Licensing Agreement
THIS AGREEMENT is made effective as of the date submitted to APG by the Licensor, together with the images and associated descriptions for marketing purposes, as applicable, through APG’s website, between Art Provocateur Gallery Inc., a corporation existing under the laws of the Province of Ontario (“APG”) and you (the “Licensor”).
WHEREAS
I the Licensor has the right to grant exclusive world-wide licenses for the use of the Licensed Material, as defined below, in connection with the production and distribution of copies of the copyrighted Licensed Material; and
II APG wishes to use the Licensed Material in accordance with the terms of this Licensing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and such other consideration transferred between the parties hereto, the receipt and sufficiency of which is hereby acknowledged and agreed, the parties hereby agree to the following terms:
License
1.1 Licensor hereby grants to APG, in accordance with the terms and conditions of this Agreement, a non-transferrable license to use the images delivered to APG with the intention of APG marketing such works for sale, and shall include, in the case of original or limited edition works delivered by the Licensor to the customers, photographs and descriptions relative to size, media and related information about the underlying works (the “Licensed Materials”) during the Term, and to otherwise copy (except in the case of one of a kind works), make (except in the case of one of a kind works), use and sell the Licensed Materials. It is the intention of the parties that APG shall use this license to market, sell, copy (except in the case of one of a kind works) and distribute the Licensed Materials in accordance with the terms hereof. Additionally, Licensor hereby grants to APG a right to include the Licensed Materials, during the continuation of such license, in a coffee table book to be distributed under the APG brand, on pricing and commission structures to be determined, but which structures shall, in any case, be mindful of the cost to APG of marketing, printing and distributing such book, and the entitlement of other copyright holders to works included in such publication.
1.2 APG shall not grant sub-licenses to the Licensed Materials without the prior approval of the Licensor.
Basically...
You are granting APG the right to sell and, in the case of open works or limited edition works, print or copy, your works, over the Internet.
Membership
2.1 You must be 18 years of age or older to use our website and/or to become a member. We do not assume responsibility for false statements about age.
a) Silver Membership $19 USD or $199 for one year
b) Gold Membership at $47 USD monthly or $499 for one year
2.2 Licensor hereby agrees to pay a monthly membership fee for one of two membership options:
2.3 You are solely responsible for your account and the security and privacy of your account, including passwords or sensitive information attached to that account.
2.4 All personal information you provide to us through your account is up to date, accurate, and truthful, and you will update your personal information if it changes.
2.5 We reserve the right to modify, reject or cancel your membership at any time. If we reject or cancel your membership, we will give you a refund equal to the amount you paid. You agree that it is your responsibility to monitor your payment instrument to verify receipt of any refund.
2.6 Your membership will be automatically renewed at the end of the month/year and you will be automatically billed until we receive notification that you want to cancel the subscription.
Basically...
You are 18 years of age or older. You agree to pay the membership fees and understand that you can cancel at any time. We reserve the right to cancel or reject your membership.
Ownership and Title
2.1 APG acknowledges that Licensor is the sole and exclusive owner of the Licensed Material and of all associated intellectual property rights consistent with such ownership. APG further agrees that it will not claim ownership rights to the Licensed Material, or any derivative, compilation, sequel or series, or related work owned by or used by Licensor. APG agrees that nothing in this Agreement shall give APG any right, title, or interest in the Licensed Material other than the right to use the same in accordance with this Agreement.
2.2 The Licensor represents and warrants to APG that the Licensor is the sole owner of the Licensed Material, and any right or interest any other person may hold, including, without limitations, moral rights and rights to privacy, have been transferred to the Licensor or waived, as applicable. For clarity, any and all models appearing in the Licensed Material have transferred all rights in such works to the Licensor, or, as applicable, have provided the Licensor with a transferrable license to such models’ rights and interests in the Licensed Material, such that the use of APG contemplated herein shall not infringe any rights or interests of any such person. The Licensor hereby agrees to indemnify APG for any and all damages, including, without limitation, legal fees on a full indemnity basis, arising as a direct or indirect result of a breach of the foregoing representation and warranty.
2.3 It is understood and agreed that, where the Licensor advertises that a limited number of copies of a work will be made available, that APG will not sell works in excess of such limit, no additional number shall be created or sold by the Licensor, and the Licensor shall not sell works in excess of such limit (taken together with the works sold through APG or directly by the Licensor) in excess of such limit, during the term of the Agreement or afterward the end of the term.
2.4 In no event will APG company be liable to you for any lost profits, lost savings or incidental, indirect, special or consequential damages, arising out of your use or inability to use the product or the breach of this agreement, even if advised of the possibility of such damages. The amount of the limitation shall not exceed the total compensation received by Licensor under this Agreement.
Basically...
You own your works, and retain ownership rights. APG will not gain any ownership rights in your works as a result of this agreement. You are hereby exercising your right to license to APG and you are also asserting that you are the exclusive owner of the licensed materials.
For limited edition artwork, if you indicate to (or through) APG that there will not be more than a given number of a work produced, you will not exceed this limit through APG, or circumvent this limit by selling works directly or through another vendor.
You will not be able to sue APG for damages of more than what you were paid in the course of this Agreement.
Commissions and Payments
3.1 In addition to the commissions payable to you, we will also pay Harmonized Sales Tax (“HST”) applicable to those commissions if you provide APG with a warranty that you are registered under the Excise Tax Act (“ETA”), together with a copy of your ETA registration, a warranty that you will assess and remit the HST payable and indemnify APG in respect of any HST payable by you. If the information, as set out in this section 3.1, is not provided, HST will not be paid to you in addition to the commissions. It is agreed and understood that you are solely responsible for your own HST obligations under the ETA.
3.2 Pricing for open edition or limited edition artwork that is produced and shipped by APG shall be based on the pricing in our portal as set by APG, plus the Licensor’s commission, as set by the Licensor. The current default rate for the Licensor’s commission in our portal is twenty five (25%) percent of set cost, but can be changed to any other amount (percentage or dollar specific), by the Licensor. For print to order works, APG will print the work and ship to the customer following an order. Shipping of limited edition or one of a kind works produced and shipped by the artist is addressed in Section 3.5 below.
3.3 A Licensor may offer limited edition prints under 20 inches in size and in a quantity between fifty (50) to two-hundred fifty (250) as set by APG. Such prints shall be offered at a set price to be determined by APG and set commission to be determined by APG, payable to the Licensor.
3.4 In addition to the production costs payable to APG in Section 3.2, on the sale of open edition or limited edition artwork produced and shipped by APG, APG’s commission shall be thirty (30%) percent of Licensor's commission, plus three and half (3.5%) percent processing fee, with the remaining sixty-six and half (66.5%) percent accruing to Licensor.
3.5 In the sale of limited edition or one of a kind artwork produced and shipped by Licensor, APG’s commission shall be thirty (30%) percent of the sale price, plus three and half (3.5%) percent processing fee, with the remaining sixty-six and half (66.5%) percent accruing to Licensor.
3.6 The Licensor will set a shipping rate for limited edition and original artwork produced and shipped by Licensor. APG charges a processing fee of three and half (3.5%) percent on the shipping rate set by the Licensor.
3.7 In the sale of any artwork through an online collaboration between APG and third party, with the applicability of this section 3.6 to such a relationship and the superiority to any other section in this Agreement being subject to the sole discretion of APG, APG’s commission shall be forty (40%) percent of the sale price, plus a three and half (3.5%) percent processing fee, with the remaining fifty-six and half (56.5%) percent accruing to Licensor. In calculating the “sale price” for the purposes of this section 3.6, any costs associated with production and shipping incurred by APG shall be first subtracted from the gross purchase price, and paid to APG, with the balance being deemed to be the sale price.
3.8 In the sale of any artwork via a physical gallery and/or a live event, with the applicability of this section 3.8 to determining if such a sale did occur at a physical gallery and/or live event and the superiority to any other section in this Agreement being subject to the sole discretion of APG, APG’s commission shall be fifty (50%) percent of the sale price, with the remaining fifty (50%) percent accruing to Licensor. In calculating the “sale price” for the purposes of this section 3.7, any costs associated with production and shipping incurred by APG shall be first subtracted from the gross purchase price, and paid to APG, with the balance being deemed to be the sale price.
3.9 Any artwork sold in connection with an APG affiliate, with APG affiliates being defined in the applicable Affiliate Agreement, is subject to a commission payable to the affiliate of up to ten (10%) percent of the sale price, with the commission percentage payable for each artwork to be determined by APG, in its sole discretion, and payable by the Licensor and APG in equal parts to the affiliate. The Affiliate Agreement can be found on APG’s website and through the following link: https://www.artprovocateur.com/affiliate-agreement.
3.10 All artwork must be securely packaged and shipped by an approved APG carrier. Where the artwork does not conform to the images or description on the APG website (as prepared by the Licensor), or is damaged in shipping, the customer shall have a right to notify APG of their intention to return the work not more than fourteen (14) days after delivery, for a full refund of the customer’s purchase price, including both the Licensor’s fee and APG’s commission, and shipping costs shall be charged to the Licensor.
3.11 APG, and the Licensor, in the case of limited edition and one of a kind works shall arrange for insurance on shipments, such that where artwork is damaged in shipment a corresponding amount should be payable from the shipper or its insurer to APG, with the net proceeds to be split between APG and the Licensor in accordance with the sharing formula established in respect of the work.
3.12 Commissions contemplated herein shall be sent to the Licensor via selected method of payment once an order is marked as Complete, twenty-eight days (28) after dispatch of the work to the buyer, on condition that the work has not been returned, with notice made by email to the Licensor, and shall be paid (a) to the Licensor’s PayPal account each Wednesday, or (b) at the option of Licensor, by cheque or wire transfer payable from APG to Licensor, delivered on or before the fifteenth (15th) day of each month, which cheque shall be denominated and drawn in U.S. dollars; provided that (a) amounts in respect of limited edition or one of a kind works shall become available to be claimed on the date that the customer’s fourteen (14) day right of return expires; and (b) where the Licensor elects to be paid by cheque or wire transfer, rather than through PayPal, a US$55.00 processing fee shall be deducted from such payment by APG. It is expressly acknowledged that the Licensor is not an employee of APG, and is responsible for remitting its own sale tax, income tax and any other taxes which may arise as a result of the commission payment.
3.13 The Licensor agrees that, where a sale of a one of a kind or limited edition work sells through direct sale, and such sale arises in whole or in part as a result of the promotional efforts of APG, the Licensor is obligated to pay the commission contemplated in Section 3.5 above to APG. It is the responsibility of the Licensor to notify APG of any private sale of one of a kind or limited edition works as soon as possible following sale and marking it as sold on the APG website through the artist portal; if APG effects a sale of one of a kind or limited edition work, and such work is not available due to a prior private sale by the Licensor, the Licensor shall be liable to APG for the commission contemplated in Section 3.5 above in respect of such work.
3.14 From time to time, APG may run promotional sales offering a percent (%) or flat rate ($) discount on Products. The Licensor agrees that, where a sale of an artwork sells with a discount, the commission paid to the Licensor will be discounted proportionally.
Basically...
Establishing how, when and how much you get paid. The section is very important as it establishes the consideration under this agreement and explains the shipping of limited edition and one-of-a-kind artworks. Some of the responsibilities of the Parties are clarified.
3.1 ETA registered artists will be paid their portion of sales tax collected.
3.2 Artwork produced by APG: Cost + Licensors Markup = Retail Price
3.3 Small prints under 20": pricing and quantity is set by APG
3.4 Artwork produced by APG, APG commission: 33.5%
3.5 Artwork produced by Licensor, APG commission: 33.5%
3.6 Artwork produced by Licensor, cost of shipping, APG fee: 3.5%
3.7 Sales produced via brand collaboration, APG commission: 43.5%
3.8 Sales produced via pop-up gallery or live event, APG commission: 50%
3.9 Sales produced by affiliate partner pay marketing fee of up to 10%. This fee is split between APG and Licensor (50/50)
3.10 All artwork must be securely packaged. Customer has the right to return their purchase for a full refund within 14 days.
3.11 Shipments must be insured.
3.12 Artist payment is sent via PayPal or wire transfer 28 days after dispatch of work to the buyer.
3.13 Artwork sold due to APG's promotional efforts will pay APG its rightful commission.
3.14 When APG runs a sale, your commission will be adjusted proportionally.
Term
4.1 This Agreement will commence on the date hereof, and continue in full force and effect until such date as it is amended by APG or terminated by either party.
4.2 Either party may terminate this agreement by providing 60 days’ notice to the other party.
4.3 Notwithstanding the termination of this Agreement, any license to reproduce, sell and distribute images in respect of the coffee table book contemplated in Section 1 shall continue in full force and effect for the sole purpose of permitting APG to continue to market, sell and distribute such books printed, or contracted to be printed, as at the date of termination of this Agreement; provided that APG continues to pay commissions earned by the Licensor in respect of the sale of such books.
4.4 Any notice of termination, and any notice of dispute, shall be provided by the Licensor to Marta Skky at marta@artprovocateur.com.
4.5 This contract shall be governed by and interpreted in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable therein. Each party hereby attorns to the exclusive jurisdiction of the courts of the Judicial District of York.
Basically...
Either you or we can terminate this agreement on sixty days’ notice. Even if the agreement is terminated, we keep our license to include your images in our coffee table book if the book has already been printed or has been set to print.
You hereby agree this is the only agreement governing our relationship.
Miscellaneous
5.1 The headings for each section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement. The text in the right column above is meant to paraphrase the text in the left column, but does not supersede or amend such text. The relationship between the parties is governed, in all cases, by the text in the left column.
5.2 This Agreement constitutes the entire agreement between Licensor and APG and supersedes any prior understanding or representation of any kind preceding the effective Date of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement.
assented to by the Licensor as at the date submitted through the APG web portal by checking the box “I hereby offer to be bound by the foregoing terms and conditions” and submitting to APG, and accepted by APG as at the date of actual acceptance.
