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Artist Agreement

Updated on April 5, 2018

This Agreement contains the terms and conditions for submitting your design, including any artwork or other materials submitted, (hereinafter the “Design”) to DigMEE Holding Company Inc dba TeeFury (hereinafter "TeeFury"). Please read this Agreement carefully.

1.
Limited License You Grant to TeeFury

1.1
When you submit your Design to TeeFury, you grant TeeFury a nonexclusive, royalty free (except for the commissions set forth above), perpetual, worldwide, transferable license authorizing Tee Fury to use, reproduce, modify, adapt, publish, translate, advertise, promote, import, create derivative works from, distribute, display (in whole or part), and to incorporate it in other products or works in any form, media, or technology now known or later developed, whether for commercial or marketing purposes or otherwise, and to distribute in connection with your Design your name and other personal information that you provide to us.

1.2
Under the terms of the foregoing license, TeeFury may, at its sole discretion, select your Design to print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing your Design. In addition, under the terms of the foregoing license, Tee Fury may, at its sole discretion, display the Design so selected on Tee Fury’s website or other associated social media forum and print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing the Design so selected. The foregoing license also authorizes TeeFury to reproduce, distribute, and display your Design on TeeFury’s website or other associated social media forum(s) and in advertising and promotional materials related thereto. You further acknowledge that third-party users of Tee Fury’s website or other associated social media forum may publicly comment on or criticize your Design. You acknowledge, however, that Tee Fury is not obligated to utilize your Design under this license in any way. For avoidance of doubt, Tee Fury may display and sell t-shirts bearing your Design on Tee Fury’s website and also remove or disable access to such Design on Tee Fury’s website at any time at Tee Fury’s discretion, unless otherwise provided in this Agreement.

1.3
If Tee Fury elects to sell t-shirts using or bearing your Design on Tee Fury’s website, you may request that Tee Fury discontinue selling your Design by giving Tee Fury 30 days’ written notice. You acknowledge that Tee Fury may print, have printed, sell, ship, have shipped, or distribute to customers t-shirts using or bearing your Design in fulfillment of orders by customers for such t-shirts that are placed within a 30-day period following receipt of such notice. You also acknowledge that Tee Fury may continue to take and fulfill orders for t-shirts using or bearing your Design after expiration of the 30-day period by selling, shipping, having shipped, or distributing such t-shirts in order to deplete existing inventories of such t-shirts. Tee Fury will continue to pay you commissions on t-shirts shipped to customers, under the terms of this Agreement, after receipt of said notice.

1.4
You agree that you will not sell or license any part of your Design to Tee Fury in a way that would impair or restrict Tee Fury from fully using the license you have granted to us.

2.
You Keep the Copyrights

Tee Fury acknowledges that you continue to own all copyrights to your Design, subject to the license granted in these terms and conditions and any other provisions herein. You acknowledge that customers who own a lawfully made copy of your Design may sell or otherwise dispose of the copy.

3.
Rights of First Negotiation



3.1
After you submit your Design to TeeFury, TeeFury may, in its sole discretion, send you constructive input regarding how to modify the Design to be more acceptable for selection by TeeFury. In the event that you create a second design that modifies or otherwise changes the Design based on the content of TeeFury’s constructive input (“Second Design”), you hereby agree that (1) you shall promptly notify TeeFury in writing of the creation of such Second Design; and (2) grant TeeFury the option to enter into a nonexclusive license for the Second Design under mutually acceptable terms and conditions before you assign, license, offer to license, or offer to assign the Second Design to a third party. If TeeFury decides, in its sole discretion, to exercise the option, TeeFury will notify you in writing within thirty (30) business days of receipt of the notice of creation of the Second Design.

3.2
In the event that you receive an offer to license the Design from a third party, you hereby agree that you shall promptly notify TeeFury of such offer in writing. TeeFury shall have ten (10) business days following the date you first present TeeFury such offer to decide whether to negotiate an agreement to exclusively license the Design from you. If TeeFury desires to negotiate such an agreement, TeeFury shall, within said ten (10) business day period, deliver to you written notice thereof. Promptly after receipt of such notice, the parties shall commence negotiations for a period not to exceed 30 days after the date of TeeFury’s notice to you. If TeeFury does not provide notice within said ten (10) business day period, or if you and TeeFury do not enter into a legally binding, written agreement for the exclusive license of the Design within said 30 day period, you shall be free to enter into an agreement with the third party.

3.3
Before you may sell your Design to a third party, you shall first offer the Design to TeeFury in writing. TeeFury shall have ten (10) business days following the date you first present TeeFury such offer to decide whether to negotiate an agreement for the purchase of the Design from you. If TeeFury desires to negotiate such an agreement, TeeFury shall, within said ten (10) business day period, deliver to you written notice thereof. Promptly after receipt of such notice, the parties shall commence negotiations for a period not to exceed 60 days after the date of TeeFury’s notice to you. If TeeFury does not provide notice within said ten (10) business day period, or if you and TeeFury does not enter into a legally binding, written agreement for the purchase and sale of the Design within said 60-day period, you shall be free to enter into an agreement with the third party on terms (considered as a whole) no more favorable to the third party than you offered to TeeFury.

4.
Commission TeeFury Will Pay You for TODAY’S TEE™ or "DAILY" Sales

TeeFury will pay you a commission of $1.00 for each t-shirt using or bearing your Design that is shipped following an order placed by a customer as part of a TODAY’S TEE™ promotion in which t-shirts using or bearing your Design are on sale at www.teefury.com for a 24-hour period; or (2) any similar limited-time promotion in which TeeFury offers t-shirts using or bearing your Design for sale for a period of time predefined by TeeFury. This commission does not apply to exchanges. This commission also does not apply to GRAB BAG® promotions or similar promotions in which the customer does not specifically place an order for a t-shirt using or bearing your Design, but rather places an order for a package of t-shirts, one of which may use or bear your Design. This commission also does not apply to t-shirts using or bearing your Design that are not shipped to a customer for any reason, including the customer’s failure to pay for the order. This commission does not apply to orders that are canceled by a customer, either before or after a t-shirt using or bearing your Design is shipped to the customer. This commission does not apply to t-shirts using or bearing your Design ordered by customers as part of a GALLERY™ promotion or similar unlimited-time promotion, which are dealt with in paragraph 5 below.

5.
Commissions for GALLERY™ Sales

5.1
TeeFury will pay you a $2.00 commission for each t-shirt using or bearing your Design that is shipped following an order by a customer as part of (1) a GALLERY™ promotion in which t-shirts using or bearing your Design are on sale at www.teefury.com/gallery/ indefinitely; or (2) any similar unlimited-time promotion in which TeeFury offers t-shirts using or bearing your Design for sale for an indefinite time. Except as provided in this Section, this commission also does not apply to GRAB BAG® promotions or similar promotions.

5.2
The commissions discussed in this Section do not apply to exchanges. Said commissions also do not apply to t-shirts using or bearing your Design that are not shipped to a customer for any reason, including the customer’s failure to pay for the order. Said commissions do not apply to orders that are canceled by a customer, either before or after a t-shirt using or bearing your Design is shipped to the customer. Said commissions do not apply to t-shirts using or bearing your Design ordered by customers as part of a TODAY’S TEE™ promotion, AFTER HOURS™ promotion, or similar limited-time promotion which are dealt with in paragraph 4 above.

6.
Commissions for Extra Printed T-Shirts


In addition to the t-shirts, other apparel, or exclusive items using or bearing your Design ordered by customers as part of a TODAY’S TEE™ promotion, AFTER HOURS™ promotion, GALLERY™ promotion, or other promotion, Tee Fury may, in its sole discretion, print or have printed overages using or bearing your Design. The overages using or bearing your Design may be used for customer service purposes, such as size exchanges, and/or may be sold as part of a GRAB BAG® promotion or similar promotion.

7.
Payment Terms

7.1
Commissions on qualifying t-shirt shipments resulting from a TODAY’S TEE™ or other limited-time promotion, as defined in paragraph 4, will be paid to you within 30 days of the end of the TODAY’S TEE™ or other limited-time promotion. In the event, however, that Tee Fury offers for sale t-shirts using or bearing your Design in an AFTER HOURS™ promotion following the close of a TODAY’S TEE™ promotion, commissions on qualifying t-shirt shipments resulting from both the TODAY’S TEE™ promotion and the AFTER HOURS™ promotion, as defined in paragraph 4, will be paid to you within 30 days of the end of the AFTER HOURS™ promotion.

7.2
Commissions on qualifying t-shirt shipments resulting from a GALLERY™ promotion or other unlimited-time promotion are paid monthly. At the end of each month that t-shirts using or bearing your Design are offered for sale in a GALLERY™ promotion or other unlimited-time promotion, TeeFury will determine the number of qualifying t-shirt shipments as defined in paragraph 5. The commissions on such qualifying t-shirt shipments will be paid to you within 30 days of the end of that month.

7.3
TeeFury will pay you via PayPal, or another method that Tee Fury selects. You agree that TeeFury is not required to pay commissions to you for any t-shirt that a customer does not pay for or that is returned. You agree that the payment amounts described above will be full and complete payment for the rights you grant to TeeFury in this Agreement and that you are not entitled to receive any other amounts that TeeFury may receive as payment from TeeFury’s customers. Also, you agree that TeeFury may use your Design on TeeFury’s website or other associated social media forum or for other promotional purposes and you agree that such uses are royalty free. You agree that TeeFury will not owe you any commissions, license fees, or other amounts for such uses. You agree to be solely responsible for all taxes of any kind or nature that arise due to payment of the commissions to you.

8.
Information You Provide to Us

When you submit your Design to TeeFury, TeeFury may request personal information about you. If TeeFury so requests, you further agree to provide personal information that is accurate, current, and complete.

9.
Artwork Representation and Warranty

9.1
You represent and warrant that you are the sole author of the Design and that the Design is entirely your own original work and that your Design is distinct and different from other works.

9.2
You represent and warrant that you are either of the age of legal majority in your state, territory, province, country, or jurisdiction of residence or an emancipated minor.

9.3
You represent and warrant that the Design 1) is not prohibited by any applicable laws; 2) is not owned, in whole or in part, by any other person or entity; 3) does not defame, violate, or infringe the rights of another, including rights of publicity, personality, privacy, trademark, trade secret, patent, copyright, or any other intellectual property rights; and 5) is not obscene, pornographic, offensive, or objectionable. You also represent and warrant that you have the right to grant to TeeFury the rights identified in this Agreement, and that such rights do not conflict with the rights of any other person or entity or your obligations to them.

9.4
You represent and warrant that, in the event your Design refers to the intellectual property rights of another, your Design is a new, original, and/or transformative work that parodies, satirizes, and/or provides social commentary on such intellectual property rights and your Design makes only fair use of such intellectual property rights. You agree to explain the instance of parody, criticism, commentary, and/or satire in your Design via an Artist Interview.

9.5
You agree to notify TeeFury within one (1) business day if, after submitting your Design, you become aware that the Design defames, infringes, or otherwise violates the rights of another, including the trademark, trade secret, patent, copyright, right of publicity, privacy, or any other intellectual property right of another. You agree to submit to TeeFury all information of which you are currently aware suggesting that your Design defames, infringes, or otherwise violates the rights of another. You specifically agree to notify TeeFury when you submit your Design of any allegation of which you are aware that your Design infringes the intellectual property rights of another. If, after submitting your Design, you become aware of information suggesting that your design defames, infringes, or otherwise violates the rights of another, you agree to submit such information to TeeFury within one (1) business day. You specifically agree to notify TeeFury within one (1) business day of any allegation of which you become aware that your Design infringes the intellectual property rights of another. You also agree to notify TeeFury within one (1) business day if, after submitting the Design, you license rights in the Design to another such that the rights identified in this Agreement conflict with the rights of another or your obligations to them.

9.6
TeeFury reserves the right, in its sole discretion, at any time to return or take down, remove, or disable access to your Design on TeeFury’s website in the event TeeFury becomes aware that the Design does, is suggested to, or is alleged to defame, infringe, or otherwise violate the rights of another, including the trademark, trade secret, patent, copyright, right of publicity, privacy, or any other intellectual property right of another.

10.
Indemnity

10.1
You agree to indemnify, defend and hold harmless TeeFury and its employees, representatives, and agents, from any and all expenses, damages, costs, and liabilities including reasonable attorneys’ fees and litigation expenses, arising from or related to any claims, demands or proceedings initiated by any third party due to or arising out of your acts or omissions, including claims arising out of your breach of a warranty that you make in this Agreement. You specifically agree to defend, hold harmless and indemnify TeeFury from any claims, damages, losses or liabilities (including payment of reasonable attorneys’ fees, costs, and litigation expenses) arising from any claims that the Design has violated the intellectual property rights of others.

10.2
You also agree to indemnify TeeFury for any other liabilities associated with later acts by you or your representatives in connection with the Design, including any attempt to disaffirm this Agreement at any point in the future. You agree that you and all of your legal guardians and representatives will be bound by all provisions contained in this Agreement.

10.3
You also understand and agree that TeeFury cannot control the use that TeeFury’s customers make of TeeFury’s t-shirts, TeeFury’s website or other associated social media forum, or other items that may contain your Design. If a TeeFury customer or a third-party user of TeeFury’s website or other associated social media forum violates TeeFury’s rights or your rights, or claims are brought against you due to the conduct of a customer or third-party user of TeeFury’s website or other associated social media forum, you agree to look solely to the customer or third-party user for damages or indemnity arising from or related to such uses or claims. You agree that TeeFury has no obligation to monitor the use of or content of any t-shirts, artwork, or other items made available or otherwise displayed on TeeFury’s website or other associated social media forum, and TeeFury will have no liability to you for TeeFury’s failure to do so.

11.
Liability Limitation

11.1
YOU AGREE THAT, IN THE EVENT OF ANY DISPUTE REGARDING YOUR DESIGNS, ARTWORK OR OTHER MATERIALS YOU PROVIDE TO US, ANY TEEFURY LIABILITY SHALL BE LIMITED TO UNPAID COMMISSIONS, IF ANY, OWED TO YOU PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU AGREE THAT YOU WILL NOT BE ENTITLED TO TERMINATE OR RESCIND THIS AGREEMENT, OR TO SEEK EQUITABLE OR INJUNCTIVE RELIEF, OR TO ENJOIN, RESTRAIN OR OTHERWISE INTERFERE WITH THE EXERCISE OF THE LICENSES GRANTED IN THIS AGREEMENT. YOU HEREBY WAIVE ANY RIGHTS OR CLAIMS TO ATTORNEYS’ AND LEGAL FEES, OR TO INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT AND WHETHER BASED ON NEGLIGENCE OR OTHERWISE.

11.2
You acknowledge that the TeeFury shall not be responsible if an order of a t-shirt using or bearing your Design cannot be implemented or if a commission cannot be paid due to acts of God, acts of war, strikes, governmental action, natural disasters, weather, acts of terrorism, discovery of a virus, computer problem, unauthorized intervention, human error or other error corrupting the administration or security of customers’ orders, or infringement or alleged infringement by your Design of the intellectual property rights of another. You acknowledge that TeeFury makes no representation or guarantee, expressed or implied, in fact or in law, with respect to any order or commission and specifically disclaim all such warranties, including, without limitation, any warranty of merchantability or fitness for a particular purpose. You agree that any and all disputes, claims, and causes of action arising out of or in connection with your Design shall be resolved individually, without resorting to any form of class action.

12.
TeeFury’s Trademarks and Copyright

12.1
You agree that the TEEFURY® trademark and related marks used on the TeeFury web site and in TeeFury’s t-shirts are trademarks of DigMEE Holding Company Inc and are solely owned by TeeFury. Except for designs and artwork provided by you, as between you and TeeFury, all media, artwork, software, text, images, graphics, user interfaces, music, videos, photographs, trademarks, logos, artwork and other content on the TeeFury site, including but not limited to the design, selection, arrangement, and coordination of such Content on the site is owned or licensed by TeeFury, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws.

12.2
You may use the TEEFURY® mark and/or the ® logo (the Teebird bird logo) to advertise sales of t-shirts using or bearing your Design as part of a TODAY’S TEE™ promotion or other limited-time promotion on teefury.com, provided that such use complies with TeeFury’s logo usage guidelines, which are hereby expressly incorporated herein, and further provided that such use must immediately cease upon TeeFury’s written request.

12.3
Except as expressly provided in this Agreement, no part of the site and no Content may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial or other purpose, without TeeFury’s prior express written consent. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets, trade dress, rights of publicity or trademarks with respect to any of the Content, and TeeFury reserves all rights not expressly granted in this Agreement.

13.
Transferability

13.1
You agree to notify TeeFury within one (1) business day if you sell, assign, or otherwise transfer the Design, in whole or in part, to another. The parties’ obligations to each other under this Agreement will continue in full force following such transfer.

13.2
You agree that TeeFury may, at any time without notice to you, assign, sell, or otherwise transfer all of Tee Fury’s rights under this Agreement to any person or entity that TeeFury chooses, including any person or entity that acquires Tee Fury’s business or any portion of it. The parties’ obligations to each other under this Agreement will continue in full force following such transfer.

14.
General Terms and Governing Law

14.1
This Agreement is the entire agreement between you and TeeFury related to the licensing of your Design to us. This Agreement, along with any documents incorporated herein, encompasses the entire agreement of the parties, and supersedes all previously understandings and agreements between the parties, whether written or oral.

14.2
The terms of this Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. You agree that, with respect to this Agreement, the decisions of TeeFury which shall be final in all respects. You further agree that you are bound by TeeFury’s privacy policy and other policies and requirements regarding the uploading and/or posting of the Design on the TeeFury website. This Agreement may only be amended in a writing signed by each party. No delay or failure to take action under this Agreement shall constitute any waiver by TeeFury of any provision of this Agreement.

14.3
The parties of this agreement will encourage the prompt and equitable settlement of disputes between the parties arising from or relating to this Agreement or your Design. The parties agree to negotiate their differences directly and in good faith for a period of no less than thirty (30) days after receiving written notification of the existence of a dispute. In the event the dispute is not resolved within thirty (30) days after written notification of the existence of the dispute, the parties agree that, upon the written request of either party, the parties will submit their dispute to a mutually agreed-upon licensed attorney or judge that is an experienced mediator and is located in Orange County, California to work with them to resolve their differences utilizing confidential, non-binding mediation. This mediation shall be a compromise negotiation for purposes of Rule 408 of the Federal Rules of Evidence and Section 1152 of the California Evidence Code and shall be confidential consistent with California Evidence Code Sections 703.5 and 1115 through 1128 and Section 1775.10 of the California Code of Civil Procedure. If, after non-binding mediation occurs, the dispute is not resolved, the parties shall be free to exercise all other legal and equitable rights, including the right to a trial by jury. The parties shall, at all times and without delay, continue to perform their respective obligations under this Agreement not affected by the dispute.

14.4
You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope of applicability of this Agreement, that the parties cannot resolve through negotiation or mediation, shall be determined by arbitration in Orange County, California before one mutually agreed upon arbitrator. The arbitrator must be a retired judge or a lawyer with at least 10 years of active practice in contract law. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

14.5
If a party engages the services of an attorney or other third party or in any way initiates legal action to enforce its rights or remedies under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses, including reasonable attorney’s fees.

14.6
By clicking “I AGREE,” you acknowledge that you have read and accept this Agreement in its entirety. If you are accepting on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the legal authority to bind, or do not wish to be bound by these terms and conditions, please press the “I DO NOT AGREE” option.