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Artist Agreement

ARTIST AGREEMENT

Updated on April 10, 2016

 

This Agreement contains the terms and conditions for submitting your design, including any artwork or other materials submitted, (hereinafter the “Design”) to The Nerd Cave LLC, a Connecticut limited liability company (“The Nerd Cave”). Please read this Agreement carefully.

 

1.

Limited License You Grant to The Nerd Cave

1.1

When you submit your Design to The Nerd Cave, you grant The Nerd Cave a nonexclusive, royalty free (except for the commissions set forth above), perpetual, worldwide, transferable license authorizing The Nerd Cave to use, reproduce, modify, adapt, publish, translate, advertise, promote, import, create derivative works from, distribute, display (in whole or part), and to incorporate it in other products or works in any form, media, or technology now known or later developed, whether for commercial or marketing purposes or otherwise, and to distribute in connection with your Design your name and other personal information that you provide to us.

1.2

Under the terms of the foregoing license, The Nerd Cave may, at its sole discretion, select your Design to print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing your Design. In addition, under the terms of the foregoing license, The Nerd Cave may, at its sole discretion, display the Design so selected on The Nerd Cave’s website or other associated social media forum and print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing the Design so selected. The foregoing license also authorizes The Nerd Cave to reproduce, distribute, and display your Design on The Nerd Cave website or other associated social media forum(s) and in advertising and promotional materials related thereto. You further acknowledge that third-party users of The Nerd Cave’s website or other associated social media forum may publicly comment on or criticize your Design. You acknowledge, however, that The Nerd Cave is not obligated to utilize your Design under this license in any way. For avoidance of doubt, The Nerd Cave may display and sell t-shirts bearing your Design on The Nerd Cave’s website and also remove or disable access to such Design on The Nerd Cave’s website at any time at The Nerd Cave’s discretion, unless otherwise provided in this Agreement.

1.3

If The Nerd Cave elects to sell t-shirts using or bearing your Design on The Nerd Cave’s website, you may request that The Nerd Cave discontinue selling your Design by giving The Nerd Cave 30 days’ written notice. You acknowledge that The Nerd Cave may print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing your Design in fulfillment of orders by customers for such t-shirts that are placed within a 30-day period following receipt of such notice. You also acknowledge that The Nerd Cave may continue to take and fulfill orders for t-shirts using or bearing your Design after expiration of the 30-day period by selling, shipping, having shipped, or distributing such t-shirts in order to deplete existing inventories of such t-shirts. The Nerd Cave will continue to pay you commissions on t-shirts shipped to customers, under the terms of this Agreement, after receipt of said notice.

1.4

You agree that you will not sell or license any part of your Design to The Nerd Cave in a way that would impair or restrict The Nerd Cave from fully using the license you have granted to us.

2.

You Keep the Copyrights

The Nerd Cave acknowledges that you continue to own all copyrights to your Design, subject to the license granted in these terms and conditions and any other provisions herein. You acknowledge that customers who own a lawfully made copy of your Design may sell or otherwise dispose of the copy.

3.

Rights of First Negotiation

3.1

After you submit your Design to The Nerd Cave, The Nerd Cave may, in its sole discretion, send you constructive input regarding how to modify the Design to be more acceptable for selection by The Nerd Cave. In the event that you create a second design that modifies or otherwise changes the Design based on the content of The Nerd Cave’s constructive input (“Second Design”), you hereby agree that (1) you shall promptly notify The Nerd Cave in writing of the creation of such Second Design; and (2) grant The Nerd Cave the option to enter into a nonexclusive license for the Second Design under mutually acceptable terms and conditions before you assign, license, offer to license, or offer to assign the Second Design to a third party. If The Nerd Cave decides, in its sole discretion, to exercise the option, The Nerd Cave will notify you in writing within thirty (30) business days of receipt of the notice of creation of the Second Design.

3.2

In the event that you receive an offer to license the Design from a third party, you hereby agree that you shall promptly notify The Nerd Cave of such offer in writing. The Nerd Cave shall have ten (10) business days following the date you first present The Nerd Cave such offer to decide whether to negotiate an agreement to exclusively license the Design from you. If The Nerd Cave desires to negotiate such an agreement, The Nerd Cave shall, within said ten (10) business day period, deliver to you written notice thereof. Promptly after receipt of such notice, the parties shall commence negotiations for a period not to exceed 30 days after the date of The Nerd Cave’s notice to you. If The Nerd Cave does not provide notice within said ten (10) business day period, or if you and The Nerd Cave do not enter into a legally binding, written agreement for the exclusive license of the Design within said 30 day period, you shall be free to enter into an agreement with the third party.

 3.3

Before you may sell your Design to a third party, you shall first offer the Design to The Nerd Cave in writing. The Nerd Cave shall have ten (10) business days following the date you first present The Nerd Cave such offer to decide whether to negotiate an agreement for the purchase of the Design from you. If The Nerd Cave desires to negotiate such an agreement, The Nerd Cave shall, within said ten (10) business day period, deliver to you written notice thereof. Promptly after receipt of such notice, the parties shall commence negotiations for a period not to exceed 60 days after the date of The Nerd Cave’s notice to you. If The Nerd Cave does not provide notice within said ten (10) business day period, or if you and The Nerd Cave does not enter into a legally binding, written agreement for the purchase and sale of the Design within said 60-day period, you shall be free to enter into an agreement with the third party on terms (considered as a whole) no more favorable to the third party than you offered to The Nerd Cave.

 

4.

Commission The Nerd Cave Will Pay You for Sales

The Nerd Cave will pay you a commission of 20% for each t-shirt using or bearing your Design that is shipped excluding shipping following an order placed by a customer as part of (1) a  promotion in which t-shirts using or bearing your Design are on sale at www.beyondbasick.com for a period; (2) an promotion in which t-shirts using or bearing your Design are on sale at www.amazon.com (3) any similar limited-time promotion in which The Nerd Cave offers t-shirts using or bearing your Design for sale for a period of time predefined by The Nerd Cave. This commission does not apply to exchanges. This commission also does not apply to promotions in which the customer does not specifically place an order for a t-shirt using or bearing your Design, but rather places an order for a package of t-shirts, one of which may use or bear your Design. This commission also does not apply to t-shirts using or bearing your Design that are not shipped to a customer for any reason, including the customer’s failure to pay for the order. This commission does not apply to orders that are canceled by a customer, either before or after a t-shirt using or bearing your Design is shipped to the customer. This commission does not apply to t-shirts using or bearing your Design ordered by customers as part of a

 

5.

Commissions for Extra Printed T-Shirts

In addition to the t-shirts using or bearing your Design ordered by customers as part of a promotion, The Nerd Cave may, in its sole discretion, print or have printed extra t-shirts using or bearing your Design. The Nerd Cave will pay you a $0.25 commission for each of these extra t-shirts using or bearing your Design that The Nerd Cave prints or has printed. The extra t-shirts using or bearing your Design may be used for customer service purposes, such as size exchanges, and/or may be sold as part of a grab bag promotion or similar promotion.

 6.

Payment Terms

 6.1

Commissions on qualifying t-shirt shipments resulting from a  promotion or other unlimited-time promotion are paid monthly. The Nerd Cave will determine the number of qualifying t-shirt shipments as defined in paragraph 5. The commissions on such qualifying t-shirt shipments will be paid to you within 4 days of the end of that month.

6.2

The Nerd Cave will pay you via PayPal, or another method that The Nerd Cave selects. You agree that The Nerd Cave is not required to pay commissions to you for any t-shirt that a customer does not pay for. You agree that the payment amounts described above will be full and complete payment for the rights you grant to The Nerd Cave in this Agreement and that you are not entitled to receive any other amounts that The Nerd Cave may receive as payment from The Nerd Cave’s customers. Also, you agree that The Nerd Cave may use your Design on The Nerd Cave’s website or other associated social media forum or for other promotional purposes and you agree that such uses are royalty free. You agree that The Nerd Cave will not owe you any commissions, license fees, or other amounts for such uses. You agree to be solely responsible for all taxes of any kind or nature that arise due to payment of the commissions to you.

 7.

Information You Provide to Us

When you submit your Design to The Nerd Cave, The Nerd Cave may request personal information about you. If The Nerd Cave so requests, you further agree to provide personal information that is accurate, current, and complete.

 8.

Artwork Representation and Warranty

 8.1

You represent and warrant that you are the sole author of the Design and that the Design is entirely your own original work.

 8.2

You represent and warrant that you are either of the age of legal majority in your state, territory, province, country, or jurisdiction of residence or an emancipated minor.<,/p>

 8.3

You represent and warrant that the Design 1) is not prohibited by any applicable laws; 2) is not owned, in whole or in part, by any other person or entity; 3) does not defame, violate, or infringe the rights of another, including rights of publicity, personality, privacy, trademark, trade secret, patent, copyright, or any other intellectual property rights; and 5) is not obscene, pornographic, offensive, or objectionable. You also represent and warrant that you have the right to grant to The Nerd Cave the rights identified in this Agreement, and that such rights do not conflict with the rights of any other person or entity or your obligations to them.

 8.4

You represent and warrant that, in the event your Design refers to the intellectual property rights of another, your Design is a new, original, and/or transformative work that parodies, satirizes, and/or provides social commentary on such intellectual property rights and your Design makes only fair use of such intellectual property rights.

 8.5

You agree to notify The Nerd Cave within one (1) business day if, after submitting your Design, you become aware that the Design defames, infringes, or otherwise violates the rights of another, including the trademark, trade secret, patent, copyright, right of publicity, privacy, or any other intellectual property right of another. You agree to submit to The Nerd Cave all information of which you are currently aware suggesting that your Design defames, infringes, or otherwise violates the rights of another. You specifically agree to notify The Nerd Cave when you submit your Design of any allegation of which you are aware that your Design infringes the intellectual property rights of another. If, after submitting your Design, you become aware of information suggesting that your design defames, infringes, or otherwise violates the rights of another, you agree to submit such information to The Nerd Cave within one (1) business day. You specifically agree to notify The Nerd Cave within one (1) business day of any allegation of which you become aware that your Design infringes the intellectual property rights of another. You also agree to notify The Nerd Cave within one (1) business day if, after submitting the Design, you license rights in the Design to another such that the rights identified in this Agreement conflict with the rights of another or your obligations to them.

 8.6

The Nerd Cave reserves the right, in its sole discretion, at any time to return or take down, remove, or disable access to your Design on The Nerd Cave’s website in the event The Nerd Cave becomes aware that the Design does, is suggested to, or is alleged to defame, infringe, or otherwise violate the rights of another, including the trademark, trade secret, patent, copyright, right of publicity, privacy, or any other intellectual property right of another.

 9.

Indemnity 

9.1

You agree to indemnify, defend and hold harmless The Nerd Cave and its employees, representatives, and agents, from any and all expenses, damages, costs, and liabilities including reasonable attorneys’ fees and litigation expenses, arising from or related to any claims, demands or proceedings initiated by any third party due to or arising out of your acts or omissions, including claims arising out of your breach of a warranty that you make in this Agreement. You specifically agree to defend, hold harmless and indemnify The Nerd Cave from any claims, damages, losses or liabilities (including payment of reasonable attorneys’ fees, costs, and litigation expenses) arising from any claims that the Design has violated the intellectual property rights of others.

 9.2

You also agree to indemnify The Nerd Cave for any other liabilities associated with later acts by you or your representatives in connection with the Design, including any attempt to disaffirm this Agreement at any point in the future. You agree that you and all of your legal guardians and representatives will be bound by all provisions contained in this Agreement.

 9.3

You also understand and agree that The Nerd Cave cannot control the use that The Nerd Cave’s customers make of The Nerd Cave’s t-shirts, The Nerd Cave’s website or other associated social media forum, or other items that may contain your Design. If a The Nerd Cave customer or a third-party user of The Nerd Cave’s website or other associated social media forum violates The Nerd Cave’s rights or your rights, or claims are brought against you due to the conduct of a customer or third-party user of The Nerd Cave’s website or other associated social media forum, you agree to look solely to the customer or third-party user for damages or indemnity arising from or related to such uses or claims. You agree that The Nerd Cave has no obligation to monitor the use of or content of any t-shirts, artwork, or other items made available or otherwise displayed on The Nerd Cave’s website or other associated social media forum, and The Nerd Cave will have no liability to you for The Nerd Cave’s failure to do so.

 10.

Liability Limitation

 10.1

YOU AGREE THAT, IN THE EVENT OF ANY DISPUTE REGARDING YOUR DESIGNS, ARTWORK OR OTHER MATERIALS YOU PROVIDE TO US, ANY The Nerd Cave LIABILITY SHALL BE LIMITED TO UNPAID COMMISSIONS, IF ANY, OWED TO YOU PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU AGREE THAT YOU WILL NOT BE ENTITLED TO TERMINATE OR RESCIND THIS AGREEMENT, OR TO SEEK EQUITABLE OR INJUNCTIVE RELIEF, OR TO ENJOIN, RESTRAIN OR OTHERWISE INTERFERE WITH THE EXERCISE OF THE LICENSES GRANTED IN THIS AGREEMENT. YOU HEREBY WAIVE ANY RIGHTS OR CLAIMS TO ATTORNEYS’ AND LEGAL FEES, OR TO INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT AND WHETHER BASED ON NEGLIGENCE OR OTHERWISE.

 10.2

You acknowledge that the The Nerd Cave shall not be responsible if an order of a t-shirt using or bearing your Design cannot be implemented or if a commission cannot be paid due to acts of God, acts of war, strikes, governmental action, natural disasters, weather, acts of terrorism, discovery of a virus, computer problem, unauthorized intervention, human error or other error corrupting the administration or security of customers’ orders, or infringement or alleged infringement by your Design of the intellectual property rights of another. You acknowledge that The Nerd Cave makes no representation or guarantee, expressed or implied, in fact or in law, with respect to any order or commission and specifically disclaim all such warranties, including, without limitation, any warranty of merchantability or fitness for a particular purpose. You agree that any and all disputes, claims, and causes of action arising out of or in connection with your Design shall be resolved individually, without resorting to any form of class action.

 11.

The Nerd Cave’s Trademarks and Copyright

 11.1

You agree that the The Nerd Cave® trademark and related marks used on the The Nerd Cave web site and in The Nerd Cave’s t-shirts are trademarks of The Nerd Cave LLC and are solely owned by The Nerd Cave. Except for designs and artwork provided by you, as between you and The Nerd Cave, all media, artwork, software, text, images, graphics, user interfaces, music, videos, photographs, trademarks, logos, artwork and other content on the The Nerd Cave site, including but not limited to the design, selection, arrangement, and coordination of such Content on the site is owned or licensed by The Nerd Cave, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws.

 11.2

You may use the The Nerd Cave® mark and/or the ® logo to advertise sales of t-shirts using or bearing your Design as part of a promotion or other limited-time promotion on beyondbasick.com, provided that such use complies with The Nerd Cave’s logo usage guidelines, which are hereby expressly incorporated herein, and further provided that such use must immediately cease upon The Nerd Cave’s written request.

 11.3

Except as expressly provided in this Agreement, no part of the site and no Content may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial or other purpose, without The Nerd Cave prior express written consent. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets, trade dress, rights of publicity or trademarks with respect to any of the Content, and The Nerd Cave reserves all rights not expressly granted in this Agreement.

 12.

Transferability

 12.1

You agree to notify The Nerd Cave within one (1) business day if you sell, assign, or otherwise transfer the Design, in whole or in part, to another. The parties’ obligations to each other under this Agreement will continue in full force following such transfer.

 12.2

You agree that The Nerd Cave may, at any time without notice to you, assign, sell, or otherwise transfer all of The Nerd Cave’s rights under this Agreement to any person or entity that The Nerd Cave chooses, including any person or entity that acquires The Nerd Cave’s business or any portion of it. The parties’ obligations to each other under this Agreement will continue in full force following such transfer.

 13.

General Terms and Governing Law

 13.1

This Agreement is the entire agreement between you and The Nerd Cave related to the licensing of your Design to us. This Agreement, along with any documents incorporated herein, encompasses the entire agreement of the parties, and supersedes all previously understandings and agreements between the parties, whether written or oral.

 13.2

The terms of this Agreement shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You agree that, with respect to this Agreement, the decisions of The Nerd Cave which shall be final in all respects. You further agree that you are bound by The Nerd Cave’s privacy policy and other policies and requirements regarding the uploading and/or posting of the Design on the The Nerd Cave website. This Agreement may only be amended in a writing signed by each party. No delay or failure to take action under this Agreement shall constitute any waiver by The Nerd Cave of any provision of this Agreement.

 13.3

The parties of this agreement will encourage the prompt and equitable settlement of disputes between the parties arising from or relating to this Agreement or your Design. The parties agree to negotiate their differences directly and in good faith for a period of no less than thirty (30) days after receiving written notification of the existence of a dispute. In the event the dispute is not resolved within thirty (30) days after written notification of the existence of the dispute, the parties agree that, upon the written request of either party, the parties will submit their dispute to a mutually agreed-upon licensed attorney or judge that is an experienced mediator to work with them to resolve their differences utilizing confidential, non-binding mediation.  If, after non-binding mediation occurs, the dispute is not resolved, the parties shall be free to exercise all other legal and equitable rights, including the right to a trial by jury. The parties shall, at all times and without delay, continue to perform their respective obligations under this Agreement not affected by the dispute.

 13.4

You agree that 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 of applicability of this Agreement, that the parties cannot resolve through negotiation or mediation, shall be determined by arbitration by one mutually agreed upon arbitrator. The arbitrator must be a retired judge or a lawyer with at least 10 years of active practice in contract law..

 13.5

If a party engages the services of an attorney or other third party or in any way initiates legal action to enforce its rights or remedies under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses, including reasonable attorney’s fees.

 13.6

By clicking “I AGREE,” you acknowledge that you have read and accept this Agreement in its entirety. If you are accepting on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the legal authority to bind, or do not wish to be bound by these terms and conditions, please press the “I DO NOT AGREE” option.