Terms and Conditions
Last modified: January 25, 2017
These are the Terms and Conditions (the “Terms”) pursuant to which Art of Everyone LLC (“we,” “us,” or “our”) will provide the services (“Services”) with respect to the event (the “Event”) specified in the order form (“Order Form”) to which these Terms are attached. By executing the Order Form, you agree to be subject to the Terms. (The Order Form and the Terms are referred to together as the “Agreement.”)
1. Our Services; Your Responsibilities
- We will provide the Services in connection with the Event on the date(s) (each an “Event Date”) and at the location(s) (each an “Event Location”) specified in the Order Form. We will furnish all supplies, materials, tools, equipment, lighting requirements and all other items incidental to the performance of the Services.
- Each party agrees to make its representatives available for planning of the Event and the artwork (the “Artwork”) to be created in connection with the Event.
- You will obtain from each participant in the Event, prior to their participation, a signed agreement, in the form furnished by us, acknowledging the risks involved in participating in the Event, relinquishing any rights in the Artwork (apart from the rights in the Artwork expressly granted to you under this Agreement) and permitting us to take photographs and to make a video recording of their participation in the Event and to use such photographs and video recording in connection with the performance of the Services and for our own promotional purposes.
- Except as set forth in this Agreement, you shall be responsible for all matters pertaining to the Event. Without limiting the foregoing, you will be responsible, at your sole expense, for obtaining the Event Location, providing security with respect to the Event and preparation of the Event Location in accordance with the written specifications furnished by us.
2. Fees and Expenses. Fees and expenses for the Services shall be payable in the amounts and upon the terms specified in the Order Form. Fees and expenses are nonrefundable, except as otherwise expressly provided in the Order Form. Late payments shall be subject to a charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection.
3. Cancellation. In the event of cancellation by us, any deposit you made with respect to the Event (the “Deposit”) shall be returned promptly. If you cancel the performance less than ________ days before the Event, we will retain the Deposit, if any. You agree that such payment is reasonable in light of anticipated or actual harm caused by the cancellation and the difficulties of calculating the actual damages to us.
4. Intellectual Property.
- To the extent either party incorporates or provides any image(s) for incorporation into the Artwork (the “Incorporated Image(s)”), such party represents and warrants that the incorporation of such Incorporated Image(s) into the Artwork will not infringe upon any patent, trademark, copyright or other intellectual property rights. Neither party will incorporate or provide any Incorporated Image(s) protected by patent, trademark, copyright or other intellectual property rights in connection with the Services unless such party first obtains, and furnishes to the other party, all permissions, releases and other necessary documents required in connection with the use of such Incorporated Image(s).
- Upon completion, you will own the Artwork, provided, that, except as otherwise expressly provided in this Agreement, (i) we shall retain all rights under copyright law to which the Artwork, preliminary studies, drawings, specifications, and models may be subject, (ii) we grant you solely the singular Artwork specified in the Order Form for the purpose of display upon your premises, (iii) we grant no right(s) of reproduction in any format, now known or hereafter discovered, with respect to the Artwork, and (iv) the Artwork shall be displayed witha plaque crediting the work to our artist(s) in the form reasonably specified by us.
- This Agreement and the performance of the Services shall not prevent us or our artists from creating future artwork in the manner and style of the Artwork.
- You will not intentionally, or permit others to, alter, modify, change, destroy or damage the Artwork without first obtaining our written permission. If any alteration or damage to the Artwork occurs, then we shall have the right to disclaim authorship of (and require you to remove any identifying plaque or other marks respecting) the Artwork in addition to any remedies available in law or equity.
- We grant you an irrevocable license to make and use two-dimensional reproductions of the Artwork and to use photographs and video recordings of the Event exclusively for non-commercial purposes.
5. Indemnification; Insurance.
- Each party (the “Indemnifying Party”) will defend, indemnify, and hold the other party (and its officers, directors, employees and agents) (each an “Indemnified Party”) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred in connection with any third party claim (a “Claim”) resulting from the Indemnifying Party’s breach of any of its representations or and warranties, or other obligations, under Section 4.
- You shall obtain and maintain, at your own expense, adequate personal injury and property damage liability insurance coverage with respect to the Event and the Event Location and such coverage shall extend to all activities related to our Services at the Event Location.
- Except for claims arising from our gross negligence or willful misconduct or a Claim under Section 5(a) for which we are the Indemnifying Party, you shall indemnify us for any third party claims arising from or related to the Event or theEvent Location.
- Indemnified Party will provide the Indemnifying Party reasonably prompt notice of the each Claim for which it intends to seek indemnification under this Agreement. Indemnifying Party will defend and/or settle, at its own expense, any Claim. Each party will cooperate in good faith with the other to facilitate the defense of any such Claim and will tender the defense and settlement of any Claim to the Indemnifying Party upon request. Claims may be settled without the consent of the Indemnified Party, unless the settlement includes any monetary obligation or admission of wrongdoing, fault or liability on the part of the Indemnified Party.
6. Warranties; Disclaimers.
- We warrant that the Services will be performed in a good and workmanlike manner.
- THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Survival of Provisions. Sections 4, 5, 6 and any other provisions of the Agreement which by their nature are intended to survive the termination of the Agreement, together with the definitions for all defined terms used therein, shall survive termination of the Agreement.
8. Notice. Each party may give notice to the other party (a) by means of electronic mail to the email address set forth on the Order Form or (b) by written communication sent by first class mail or by courier service to the other party’s address set forth on the Order Form. Such notice will be deemed to have been given upon the expiration of 72 hours after mailing (if sent by first class mail) or sending by courier or 24 hours after sending (if sent by email), or, if earlier, when actually received. A party may, by giving notice, change its applicable address, email, or other contact information.
- Choice of Law; Venue. This Agreement will be interpreted in accordance with the laws of the State of New York and applicable federal law, without regard to conflict of laws principles. In the event any dispute arising under this Agreement results in litigation, arbitration, or mediation, such action or proceeding shall be brought within the state or federal courts of New York.
- Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the invalid, illegal, or unenforceable provision will not affect any other provisions, and this Agreement will be construed as if the invalid, illegal, or unenforceable provision is severed and deleted from this Agreement.
- No Agency. No joint venture, partnership, employment, or agency relationship exists between us as a result of this Agreement or the Services.
- No Waiver. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision.
- Force Majeure; Illness. If the performance by either party (other than the your payment of our fees and expenses) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, illness or other incapacity of the artist to be involved in the performance of the Services or any other causes beyond the control of such party, that party will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes. To the extent the performance of either party is so prevented, hindered or delayed by such causes, the parties will attempt in good faith to adjust the Event Date to permit the Event to take place. If such adjustment is not practicable, then the Agreement will be terminated and we will return the Deposit promptly.
- Assignment. This Agreement may not be assigned by either party without the prior written approval of the other party. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
- Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Entire Agreement. This Agreement comprises the entire agreement between you and us and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment or modification to this Agreement shall be binding unless in writing and signed by an authorized representative of each party. This Agreement supersedes, and shall not be modified or amended by, any standard terms and conditions contained or referenced in any purchase order or other communication between you and us.