SOMEXING hereinafter referred to as “SOMEXING”, shall be bound by the client’s acceptance of SOMEXING’s offer or from SOMEXING’s acceptance of the client’s purchase order relating to services of (i) artist presentation and/or (ii) connection between the selected artist and the client and/or (iii) artistic project management as defined in the offer referred to in the order (hereinafter referred to as the “Services”). The parties expressly agree to waive the application of any other document without prior written agreement of the parties. No termination or cancellation of the order, in whole or in part, is valid without SOMEXING’s prior written agreement.
Unless otherwise specified in the order, the price of the Services is fixed and expressed in euros excluding any added value taxes. The payment schedule is specified in the order. Advance and payment requests of the order shall be paid to SOMEXING by bank transfer within thirty (30) days from the invoice date or advance request. Any delay in payment shall result in the automatic application of late payment interest calculated at a rate equal to four times the legal interest rate, from the contractual due date until the date of full and effective payment, without prejudice to any damages SOMEXING shall be entitled to claim.
Estimated deadlines for performance of the Services, if any, are defined in the order. These deadlines are subject to the client’s compliance with its own obligations, including but not limited to the payment of contractual terms. Under no circumstances shall a delay in the performance of the Services ground termination of the order.
Presentation to the client of one or more artist profiles that meet the criteria defined in the order. SOMEXING shall be considered by the client as the exclusive representative of the artist for the client. The client shall acknowledge receipt of the artist profile selection report (hereinafter referred to as the “Report”) within forty-eight hours from presentation by SOMEXING. Failing this, its acceptance shall be deemed to be contradictory, and the client shall make the associated payment under the order conditions.
After approval by the client of one or more artist profiles presented by SOMEXING under 4.1, it consists of support and assistance of the client in the negotiation of the artistic collaboration contract between the artist and the client (hereinafter referred to as the “Contract”) or negotiation directly on behalf of the client, at the client’s discretion and as defined in the order. The client shall provide SOMEXING with all instructions and guidelines necessary for these negotiations.
It consists of SOMEXING’s monitoring of the creation by the artist of the artwork and the products incorporating the artwork (the “Products”) to ensure they conform to the characteristics and schedule defined in the Contract, which the client undertakes to provide a copy to SOMEXING once signed. The validation of one or more artists who are the subject of the Artist Presentation Service (article 4.1) entails the order to SOMEXING of the artistic project management Service for the resulting artistic collaboration (the “Project”) and in particular the creation of the artwork, for exploitation by the client under the conditions of the Contract. The client shall participate in all meetings requested by SOMEXING for the needs of the Project, in particular for the needs of validating the design of the artworks and/or Products defined in the order and/or the Contract.
The client expressly acknowledges that the advice provided by SOMEXING for the performance of the Services referred to in articles 4.1 and 4.2 shall constitute a decision-making tool. Consequently, this Services shall not be considered as necessarily sufficient for the client to make his own decision, the client being fully liable for supplementing the information and advice provided by SOMEXING with other sources of information. SOMEXING shall not be held liable for the client’s decisions related to the Contract, the Project, and/or the artwork and/or the Products resulting from it.
The client warrants to be granted by the artist, under the terms of the Contract, all necessary user intellectual property rights associated with the artwork incorporated in the Products resulting from the Project with the right to sublicense to SOMEXING under the conditions of this article 5. In addition, the client warrants SOMEXING against any action by third parties relating to the copy, reproduction and/or representation of the Products and undertakes to indemnify, hold harmless and waive recourse against SOMEXING for any direct and/or indirect damage caused to or by a third party, and in particular but not only, in case of conviction and the associated costs (including defense costs) related to such third-party action.
Unless otherwise agreed by the client, SOMEXING undertakes to respect the moral rights of the artist on the artwork incorporated in the Products, and in particular, to indicate in a legible manner on the represented Product the identity of the client and of the artist as author, the year and the title of the Project. This principle shall apply to all reproductions of the Products including photographic reproduction.
The client expressly grants SOMEXING, as compensation for the remuneration provided in the order, the limited, non-exclusive and non-transferable right to reproduce, copy, translate, and/or modify, in whole or in part, the artwork and/or the Products on any media for communication and/or promotion purposes of SOMEXING and/or the Services, worldwide, for the duration of the order and for a period of ten (10) years from the term or termination of the order, provided that the Project, the client and the artist are mentioned.
The client expressly grants SOMEXING, as compensation for the remuneration provided in the order, the right to represent worldwide the artwork and/or the Products on any media and by all present and future means of communication to the public, solely for the purpose of promoting SOMEXING, the Services, and/or the Project for the duration of the order and for a period of (10) ten years from the term or termination of the order, provided that the Project, the client and the artist are mentioned.
The client expressly grants SOMEXING the right to use its trademark defined in the order on SOMEXING’s communication media for communication and/or promotion purposes of SOMEXING and/or the Services. This right is granted by the client to SOMEXING free of charge, worldwide, on any media and by all means of communication to the public, present and future, for the duration of the order and for a period of (10) ten years from the term or termination of the order.
SOMEXING undertakes to provide the means for the presentation Service (4.1) to the client of artists under the conditions defined in the order. SOMEXING warrants for one month from the presentation of the Report that the artists presentation’s Service is carried out in accordance with the order, standard practices and as a good professional in the considered sector.
SOMEXING undertakes, for the duration of the order, to execute the Services of connection between the client and the artist (4.2) and/or of Project’s management (4.3) as a good professional in the concerned sector, in accordance with the standard practices and the order.
If during these periods, all or part of the Services is proven by the client to be non-conform with the order, for a cause attributable to SOMEXING, SOMEXING shall, at its option, to remake or correct the concerned Services. Any other warranty and/or remedy not expressly provided for of any nature whatsoever is expressly excluded.
SOMEXING shall not be held liable for indirect, immaterial, and/or special damages regardless of the time, origin and cause of the damages caused to the client and/or any third parties. The total and cumulative amount of compensation due by SOMEXING for damages attributable to SOMEXING caused to the client and/or any third party under the order shall not exceed the amount (excluding taxes) of the sums received by SOMEXING under the order. The client shall waives recourse, hold harmless and indemnify SOMEXING from any claim initiated by third parties beyond the limits of liability provided for in this article.
The Reports, the terms of the order and any other information provided by the other party shall be considered confidential and shall not be communicated or disclosed to any third party, in whole or in part, in any form whatsoever without the prior written agreement of the holding party. For the avoidance of doubt, the Reports and the associated intellectual property rights shall remain the exclusive property of SOMEXING.
The client shall not solicit and/or contract, directly or indirectly with the artist(s) presented in the Reports without the prior written agreement of SOMEXING for a period of (5) five years from delivery of the Report, regardless of the client’s decision regarding the concerned artist.
The present GTCs shall be governed by French laws. Any dispute arising from the interpretation, performance or non-performance of the order and in the absence of an amicable settlement within forty-five days from notification by the requesting Party to the other Party, shall be under the exclusive jurisdiction of the Commercial Courts of Bordeaux (France), including in case of summary or emergency proceedings.
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