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This Artist Agreement, and the Standard Rider hereto, (collectively “Agreement”) sets forth the terms and conditions under which Thalo LLC. (“Thalo”) offers you (“Artist”) access to the Max Grumbacher Gallery program (the “Art Program”) operated at www.thalo.com, www.maxgrumbachergallery.com, www.thalopro.com and any subsequent URL which may replace them, and all associated websites, URLs and micro sites (collectively, “Website”) through which Artist may upload, manage, share and display digital images of Artist’s artwork (“Artwork”) and/or offer for sale original artwork or reproductions thereof.
If at any time Artist does not agree to be bound by the terms and conditions of this Agreement, Artist must not use the Art Program or access any Art Program services. In order to participate in the Art Program, Artist will need to open a separate account at www.maxgrumbachergallery.com even if Artist already has a general account at www.thalo.com. Artist is only allowed to have a single account open for the Art Program service at any time. If Artist elects to use any of the Website’s other services, Artist must open up a separate account for those services. The Art Program is offered only to participants aged 18 and above. By participating in the Art Program, Artist acknowledges that Artist is 18 or older.
1. Sale of Artwork
1.1 Artist may become an Authorized Max Grumbacher Gallery Artist as set forth in the Standard Rider to Artist Agreement, which allows Artist to sell original Artwork (the Website acts as a lead generator, therefore the transaction is between the Artist and the customer). In regard to Reproductions (as that term is defined in paragraph 3.1)they are sold through the Website as a service. Artist has the option of becoming a Member once Artist is accepted as an Authorized Max Grumbacher Gallery Artist. The yearly membership fee and benefits of becoming a Member of the Max Grumbacher Gallery are explained in the Help for Artists section of the Website.
1.2 Artist shall determine the selling prices of Artist’s Artwork. In setting the price, Artist should give considerable thought as to the pricing differential between original Artwork and Reproductions, keeping in mind that there is a predetermined minimum price set by Thalo with respect to the Reproductions. Thalo encourages Artist, at Artist’s discretion, to increase that minimum price to properly reflect the appropriate pricing structure between Artist’s product offerings.
1.3 The Art Program enables Artist to upload images of Artist’s artwork as well as information about Artist and/or the Artwork and other content (“Artist Content”). The Art Program also offers Artist the option to sell Artist’s Artwork in multiple ways: Original Artwork (the Website acts as a lead generator, therefore the transaction is between the Artist and the customer), Fine Art Reproductions, and Poster Prints are sold through the Website as a service.
2. Sale of Original Artwork
2.1 Artist is under no obligation to offer original Artwork for sale through the Website.
2.2 If the Artist chooses to sell original Artworkthe Website act as a lead generater, therefore the transaction is between the Artist and the customer.
2.3 Thalo does not and cannot ensure that a buyer or seller of Artwork will actually complete a transaction.
2.4 Thalo provides this service for Artist’s convenience only, and Thalo assumes no responsibility for and makes no warranty or representation regarding any sale of original Artwork. Artist acknowledges and agrees that Thalo is not an art gallery, art dealer or art broker. Although Thalo will be promoting the Max Grumbacher Gallery in general, Thalo will not actively sell any specific Artwork or promote any individual Artist - Thalo is providing this Website and the Art Program as a venue only, through which Artist can offer his/her Artwork for sale and promote himself/herself. Artist shall indicate clearly in the Artist Gallery whether or not any original Artwork is for sale, the price of the original Artwork if it is for sale, and whether the original Artwork has been sold and is no longer offered for sale. Any change of status of availability of original Artwork must be updated as soon as possible but in no event later than 48 hours of such change in status. If Thalo learns of original Artwork listed as being available for sale when it is not, Artist’s membership with the Art Program may be subject to termination for cause.
3. Sale of Reproduction Artwork
3.1 By uploading Artwork to the Artist Gallery, Artist may elect to offer for sale prints of such Artwork by Thalo in two formats: Fine Art Reproductions and/or Poster Prints (collectively, “Reproductions”).
3.2 Artist will earn a commission of fifteen percent (15%) for any Reproduction sold by Thalo. The commission will be calculated based on the actual price the buyer pays for the print itself, and will not include taxes, duties, shipping costs, and/or insurance costs paid by the buyer. Click here for an example of the commission calculation.
3.3 Thalo shall set the minimum selling price for any Reproduction. When Artist uploads his/her Artwork to the Max Grumbacher Gallery, Artist may select whether to offer the Artwork for sale as a Fine Art Reproduction and/or Poster Print. The price for the Reproduction type chosen will be displayed if Artist elects to sell Reproductions (the “Reproduction Set Price”), noting the size of the print. Artist shall be allowed to insert a higher price for Reproductions, but Artist shall not be allowed to set a price that is less than the Reproduction Set Price. Once the final price for Reproductions is determined, Artist shall not offer his/her original Artwork at a price less than or equal to the price of the Reproductions listed on the Website.
3.4 Thalo makes no warranty or representation regarding the amount of Reproductions that will be sold, and Artist acknowledges that it is possible that no Reproductions will be sold.
3.5 If Artist chooses to sell Reproductions through the Max Grumbacher Gallery and receives an inquiry from any potential buyer for a Reproduction of any original Artwork, Artist is encouraged to refer such potential buyer to Artist’s URL in the Max Grumbacher Gallery on the Website where buyer may purchase such.
3.6 Artist acknowledges that in the process of creating Reproductions, some alteration of the Artwork, images or colors may occur (“Print Changes”). In addition, Artist acknowledges that the colors of the Artwork displayed on the Website may not accurately reflect the colors shown in the original Artwork or Reproductions (“Color Variations”). Artist agrees not to bring any claim against Thalo relating to any Print Changes or Color Variations, including any claim that Artist’s “moral rights” or “droit moral” have been violated, and Artist acknowledges that Thalo shall have no liability to Artist for such Print Changes or Color Variations or for violation of any “moral rights” that Artist may have in this regard.
4. Method of Payment
Original Artwork - When a customer is interested in purchasing Artist original artwork, Artist will be notified by the Website via email. It is recommended that Artist contact the customer as soon as possible in order for Artist to finalize the sale. This transaction is strictly between Artist and the customer. The Website is not financially involved in this transaction and has only acted as a lead generator for Artist
Reproductions - Artist’s commission payment on the sale of Reproductions will be earned the 30th of each month for all sales that occurred before the 30th of the previous month.
EXAMPLE 1 - If the item was sold on September 28th,the Website waits for 30 days to elapse (which is the amount of times the customer has to return the Reproduction). Once 31 days has elapsed(i.e., “your earned date”), Artist check will be processed and sent out on Oct 30th
EXAMPLE 2 - If the item was sold on July 31st, the Website waits for 30 days to elapse (which is the amount of times the customer has to return the Reproduction). Once 31 days has elapsed (i.e., “your earned date”), Artist check will be processed and sent out on September 30th. The Website was not able to send out Artist check on August 30th since “your earn dated” surpassed the process date of August 30th (i.e. Since the order was placed on July 31st, the customer had until August 31st to return it. Therefore, the Website could NOT send out Artist commission payment on August 30th. The Website had to wait until September 30th.).
All prices in the Max Grumbacher Gallery for original Artwork and Reproductions must be stated in U.S. dollars, and Thalo will issue commission payments to Artist in U.S. dollars. Artist acknowledges that Thalo may be required by law in certain jurisdictions to withhold certain taxes from commissions to Artist. Artist shall be responsible for the payment of all taxes based on any monies received by Artist under the Art Program, and upon Thalo’s request, Artist agrees to provide Thalo with a completed IRS form W-9, or any other such documentation that may be required.
5. Prohibited Activities
Artist should carefully review the prohibited activities set forth in the Standard Rider at sections 1, 2, 3, and 4.
6. Representations and Warranties
Artist hereby represents and warrants that:
a. The Artwork and all Artist Content is original and created solely by Artist;
b. The Artwork and all Artist Content does not violate or infringe upon the copyright, trademark, service mark, contractual rights, moral rights, or any other personal or property right of any person or entity or constitute unfair competition against any person or entity;
c. To the extent that the Artwork or other Artist Content depicts a living individual, Artist has obtained the written consent of such individual to use that individual’s name and/or likeness in connection with the Artwork or other Artist Content;
d. To the extent that the Artwork or other Artist Content depicts a deceased person, Artist has determined whether or not the laws of any jurisdiction require the consent of such person’s heirs, and if so, Artist has obtained the appropriate consent to use that person’s name and/or likeness in connection with the Artwork or other Artist Content;
e. No third party possesses any license or other rights with respect to any element of the Artist Content that would prohibit or impair Artist’s rights to upload, post, use or sell the same or impair Thalo’s ability to fully exercise the rights granted by Artist in this Agreement;
f. There is no pending or threatened claim, action, or proceeding related to the Artwork or any element of the Artist Content with respect to copyrights, trademarks or other intellectual property rights, and there is no basis for any such claim, action, or proceeding; and
g. Artist is free to enter into this Agreement with no restrictions. Artist confirms that there are no agreements with any third party, including but not limited to, any art gallery, art dealer, or art broker, that conflict with any of the terms of this Agreement, prevent Artist from fulfilling its obligations under this Agreement, or prevent Thalo from enjoying the full benefits under this Agreement.
7. Ownership of Copyrights/License to Thalo
7.1 Artist retains all copyrights to Artist’s Artwork and other Artist Content. By using the Art Program, Artist hereby grants to Thalo a non-exclusive, transferable, worldwide, license to: (i) reproduce and sell Reproductions of the Artwork (and any cropped or re-sized modifications thereof) if Artist chooses to allow the sale of Reproductions; and (ii) digitally reproduce, publicly display and otherwise utilize the Artwork (and watermarked, cropped or re-sized modifications thereof) and other Artist Content to advertise, market, promote, and publicize Thalo, Thalo’s products and services, and the Website in any manner and in any media whatsoever, now known or hereafter devised, throughout the world, subject to the limitations in paragraph 7.2. Artist acknowledges and agrees that Thalo will owe no compensation to Artist other than the earned commissions for the sale of Reproductions described herein.
7.2 The license granted above in paragraph 7.1 shall terminate six months after Artist removes the Artwork from the Artist Gallery or closes Artist’s account, during which time Thalo may continue to fill any orders for Reproductions placed prior to the time Artist removed the Artwork from the Artist Gallery or closed Artist’s account. Notwithstanding the foregoing, Thalo shall be entitled to continue to use any Artwork or Artist Content that is then being used for any advertising, marketing and promotional purposes described in paragraph 7.1 until such time as Thalo changes such advertising, marketing or promotional materials in the regular course of its business.
Artist hereby agrees to defend, indemnify and hold harmless Thalo, its subsidiaries, affiliates, and related entities, and each of their respective directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on: (i) any claim that the Artwork or any element of the Artist Content infringes or violates the rights of any third party with respect to any trademark, trade name, service mark, copyright, license, contract, publicity right, privacy right, goodwill, patent, or other intellectual property or proprietary right of any third party; (ii) any breach of the representations and warranties made by Artist herein; (iii) any claim related to the Artwork or any element of the Artist Content or the Artist Gallery; (iv) Artist’s breach of any term of this Agreement, the Terms and Conditions or any other terms or agreements related to the Website; or (v) Artist’s use or misuse of the Website and/or the Art Program.
9. Thalo’s Trademarks
9.1 Thalo reserves the right to display any of its trademarks, trade names, designs, logos or trade dress, including but not limited to the Marks (as defined in the Standard Rider), on any part of the Website, including the Artist Gallery.
9.2 Artist acknowledges and agrees that all copyrights, trademarks and all other intellectual property rights in all material or content contained within and supplied by Thalo as part of the Website shall remain at all times vested in Thalo. Artist is permitted to use and access this material and content only as expressly authorized by Thalo. Nothing herein shall be construed as giving Artist or any other person or entity any ownership rights or license in or to the Marks; all such rights being owned exclusively by Thalo.
9.3 Thalo grants Artist a limited, revocable, non-exclusive license to access and make personal use of the Website as Thalo’s customer. However, Artist shall not: a) reproduce, duplicate, copy, sell or otherwise exploit the Website or any image, page layout, page design, trade dress, trademark, logo or other content (“Site Content”) for any commercial purpose; b) use a robot, spider or data mining or extraction tool or process to monitor, extract or copy Site Content; c) use any meta tags, search terms, key terms, or the like that contain the Website’s name or any of the Marks, or any variations or misspellings thereof; d) engage in any activity that interferes with the Website or another user’s ability to use the Website; e) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Website and the goods or services offered on the Website; f) assist or encourage any third party in engaging in any activity prohibited by this Agreement; g) assist others in challenging the validity of any Mark, the ownership of any Mark or the registration of any Mark.
9.4 With the exception of the Artwork and Artist Content that Artist uploads to the Artist Gallery, all materials and content contained within the Website, including but not limited to the text, graphics, logos, button icons, images, audio clips, video clips, articles, posts and data compilations appearing on the Website, are owned by Thalo or Thalo’s advertisers and are protected by U.S. and foreign copyright or other intellectual property laws. No portion of the materials or content on these pages may be reprinted or republished in any form without the prior express written permission of Thalo or of the content owner, as the case may be.
10.1 Artist agrees that Thalo, in its sole discretion, may immediately and without prior notice, terminate Artist’s password, account (or any part thereof) or use of the Website, and remove and discard any Artist Content that Artist may have contributed to the Website, at any time for any reason or for no reason.
10.2 Thalo may also, in its sole discretion and at any time, discontinue providing the Website, or any part thereof, with or without prior notice. Should Thalo discontinue providing the Website or the Art Program, Thalo will send Artist a check for the portion of the membership fee for the remaining days left in that respective yearly/billing cycle.
10.3 Artist may terminate Artist’s membership in the Art Program at any time. If Artist terminates Artist’s membership in the Art Program or converts to a free account, Artist shall not be entitled to a refund of any portion of the membership fee for the remaining days left in that respective yearly/billing cycle. Upon termination or conversion to a free account, Artist shall cease referring to himself/herself as an Authorized Max Grumbacher Gallery Artist.
10.4 Upon termination by Thalo or by Artist for any reason, Thalo shall have no obligation to preserve or return to Artist any images, files or Artist Content related to Artist’s account, but Thalo will be allowed to keep archival copies of the same should Thalo wish to do so. Regardless of whether Thalo maintains archival copies of Artist Content, Thalo shall not have the right to sell or reproduce any such archival images, files or Artist Content, except as may otherwise be allowed under this Agreement. Other than as set forth in paragraph 10.2, Thalo shall have no liability to Artist or any third-party for any termination of the Art Program, the Website, or Artist’s account.
10.5 Should Artist object to any terms and conditions of this Agreement or become dissatisfied with the Website or the Art Program in any way, Artist’s only recourse is to immediately discontinue Artist’s use of the Website and/or terminate Artist’s account.
10.6 If Thalo terminates a listing or Artist’s account, or if Artist closes Artist’s account, Thalo may fill all orders for Reproductions for six months after the termination or the close of Artist’s account upon the terms and conditions set forth in this Agreement.
11. DISCLAIMERS AND LIMITATIONS OF LIABILITY
ARTIST ACKNOWLEDGES THE DISCLAIMERS AND LIMITATIONS ON THALO’S LIABILITY SET FORTH IN THE STANDARD RIDER.
12. Independent Contractor
Artist is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Artist and Thalo.
DATE LAST MODIFIED: APRIL 3, 2012
STANDARD RIDER TO ARTIST AGREEMENT
This Standard Rider supplements and is incorporated into the Artist Agreement (“Agreement”) with regard to the Art Program (as that term is defined in the Agreement).
The Art Program is operated by Thalo LLC. (“Thalo”), the licensee of the trademarks THALO, GRUMBACHER, MAX GRUMBACHER, THALOTV, and other trademarks (“Marks”). “Website” means the websites located at www.thalo.com and www.maxgrumbachergallery.com, any subsequent URL which may replace them, and all associated websites, URLs and micro sites. Thalo offers this Website, including all information, tools and services available from this Website, to Artist conditioned upon Artist’s acceptance of all the terms, conditions, policies and notices stated here. ARTIST’S CONTINUED USE OF THE WEBSITE CONSTITUTES ARTIST’S AGREEMENT WITH ALL TERMS OF THE AGREEMENT, INCLUDING THE TERMS OF THIS STANDARD RIDER.
Thalo reserves the right to change or update this Standard Rider by posting such changes or updates to the Website. It is Artist’s responsibility to review any such changes or updates and check the Website from time to time to be sure Artist understands the terms and conditions and policies of the Website and is in compliance with them. Artist can tell if this Standard Rider has changed by checking the last modified date that appears at the end of this Agreement. Artist’s continued use of the Art Program following the posting of any amendment, modification or change shall constitute Artist’s acceptance thereof. Notwithstanding the foregoing, Thalo will never modify any portion of this Agreement relating to your ownership of the Artwork as stated in paragraph 7; YOU WILL ALWAYS RETAIN FULL OWNERSHIP OF ALL OF YOUR RIGHTS, INCLUDING ALL COPYRIGHTS, IN AND TO YOUR ARTWORK, SUBJECT ONLY TO THE LIMITED LICENSE GRANTED TO THALO UNDER THE TERMS OF THIS AGREEMENT.
1. The Art Program
1.1 The Art Program provides a forum for artists to promote their Artwork, elect to sell original Artwork (the Website acts as a lead generater, therefore the transaction is between the Artist and the customer) or Reproductions of their Artwork (are sold through the Website as a service), and express their artistic views and comment on their own Artwork. In order to become a member of the Art Program, Artist must go through a qualification process. Once accepted, the Artist will have the option to set up a paid member Artist Account with the Max Grumbacher Gallery through the Website by following the instructions on the Website for opening such an account and paying the yearly membership fees as discussed in paragraph 1.1 of the Agreement. Once Artist elects to become a paid member of the Art Program, Artist will become an Authorized Max Grumbacher Gallery Artist.
1.2 Artist may elect to sell original Artwork (the Website acts as a lead generater, therefore the transaction is between the Artist and the customer) through the Website, and may also elect to allow Thalo to expedite and sell copies of the Artwork through the Max Grumbacher Gallery as Fine Art Reproductions and/or Poster Prints (collectively “Reproductions”). Once accepted into the Art Program, Artist will have four (4) options for displaying and/or selling Artist’s Artwork:
1.2.1 Option 1 – Exhibit Artwork in the Max Grumbacher Gallery Only. Artist may choose not to sell original Artwork or Reproductions through the Max Grumbacher Gallery and may choose to use the Max Grumbacher Gallery to showcase Artist’s original Artwork only. Should Artist choose this option, Artist may sell original or reproduction Artwork through any sales channel outside of the Max Grumbacher Gallery.
1.2.2 Option 2 – Sell Original Artwork only, not Reproductions in the Max Grumbacher Gallery. Artist may choose to sell only original Artwork through the Max Grumbacher Gallery (the Website acts as a lead generater, therefore the transaction is between the Artist and the customer). Should artist choose this Option 2, the exhibition of all original Artwork through the Max Grumbacher Gallery shall be governed by the terms of this Agreement. Reproductions may be produced and sold on or off line through Artist’s own personal website or any other sales channel.
1.2.3 Option 3 – Sell Reproductions only, not Original Artwork in the Max Grumbacher Gallery. Artist may choose to sell only Reproductions of Artist’s original Artwork through the Max Grumbacher Gallery. Should Artist choose this Option 3, Reproductions of Artist’s original Artwork may be produced by and sold through the Max Grumbacher Gallery, and Artist is encouraged to provide a link from Artist’s personal website to the Max Grumbacher Gallery for sales of Artist’s Reproductions. Reproductions may also be sold or produced through any other sales channel, but all sales of Reproductions through the Max Grumbacher Gallery shall be governed by the terms of this Agreement.
1.2.4 Option 4 – Sell Original Artwork and Reproductions in the Max Grumbacher Gallery. Artist may choose to sell original Artwork (the Website acts as a lead generater, therefore the transaction is between the Artist and the customer) and Reproductions of the same through the Max Grumbacher Gallery. Should artist choose this Option 4, the exhibition of all original Artwork through the Max Grumbacher Gallery shall be governed by the terms of this Agreement. Reproductions of Artist’s original Artwork may be produced by and sold through the Max Grumbacher Gallery, and Artist is encouraged to provide a link from Artist’s personal website to the Max Grumbacher Gallery for sales of Artist’s Reproductions. Reproductions may also be sold or produced through any other sales channel, but all sales of Reproductions through the Max Grumbacher Gallery shall be governed by the terms of this Agreement.
1.3 Thalo strives to make the Max Grumbacher Gallery a place for high quality artwork to be displayed and sold. In order to be accepted into the Art Program, prospective Art Program members shall send Thalo at least two (2) artwork images (“Artwork Samples”) that are representative of the prospective member’s work through the Website by clicking on the appropriate links to do so. Thalo shall then review the Artwork Samples to determine whether the prospective member will be accepted into the Art Program as an Artist. Prospective Art Program members represent and warrant that the Artwork Samples accurately reflect the general quality of their Artwork, and, if accepted as an Artist, that all Artwork displayed and sold in the Max Grumbacher Gallery will be of the same general quality as the Artwork Samples. Prospective Art Program members acknowledge that Thalo’s decision as to whether to accept an artist into the Art Program is within Thalo’s sole discretion and will be based, at least in part, on subjective criteria. Prospective Art Program members shall have no recourse against Thalo should Thalo not accept them into the Art Program or should Thalo later determine that the quality of the Artwork is not of the same general quality as the Artwork Samples. Any Artist accepted into the Art Program will receive a congratulatory email. Thereafter, Artist may refer to himself/herself as an “Authorized Max Grumbacher Gallery Artist” in Artist’s biographical materials, on Artist’s website, and on Artist’s resume. Artist may not use the Max Grumbacher name on any other materials, such as letterhead or business cards, without Thalo’s prior written consent. Should Thalo terminate this Agreement, or should Artist cancel his/her membership in the Art Program, Artist shall no longer refer to himself/herself as an “Authorized Max Grumbacher Gallery Artist” and shall immediately remove all references to himself/herself as an “Authorized Max Grumbacher Gallery Artist” from Artist’s website, resume or other such permitted media
1.4 Thalo will provide Artist with Artist’s own online gallery (“Artist Gallery”) through an individual URL (such as www.maxgrumbachergallery.com/nameofartist), which may be changed by Thalo from time to time, to which Artist may upload digital images of Artwork, information about Artist and/or the Artwork and other content (“Artist Content”). Artist will be able to name his/her own Artist Gallery, but Artist shall not use the trademark, trade name, or other indicia of any other person or entity in Artist’s Gallery name.
1.5 Artist acknowledges that the Artist Content uploaded to or posted in the Artist Gallery is not private and will be available for the public to view on the Website. Artist is responsible for evaluating and bearing all risks associated with the public availability of the Artist Content and shall not upload or post any Artist Content to the Artist Gallery that Artist does not wish to make public.
1.6 Artist will create a password of Artist’s choosing when Artist creates an account. Artist is responsible for maintaining the confidentiality of Artist’s account and password and for restricting access to Artist’s computer. Artist agrees to accept responsibility for all activities that occur under Artist’s account or password, regardless of whether such use is authorized by Artist or not.
1.7 Artist acknowledges and agrees that Artist will be solely responsible for all elements of the Artist Content uploaded or posted by Artist or in the name of Artist’s account (including but not limited to all Artwork and textual information such as Artist’s bio, information, statement, and commentary on their own Artwork) and the accuracy and propriety of the same.
2. Prohibited Activities
2.1 Artist may add or remove Artwork and Artist Content from the Artist Gallery, but Artist agrees that Artist shall NOT:
- Use the Website or the Artist Gallery as storage for remote loading for another website, whether internal or external to the Website;
- Directly link to any other website, except that Artist may link to Artist’s own website under the terms of this Agreement;
- Solicit for advertisers or sponsors;
- Conduct raffles or contests of any type; or
- Display a sponsorship banner of any kind, including those that are generated by banner or link exchange services.
2.2 Artist also agrees to comply with the following as it relates to Artwork and Artist Content. In this regard, Artist shall NOT post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content:
- Unless Artist owns the intellectual property rights in the same and has the right to do so;
- That is an unauthorized copy, reproduction, or derivative of the work of any other person or entity;
- That features the trademark, logo, trade name, trade dress, or brand name of any other person or entity;
- That infringes any third party’s rights of privacy and/or publicity; or
- That defames another person or otherwise infringes any personal or property right of any other person or entity.
2.3 While Thalo encourages artistic creativity, because of the public nature of the Internet and the inability to control access to public content, Artist agrees to comply with certain basic guidelines. In this regard, Artist shall NOT post or upload any Artwork, images, text, graphics, articles, photographs, or other Artist Content:
- That contains “hate” speech or racial intolerance, or that advocates violence or ridicule against any individual, group, or organization;
- That displays illegal drugs or drug paraphernalia;
- That constitutes or encourages a criminal activity, violates the right of any third party, or the laws of any local, state, federal, or international law;
- That features excessive profanity or sexually explicit language;
- That encourages or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or otherwise;
- That is harmful to or exploitive of children;
- That encourages or promotes cruelty to animals; or
- That would otherwise be considered obscene or overly offensive to the reasonable art observer.
2.4 Thalo recognizes that certain Artists may want to include nude images in their Artwork, and Thalo acknowledges that such images may be uploaded to the Artist Gallery. However, Artist agrees that Artist shall not post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content that is considered “X-rated” or “hard-core”, or depicts graphic or deviant sexual acts or any paraphernalia involved in such activities. Under no circumstances shall Artist post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content that contains nude or suggestive images of CHILDREN OR ANYONE UNDER THE AGE OF 18 YEARS.
2.5 Thalo also recognizes that violence is an unfortunate part of life, and violence is occasionally depicted in artwork. Accordingly, Artist may post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content depicting violence if the same was created for artistic purpose, comment, or merit. However, Artist shall not post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content that contain overt or gratuitous violence, images of suicides or crime scene photos, morgue or autopsy images, violent depictions of human organs and body parts, images that promote suicide, or depict or encourage violence against animals.
2.6 Artist shall not use a false email address, impersonate any person or entity, or otherwise misrepresent the origin of any Artist Content; however, if Artist uses a professional name that is not Artist’s legal name, Artist shall be allowed to use such professional name in connection with the Art Program in Artist’s Gallery, provided that Artist uses Artist’s legal name when setting up Artist’s account. Artist shall not post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content that is false, inaccurate, misleading, illegal, obscene, threatening, defamatory, invasive of privacy, or otherwise objectionable or injurious to third parties. Artist shall not post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, software viruses, political campaigning, commercial solicitations, mass mailings, “junk mail,” “spam,” “chain letters,” or “pyramid schemes” or other such solicitations. Artist shall not “stalk” or otherwise harass any other Art Program participant. Artist may not collect or store personal data about Art Program participants except as specifically authorized by them. Artist will not post or upload Artwork, images, text, graphics, articles, photographs, or other Artist Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
2.7 Artist acknowledges and agrees that Thalo shall have the right, but not the obligation, to screen all Artwork and Artist Content for compliance with this Agreement, to prevent any Artwork or Artist Content from appearing in the Artist Gallery, and/or to remove Artwork or Artist Content that already appears in the Artist Gallery, for any reason. Artist acknowledges that the factors determining whether the Artwork or Artist Content is prohibited by this Agreement may be subjective, and Artist agrees that Thalo shall determine, in its sole discretion, whether the Artwork or Artist Content adheres to the terms of this Agreement. Artist acknowledge and agree that Thalo may preserve the Artwork or Artist Content or disclose it if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process or enforce the terms of this Agreement.
2.8 Thalo’s production of any print, product, advertisement or collateral material featuring the Artwork Artist Content does not indicate that Thalo approves of the Artwork or Artist Content or that Artist is absolved of any liability or harm arising from Thalo’s use of the Artwork or Artist Content.
3. Circumvention of Website
Thalo strives to provide a vibrant and effective community for artists on the Website. In order for Thalo to do this, Artist recognizes that it is essential that all Artwork sale transactions occur under the terms of this Agreement.
4. Logistics of Selling Artwork
4.1 The Art Program offers Artist the option to sell Artist’s Artwork in multiple ways:
- Original Artwork. Artist will be notified by the Website via email when a prospective customer is interested in purchasing Artists original artwork. The Website recommends that you contact the prospective customer as soon as possible in order for Artist to finalize the sale. This transaction is strictly between Artist and the prospective customer. The Website acts as a lead generator for Artist original artwork, it is longer involved in the sale.
- Fine Art ReproductionsArtist acknowledges that the Fine Art Reproductions will not be produced in a size that is larger than Artist’s original Artwork. Based upon the size of Artist’s Artwork, Thalo will determine the minimum price of each reproduction size chosen. Artist has the option of increasing the price, but Artist cannot sell below the minimum price established by Thalo. Furthermore, Artist may not list Artist’s original Artwork at a price equal to or less than the price of the Fine Art Reproduction(s) offered on the Website.
- Poster PrintsArtist acknowledges that the Poster Prints will not be produced in a size that is larger than Artist’s original Artwork. Based upon the size of Artist’s artwork, Thalo will determine the minimum price of each reproduction size. Artist has the option of increasing the price, but Artist cannot sell below the minimum price established by Thalo. Furthermore, Artist may not list Artist’s original Artwork at a price equal to or less than the price of the Poster Print(s) offered on the Website.
4.2 In order to receive compensation from Thalo for the sale of Reproductions in any form, Artist must provide all requested and accurate information to Thalo when Artist sets up Artist’s Art Program account. In addition, upon Thalo’s request, Artist agrees to provide Thalo with a completed IRS form W-9, or any other such documentation that may be required.
5. Sale of Original Artwork
5.1 If a prospective customer desires to purchase original Artwork, the prospective customer will click on the appropriate portion of the Website and will fill out the respective contact information. Artist will be notified by the Website via email when a prospective customer is interested in purchasing Artists original artwork. The Website recommends that you contact the prospective customer as soon as possible, and no later than 2 days, in order for Artist to finalize the sale. This transaction is strictly between Artist and the prospective customer. The Website only acts as a lead generator for Artist original artwork, it is no longer involved in the sale. Thalo shall have no liability to Artist should Thalo fail to communicate such offer or should Artist not receive such offer.
6. Sale of Reproduction Artwork
6.1 By uploading Artwork to the Artist Gallery, Artist may elect to offer for sale certain Reproductions of such Artwork through Thalo. Buyers will be allowed to order such Reproductions directly from Thalo through the Max Grumbacher Gallery, pursuant to the license granted to Thalo below.
6.2 The buyer will have 30 days from the order date of the Reproduction to return the goods if they are not satisfied.
7. Disclosure for Legal Purposes
Artist hereby authorizes Thalo to disclose any Artist information pursuant to judicial and administrative proceedings, and in connection with law enforcement activities and as otherwise may be permitted by law, to law enforcement or government agencies if Thalo believes the disclosure is necessary or appropriate. Artist also authorizes Thalo to disclose information if Thalo believes the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with the Artist Gallery specifically or the Website in general, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put Thalo at risk for liability.
8. Communications With Users
8.1 The Art Program is directed and made available only to users 18 years old or older. In line with this policy, if it comes to Artist’s attention that an Art Program participant is under age 18, Artist shall notify Thalo immediately via email to alert[at]maxgrumbachergallery.com and have no communication with such person.
8.2 Thalo reserves the right, though it does not have the obligation, to monitor the Artist Gallery and any communications to or from the Artist Gallery. If, at any time, Thalo discovers that Artist is using the Artist Gallery or the Art Program for any reason other than as in accordance with this Agreement, Artist’s relationship with Thalo and participation in the Art Program will be terminated immediately.
8.3 Artist shall promptly report any suspicious communications or any communications believed to be from anyone under the age of 18 years; however, Thalo is not responsible for any communication or activity between Artist and any third-party or Art Program participant.
9.1 THALO MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED IN RELATION TO THE ACCURACY OF ANY INFORMATION ON THE WEBSITE. THE WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR ENDORSEMENT. UNLESS SPECIFIED IN SEPARATE TERMS AND CONDITIONS RELATED TO A PARTICULAR PRODUCT OR SERVICE, THALO MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN RELATION TO THE WEBSITE, OR PRODUCTS OR SERVICES OFFERED ON THE WEBSITE WHETHER BY THALO, ON THALO’S BEHALF, OR BY OTHERS, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY, CONDITION OR COMPLETENESS, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OR TRADE.
9.2 UNLESS SPECIFIED IN SEPARATE TERMS AND CONDITIONS RELATED TO A PARTICULAR PRODUCT OR SERVICE, THALO MAKES NO WARRANTY THAT THE WEBSITE OR PRODUCTS OR SERVICES OFFERED ON THE WEBSITE WILL MEET ARTIST’S REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE OR PRODUCTS OR SERVICES OFFERED ON THE WEBSITE WHETHER BY THALO, ON THALO’S BEHALF, OR BY OTHERS, ARE FREE OF VIRUSES OR BUGS OR ARE FULLY FUNCTIONAL, ACCURATE, OR RELIABLE. THALO WILL NOT BE RESPONSIBLE OR LIABLE TO ARTIST FOR ANY LOSS OF CONTENT OR MATERIAL AS A RESULT OF UPLOADING TO THE WEBSITE.
9.4 THALO DOES NOT CONTROL THE ARTIST, JOB/CAREER, OR OTHER USER CONTENT POSTED OR DISTRIBUTED ON OR THROUGH THE WEBSITE BY THOSE WHO USE THE ONLINE SERVICES. THALO ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY CONTENT, ARTWORK, RESUMES, OR JOB POSTINGS DISTRIBUTED OR MADE AVAILABLE THROUGH THE WEBSITE BY THOSE WHO USE THE ONLINE SERVICES. THALO MAKES NO REPRESENTATION THAT THE QUALITY OF ANY WORKS OF ORIGINAL ART PURCHASED OR OBTAINED BY USERS THROUGH THE WEBSITE WILL MEET THE USERS’ EXPECTATIONS, OR THAT ARTIST WILL SELL ANY ARTWORK THROUGH THE WEBSITE.
10. LIMITATION OF LIABILITY
ARTIST EXPRESSLY UNDERSTANDS AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THALO, ITS SUBSIDIARIES, AFFILIATES, AND RELATED ENTITIES, OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS, MEMBERS, OR OTHER OWNERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA (EVEN IF THALO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) ARTIST’S USE OR INABILITY TO USE THE WEBSITE OR ACCESS THE ART PROGRAM; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE ARTIST GALLERY, DATA OR TRANSMISSIONS; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (D) ANY OTHER MATTER RELATING TO THIS AGREEMENT, THE ART PROGRAM OR THE ARTIST GALLERY. FURTHER, THALO’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE ART PROGRAM WILL NOT EXCEED, AT ANY TIME, THE TOTAL AMOUNTS RECEIVED BY THALO FROM ARTIST OR FROM THE SALE OF ARTIST’S ARTWORK OR REPRODUCTIONS THEREOF UNDER THIS AGREEMENT DURING THE PREVIOUS 12-MONTH PERIOD.
11.2 If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
11.3 The failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of any party’s right to subsequently enforce such a provision or any other provision of this Agreement.
11.4 Thalo reserves the right to categorize and re-categorize elements of the Artist Content submitted to the Website, including the Artist Gallery, within Thalo’s subject classification system, as may be modified from time to time by us in Thalo’s sole discretion.
11.6 Artist may send Thalo notices or communicate with Thalo by email to info[at]maxgrumbachergallery.com. If Artist does not receive a response from Thalo to any emails Artist sends to Thalo within 7 business days, Artist should send Thalo another email as Artist’s original email may not have been received.
11.7 Thalo may freely assign this Agreement or any of its rights and/or obligations hereunder.
DATE LAST MODIFIED: APRIL 18, 2013