By creating an account and profile on www.flekmanart.com (the “Flekman Website”), the artist (the “Artist”) hereby agrees to all of the terms and conditions in this Artist Agreement (the “Agreement”), by and between Artist and Flekman LLC (“Flekman”, and, together with Artist, the “Parties”, or individually, a “Party”).
License Grant. By posting images of Artist’s artwork (the “Art”) to the Flekman Website, Artist hereby grants to Flekman, and Flekman hereby accepts, a non-exclusive, non-transferable, royalty-free worldwide right and license to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute the Art in any form on the Flekman Website and murals in connection with Flekman’s business. The license granted herein shall remain in effect unless and until terminated by either Party in accordance with Sections 3 through 5 herein.
Payment. Flekman shall pay to Artist fifthteen (15%) of the gross sales of murals in which the Art is incorporated. Flekman shall pay all monies due to Artist on the final business day of each month, provided that Flekman may withhold payment on any sold murals which have not cleared the thirty (30) day return period for such sale. Artist shall provide to Flekman, at least ten (10) business days prior to the final business day of any month in which payment is due to Artist, the mailing address or wire instructions for payment of monies to Artist. Flekman hereby reserves the right to charge any fee of its choice for sale of any mural.
Removal of Art. Flekman shall remove, upon written request by Artist, any or all of the Art that Artist posts on the Flekman Website, as soon as reasonably practicable upon receipt of such written request. Upon Flekman’s receipt of such request, Flekman shall no longer include such Art on new murals; provided that Flekman shall have the right and license, pursuant to Section 1 herein, to (i) include such Art on any mural for which an order has been placed by a customer prior to the receipt of Artist’s request to remove such Art and (ii) continue to sell any murals containing the Art that have been produced. Artist may delete its account and profile at any time by providing written notice to Flekman.
Approval Rights; Restrictions on Use; Deletion of Artist Account and Profile. Prior to posting any Art on the Flekman Website, Artist shall email such Art to Flekman at firstname.lastname@example.org, and Flekman shall have the right, in its sole discretion, to either permit such Art to be posted on the Flekman Website or to deny such request, and Flekman shall communicate such decision to Artist. Artist shall not upload to the Flekman Website any unlawful, malicious, defamatory, libelous, threatening, racist or pornographic material or any material that Flekman, in its sole discretion, deems inappropriate or objectionable for any reason. Artist shall not use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit or distribute any images of artwork posted by any third party on the Flekman Website. Upon violation of any portion of this Section 4, and without any limitation on any other remedies that may be available, Flekman may, without notice to Artist, (i) delete the account and profile of Artist, (ii) prohibit such Artist’s access to the Flekman Website and / or (iii) remove from the Flekman Website any Art uploaded by such Artist.
Term. This Agreement shall remain in effect unless and until (i) Artist or Flekman deletes Artist’s account and profile in accordance with the terms of this Agreement, (ii) Flekman ceases, in its sole discretion and for any reason, to maintain or provide public access to the Flekman Website, or (iii) Artist commits a material breach of any portion of this Agreement. This Agreement shall terminate automatically upon the occurrence of any of the foregoing. Notwithstanding anything to the contrary herein, the license granted herein shall survive termination of this Agreement with respect to any murals sold subsequent to the termination of this Agreement pursuant to Section 3 and with respect to any sales of murals produced during the term of this Agreement.
Artist Representations. Artist hereby represents and warrants that (i) it is the sole and exclusive owner of all intellectual property and proprietary rights in, to and under the Art (and the artwork underlying such Art) or that the Art (and the artwork underlying such Art) is in the public domain as of the date hereof; (ii) it has the legal right and authority to enter into this agreement and to grant the license granted herein without any payment or other obligations owed to, or permission required from, any third party; (iii) there are no asserted, pending or threatened claims by any third party relating to the Art (or to the artwork underlying such Art), including but not limited to any such claims based on intellectual property or proprietary rights, nor, to the knowledge of Artist, is there any basis for any such claim; and (iv) neither the Art (nor the artwork underlying such Art) violates any intellectual property or proprietary rights of any third party.
Indemnification. ARTIST HEREBY AGREES TO INDEMNIFY AND HOLD FLEKMAN AND ITS MEMBERS AND EMPLOYEES HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING ALL REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY RELATED TO OR ARISING OUT OF ARTIST’S (I) BREACH OF ANY PROVISION OF THIS AGREEMENT OR (II) POSTING OF ART TO THE FLEKMAN WEBSITE, INCLUDING BUT NOT LIMITED TO ANY CLAIMS OR DEMANDS WITH RESPECT TO SUCH POSTING OF ART IN VIOLATION OF ANY LAW OR CONTRACT OR THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.
Liability. IN NO EVENT SHALL FLEKMAN OR ITS MEMBERS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF ARTIST OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE FLEKMAN WEBSITE OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Disclaimer of Warranties. FLEKMAN, ITS MEMBERS, EMPLOYEES AND SUPPLIERS PROVIDE THE FLEKMAN WEBSITE AND ASSOCIATED SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. FLEKMAN, ITS MEMBERS, AND EMPLOYEES HEREBY SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY ARTIST FROM FLEKMAN OR ANY OF ITS MEMBERS OR EMPLOYEES SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH CASE THE FOREGOING DISCLAIMER MAY NOT APPLY TO ARTIST.
Notices. All notices and other communications made in connection with this Agreement shall be in writing and shall be deemed to have been duly given and received (a) if sent by first-class registered or certified mail, return receipt requested, postage prepaid, on the fifth day following the date of deposit in the mail, (b) if delivered personally, when received, (c) if delivered by email, on the second day following the date such email was sent or (d) if transmitted by facsimile or other telegraphic communications equipment, when confirmed, in each case addressed as follows:
If to Flekman LLC:
Mr. Michael Groysman
6820 Ridge Blvd., Apt. 2A
Brooklyn, NY 11220
If to Artist :
or, in each case, to such other address or facsimile number or to the attention of such other person as may be specified in writing by such Party to the other Party.
Modification. Flekman may modify this Agreement from time to time and such modification shall be effective immediately upon posting such modified version of the Agreement on the Flekman Website; provided that Flekman shall notify Artist of any modifications to Section 2 herein. Artist hereby agrees to be bound to any modifications to this Agreement upon use by Artist of the Flekman Website after any such modification is posted.
No Assignment. Neither Party shall assign its rights or obligations hereunder without the other Party’s prior written consent. Any attempt to do so in violation of this Agreement shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns.
No Agency. Flekman and Artist are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.