TERMS AND CONDITIONS OF APRICUS ARTIST SERVICES AGREEMENT

The following terms and conditions are incorporated by reference into the Apricus Artist Services Agreement (the “Agreement”) and supplement the terms on the face of the Agreement.

1. Services.

(a) Online Marketing Services. The strategy developed in the course of performing the Online Marketing Services may include social media campaigns, pay-per-click advertising campaigns, keyword advertising campaigns, search engine optimization services, email marketing, website analytics and marketing campaign reporting, and other components specified by the parties. Apricus grants Artist permission to use the Content created by Apricus and delivered to Artist for use by Artist, but only in the manner specifically prescribed by Apricus and only during the Term or such shorter time period that Apricus may specify.

(b) Storefront Services.

(i) Features. The Online Store may display Artist’s Likeness, trademarks, and service marks. The Online Store may include a catalog, secure online shopping and payment features, and the ability to search the catalog by type of Work, price range, and title. The Online Store catalog may be linked to online store catalogs for other artists that appear on the Apricus website. In this way, a visitor to the Apricus website conducting a search of the catalog may obtain results that include both Artist’s Works and the works of other artists. For each Work offered for sale on the Online Store, the catalog may include the name of the Work, a description of the Work, a photograph of the Work, pricing for the Work, the size of the Work, information about the availability of the Work, and such other information as Apricus may reasonably decide to include or that Apricus agrees to post at Artist’s request. The Online Store may allow customers to make purchases via credit card or debit card. Apricus will use commercially reasonable efforts to update the Online Store to add or remove Works as they are created or sold based on information provided to Apricus from time to time by Artist, but only once a week during the Agreement. Artist acknowledges and agrees that the Online Store may be operated from a third party hosting provider’s server and Apricus shall have no liability for such third party’s services.

(ii) Independent Sales. Artist may promote and sell Works independent of the Online Store (each, an “Independent Sale”). If Artist agrees to an Independent Sale for a Work promoted on the Online Store, Artist shall provide Apricus with written notice of such Independent Sale within twelve (12) hours.

(c) General. Apricus retains the right to perform the same or similar services for third parties, including other artists, during the Term. Apricus may, in its sole discretion, engage subcontractors to assist it in providing the Services. Artist acknowledges and agrees that Apricus may choose not to promote or sell a particular Work for any reason.

2. Artist Obligations.

(a) Artist Materials and Authorization. Artist authorizes Apricus and its service providers to use and permit others to use Artist’s name, image, voice, photograph, biography, and other likeness (collectively, Artist’s “Likeness”) and the other Artist Materials in connection with the Services in printed, electronic, photographic, audiovisual, online, social media, and other media now known or hereafter developed for the purpose of promoting Artist and the Works. Without limiting the foregoing, Apricus may use excerpts of Artist’s Works, crop photos or other images of Artist Materials, juxtapose Artist Materials alongside those of others and/or alongside promotional content developed by Apricus or third parties, and make other artistic and editorial choices about how to use the foregoing to promote Artist and the Works in Apricus’ sole discretion without further approval from Artist. Artist waives any right to inspect or approve the use(s) or the finished product in which Artist Materials are incorporated. Artist acknowledges that Apricus has no obligation to use the permission Artist is granting. Artist releases and discharges Apricus and its service providers as well as all persons acting under their permission or authority from any liability arising out of their use of Artist materials, including any claims related to any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may be caused by any process used in creating a finished product. Artist shall not sue or bring any action against Apricus or its service providers or anyone acting under their permission or authority for any claim, demand, or cause of action whether now known or unknown, for defamation, invasion of right to privacy, publicity, or personality, emotional injury or distress, infringement of copyrights, violation of intellectual property or other rights, or any other matter arising out of or relating to the use of Artist Materials.

(b) Responsiveness. Apricus shall have no responsibility or liability for any delay or failure in the performance of Services or other obligations caused by Artist’s delay or failure to perform in performing Artist’s obligations.

(c) Inappropriate Content. Artist shall ensure that the online marketing strategy, online and digital advertisements and other Content used in connection with the Online Marketing Services and the Works, do not violate any applicable laws, regulations or third party rights, and do not include any Inappropriate Content. “Inappropriate Content” includes material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous, in breach of any third party Intellectual Property Rights, or that Apricus deems inappropriate or offensive at its sole discretion.

(d) Storage; Shipping. Artist shall store all Works offered for sale on the Online Store in a commercially reasonable, industry standard manner that protects such Works against damage or destruction from temperature, humidity, climate, natural disaster, accident, and other similar conditions and eventualities, and protects such Works against theft, arson, and other types of loss. Artist shall be solely responsible for ensuring that the Works remain in good condition and repair. Artist shall pack the Works in a commercially reasonable, industry standard manner designed to protect them against damage in transit.

3. Social Media.

As part of the Online Marketing Services, Apricus shall use commercially reasonable efforts to deliver Content to Artist for Artist to post on Artist’s social media accounts.

4. Process.

Additional details regarding the process for selling the Works through the Online Store are set forth below.

(a) Purchases. Artist shall provide Apricus with the sale price for each Work, excluding any applicable taxes that Apricus may charge in accordance with this Agreement (the “Sale Price”). Customers who purchase the Work through the Online Store shall pay Apricus the full Sale Price.

(b) Sales and Use Taxes. Artist acknowledges and agrees that Apricus disclaims all responsibility for and that Apricus bears no responsibility for collecting or paying any sales or use tax on sales of the Works unless and until Apricus determines that it is responsible for collecting and paying sales and use tax as a marketplace facilitator under applicable tax law in the relevant state or other taxing jurisdiction in which a particular customer is located. At such time, Apricus may charge the customer applicable sales and use tax in addition to the Sales Price for the Work and pay over such collected tax to the applicable taxing jurisdiction.

(c) Shipping. Upon receipt of the Sale Price (and, only if Apricus has determined it is responsible for collecting and paying sales and use tax associated with the sale of the Work, also the applicable sales and use tax), Apricus shall arrange for the shipping and insurance required to ship the Work from Artist’s location to the customer’s designated address. Within ten (10) business days of notice from Appricus that a Work was sold through the Online Store and what the associated shipping instructions are, Artist shall package the Work and deliver it to the carrier designated by Apricus to ship the Work in accordance with Apricus’s instructions. Apricus shall initially cover the cost of such shipment and all other applicable expenses, including handling and insurance premiums (collectively, “Shipping Costs”), subject to reimbursement in accordance with the terms of this Agreement. Artist shall follow any oral or written instruction from Apricus regarding the shipping of any Work. Artist acknowledges and agrees that title and risk of loss for each Work shall remain with Artist at all times until received by the customer. in the event any Work is lost or destroyed during the shipping process, Artist’s sole and exclusive remedy shall be to make a claim under the applicable insurance policy.

(d) Artist Proceeds. Within thirty (30) business days of expiration of the period during which a customer may return a work (as indicated on the Apricus website) and following receipt of written proof from Artist that customer has received the purchased Work, Apricus shall send Artist the remainder of the Sale Price after Apricus has deducted amounts equal to all Fees, Shipping Costs, Expenses, and other amounts for which Artist is to reimburse Apricus from the Sale Price (such remainder, the “Artist Proceeds”). In addition, Artist acknowledges and agrees that Apricus may remit any sales and use taxes collected in connection with the sale of the Work to the appropriate taxing authority. Artist acknowledges and agrees that the taxes collected by Apricus are not part of the Sale Price and therefore not part of the Artist Proceeds. Artist acknowledges that remittance of any Artist Proceeds shall be subject to further adjustment by Apricus upon final determination of all expenses incurred by Apricus in connection with the sale of such Work, including returns by the customer and any insurance claims made by Artist.

5. Fees and Expenses.

(a) Fees. If Apricus does not retain the Fees from the Sale Price before sending the Artist Proceeds to Artist, Artist agrees to pay Apricus such Fees (as well as any expenses) within thirty (30) days of the date of the Apricus invoice. Apricus shall have the right to increase the amount of the Fees and/or other consideration upon thirty (30) days written notice to Artist.

(b) Expenses. Artist agrees to reimburse Apricus for all reasonable travel and out-of-pocket expenses incurred by Apricus in connection with the performance of the Services (including without limitation all Shipping Costs) and for all losses Apricus incurs if Apricus refunds any portion of the Sale Price to customer. Artist acknowledges and agrees that Apricus may deduct such amount from the Artist Proceeds associated with the Work in question prior to remitting the Artist Proceeds, may deduct such amount from the Artist Proceeds associated with another Work, or that Apricus may require Artist to reimburse Apricus directly. In addition, if there is a loss or payout due to a customer complaint or an insurance claim, at the discretion of Apricus, Artist shall reimburse Apricus for any amount Apricus paid to make the customer whole and/or Apricus may deduct such amounts from the Artist Proceeds for the sale of the Work in question or for the sale of any other Work for Artist.

(c) Taxes. Unless otherwise indicated elsewhere in this Agreement, Artist shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Artist under this Agreement. To the extent Apricus is required to pay any such sales, use, excise, or other taxes or other duties or charges, Artist shall reimburse Apricus in connection with its payment of Fees and expenses as set forth in this Section 5. Notwithstanding the foregoing, in no event shall Artist pay or be responsible for any taxes imposed on, or regarding, Apricus’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

6. Returns.

If Work sold via the Online Store is later returned by a customer, Apricus shall determine, in its sole discretion, whether a refund of any or all of the Sale Price is warranted. If Apricus determines that a refund of any of the Sale Price is warranted, then Artist shall reimburse Apricus the Sale Price for the Work or Apricus may deduct an amount equal to the reimbursement from the Sale Price of the Work or another Work prior to sending the associated Artist Proceeds to Artist. If Apricus determines that a refund is due a customer, Apricus may obtain reimbursement for such refund (in addition to the Fees) from the following sources: (a) proceeds of any insurance claim covered by an insurance policy, provided the premiums for such insurance policy were included in the Shipping Costs for the Work at issue; (b) from any Artist Proceeds resulting from the sale of the Work at issue; and (c) by sending an invoice to Artist for such reimbursement as an expense. Nothing in this Agreement requires Apricus to file suit or pursue or initiate litigation, mediation, or any other applicable proceedings against the insurer prior to seeking recovery from the other sources identified in this Section 6.

7. Term and Termination.

(a) Termination.

(i) Breach. Either party may terminate this Agreement on written notice to the other party if such other party materially breaches the Agreement and such breach is incapable of cure or such party fails to cure such breach within thirty (30) days following such written notice.

(ii) Insolvency. Either party may terminate this Agreement on written notice to the other party if such other party becomes insolvent or admits being unable to pay debts as they come due, becomes subject to a bankruptcy or insolvency law, makes a general assignment for the benefit of creditors, or has a receiver, trustee, or custodian appointed for such other party’s property or business.

(iii) Other. Apricus may terminate this Agreement on written notice to Artist if Artist is accused of a crime, an act of fraud, an act of moral turpitude, or any behavior that Apricus finds morally or socially repugnant.

(b) Survival. Sections 5, 6, 7, 9(a)(i), 9(b)(i), 11, 12, 14 from both documents that form part of the Agreement), the obligation to protect Confidential Information received during the Term, as well as any provisions that, by their nature, are intended to survive expiration or termination of this Agreement shall survive.

8. Confidentiality.

(a) Confidential Information. During the Term of this Agreement, each party (a “Disclosing Party”) may disclose or make available to the other party (a “Receiving Party”) information that is commercially sensitive and proprietary or that it otherwise wishes to keep confidential including without limitation information about its Intellectual Property Rights, trade secrets, financial information, pricing, marketing strategies, content and campaign proposals, data, statistics, reports, ideas, concepts, customer information, supplier information, account credentials, information entrusted to it by third parties, information marked as confidential, and information that would reasonably be considered confidential. Confidential Information may be oral, written, electronic, or in any form or media, whether or not marked or otherwise expressly designated as confidential. Artist acknowledges and agrees that statistics and data reports (including marketing analytics) related to the Services performed by Apricus constitute Confidential Information proprietary to Apricus..

(b) Exclusions and Exemptions. Confidential Information does not include information the Receiving Party can show with documentation has become known to the general public through no fault of the Receiving Party or any third party owing a duty of confidentiality to the Disclosing Party, was disclosed to Receiving Party by a third party with no duty of confidentiality to the Disclosing Party, or was known to the Receiving Party prior to disclosure by the Disclosing Party. Nothing in this Agreement precludes the Receiving Party from responding to a court order or complying with a law that requires disclosure of the Disclosing Party’s Confidential Information.

(c) Obligations. The Receiving Party shall protect the Disclosing party’s Confidential Information from and against unauthorized access, disclosure, or use using measures at least as protective as those it uses in connection with its own similar information, but in no event less than commercially reasonable measures. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to third parties. The Receiving Party shall not use the Disclosing Party’s Confidential Information to compete with or otherwise cause detriment to the Disclosing Party.

9. Intellectual Property. 

(a) Artist.

(i) Ownership.  Artist is and shall remain the sole and exclusive owner of all right, title, and interest in and to all trade secrets, copyrights, patents, trademark/service mark rights, and other intellectual property, including without limitation all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing (collectively, “Intellectual Property Rights”) in Artist Materials Artist owned prior to the Effective Date.

(ii) License.  Artist hereby grants Apricus a non-exclusive, royalty free, fully paid-up worldwide license during the Term to use Artist’s Intellectual Property Rights, and Artist Materials to perform the Services.

(b) Apricus.

(i) Ownership. Artist acknowledges and agrees that Apricus is and shall remain the sole and exclusive owner of all right, title, and interest in and to the mark APRICUS as well as all logos, taglines, and other marks Apricus uses in connection with its business and its services (collectively, the “Apricus Marks”) as well as the trademark rights and other Intellectual Property Rights arising out of or embodied by the Apricus Marks. Artist shall not, directly or indirectly, challenge Apricus’ rights in and to the Apricus Marks during or after the Agreement. Artist acknowledges and agrees that Apricus is and shall remain the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials developed, created, or provided by Apricus during the course of this Agreement and/or developed in the course of performing the Services, including without limitation all blogs, newsletters, email messages, advertisements, advertising campaigns, social media posts, curatorial descriptions, descriptions of Works, content, and other works (collectively, the “Content”), including all Intellectual Property Rights arising out of or embodied by the foregoing.

(ii) Permission. Apricus hereby grants Artist a limited, non-transferable, non-sublicensable license to use the Content developed by Apricus in the course of performing Services for Artist, but only in the manner expressly permitted by Apricus and only during the Term or such shorter period specified by Apricus. If Apricus creates Content for Artist to post on a social media site, Artist may only post it on that site and only during the time specified by Apricus. Once the Agreement expires or terminates for any reason, Artist may leave posted Content created by Apricus for Artist during the Term of this Agreement in place, but may not make any further or new use of such Content or allow others to do so. Artist acknowledges and agrees that some of the Content and programs Apricus develops for Artist may have been used in connection with Services provided to other artists or art galleries. Artist shall not use or challenge Apricus’s rights in the Apricus Marks during or after the Term.

10. Representations; Disclaimer.

(a) By Artist. Artist represents and warrants to Apricus that (i) Artist is the sole owner of all right, title, and interest in and to the Artist Materials, the Artist Likeness, the Works, other information and materials Artist provides to Apricus, and the Intellectual Property Rights, privacy rights, publicity rights, and other rights arising out of or related to the foregoing and has the right to allow Apricus to use them as set forth in this Agreement; (ii) Artist is the sole creator of the Works; (iii) Artist shall at all times comply with all applicable laws, regulations, rules, ordinances, and orders; (iv) Artist is at least 18 years old and has reached the age of majority; and (v) all information provided by Artist to Apricus and all statements in the Artist Materials are true, accurate, correct, and complete.

(b) By Apricus. Apricus warrants that it will perform the Services in accordance with generally recognized industry standards. Apricus’ sole and exclusive liability and Artist’s sole and exclusive remedy for breach of this warranty shall be for Apricus to use commercially reasonable efforts to promptly cure any such breach following receipt of written notice of the breach from Artist within thirty (30) days of the Services in question. However, if Apricus cannot cure such breach within a reasonable time after receiving written notice of the breach, Artist may terminate the Agreement by written notice.

(c) Disclaimer. Apricus makes no representations or warranties except as expressly provided in this Section 10. All other warranties, express or implied, oral or written, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular purpose, title, and non-infringement are expressly disclaimed. Apricus makes no representation or warranty that the Services will meet Artist’s requirements or that the Services will be uninterrupted or error-free. Apricus makes no representation or warranty of any kind, express or implied, with regard to and shall have no liability with respect to any third party equipment or services (including hosting services) used in connection with the Services.

11. Indemnification.

Artist shall indemnify, defend, reimburse, and hold harmless Apricus as well as its owners, officers, directors, employees, agents, affiliates, successors, and permitted assigns from and against any and all claims, actions, causes of action, liabilities, deficiencies, damages, interest, awards, fines, penalties, judgments, settlements, costs, expenses (including reasonable attorneys’ fees and disbursements of counsel), and other losses (collectively, “Losses”) that arise out of or relate to (i) any breach or allegation that Artist breached its representations, warranties, covenants, or obligations under this Agreement; (ii) any allegation that Artist Materials or Apricus’ authorized use of them infringe, misappropriate, or otherwise violate the Intellectual Property Rights, privacy rights, publicity rights, property rights, contractual rights, or other rights of any third party; (iii) any alleged inaccuracy, incompleteness, incorrectness, falsity, or misleading nature of any information or Artist Materials supplied by Artist to Apricus; (iv) the negligence, bad faith, intentional or willful misconduct of Artist; (v) any violation or allegation that Artist violated any applicable laws, regulations, or third party rights by entering into and performing this Agreement or otherwise; (vi) any claim by any third party or government agency brought against Apricus in connection with the content posted or linked to in connection with the performance of the Services; and (vii) all losses incurred by and amounts paid by Apricus if Apricus refunds some or all of the Sale Price to a customer.

12.Limitation of Liability.

To the maximum extent permitted by law, in no event shall Apricus be liable to Artist or to any third party for any loss of use, revenue, profit, or loss of business opportunity, or loss of data or diminution in value, costs of procurement for substitute services, loss of content, or for any consequential, incidental, indirect, exemplary, special, or punitive damages, whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such Losses or damages were foreseeable and whether or not Apricus has been advised of the possibility of such Losses or damages and notwithstanding the failure of any agreed or other remedy of its essential purpose. To the maximum extent permitted by law, in no event shall Apricus’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise exceed the consideration received by Apricus from or on behalf of Artist under this Agreement during the twelve-month period preceding the events that gave rise to the claim.

13.Definitions.

(a) “Artist Materials” means Artist’s Works, Artist’s Likeness, Artist’s trademarks and service marks, and other images, text, documents, graphics, and other materials provided by Artist to Apricus.
(b) “Works” mean artwork that Artist asks Apricus to promote and to sell via the Online Store.

14.General.