ACCEPTANCE BY CONDUCT These
Purchase Terms and Conditions (the “Terms”) apply to each purchase order issued
by Orangenius Inc. d/b/a Artrepreneur (“Company”) that references and attaches
these Terms (each, a “Purchase Order”). The seller identified in the Purchase
Order (“Artist”) acknowledges receipt of the Purchase Order and these Terms and
an opportunity to review them before performance. Artist accepts the Purchase Order and these Terms upon
the first to occur of the following affirmative acts: (i) issuing an invoice
that references the applicable Purchase Order number, (ii) uploading any
Digital Artwork under the Purchase Order to Artist’s Artrepreneur profile, or
(iii) shipping, delivering, or tendering any Original Artwork under the
Purchase Order. Artist intends that any such act constitutes Artist’s
signature and agreement to be bound by the Purchase Order and these Terms, and
Company may rely on such act as evidence of acceptance.
PURCHASE OF ARTWORK Company
agrees to purchase from Artist, and Artist agrees to sell to Company, the
original artwork and or digital artwork described in the Purchase Order and its
attachments (collectively, the “Artwork”).
PRICE AND PAYMENT Company shall
pay the purchase price stated in the Purchase Order. Payment shall be made
within forty-five (45) days after Company receives full payment for the
commercial project in which the Artwork will be installed.
MEMBERSHIP Artist shall create
and maintain an Artrepreneur membership account with professional information.
Artist agrees that use of the Artrepreneur platform is governed by the
Artrepreneur website terms of service and related platform policies
(collectively, the “Platform Terms”), and Artist agrees to the Platform Terms
through account creation and continued use of the platform. If Artist does not create an
account, Company may create a non-public Artrepreneur account on Artist’s
behalf using Artist’s name and the contact information provided to Company,
solely so Company may upload the Artwork into Company’s systems and the
Artrepreneur platform for internal administration and project fulfillment.
UPLOAD REQUIREMENTS. If the
Purchase Order includes any Digital Artwork, Artist shall upload each purchased
Digital Artwork to Artist’s Artrepreneur profile no later than the delivery deadline stated in the
Purchase Order and in compliance with the Artwork Requirements for the
Commercial Ready Program available in the Artrepreneur Help Center. Company
shall not be required to make payment for any Digital Artwork until these
upload requirements are satisfied.
ORIGINAL ARTWORK DELIVERY Artist shall deliver any
Original Artwork as stated in the Purchase Order.
INTELLECTUAL PROPERTY RIGHTS FOR
PURCHASED ARTWORK. Parties understand and agree that the sale of any artwork
(“Artwork”) to the Company includes an assignment of rights from the Artist
under local, state, and federal law, including common and statutory law. The
Artist represents and warrants that it has the right to grant the following
rights to the Company and its agents, authorized contractors, successors in
interest and assigns. As such, the Company has a limited license to do the
following with respect to the Artwork:
Rights. Make,
display, distribute, and authorize the making, display, and distribution of
photographs and other reproductions of the Artwork for promotional purposes
directly related to the property where the Artwork is displayed, including
advertising, educational and promotional materials, brochures, books, flyers,
postcards, print, broadcast, film, electronic, and multimedia publicity for
such property. The rights do not apply to materials made available for sale for
a commercial purpose.
Reproductions. The
Company shall ensure that such reproductions are made professionally and
tastefully, in their sole and reasonable judgment. The Company shall make
reasonable efforts to ensure that such reproductions include a credit line for
the Artist where practicable. The Company does not have a proactive duty to
display Artist’s name but may not seek to mislead others that the Artwork was
created by anyone other than the Artist. Failure to include such credit line
and notice in any reproductions shall not constitute a breach of this
Agreement.
Third-Party
Infringement. The
Artist represents and warrants that the Artwork is the sole work of the Artist
and does not infringe the intellectual property rights of any third parties.
Use
of Artist Information. With respect to artwork purchased under this
agreement, the Company shall have the right to use the Artist’s name, likeness,
and biographical information, in connection with the display or reproduction of
the Artwork.
Waiver
of Artist’s Rights. With
respect to original or limited edition artwork purchased under this Agreement,
and in consideration of the procedures and remedies specified in this
Agreement, the Artist hereby waives any claims, arising at any time and under
any circumstances, against the Company and any subsequent purchasers,
transferees, property owners, or other parties to whom Company sells,
transfers, or provides the Artwork arising under the federal Visual Artists
Rights Act (17 U.S.C. 106A and 113(d)), and any other local, state, federal or
international laws that convey rights of the same nature as those conveyed
under 17 U.S.C. 106A or any other type of moral right protecting the integrity
of works of art. Specifically, the Artist hereby waives all such claims against
the Company and any subsequent purchasers, transferees, property owners, or
other parties to whom Company sells, transfers, or provides the Artwork, and
their respective agents, officers, and employees. The Artist represents and
warrants that the Artist is authorized to sign this waiver.
Title
Transfer. Title
in the physical Artwork shall transfer to the Company upon receipt of final
payment for such Artwork.
WARRANTIES Artist represents and
warrants that: (a) Artist has the full right and power to enter and perform
these Terms and the Purchase Order; (b) execution and performance do not
violate any other agreement to which Artist is a party or any applicable law;
(c) Artist has secured and paid for all rights, permissions, licenses,
consents, and approvals necessary to sell the Artwork; and (d) Company receives
good and valid title to the Artwork, free and clear of all encumbrances and
liens.
RISK OF LOSS AND INSURANCE Risk
of loss or damage to the Artwork, and any insurance covering such loss or
damage prior to Company’s acceptance of the Artwork, is the responsibility of
Artist.
CONFIDENTIALITY Artist shall
treat as confidential all information disclosed by Company regarding the
project, property, or transaction for which the Artwork is being purchased,
including property location, owner identity, project timeline, and other artists
involved. Artist shall not disclose such information to any third party without
Company’s prior written consent. This obligation does not apply to information
that becomes publicly available through no fault of Artist. Artist acknowledges
that premature disclosure of project information could cause substantial harm
to Company and its clients.
NON-DISPARAGEMENT Artist shall
not disparage, defame, or otherwise cause ill will or reputational harm to
Company, its clients, or their respective personnel in connection with the
transaction.
GOVERNING LAW These Terms and
each Purchase Order are governed by the laws of the State of New York, without
regard to conflict of laws principles.
PASS THROUGH RIGHTS Company may
grant, assign, sublicense, or otherwise transfer the rights granted to Company
under these Terms to the commercial client for whom the Artwork is provided,
together with such client’s agents, contractors, successors, and assigns, to
the extent necessary to permit the intended use of the Artwork.
MISCELLANEOUS
No
Waiver. The
failure of either party to take action as a result of a breach of this
Agreement by the other party shall constitute neither a waiver of the breach
involved nor a waiver of either party’s right to enforce any provision of this
Agreement through any remedy granted by law or this Agreement.
Severability. If any
term of this Agreement is found to be invalid by a court of competent
jurisdiction, that finding shall not invalidate any other terms of this
Agreement, and those terms shall remain in full force and effect.
LIMITATION OF LIABILITY UNDER NO
CIRCUMSTANCES SHALL COMPANY BE LIABLE TO ARTIST FOR ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN
CONNECTION WITH THESE TERMS, ANY PURCHASE ORDER, OR ANY ACTIVITIES PERFORMED IN
CONNECTION WITH THEM, REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT OR
TORT. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY EXCEED THE TOTAL PURCHASE
PRICE PAID TO ARTIST FOR THE ARTWORK GIVING RISE TO THE CLAIM AS SET FORTH IN
THE APPLICABLE PURCHASE ORDER.
ENTIRE AGREEMENT These Terms,
together with the applicable Purchase Order and its referenced attachments, are
the entire agreement between the parties relating to the subject matter and
supersede all prior or contemporaneous oral and written agreements, negotiations,
statements, and representations on that subject. Any modification must be in a
writing that references the Purchase Order and is issued by Company, and is
accepted by Artist by signature or the same acceptance by conduct described in
Section I.
ASSIGNMENT Company may assign
these Terms and any Purchase Order, in whole or in part, without Artist’s
consent. Artist may not assign any rights or obligations without Company’s
prior written consent.
SURVIVAL The following provisions
survive completion of performance under any Purchase Order: Membership, Upload
Requirements, Intellectual Property Rights for Purchased Artwork, Warranties,
Pass Through Rights, Risk of Loss and Insurance, Confidentiality, Non-Disparagement,
Governing Law, No Waiver, Severability, Entire Agreement, Assignment, and
Limitation of Liability.