flaminko

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TERMS AND CONDITIONS

 
Welcome to FlaminKo. The following Terms and Conditions ("Terms") are agreed by and between FlaminKO Design Studio, hereinafter referred to as (“Vendor or First Party”) and an artist hereinafter referred to as (“Artist or Second Party”).
 
The Second Party hereby agrees to grant a license to the Vendor to use, retain, print/ curate their Work on glass/ Board and sell the artwork(s) or design(s), including the original artwork, illustration, digital art or photograph (“Work”) of the Second Party on its e-portal (www.flaminko.in), subject to the terms and conditions detailed hereinafter.
 
In consideration of the foregoing premises and the mutual obligations, covenants, terms and conditions hereinafter set forth, and other valuable considerations, the second party hereto agrees as follows:
 
1. GENERAL
 
1.1 The Vendor runs an e-portal inviting independent artists from across the globe to showcase and sell their Work on its website, by printing/ curating the Work on safety glass/ board using the latest digital printing technology and knowhow.
1.2 The Artist is a person who hereby agrees to submit its original Work to the Vendor for the limited purpose of printing/ curating the Work on safety glass/ board and further sale of the said product in the open market by showcasing the same on its e-portal. In consideration towards the sale of the end product, the aritst shall receive a remuneration for every successful sale of its end product, as per the terms and conditions detailed hereinafter.
 
1.3 The Vendor and the Artist together endeavour to produce high quality (HD) and high resolution reproduction(s) of the original painting, illustration, digital art or photograph submitted by the Artist, using the latest digital printing technology and knowhow in order to create a niche in the market, thereby increasing their productivity and sale of the end product.
 
2. LICENSE & TERM.
 
2.1 The Artist hereby grants his/ her unconditional and non-exclusive worldwide license to the Vendor and its successors, assigns, and licensees to use, retain, print/ curate its Work on safety glass/ Board and sell the artwork(s) or design(s), including the originalartwork, illustration, digital art or photograph of the Artist on its e-portal more particularly described as – (www.flaminko.in) for a period of one (1) year (“Initial Term”) from the date of signing up to the Flaminko account or the receipt of the Work, whichever is later.
 
2.2 It is further hereby agreed by the Second Party that upon the expiration of the Initial Term, this Agreement shall be automatically renewed for an additional period of another one (1) year (“Renewal Period(s)”) unless a notice of termination of contract is served by either party to the other party within thirty (30) days of the expiration of the Initial Term or Renewal Period, as the case may be. Upon the said termination, all/ any Work/ end product, which remains unsold on the e-portal of the Vendor, shall be returned to Artist.
 
2.3 The Vendor and the Artist together endeavour to produce high quality (HD) and resolution reproduction(s) of the original painting, illustration, digital art or photograph submitted by the Artist, using the latest digital printing technology and knowhow in order to create a niche in the market, thereby increasing their productivity and sale of the end product. It is hereby informed by the first party and agreed by the second party that the artwork submitted by the Artist and the end product produced by the Vendor may appear to be faintly different in its colour, strokes, proportion etc. when printed on the safety glass/board.
 
3. OWNERSHIP.
 
3.1 The Artist represents and confirms that the painting or illustration or digital art or photograph submitted by him/ her is his/her own original Work of art & craft and it is not copied or otherwise replicated from any copyrighted material or patterns and the Artist himself has full and exclusive right, title, and interest to deal with the Work in any manner whatsoever. The Artist hereby agrees that if he/she submits a plagiarized/ nonoriginal Work or Work for which the rights are not vested in him/her, the Vendor will thereafter have the right to penalize the Artist for default committed under this Agreement and the Artist alone shall be solely liable towards all/ any damages that may be claimed by the Vendor/ third party towards the said default.
 
3.2 It is hereby agreed that the Artist shall have and retain all copyrights with respect to the painting or illustration or digital art or photograph supplied by him/ her to the Vendor to produce the end product. The Vendor hereby identifies the Artist as the creator of the Work curated on the glass/board and shall reproduce thereon, a copyright mark for the Artist which shall include the word "Copyright" or the symbol for copyright "©", the Artist's name/ Signature, date and year of publication, in case the Work submitted is a copyrighted product.
 
3.3 The Artist hereby agrees that upon termination of the agreed period between the parties, the Artist shall not have the right to sell/ publish/ submit the artwork/ end-product without the prior consent of the Vendor for atleast a period of one year.
 
3.4 The Parties further agree that on agreeing to the Terms and Conditions, the Artist assigns its exclusive and non-transferable rights to the Vendor to process and curate the Art Work on glass/board using latest digital technology, which shall be offered for sale via their e-portal first mentioned hereinabove.
 
4. PROMOTION.
 
The Vendor hereby affirms to deploy its best efforts & resources to promote the Work of the Artists and agrees that all promotions shall be dignified and in consonance with the Artist’s reputation. The Artist hereby consents and allows the Vendor to use the Artist’s name, portrait, picture, photograph, and/or biography in such promotions. The Artist further agrees to the publishing of his/her details and Work on the Vendors e-portal as well as other social media platforms inclusive of but not restricted to facebook, Instagram, print media etc. The Artist agrees that the Artist’s signature may be used on his original Work, thereby giving recognition to the creator of the Work being printed to form the end product.
 
5. COMMISSIONS/ REMUNERATIONS.
 
The Artist hereby agrees to the terms of payment as stated herein below:
 
i. The consideration amount of the end product will be decided and fixed by the Vendor.
 
ii. Upon the successful sale of any end product produced by the Vendor, the Vendor agrees to remunerate (“Royalty”) the Artist by paying a sum of Five% Percent (5%) of the total sale proceeds received by the Vendor.
 
iii. The agreed Royalty shall be transferred directly into the bank account of the Artist within 21 days of the sale of the end product.
 
6. DURATION AND TERMINATION OF AGREEMENT.
 
Upon agreeing to these Terms and Conditions the Parties concur that upon the expiration of the Initial Term, the Agreement shall be automatically renewed for an additional period of another one (1) year unless a notice of termination of contract is served by either party to the other party within thirty (30) days of the expiration of the Initial Term or Renewal Period, as the case may be. The Parties will always have the option to extend the Agreement by expressly stating the same in writing. The Agreement shall terminate in the following events:
 
i. Where either Party shall serve a notice of termination to the other Party in writing, detailing its reasons for termination. Once the said termination letter is served, the Agreement shall stand terminated at the end of 30 days from the date of service of the said notice, until and unless another notice of cancellation of the termination is served on the receiving Party.
 
ii. Upon the termination of the Renewal Period, in the event where the Parties do not wish to extend the Agreement.
 
iii. Upon the breach of the Agreement by either of the Parties, wherein the aggrieved Party shall by way of a written intimation inform the party breaching the Agreement.
 
7. NON-COMPETITION.
 
7.1 The Artist hereby undertakes that it shall not, and shall ensure that its Affiliates shall not, during the term of his/her association with First Party without the prior written consent of the Vendor, either alone or jointly with or on behalf of any person, carry on or be engaged or interested in (directly or indirectly) in the supply, production and sale of the Work/ end product, except as expressly permitted under in this Agreement or Existing Operations.
 
7.2 The Artist hereby expressly agrees that under no circumstances shall he/ she share the same Work submitted to the Vendor, with any other business house/ entity which is in direct/ indirect competition or which carries on either a similar or same business model on e-portal or otherwise, until the survival of his/her association with the First Party or in terms of clause 6 stated herein.
 
8. NON-CIRCUMVENTION.
 
8.1 During the term of this Association and within one (1) year subsequent to the termination of this Agreement by either Party, the Artist hereby agrees that he/ she shall make no attempt to circumvent the ideas, business model and/ or confidential information exchanged between the Parties with any other vendors, distributors, buyers or with any another business house/ entity which is in direct/ indirect competition or which carries on either a similar or same business model on e-portal or otherwise.
 
8.2 During the survival of the present Agreement, the Artist agrees that he/she will not directly or indirectly divulge or sell its Work (even in other alternate forms) submitted to the Vendor for the purposes of the present Agreement to any other business house/ entity which is in direct/ indirect competition or which carries on either a similar or same business model on e-portal or otherwise.
 
9. REPRESENTATIONS AND WARRANTIES.
 
Artist hereby represents and warrants that:
 
i. The Work submitted by the Artist to the Vendor for production of the end product is in no way a violation or infringement of any existing copyright or license.
 
ii. The Artist agrees to indemnify the Vendor against all liabilities, damages, penalties, losses and expenses (including reasonable attorneys’ fees) which may be suffered or assumed by or obtained against the Vendor by reason of any breach or failure of any warranty or agreement herein agreed by and between the Parties.
 
10. GOVERNING LAW AND DISPUTE RESOLUTION
 
10.1 This Agreement and its performance shall be governed by and construed in all respects in accordance with the laws of the Republic of India. In the event of any supervisory relief, injunctive relief or relief of specific performance, relating to this Agreement including any claims or disputes arising out of or in connection with this Agreement shall be subject to the jurisdiction of the courts of the city of Bhopal, Madhya Pradesh.
 
10.2 This Agreement shall be construed and enforced in accordance with the Indian laws except for copyright law, which shall be interpreted in accordance with national and international copyright law. If any provision is determined by any court of competent jurisdiction or arbitrator to be unenforceable to any extent, that provision shall, to the extent of such unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect.
 
10.3 The Parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. All such disputes that have not been satisfactorily resolved by mutual understanding shall be referred for arbitration to a sole arbitrator to be mutually appointed by the Parties for arbitration.
 
10.4 The arbitration proceedings shall be carried out in accordance with the practice, procedures and rules of The Arbitration and Conciliation Act, 1996 as amended upto date. The venue and seat of arbitration shall be Bhopal, Madhya Pradesh. The arbitration proceedings shall be conducted in the English language. The Parties agree to bear the costs of their own legal counsel engaged for the purposes of the arbitration and all other ancillary costs associated thereto.
 
10.5 The award of the arbitrator shall be final and conclusive and binding upon the Parties and non-appealable to the extent permitted by applicable law. The Parties agree that such enforcement shall be subject to the provisions of applicable law, and no Party shall seek to resist the enforcement of any award in India or elsewhere on the basis that the award is not subject to such provisions. The award rendered shall apportion the costs of the arbitration and the arbitrator shall also have the power to decide on the costs and reasonable expenses incurred in the arbitration and award interest up to the date of the payment of the award.
 
10.6 When any dispute is referred to arbitration, except for the matters under dispute, the Parties shall continue to exercise their remaining respective rights and fulfill their remaining respective obligations under this Agreement.
 
10.7 All proceedings in connection with any arbitration, including its existence, the content of the proceedings and any decision, will be kept confidential, except (i) as may be lawfully required in judicial proceedings relating to the arbitration, including judicial proceedings to enforce an award, or (ii) as may be otherwise required by applicable law.
 
11. MISCELLANEOUS
 
11.1 Relationship of the Parties. The Artist shall be an independent contractor for purposes of this agreeing to these Terms and Conditions, and nothing in these Terms and Conditions shall be applied or construed as creating a partnership, joint venture, or Employer/Employee relationship. Accordingly, the Artist is solely responsible for any and all income taxes, withholding, and deductions payable on monies received under this Agreement.
 
11.2. Severability. If for any reason any provision or part of a provision of these Terms and Conditions shall be, or be found by any authority or court of competent jurisdiction to be, illegal, invalid or unenforceable in any aspect, such illegality, invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect. The Parties shall replace the illegal, invalid or unenforceable provision by a legal, valid or enforceable provision so that the effect of the new provision shall correspond as closely as possible to the effect of the illegal, invalid or unenforceable provision.
 
11.3 Entire Agreement. This Agreement constitutes the entire agreement between Artist and Vendor concerning the subject matter hereto and supersedes any and all prior agreements or understandings, (whether written or oral). This Agreement shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives. This Agreement constitutes the entire understanding between the parties.
 
11.4 A waiver of a breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof.
 

Disclaimer:

 
When an Artist subscribes to any of the services provided by the Vendor through its Website, the Artist is deemed to have agreed to the rules, policies, guidelines, terms and conditions as may be applicable to such services and such rules, policies, guidelines, terms and conditions shall be considered as part and parcel of this Agreement. The Vendor reserves its rights to change, modify, add or remove any part or portions of these Terms of Use at their sole discretion, at any time without any prior written notice to the Artist. It is the Artist’s responsibility to review these Terms of Use periodically for any updates / changes, if any. The Artist hereby accepts, acknowledges and fully agrees to the terms and conditions laid out herein.
 
 
 
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