion of your Work for commercial purposes, or for the manufacture, sale and marketing of products and services, such as books, video games, toys, clothing and novelty items incorporating all or a portion of your Work.
(c) Trademark Rights. Some elements of a Work, such as a character name or illustration, may be protectable under both copyright and trademark law. To prevent any single person from preventing or restricting development of the Runes of Gallidon community or commercialization of any Work, it is necessary for each Artisan to agree not to assert trademark rights in a Work or any element thereof that conflict with the licenses granted under this Agreement and the CC License. Therefore, while you retain ownership of all copyright rights in your Work, in order to promote development of the Runes of Gallidon community and for you and BRAIN CANDY to commercialize your Work under this Agreement, you must agree not to assert any trade name, trademark, service mark, trade dress or similar rights in your Work or any element thereof against BRAIN CANDY or any third party. You hereby irrevocably covenant and agree not to assert, or authorize or assist any third party to assert, any claim or allegation against, and covenant not to sue, BRAIN CANDY, its affiliates, licensors, licensees, business partners, their respective customers, or any other third party based on any alleged trade name, trademark, service mark, trade dress or similar rights in your Work or any element of your Work. You hereby acknowledge and agree that BRAIN CANDY has the sole right, but no obligation, to use as a trade name, trademark, service mark and/or trade dress, and to register, protect, license to third parties for any purpose and enforce any trade name, trademark, service mark, trade dress and similar rights in, your Work and any element of your Work including, without limitation, any names, titles, designs, drawings, graphics, illustrations, characters and character names.
(d) "Third Party Proprietary Works." A "Third Party Proprietary Work" is a Work or portions or elements of a Work that are licensed under proprietary license terms other than the CC License. Without limiting any other provision of this Agreement, you may not submit any Third Party Proprietary Work to BRAIN CANDY or publish any Third Party Proprietary Work on the Site without BRAIN CANDY'S express, prior written approval in each instance. If BRAIN CANDY approves any Third Party Proprietary Work, you are responsible for obtaining and complying with all required permissions and licenses necessary to publish and use the Third Party Work on the Site.
3. Revenue Sharing. In the spirit of believing that Artisans should retain rights over their Works even after submitting them to us, we believe that Artisans should not give up most of their rights to make money from their Works. BRAIN CANDY and you will share money we receive from commercial use of your Work with each other as follows.
(a) Artisan Revenue Share. If BRAIN CANDY receives money as a result of the sale or licensing of an Artisan’s Work, BRAIN CANDY will give the Artisan his or her Artisan Revenue Share, calculated as described below. Specific examples of how the Artisan Revenue Share will be calculated are attached as Exhibit A.
(i) Individual, Whole Works. If your Work is sold or licensed individually (rather than as a collection, anthology, compendium or Adaptation (defined below)), BRAIN CANDY will pay you the Artisan's Revenue Share for such sale or licensing of the Work individually.
(ii) Collections, Anthologies and Compendiums. If your Work is sold or licensed as part of a collection, anthology, or compendium which contains other Works by other Artisans, BRAIN CANDY will split the Artisan Revenue Share resulting from the sale or licensing of the collection, anthology, or compendium equally among the contributing Artisans (there will be no weighting or prorating of Artisan Revenue Share between Artisans).
(iii) Adaptations. Further, even though your Work may be the source Work for a derivative Work that incorporates your Ideas or copyrightable elements or portions of your Work (an "Adaptation"), you will not receive any Artisan Revenue Share and will not have a claim for any portion of the Artisan Revenue Share of money received from the sale or licensing of the Adaptation unless BRAIN CANDY determines in its sole discretion that the other Work is an Adaptation of your Work where the sole creative contribution made by the Artisan(s) of the other Work(s) is the simple transformation or porting of your source Work from its original medium to another medium (e.g., turn a short story into a graphic novel without changing plot, characters, etc.). Such transformational adaptations are referred to in the Agreement as “Ported Works.” In the case of Ported Works, BRAIN CANDY will split the Artisan Revenue Share equally between the Artisan(s) of the source Work and the Artisan(s) of the Ported Work.
(iv) Exceptions. The Artisan Revenue Share does not include, and Artisans will not receive, any portion of donations or other contributions made to BRAIN CANDY, sponsorships, or revenues generated from the Site (unless resulting from your Work as described below), any products or services provided by BRAIN CANDY, including any advertising revenue and member fees, or the use or commercialization of any Ideas embodied in the Artisan's Work or Adaptations that are not Ported Works.
(b) BRAIN CANDY Revenue Share. If you receive money as a result of the sale or license of your Work or any portion of your Work, either individually or as a collection, anthology, compendium or Adaptation, you will give BRAIN CANDY 10% of the gross revenue you receive.
(i) By BRAIN CANDY. You will provide all information requested by BRAIN CANDY in connection with payment of any Artisan Revenue Share for tax or other legal or regulatory purposes, including, without limitation, your social security number. BRAIN CANDY will pay Artisan Revenue Shares bi-annually in an effort to keep our bookkeeping and payment expenses to a minimum. We aim to have payments issued no later than January 31st for revenue share earned during the previous July – December period and no later than July 31st for revenue share earned during the previous January – June period. Payments will be issued by check or through another method at our sole discretion. We may need to contact you and request information we need to pay any Artisan Revenue Share to you and to comply with applicable laws, rules and regulations in connection with the payment. If your contact information we have on file is not up-to-date, you fail to provide any information we request, or we cannot reach you or do not receive the requested information from you within a reasonable time period, payment of Artisan Revenue Share may not be possible and we shall have no obligation or liability to make such payment to you. You are solely responsible for reporting, withholding, and/or paying any and all employment-related taxes, payments, and/or withholdings, including, but not limited to, federal, state, and local income taxes, Social Security, Medicare, unemployment or disability deductions, withholdings, and/or payments arising out of this Agreement and any money received by you.
(ii) By You. You will pay BRAIN CANDY its revenue share under Section 3(b) as soon as reasonably possible after you receive money as a result of the sale or license of your Work, but no later than 90 days following your receipt of money.
4. Term; Termination.
(a) Term; Termination. The term of this Agreement will continue unless terminated as follows:
(i) by either party for any reason without cause upon sixty (60) days prior written notice;
(ii) by either party immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice specifying such breach; or
(iii) by BRAIN CANDY immediately upon notice if you violate Section 2(b), 2(c), 3, 5, 9 or 10(e).
(b) Effect of Termination. Upon termination of this Agreement for any reason:
(i) Survival of CC License Rights. Termination of this Agreement will not affect the rights you have granted to your Work under the CC License prior to the effective date of termination. Such rights, including the Licensed Rights granted under Section 2(b)(ii)(A), are irrevocable and survive termination of this Agreement for any reason, and BRAIN CANDY may continue to use, publish and distribute your Work under the CC License.
(ii) Survival of Commercialization Rights. All License Rights and all other rights, waivers, consents and covenants that you granted in your Work under Section 2 and this Agreement prior to the effective date of termination shall survive with respect to any commercialization or agreements to commercialize such Work that are being negotiated or have been commenced or entered into prior to the effective date of termination. BRAIN CANDY will continue to pay the Artisan Revenue Share, if any, owed to you under Section 3 of this Agreement for any such commercialization.
(iii) Survival of Other Terms. Sections 4, 5, 6, 7, 8, 9 and 10 of this Agreement will survive.
(c) Other Termination Rights. You agree that BRAIN CANDY, in its sole discretion, may terminate any account (or any part thereof) you may have with us or your access to and use of the Site and remove and discard all or any part of your account or all or part of any Work or other content you submit, for any reason whatsoever in BRAIN CANDY’s sole discretion. BRAIN CANDY may also in its sole discretion and at any time discontinue providing access to the Runes of Gallidon Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or any account you may have, Works, portion thereof or other content may be effected without prior notice, and you agree that BRAIN CANDY shall not be liable to you or any third party for any such termination.
5. Representations and Warranties; Indemnity.
(a) Representations and Warranties. You represent and warrant that:
(i) you own or control all of the rights to your Work and have obtained all necessary rights, licenses, waivers, consents, covenants, and other permissions necessary to grant the License Rights and all other rights, licenses, waivers, consents, covenants and other permissions granted under this Agreement and to perform under this Agreement;
(ii) for any Third Party Proprietary Works approved by BRAIN CANDY, have obtained all necessary rights, licenses, waivers, consents, and other permissions necessary to use and publish the Third Party Proprietary Work as contemplated under this Agreement and mutually agreed by BRAIN CANDY;
(iii) your Work and any Third Party Proprietary Work does not and will not infringe or otherwise violate any rights of or cause injury to any person or entity, including without limitation the privacy rights, publicity rights, copyrights, trademarks, service marks, trade dress, trade secret rights, contract rights or any other rights of any third party.
6. Disclaimer. Nothing herein obligates BRAIN CANDY to accept any content you submit for publication as a Work or to commercialize or otherwise use or exploit your Work or any other content you submit for publication as a Work. The materials on the Site, all Works and other content published by BRAIN CANDY on the Site, products and services are provided "AS IS" and without warranties of any kind, express, statutory or implied. To the fullest extent permissible pursuant to applicable law, BRAIN CANDY disclaims all warranties, express, statutory or implied, including, but not limited to, warranties of title and implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to the Site, any Works, content, products or services available, offered or sold through the Site or in connection with commercialization of or failure to commercialize your Work or the amount, if any, or allocation of any Artisan Revenue Share. BRAIN CANDY does not warrant that the functions contained in the Site, materials, Works, content, products or services will be uninterrupted or error-free, that defects will be corrected, or that the Site or the server that makes it available are free of viruses or other harmful components or free from security breaches. BRAIN CANDY does not warrant or make any representations regarding the use or the results of the use of the Site, materials, Works, content, products or services, any commercialization of or failure to commercialize your Work, including, without limitation, in terms of their correctness, accuracy, reliability, or otherwise, or the amount, if any, or allocation of any Artisan Revenue Share that may be paid to you under this Agreement.
7. Limitation of Liability.
(a) Consequential Damages. Under no circumstances, including, but not limited to, negligence, shall you or BRAIN CANDY or its affiliates, licensors, licensees or business partners or any of their respective officers, directors, shareholders, employees, agents or customers be liable for any special, indirect, incidental, punitive, consequential or exemplary damages arising out of this Agreement, the use or inability to use the Site, Works, materials, content, products or services, publication, commercialization or failure to publish or commercialize any Work or other content, or any other interactions with BRAIN CANDY or the amount, if any, or allocation of any Artisan Revenue Share, even if a party or its authorized representative has been advised of the possibility of such damages.
(b) Liability Cap. In no event shall the total liability of BRAIN CANDY, any of its affiliates, licensors, licensees or business partners or any of their respective officers, directors, shareholders, employees, agents or customers to you for all damages, losses, and causes of action arising out of or relating to this Agreement or your use of the Site or publication, commercialization or failure to publish or commercialize any Work or other content (whether in contract, tort, or otherwise) or the amount, if any, or allocation of any Artisan Revenue Share, exceed the amounts paid by BRAIN CANDY to you during the twelve (12) months preceding your claim or one hundred dollars, whichever is greater. Some states do not allow exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, the liability of BRAIN CANDY, its affiliates, licensors and business partners and their respective agents shall be limited to the greatest extent permitted by law.
8. Enforcement of Rights. BRAIN CANDY is not obligated to enforce the terms of the CC License or this Agreement against any third party or sue any third party for infringement or other violation of rights in any Work or other content. If BRAIN CANDY becomes aware of a violation of the CC License or this Agreement or an infringement or other violation of a Work, BRAIN CANDY may, in its discretion and at its expense, take any action, including filing a lawsuit, to enforce the CC License, this Agreement and/or rights in the Work. BRAIN CANDY may require your cooperation to do so. You are not obligated to cooperate, but if you do not cooperate BRAIN CANDY may not be able to take action.
(a) Accuracy of Your Information. You agree all information you provide will be accurate, current, and complete, and that you will keep it up-to-date.
(b) Age Requirement. You must be, and represent and warrant that you are, the age of majority in the state in which you reside to participate on the Site and under this Agreement as an Artisan.
(c) Compliance With Laws. In submitting content for publication as a Work and performing under this Agreement, you agree to comply with all applicable laws, statutes, rules, regulations and guidelines, all contracts to which you are a party, and all fiduciary obligations you may have (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
(d) No Confidential Treatment. The nature of the Site is interactive and public. By submitting and/or posting your Work to the Site, you understand and acknowledge that your Work and any materials, ideas or other communications you transmit in any manner and for any reason in connection therewith will not be treated as confidential or proprietary. Furthermore, you acknowledge and agree that from time to time two people may develop the same concept or idea at the same time, and that to the extent that your Work or other submission contains any ideas, concepts, techniques, procedures, methods, systems, or other materials independently created by BRAIN CANDY or any third party, these items may be used by BRAIN CANDY, its licensees and third parties anywhere, anytime, and for any reason whatsoever without obligation to you. In addition, to the extent that your ideas, concepts, techniques, procedures, methods, systems or other materials are not considered protectable under U.S. or foreign law, you agree that this Agreement places no additional burden on BRAIN CANDY nor does it have any obligations to you past those required by U.S. copyright law.
(a) Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by final and binding arbitration in Los Angeles, California before a single arbitrator. The arbitration will be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the "Rules"). The arbitrator will be selected by mutual agreement of the parties or, if the parties are not able to agree, in accordance with the Rules. Judgment on the award may be entered in any court having jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. This clause will not preclude the parties from seeking provisional remedies from a court of appropriate jurisdiction.
(b) Independent Contractors. You and BRAIN CANDY are and intend to be independent contractors. You acknowledge and agree that you (and your employees) will not be considered as having an employee status with BRAIN CANDY or being entitled to participate in any of BRAIN CANDY's employee benefit programs including, but not limited to, workers’ compensation and disability insurance, group health and dental insurance, unemployment insurance, retirement plans, and stock-based benefits or plans. You may not act as an agent of BRAIN CANDY and are not entitled to enter into any agreements or incur any obligations on behalf of BRAIN CANDY. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.
(c) Language. English is the authoritative text of this Agreement and all communications, notices, arbitrations and other actions and proceedings relating to this Agreement shall be made and conducted in English.
(d) Waiver; Severability. The failure of BRAIN CANDY to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions.
(d) Assignment. Either party may assign this Agreement without the other party's consent, provided that the assignee agrees to be bound by the terms and conditions of this Agreement in writing. This Agreement will be binding on and inure to the benefit of the parties and their heirs, successors and permitted assigns.
(e) Further Assurances. You agree to execute a hard copy of this Agreement and any other documents, and take any actions at BRAIN CANDY's expense, requested by BRAIN CANDY to confirm and effectuate the intent of this Agreement and any of your rights or obligations hereunder or assist BRAIN CANDY in commercializing your Work.
(f) Entire Agreement. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by BRAIN CANDY upon notice to you by means of an electronic mail to your e-mail address on our records, or by written communication sent by first-class mail to your address on our records.