Agreement for provision of art and materials
This Agreement for the Provisions of Art and Materials (“Agreement”) is a binding contract entered into by and between the below named artist (“Artist”) and Horse Scout Holdings, LLC, a Florida limited liability company (“Horse Scout”), the owner and operator of the Horse Scout Design website at www.horsescoutdesign.com (“Horse Scout Website”). By entering into this Agreement, Artist agrees to all of the terms, conditions, and obligations set forth in and imposed on Artist by this Agreement. This Agreement takes effect when Artist clicks an “I Accept” button or check box presented with this Agreement or, earlier, when Artist uses any of the service offered by Horse Scout on the Horse Scout Website or otherwise (“Effective Date”). Artist represents to Horse Scout that Artist is at least 18-years of age and is both mentally and legally competent to enter into this Agreement. If Artist is entering into this Agreement for or on behalf of a corporation, company or other legal entity, such as the company that Artist works for, Artist represents to Horse Scout that Artist has the full legal authority and corporate capacity to sign this Agreement on behalf of the entity and to bind that entity to the terms, conditions and obligations of this Agreement.
Horse Scout and the Horse Scout Website are in the business of producing and selling, on an on-demand basis, various woven and printed textile products and other digitally printed products.
Artist is engaged in a business via which it may make available images for products to be viewed and purchased by retail customer(s) (“End-User(s)”).
Horse Scout and Artist desire to have the products offered for purchase by End-Users on an on-demand basis on the Horse Scout Website, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and undertakings set out herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Horse Scout and the Artist intending to be legally bound do agree as follows:
HORSE SCOUT’S SERVICES
Horse Scout and the Horse Scout Website provide a range of services which, among other things, enable Artist to publish, sell, discuss and purchase art; interact with other members; and receive the benefits of Horse Scout's facilitation of product fulfilment, including payment processing, customer services, and third party product manufacturing. In addition, Horse Scout will arrange for the delivery of the physical product to Artist’s customer.
The digital content on the Horse Scout Website (“Artist Content”) may be information, text, data, graphics, images, photographs, sound, video, music or any other material posted online by users. Any content that Artist uploads into the portfolio section of Artist’s account is described as Artist’s “art.” Artist’s art may be viewed by all users of the Horse Scout Website once Artist elects to publish it. Artist may order a physical product based on Artist’s own art or Artist may offer Artist’s art for sale as part of the sale of a physical product. If Artist or a customer decide to place an order, then Horse Scout will forward your instructions to third parties who will manufacture and ship the physical product in the form specified by Artist or the customer.
Artist can become a registered member (“Member”) of the Horse Scout Website by setting up a password protected account. Artist will be required to select a username and password when registering to become a Member. Artist must become a Member before placing any content on the Horse Scout Website, including writing any comments in forums or reviews. In its sole discretion, Horse Scout may refuse any user name that it decides is inappropriate and/or refuse any person from becoming a Member.
Any information Artist chooses to publish in the public section of Artist’s profile may be viewed, distributed or linked to within the Horse Scout Website or in the course of delivering the Horse Scout service.
Artist is responsible for actions made on the Horse Scout Website using Artist’s password, including any products purchased or sold and any content displayed or messages sent, even if these actions were not approved or contemplated by Artist. Artist is solely responsible for any loss caused by any use of Artist’s password by Artist, or any other person.
Artist agrees that Artist will not disclose Artist’s password to any other person and you will not keep Artist’s password where it can be copied or used by anyone other than Artist. If Artist suspects someone else knows the password, Artist must change it immediately.
PUTTING CONTENT ON THE HORSE SCOUT WEBSITE
Artist keeps the copyright in any content Artist submits or uploads to the Horse Scout Website. In order to receive the Horse Scout services Artist grants Horse Scout a non-exclusive royalty free license to use and archive the content in accordance with or as reasonably contemplated by this Agreement. When Artist submits or uploads content on the Horse Scout Website, Artist represents and warrants that: (a) Artist owns all copyright in the content, or if Artist is not the owner, that Artist has permission to use the content, and that Artist has all of the rights required to display, reproduce and sell the content; (b) the content Artist uploads will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or rights of privacy or publicity; (c) Artist’s use of the Horse Scout Website will comply with all applicable law, rules and regulations; (d) the content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable; (e) the content does not include malicious code, including but not limited to viruses, trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; and (f) the content is not misleading and deceptive and does not offer or disseminate fraudulent goods, services, schemes, or promotions.
Horse Scout reserves the right to review and if in its sole discretion deemed necessary, remove any content from the Horse Scout Website and/or cancel Artist’s account, because that content breaches any of the terms, conditions or obligations of this agreement and/or any applicable laws, or otherwise. Artist agrees to indemnify Horse Scout in respect of any direct or indirect damage caused due to Artist’s breach of one or more of these warranties.
OFFERING ART AND MATERIALS FOR SALE ON A PRODUCT
Artist may offer Artist’s art for sale on a physical product on the Horse Scout Website by appointing Horse Scout to facilitate the transaction on the terms set out in this Agreement in Appendix A. By agreeing to the terms of this Agreement, Artist expressly agrees to the terms set forth in Appendix A, which will apply from the date on which Artist offers Artist’s first art for sale on a physical product and Artist’s continued use of the Horse Scout Website will constitute ongoing agreement to the terms therein as updated from time to time.
Horse Scout does not represent or guarantee that the Horse Scout services or the Horse Scout Website, or any other website that is accessible using a hyperlink from the Horse Scout Website will be free from errors or viruses. Horse Scout does not represent or guarantee that access to the Horse Scout services or the Horse Scout Websites will be uninterrupted.
Artist acknowledges that the Horse Scout services or the Horse Scout Website may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including technical difficulties with the performance or operation of Horse Scout’s or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures.
Horse Scout does not warrant that any Members’ uploads to the Horse Scout Website will be protected against loss, or misuse or alteration by third parties. Horse Scout does not warrant that all uploaded content will be available on the Horse Scout Website. If Horse Scout elects in its sole discretion to make available content on the Horse Scout Website, Horse Scout does not warrant that it will be available within a certain time frame.
Horse Scout does not accept responsibility for any loss or damage, however caused (including through negligence), that Artist may directly or indirectly suffer in connection with your use of the Horse Scout Website or any linked website, nor does Horse Scout accept any responsibility for any such loss arising out of Artist’s use of or reliance on information contained on or accessed through the Horse Scout Website.
To the extent permitted by law, any condition or warranty that would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits Horse Scout from excluding or modifying the application of, or Horse Scout’s liability under, any such condition or warranty, that condition or warranty will be deemed included but Horse Scout’s liability will be limited for a breach of that condition or warranty to one or more of the following, which Horse Scout may offer as a gesture of goodwill if the breach relates to goods: (a) the replacement of the goods or the supply of equivalent goods; (b) the repair of such goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired. If the breach relates to services: (a) the supplying of the services again, or (b) the payment of the cost of having the services supplied again.
This disclaimer set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.
INTELLECTUAL PROPERTY RIGHTS AND LICENSE
By submitting listings to Horse Scout, Artist grants Horse Scout a non-exclusive, worldwide, royalty-free, sublicense able and transferable license to use, reproduce, distribute, prepare derivative works of and display the content of such listings in connection with Horse Scout's (and its successors' and affiliates') services and business in facilitating the sale of Artist’s product including, without limitation, for promoting and redistributing part or all of the Horse Scout Website (and derivative works thereof) in any media formats and through any media channels. Artist also grants each user of the Horse Scout Website a non-exclusive license to access Artist’s content through the Horse Scout Website and to use, reproduce, distribute, and display such content as permitted through the functionality of the Horse Scout Website and under this Agreement. The above licenses terminate within a commercially reasonable time after Artist removes or delete Artist’s listings from the Horse Scout Website.
All intellectual property rights in the Horse Scout Website and the Horse Scout services (including the software and systems underlying the Horse Scout services, and text, graphics, logos, icons, sound recordings and software) are owned by or licensed to Horse Scout. Other than for the purposes of, and subject to the conditions prescribed under relevant Copyright and Trade Mark legislation throughout the world, and except as expressly authorized by this Agreement, Artist may not in any form or by any means: use, adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of the Horse Scout Website; or commercialize any information, products or services obtained from any part of the Horse Scout Website, without Horse Scout’s written permission.
If you use any of Horse Scout’s trademarks or service marks in reference to Horse Scout’s activities, products or services, you must include a statement attributing that trademark or service mark to Horse Scout. Artist must not use any of Horse Scout’s trademarks or service marks in or as the whole or part of Artist’s own trademarks or service marks; in connection with activities, products or services which are not Horse Scout’s; in a manner which may be confusing, misleading or deceptive; or in a manner that disparages Horse Scout or Horse Scout’s information, products or services (including the Horse Scout Website).
ARTIST’S REPRESENTATIONS AND WARRANTIES
Artist hereby affirms, represents and warranties that:
Artist has the right to create, manufacture, distribute, provide and sell the products containing, incorporating, displaying, or otherwise utilizing all artwork Artist has provided for inclusion on the Horse Scout Website. This includes, but is not limited to, any images, graphics, representations, digital assets, digital images or other stylizations, regardless of type or kind, provided by Artist for use or inclusion on the Horse Scout Website, hereinafter referred to as the “Materials.” This specifically includes, but is not limited to: (1) any featured name, logo, trademark or service mark contained in or represented on the Materials; (2) any featured person’s or locale’s name, face, or likeness contained in or represented on the Materials; and (3) any featured words or images created by a third party contained in or represented on the Materials. Artist affirms that Artist either owns the provided Materials, has licensed the Material, has valid contractual rights to the Materials, or is otherwise authorized to provide the Materials for use on the Horse Scout Website.
Artist is free to enter into this Agreement and that Artist’s performance hereunder will not conflict with any other Agreement to which Artist may be a party.
All artwork contained in or represented on the Materials is unique and original, is clear of any claims or encumbrances, and does not infringe on the rights of any third parties.
Artist agrees that all Materials provided may be reproduced, publicly displayed, and distributed by Horse Scout, both on and off of the Horse Scout Website.
Artist agrees to defend, indemnify, and hold Horse Scout, its officers, directors, agents, employees, independent contractors, subsidiaries, affiliates and parent company harmless against any and all costs, expenses, and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Horse Scout arising out of use of any Materials furnished by Artist including, but not limited to, intellectual property infringement and/or a breach by Artist of any representation and warranty made in this Agreement.
This Agreement does not create an exclusive relationship between Horse Scout and Artist. Horse Scout is entitled to engage others to perform services of the same or similar nature to those provided by Artist, and Artist shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Artist.
This Agreement will remain in effect while Artist provides Materials to Horse Scout and/or while Materials are on or used in association with the Horse Scout Website. All representations and warranties, as well as all indemnification responsibilities, will survive indefinitely, or at least as long as any applicable statute of limitations with respect to claims regarding the Materials after this Agreement has been terminated.
JURISDICTION AND DISPUTE RESOLUTION
This Agreement and all disputes relating to this Agreement, or relating to Artist’s use of any part of the Horse Scout services or Horse Scout Website, will be exclusively resolved before the State or Federal Courts of Palm Beach County, Florida. All disputes will be resolved applying Florida law, without regard to conflicts of law principles.
Artist and Horse Scout agree to submit to the personal and exclusive jurisdiction of the State and Federal Courts of Palm Beach County, Florida for purposes of enforcing any awards. Notwithstanding the foregoing, Horse Scout may seek injunctive or other equitable relief, from a court of competent jurisdiction. Artist and Horse Scout agree that any legal claims between Artist and Horse Scout will be conducted only on an individual basis and not in a class, consolidated or representative action. Artist and Horse Scout agree that any cause of action arising out of or related to the Horse Scout Website (including but not limited to any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
If Artist has a dispute with one or more users or sellers, Artist releases Horse Scout (and Horse Scout's officers, directors, agents, subsidiaries, joint ventures and employees) from claims demands and damages (actual and consequential) of every kind of nature, known and unknown, arising out of or in any way connected with such disputes. If Artist is a California resident, Artist waives California Civil Code Section 1542 which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
If any term, provision or condition of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision of the Agreement and such invalid provision shall be deemed to be severed from the Agreement.
This Agreement and the rights and obligations thereunder with respect to Artist are personal to Artist and may not be assigned by any act of Artist or by operation of law without the prior written consent of Horse Scout. Horse Scout shall have the absolute right to assign this Agreement to any third parties including, but not limited to, a successor Company or to the purchaser of any of the assets of Company.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their agreement. Horse Scout may amend the terms of this Agreement from time to time, and we will let you know about these changes either by sending you an email to the email address you have registered with Horse Scout or by displaying information about the changes on the Horse Scout Website, or both. Either way, Artist’s continuing use of the Horse Scout Website will be taken to be acceptance of the new terms.
IN WITNESS WHEREOF, Horse Scout and Artist have caused this Agreement to be executed, all as of the Effective Date.
HORSE SCOUT HOLDINGS, LLC
The Artist wishes to use Horse Scout’s services to facilitate marketing and sale of Artist’s art on a physical product and to arrange for the manufacture of the physical product ("your product") once an order has been made through Horse Scout Website. Horse Scout will provide these services on the terms set out in Appendix A to the Agreement. Additionally, Horse Scout will provide for the delivery of such products to the customer.
1.1 Horse Scout, acting as an independent contractor under Artist’s instructions in relation to the performance of marketplace services, will market to and obtain orders from customers for the purchase of Artist’s products over the Horse Scout Website and on instruction from Artist. Horse Scout will arrange for third parties to fulfil those orders by facilitating payment for and manufacture of Artist’s products (“Services”). Horse Scout will then arrange for the delivery of Artist’s products as per the customer’s instructions. While Horse Scout’s capacity is one of an independent contractor in relation to the Services, it acts as Artist’s agent specifically in relation to the sales transaction between Artist and the customer who buys Artist’s product – see further clause 5.2 below.
1.2 Horse Scout will provide the Services pursuant to this Agreement until termination in accordance with its terms.
1.3 Artist agrees that Horse Scout is free to act in any capacity for any other person interested in promoting, marketing and obtaining orders from members of the public for the purchase of their arts over the Horse Scout Website, including any art that is the same as, or similar to, Artist’s products.
- License and standing instructions.
2.1 Artist grants Horse Scout a non-exclusive royalty-free license to use Artist’s intellectual property relating to Artist’s products for the purpose of enabling Horse Scout to carry out the Services.
2.2 Artist hereby instructs Horse Scout to facilitate the sale of Artist’s product which includes payment, processing and arranging for manufacturing Artist’s product(s) in respect of the orders placed by the customers via the Horse Scout Website and Horse Scout will facilitate such payment, and manufacturing in accordance with reasonable business practices unless Artist otherwise instructs prior to the placement of that order by a customer.
- Sale of Artist’s products.
3.1 The retail price charged to customers who purchase Artist’s product is made up of the manufacturing fee charged by the third-party manufacturer, Horse Scout’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and Horse Scout’s fee are referred to collectively, and inclusive of tax, as the “base amount”), Artist’s creator margin (“Artist’s margin”), and any relevant sales tax (such as Sales Tax, GST, VAT, etc.) that Horse Scout and/or Artist (as the case may be) are liable to account for to the appropriate tax authorities. Shipping charges will also be added to the retail price. When making each individual work available for sale Artist is able to select any percentage mark-up Artist wishes, greater than or equal to zero, above the base amount but below the automated upper limit (subject to change from time to time). The percentage mark-up selected by Artist on the Horse Scout Website for each of Artist’s products is used to calculate the dollar value of Artist’s margin for each sale.
3.2 Artist may change the percentage mark-up on top of the base amount at any time by changing Artist’s selection on the Horse Scout Website. Horse Scout may change the base amount at any time without specific notice to Artist and this will affect the dollar value of Artist’s margin, which is calculated as a percentage of the base amount (e.g., if Horse Scout increases its base amount, Artist’s margin will also increase). The retail price will not change on an individual sale after a customer has submitted an order to the Horse Scout Website.
3.3 Horse Scout will send Artist an email to the email address Artist registered in his or her account to notify Artist when an order has been placed for Artist’s products.
3.4 Artist agrees that Horse Scout makes no representation that it will be able to procure an order for Artist’s products, whether at the retail price or at all, nor that Artist will obtain any benefit by entering into this Appendix A to the Agreement.
3.5 All items purchased from the Horse Scout Website are manufactured pursuant to arrangements with third party suppliers under Artist’s instructions. This means that title and risk for loss for such items pass from Artist to the customer/purchaser without passing through Horse Scout prior to the goods being delivered to the customer under the customer’s instructions.
- Payment terms.
4.1 Artist authorizes Horse Scout to collect, hold and distribute the retail price (“sale proceeds”) from customers on the terms set out in this clause 4. Horse Scout will also charge the customer for the shipping which will be retained by Horse Scout and not affect the amount to be distributed to Artist.
4.2 Artist authorizes Horse Scout to deduct the base amount (which includes Horse Scout’s margin for facilitation services, including tax where applicable) from the sales proceeds for Artist’s products before distributing Artist’s margin (which will include tax where applicable).
4.3 Horse Scout will pay Artist’s margin in accordance with the payment method Artist selects on the Horse Scout Website. This will usually take place between the 15th and 20th days of the month.
4.4 Horse Scout may set payment amount threshold amounts in relation to a month or other time period - and where the payment amount does not exceed any applicable threshold for the relevant period, Horse Scout may elect to postpone Artist’s payment until the threshold is exceeded.
4.5 It is the Artist’s responsibility to ensure Horse Scout has current details of Artist’s postal address and bank account details. Horse Scout will not be liable for any loss suffered by Artist if the Artist provides Horse Scout with incorrect details in relation to the payment method. If Horse Scout is unable to pay Artist because Artist has given Horse Scout incorrect details or Artist’s details are out of date, Horse Scout will hold Artist’s margin for up to 12 months from the payment date. If Artist has not notified Horse Scout of any amendment to the payment method details in that time Artist’s margin proceeds will be forfeited to Horse Scout or donated to a charity of our choice.
- Taxation responsibility.
5.1 Except as required otherwise by applicable Federal or State Taxation Laws or Regulations:
(a) Each party is responsible for their own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of, as a result of, incidental to, or in connection with obligations under this Appendix A to the Agreement. Horse Scout recommends that Artist consult with Artist’s tax advisor as to the application of taxes for Artist, as the seller of the merchandise. This may include Sales Tax, VAT, GST and other transactional taxes;
(b) Horse Scout will not collect or pay taxes on Artist’s behalf as Horse Scout is merely acting as an agent in facilitating the sale of Artist’s product to the customers. As stated in clause 4.2 of Appendix A to the Agreement, the amounts distributed to Artist will be deemed to be inclusive of any taxes, if applicable. Artist will at all times be solely responsible for reporting and remitting any tax liabilities arising out of the sale of Artist’s products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance. If Artist is registered for VAT in the EU, Horse Scout may, upon Artist’s request, provide Artist with a VAT invoice for any charges levied by Horse Scout; and
(c) All tax-related reporting responsibilities by Artist to relevant tax authorities are entirely Artist’s responsibility.
5.2 If Artist has an Australian Business Number (ABN) or Value Added Tax (VAT), Artist may submit Artist’s ABN or VAT to the Horse Scout Website where requested. If Artist does not have an ABN or VAT, or if Artist elects not to submit Artist’s ABN or VAT to the Horse Scout Website, Artist will be required to provide more information about the circumstances under which Artist is offering Artist’s products for sale on the Horse Scout Website, including whether any of the Australian Taxation Office (ATO) or appropriate tax authority exemptions apply to Artist.
6.1 Artist hereby indemnifies and will keep Horse Scout indemnified from and against all claims, debts, accounts, expenses, costs, liens, actions and proceedings of any nature whatsoever, whether known or unknown by any person, arising from, incidental to, or by virtue of, the appointment, or any breach or non-performance of Artist’s obligations under this Appendix A to the Agreement or arising out of Artist’s willful act, neglect or default in the performance of such obligations.
6.2 This clause 6 will survive the termination of the Agreement.
- Limitation of liability.
7.1 In no case will Horse Scout be liable for any consequential loss or damage suffered by Artist arising from this Appendix A to the Agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
- Terminating this Agreement.
8.1 Artist can give notice of termination of this Appendix A to the Agreement by closing Artist’s account in the method described in the Agreement.
8.2 Horse Scout may give notice of termination of this Appendix A to the Agreement to Artist in writing at any time.
8.3 After notice of termination in the manner described in either clause 8.1 or 8.2, Artist authorizes Horse Scout to complete any transactions in progress in relation to Artist’s products, which Horse Scout will do on the terms of Exhibit A to the Agreement. Termination of Appendix A to the Agreement will take effect once these transactions have been completed.
8.4 Upon termination of this Appendix A to the Agreement by either party, Horse Scout will pay Artist any accrued member margin proceeds from Artist’s account, less a US$15 administration fee.
Horse Sout Design Website / Horse Scout Holdings LLC