ARTIST AGREEMENT This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of http://www.teamgalleryone.com/ (the "Site") and the general principles for the websites of our subsidiaries and international affiliates.
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This Agreement is between:
Us, www.teamgalleryone.com, a division of dreamstoreonline.com Pvt. Ltd., hereinafter referred to as Team TGO, “TGO”, the expression unless repugnant to the context shall include its employees, representatives, successors and assignees
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AND
You, hereinafter called the "Program Participant", the expression unless repugnant to the context shall include its employees, successors, guardians and permitted assigns of the second part.
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RECITALS:
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WHERAS, TGO displays the Work(s) of Art on the Site and/ or any other internet portal or any other medium designated by TGO;
WHERAS, the Program Participant produces, creates, owns or procures various Work(s) of Art and is interested in the sale thereof;
WHEREAS in lieu of effectuating the promotion and sale or resale of the Work(s) of Art through TGO, the Program Participant agrees to upload the soft copies of the images of the Work(s) of Art on the internet portal designated by TGO and agrees to the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, the Parties agree as follows:
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SECTION 1: DEFINITIONS
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1.1 |
"Agreement" means this Agreement, including any exhibits, schedules or attachments attached and incorporated into this Agreement (including Specifications if any), and any valid amendments to any of the foregoing.
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1.2 |
Channels” refers to the various modes through which the sale of the Work(s) of Art may be effected including inter alia:
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| (i) |
the Website;
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| (ii) |
other online portals operated and marketed by TGO; its marketing partners or members of TGO’s affiliate programs;
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| (iii) |
catalogs distributed by TGO;
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| (iv) |
any other medium of sale to be used by TGO in the future.
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1.3
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Commission” means the commission payable to TGO in respect of the Work(s) of Art sold.
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1.4 |
“Effective Date" means the date on which the Agreement is entered into.
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1.5 |
“Force Majeure” means any circumstances beyond the reasonable control of either party including without limitation an act of God, an act of Government or regulatory bodies, default or interference caused by others, war or national emergency.
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1.6 |
“TGO Management Area” means an online content management system which enables Program Participants to manage their own individual accounts..
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1.7 |
“Intellectual Property” includes existing and future intellectual property in the nature of unregistered or registered rights to any and all patents, inventions, copyrights, trademarks, brands, trade names, trading styles and other trade secrets / confidential and/ or propriety information not limited to that forming part of the subject matter of the agreement, and inclusive of all intellectual property that is the subject of ownership of either Parties or its subsidiaries, venture partners and predecessors in interest business and title arising out of the performance of this Agreement.
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1.8 |
“Internet” means the network of constantly changing connections between otherwise unconnected computers using modems and telephone lines.
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1.9 |
“Notice" shall mean the formal notification required to be given in specified circumstances by one party to another.
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1.10 |
“Program Participant” means an entity, individual, gallery or an organization interested in the effectuation of sale of the Work(s) of Art by TGO through the Channels and the definition includes but is not restricted to the following:
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| (i) |
An individual who uploads his own Work(s) of Art that is a result of his creation, innovation and talent, whether the individual is an art professional or not;
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| (ii) |
Any student enrolled in a university, college, institution or school;
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| (iii) |
Any gallery which promotes the Work(s) of Art;
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| (iv) |
Any individual, organization or entity who being in the lawful possession of Work(s) of Art desires to sell the same through the Channels of TGO, provided that the said individual, organization and entity has the legal capacity and authority to sell the Work(s) of Art.
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1.11 |
“Reproduction” means either a photograph or an image file in including but not limited to png or GIF or JPEG format.
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1.12 |
“Terms and Conditions of Sale” means TGO’s-Online Terms and Conditions..
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1.13 |
“Website” shall mean the site at http://www.teamgalleryone.com or any other Internet portal designated by TGO.
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1.14 |
“Work(s) of Art” shall mean the works of art submitted to TGO for sale or exhibition on the website.
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1.15 |
“Buyer” means the individual above eighteen years of age or any other legal entity whose order for the Work(s) of Art is accepted by TGO.
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SECTION 2: UPLOADING AND MANAGEMENT OF THE WORK(S) OF ART
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2.1 |
The Program Participant who is interested in its Work(s) of Art being displayed or sold through TGO agrees to subscribe to the Program Participant’s own TGO Management Area and agrees to enter the display name and other relevant details.
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2.2 |
The Program Participant agrees that the Program Participant is entitled to operate only one designated TGO Management Area to which the Program Participant shall receive a password and account, the details of which shall not be disclosed by the Program Participant under any circumstances. The Program Participant is solely responsible for all the activities in the TGO Management Area.
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2.3 |
The Program Participant undertakes not to provide TGO with false facts or information regarding the Program Participant or the Work(s) of Art and agrees to report any instance of unauthorized use of the Work(s) of Art or the TGO Management Area. The Program Participant fully understands and accepts that the liability for any lapse in this regards shall be borne solely by the Program Participant.
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2.4 |
The Program Participant fully understands and accepts that the Work(s) of Art shall only be exhibited on the Website once the Program Participant agrees to upload the Work(s) of Art, images and images or information concerning the Program Participant or the Works of Art. The account and the pages designated to the Program Participant which may be linked to from the Program Participant’s Account are referred to as the “Program Participant TGO” and the “Program Participant Pages,” respectively and shall be accessible from the Website.
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2.5 |
The Program Participant will upload Works of Art at their convenience and quote a sale price as per their expectations. The listed price should account for all shipping, duties, handling, taxes, insurance and service commission charges borne by the Program Participant as well as the service tax on service commission paid by the Buyer. Under no circumstances will the price be revised upwards once the contract of sale has been executed
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2.6 |
The Work(s) of Art may be added or removed from the TGO Management Area, at the discretion of the Program Participant and subject to the terms of this Agreement. The Program Participant agrees and acknowledges that the Website or the TGO Management Area should not be used as:
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| (i) |
as storage for remote loading for another website, whether internal or external to the Website;
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| (ii) |
to link to any website that violates the Content Policy of TGO,
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| (iii) |
to solicit for advertisers or sponsors;
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| (iv) |
(i)to conduct raffles or contests of any type; or
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| (v) |
to display a sponsorship banner of any kind, including those that are generated by banner or link exchange services.; and
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| (vi) |
any other use that TGO in its sole discretion deems to be adverse to its business or reputation.
Notwithstanding the foregoing, the Program Participant may display on other websites owned or controlled by the Program Participant, images of the Work(s), that are hosted by TGO if they link solely and directly into the TGO Management Area.
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2.7 |
The Program Participant shall not include in the TGO Management Area or in any of the Work(s) of Art any information intended to lead to sales of listed items outside of the TGO Management Area. This includes, inter alia external email addresses, telephone numbers, external website addresses, trade names that feature .com, .net and similar domain extensions, references to Google and other similar references, or references to alternative channels through which the Program Participant’s Work(s) of Art may be purchased.
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2.8 |
The Program Participant is responsible for the accuracy of the details of the Work(s) of Art, the dimensions, the medium and surface, the image quality and its similarity to the original Work(s) of Art. In case of complaints by the Buyer, TGO will refund the money accepted on behalf of the Program Participant to the buyer and ask the buyer to return the Work(s) of Art to the Program Participant. At the time of placing the Work(s) of Art for sale on the Website the Program Participant will state the condition in which the Work(s) of Art will be shipped, rolled, framed or stretched and in the event of sale, courier the Work(s) of Art in the same condition.
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SECTION 3: CONTENT POLICY
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3.1 |
The Program Participant shall be solely responsible for all elements of the Work(s) of Art uploaded or distributed by the Program Participant or in the name of the Program Participant’s account (including but not limited to all Artwork and textual information such as contact details, profile, information, messages and Subject to any special terms agreed in writing between the Buyer and TGO, TGO
shall be entitled to invoice the Buyer for the price of the Work(s) of Art after confirming its availability within seven (7) days from the date of which the Order is placed by the buyer. commentary on the Work(s) of Art of the Program Participant or others) and the accuracy and propriety of the same. The Program Participant shall have all the requisite documents establishing its proprietary rights in the Work(s) of Art including inter alia authenticity certificate, letter stating the Program Participant’s sole liability towards the authenticity of the Work(s) of Art and should also be in a position to furnish these documents as and when required. Thr Program Participant agrees and understands that the Buyer shall rely upon the authenticity guarantee and in the event, the Buyer disproves the authenticity of the Work(s) of Art, the Program Participant will be liable to repurchase the same from the Buyer at twice the price at which the Work(s) of Art was sold to the Buyer
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3.2 |
TGO has the right, but not the obligation, to screen all Program Participant Content for compliance with its Content Policy, to prevent Work(s) of Art from appearing on the TGO Management Area or to remove Work(s) of Art that already appear on the TGO Management Area, for any reason.
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3.3 |
The Program Participant acknowledges that the factors determining whether the Work(s) of Art fall within the Content Policy may be subjective and TGO shall determine in its sole discretion whether the Work(s) of Art adhere to the Content Policy.
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3.4 |
TGO’s production of any print, product, advertisement or collateral material featuring the Work(s) of Art does not indicate that TGO approves of the Work(s) of Art or that the Program Participant is absolved of any liability or harm arising from TGO’s use of the Work(s) of Art. TGO is not involved in the authenticity or legality of any transaction between the Program Participant and the Buyer. TGO assumes no liability of any sort as the purchase of Work(s) of Art is essentially a click and buy model.
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3.5 |
The Program Participant undertakes that all elements of the Work(s) of Art comply with the Content Policy. No element of the Work(s) of Art will:
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| (i) |
violate any applicable law, rule or regulation (including, but not limited to, laws relating to false or deceptive advertising);
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| (ii) |
be libellous; or
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| (iii) |
will violate, misappropriate or infringe upon any intellectual property right or other right of any third party (including, but not limited to, contractual rights, trademark rights, copyrights, trade secrets, moral rights, or rights of privacy or publicity)
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| (iv) |
not be subject matter of dispute and that there shall be no legal proceedings pending against it.
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| 3.6 |
The Program Participant agrees not to post any Work(s) of Art that is false, inaccurate, misleading, illegal, obscene, threatening, defamatory, invasive of privacy, or otherwise objectionable or injurious to third parties. The Program Participant agrees not to post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, software viruses, political campaigning, commercial solicitation, mass mailings, “junk mail,” “spam,” “chain letters,” or “pyramid schemes” or other such solicitations. The Program Participant undertakes not to stalk or otherwise harass any other Program Participant. The Program Participant shall not collect or store personal data about other Program Participants except as specifically authorized by them. The Program Participant shall not upload, post or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
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| 3.7 |
The Program Participant expressly undertakes the following:
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| (i) |
That the Work(s) of Art is an original work of the Program Participant and if the Work(s) of Art is being sold by a Program Participant as envisaged in Clause 1.10 (iv), then the creator of the Work(s) of Art is to be duly accredited;
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| (ii) |
(i)That the Program Participant has lawful possession of the Work(s) of Art and has the express authority under the applicable law to enter into the contract with TGO and to sell the Work(s) of Art to eh Buyer ;
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| 3.8 |
Notwithstanding anything contained herein, the Program Participant will be solely responsible for the breach of any representation and undertaking regarding the authenticity of the Work(s) of Art and agrees to indemnify TGO regarding any loss or damage, financial or otherwise that it may suffer as a result of such misrepresentation including but not limited to legal proceedings, defamatory actions
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SECTION 4: Orders
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| 4.1 |
Once an order is placed on the Website, the Program Participant is required to courier the Work(s) of Art within 3 working days of TGO having received the payment from the customer and the website informing the Program Participant of the same by email. All shipping/courier charges will be borne by the Program Participant. The Work(s) of Art that are unframed & unmounted should be shipped in a rolled format & in protective cylinders. For the paintings that are shipped with glass frames, utmost care should be taken while packing. The Program Participant is responsible for maintaining a high standard of packing and shipping the Work(s) of Art such that the customer receives it in undamaged condition and is satisfied by the service. The Program Participant must use only reputed courier services to deliver artworks to the Buyer. The Work(s) of Art will be delivered directly to the Buyer by the Program Participant.
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| 4.2 |
In the event that the Program Participant no longer has the Work(s) of Art in his possession, or is unwilling to execute the sale, or has furnished wrong details about the Work(s) of Art which gets revealed post the confirmation of a sale, TGOreserves the right to cancel the Program Participant’s membership to this service. Alternately, and without prejudice to the foregoing, TGO may, at its absolute discretion, seek to commence legal proceedings to ensure execution of the contract of sale.
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| 4.3 |
The Buyer shall deposit the requisite payment for the purchase of the Work(s) of Art with TGO who shall then forward the requisite payment to the Program Participant after deducting a service commission of 20% and a service tax of 12.36% to TGO. The amount receivable by the Program Participant will be the listed price given by the Program Participant less the service commission + Service tax on service commission. The Program Participant shall forward the Work(s) of Art along with an invoice to the Buyer for the amount already deposited with TGO.
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| 4.4 |
Work(s) of Art received in an unsatisfactory/damaged condition by the customer may be returned to the Program Participant in an 'as is' condition. In such a case Program Participant will refund the payment to the customer and cancel the order. The cost of shipping the Work(s) of Art back to the Program Participant will be borne by the Program Participant, and will be deducted from future payments due to the Program Participant from TGO. If a Program Participant repeatedly gets complaints of damage from the customers, TGO may terminate the membership of the Program Participant. However, the Buyer cannot return a Work(s) of Art on the grounds that the Buyer did not like it.
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| 4.5 |
TGO is not obligated to provide any prior intimation of sale to the Program Participant or have a discussion between the Program Participant and the customer because it is a click and buy model. Any Work(s) of Art posted by the Program Participant on the Website is assumed to be available with the Program Participant for sale, at the price mentioned by the Program Participant and available of being shipped in the shipping condition mentioned by the Program Participant as and when a sale takes place.
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| 4.6 |
Placing the Work of Art(s) on the Website by the Program Participant constitutes an irrevocable acceptance of these terms and conditions by the Program Participant. TGO provides a platform for the sale of the Work(s) of Art to the Buyer. The Program Participant shall be informed of the sale of the Work(s) of Art by email or phone. Unless rescinded/ cancelled by TGO within 10 working days of the buyer placing the order on account of a default of payment by the Buyer, such acceptance results in the sale of the Work(s) of Art.
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| 4.7 |
TGO shall not be responsible for any charges that may be levied at any destination in India or overseas.
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SECTION 5: RISK
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| 5.1 |
Risk in and all responsibility for the Work(s) of Art shall remain with the Program Participant subject to risk passing to the customer upon delivery.
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| 5.2 |
The Program Participant shall maintain adequate insurance in respect of all claims arising out of any defects in the Work(s) of Art.
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SECTION 6: TITLE
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| 6.1 |
TGO acknowledges that the Program Participant has created the Work(s) of Art and possesses unencumbered title to all Work(s) of Art consigned by it to TGO under this Agreement.
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| 6.2 |
The Program Participant agrees to grant to TGO a non-exclusive, transferable, worldwide, royalty-free license to
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| (i) |
reproduce and sell reproductions of the Work(s) of Art (and cropped or re-sized modifications thereof) to the extent the Program Participant elects to offer such Work(s) of Art for sale pursuant to the terms and conditions of the Agreement;
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| (ii) |
digitally reproduce, publicly display and otherwise utilize the Work(s) of Art (and watermarked, cropped or re-sized modifications thereof) and other Program Participant’s content to advertise, market, promote, and publicize the Program Participant’s Artwork, the Website and TGO’s other offerings in any manner, including, but not limited to, the Channels; provided, however, that TGO shall not be required to so advertise, market, promote or publicize.
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| 6.3 |
The license granted in clause (i) above shall terminate upon termination of this Agreement. The license granted in clause (ii) above shall terminate as of the date that is six (6) months following the termination of this Agreement. The license granted in clause (ii) shall not terminate and TGO has rights in perpetuity regarding the same with respect to the Work(s) of Art already sold through TGO prior to the termination of this Agreement.
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SECTION 7: INDEMNITY
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| 7.1 |
The Program Participant (whether or not this Agreement has expired or been terminated) will at all times indemnify and keep fully indemnified TGO from and against any actions, claims, proceedings, loss, costs, expenses (including but not limited to costs, loss profits, consequential damages and expenses in defending such a matter and its proper compromise) and demands arising directly or indirectly out of or incidental to or in connection with any breach by or on behalf of the Program Participant of its obligations under this Agreement.
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| 7.2 |
The Program Participant undertakes to indemnify TGO against any dispute, legal action or proceedings of any nature between the Program Participant and the buyer or the Program Participant and any gallery, organization, institution that the buyer may be affiliated to.
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SECTION 8. CONFIDENTIALITY
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| 8.1 |
Both the parties agree that employees and agents of either of the Parties and all the employees and agents of companies owned or controlled by either of the Parties shall not at any time use in an unauthorized manner or disclose, or permit the disclosure, to any third party of any confidential information in relation to the Work(s) of Art any of the Program Participant’s trade secrets or any confidential information relating to the Program Participant’s business and both the parties shall, at their own expense, take all reasonable steps to prevent such unauthorised use or disclosure.
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SECTION 9. TERMINATION
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| 9.1 |
This Agreement may be terminated without prejudice to any rights or liabilities of either party which may have accrued prior to the date of such termination by:
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| (i) |
The Program Participant giving TGO not less than 2 weeks notice to this effect or TGO giving notice to the Program Participant not less than two months notice to this effect.
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| (ii) |
Immediately upon. either party giving written notice or email from the official email id to the other party to this effect following a breach by that other party of any of the provisions of this Agreement which:
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| (a) |
shall not have been remedied within 30 days of notice requiring such breach to be remedied having been given to the party in breach where such breach is capable of being remedied; or
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| (b) |
cannot be remedied; |
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SECTION 10. EFFECT OF TERMINATION
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| 10.1 |
Upon termination of this Agreement for whatever reason the Parties shall forth with:
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| (i) |
cease to use any trade marks, trade names or documentation of either of the Parties;
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| (ii) |
Discontinue all actions and representations from which it might be inferred that any connection or relationship whatsoever exists between the Program Participant and TGO. Notwithstanding the terms contained herein, TGO reserves the right to display the Work(s) of Art which have already been sold prior to the termination of the Agreement.
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SECTION 11. MISCELLANEOUS
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| 11.1 |
Nothing contained in this Agreement shall constitute either party to be an employee or agent of the other party.
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| 11.2 |
This Agreement (together with any documents referred to herein) represents the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes any previous agreement whether written or oral between the parties in relation to that subject matter. Accordingly, all other conditions, representations and warranties which would otherwise be implied by law or otherwise shall not form part of this Agreement.
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| 11.3 |
If any provision or any part of any provision of this Agreement shall be held to be illegal or unenforceable, the enforceability of the remainder of this Agreement shall not be affected.
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| 11.4 |
No delay in exercising or non-exercise by either party of any of its rights under or in connection with this Agreement shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted and shall:
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| (i) |
be confined to the specific circumstances in which it is given;
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| (ii) |
not affect any other enforcement of the same or any other right; and
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| (iii) |
unless it is expressed to be irrevocable be revocable at any time in writing.
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| 11.5 |
The rights and remedies of each party under this Agreement are cumulative and not exclusive of any rights or remedies of that party. Each party may exercise each of its rights as often as it thinks necessary.
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| 11.6 |
This Agreement shall be binding upon and ensure for the benefit of the successors of each of the parties.
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| 11.7 |
If either Party is affected by Force Majeure it shall promptly notify the other Party of the nature and extent of the circumstances in question. Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or nonperformance is due to any Force Majeure of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly.
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| 11.8 |
Each party shall bear its own costs arising out of or in connection with the preparation, negotiation and implementation of this Agreement.
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| 11.9 |
Each party irrevocably agrees to submit to the exclusive jurisdiction to the Courts of New Delhi over any claim or matter arising under or in connection with this Agreement and waives any objection to proceedings in such Courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum. Any dispute arising out of the terms of this Agreement is to be settled in accordance with Indian laws.
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| 11.10 |
Any notice and other communications provided for in this Agreement shall be in writing and shall be either transmitted by email, facsimile transmission or by recognized courier service, on the addresses mentioned at the beginning of this Agreement.
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| 11.11 |
All notices shall be deemed to have been given validly on:
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| (i) |
the date immediately after the date of transmission with a facsimile confirmation or by e-mail, if transmitted by facsimile /e-mail transmission, or;
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| (ii) |
the date of receipt, if transmitted by courier/registered or speed post.
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| 11.12 |
No modification or amendment to this Agreement and no waiver of any of the terms or conditions hereof shall be valid or binding unless made in writing and duly executed by all the Parties.
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