7.8 | IP SALES
[Collaborative Hypermedia Contract Additions]
The Terms and Conditions below are for inclusion or incorporation by reference to the collaborative hypermedia contractual documentation as independently and autonomously generated by and between the collaborating [NEST®] Biosphere members. Please follow this link for a walk through of the uses and meanings of the terms listed below:
The purchaser, herein after referred to as “Purchasing Member”, is entering into a contract for the sale, purchase or assignment of a copyright and related intellectual property rights with the owner of the said intangible rights, who has currently posted his or her Biosphere profile in the artwork, creator or provider member categories, herein after referred to as “Owner”. With express objective of entering into a mutually binding assignment and transfer of intangible rights.
The following terms and conditions, clauses 7.8a to 7.8o, are incorporated by reference to the IP Sales Contract, read as if written into the main body of such contract and shall thereby apply to the registered collaborative hypermedia contractual documentation (“IP Sales Contract”). The objective or purpose of the IP Sales Contract is Purchasing Member’s acquisition and receipt of IP Rights transferred and assigned by Owner (also known as “Artist” or “Tattoo/Artist” or “Mod/Artist” or “PRFM/Artist” or “Model” or “Venue”).
Purchasing Member shall in consideration of the transfer and assignment of the IP Rights, pay or transfer payment of the assignment price due to Owner, in accordance with the terms and conditions of the IP Sales Contract. The Terms and Conditions of collaboration are determined by and between the parties, using for this purpose the template provided in this NEST® Biosphere;
A.
Parties mutually represent, warrant and declare they have full legal and personal ability, capacity and intent to enter into a binding Contract under the NEST® Biosphere, and under their respective legal jurisdictions based on both nationality and domicile, without any legal impediment whatsoever.
B.
The related Intellectual Property rights and copyright ownership, titles or interests of and to the Art/Work, Work or Content described herein (“IP Rights”), may be identified or depicted through attached photographs, videos, media files, physical items, print-outs or other type(s) of specified documentation and or recordings in either digital or physical formats that identify Owner’s work, content, performance, product, good and or deliverable which has been expressly detailed to be transferred and assigned by Owner.
Collectively these items constitute one identifiable set or bundle of transferable intellectual property rights and copyright ownership title and interests. The subject IP Rights cover only those rights created by and belong to the Owner, including rights described in photographs, recordings, files or other depictions in either digital or physical formats as being expressly provided to Purchasing Member in connection with the IP Sales Contract.
C.
Owner agrees that descriptions of IP Rights under the IP Sales Contract and in associated documentation are accurate, thorough and comprehensive, and that no material part of the description, titles, assignment or interests to IP Rights has been omitted.
D.
Owner represents, warrants and confirms that it has not previously or simultaneously assigned, transferred, licensed, pledged or otherwise encumbered the IP Rights, or any part of it, in favor of any person other than the Purchasing Member, and that it will not execute any other transfer or assignment in the future, after the present transfer and assignment in favor of the Purchasing Member.
E.
Owner represents and warrants that is is not aware of any third party consents, assignments or licenses that may be necessary or otherwise required in order to exercise its rights and perform its obligations under the this IP Sales Contract.
F.
Owner represents and warrants that it is not aware of any violation, infringement or misappropriation of any third party rights caused by, related to or in connection with the transfer or assignment of the subject IP Rights.
G.
The IP Rights shall be transferred and assigned to the Purchasing member upon the full and timely payment of the price and compliance with the completion requirements.
Parties agree that sale or assignment of the IP Rights does not result to or otherwise create a contractual relationship between them, other than the relationship of seller and buyer, or of assignor and assignee, under the IP Sales Contract.
H.
The IP Sales Contract shall inure to the benefit of and be binding on the respective successors-in-interest and permitted assigns of each party, who shall to the procure in transferring its interests herein that each such transferee shall execute a deed with the other party by which the transferee agrees to be bound by the provisions of this IP Sales Contract.
I.
Unless otherwise agreed by the parties, the failure or delay of a party to perform any obligation under the IP Sales Contract solely by reason of acts of God or nature, natural disaster, acts of government, riots, wars, accidents, force majeure, or other similar causes beyond its control, shall not be deemed to be a breach of the IP Sales Contract.
Notwithstanding the foregoing, the party prevented from complying with the IP Sales Contract shall continue to take all actions within its power and control to comply as fully as possible with the IP Sales Contract, and to use its best efforts to remove or remedy the force majeure with all reasonable dispatch. Except where the nature of the event prevents, the party suffering the force majeure shall notify the other party of such event within three calendar days (72 hours), after its occurrence.
J.
Any of the following events shall constitute a default of this IP Sales Contract
i) An affirmative act of insolvency by a party or the filing by a party of a petition under any bankruptcy, reorganization, insolvency, or moratorium law, or any law for the relief of, or relating to, debtors;
ii) The filing of any involuntary petition under any bankruptcy statute against a party, or the appointment of any receiver or trustee to take possession of property of a party, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within ninety (90) days of the date of such filing or appointment;
iii) A final judgment or the unappealed decision of a government regulatory officer or agency that results in temporary or permanent suspension of any permit, license, accreditation or registration, the possession of which is a prerequisite to performance by a party under applicable law;
iv) Failure to provide, transfer and assign the the IP Rights in accordance with the material terms and conditions of the IP Sales Contract, resulting to substantial delay in implementation of the said contract;
v) Failure to make payment in accordance with the material terms and conditions of the IP Sales Contract, resulting to substantial delay in payment, total non-payment, or partial but substantial non-payment In case of material default or substantial delay by the Owner in transferring or assigning the IP Rights, the Purchasing Member who is not in default or delay, shall automatically and without need for demand, be entitled to terminate the IP Sales Contract and recover damages by way of indemnity.
In case of substantial delay by the Purchasing Member in paying the fee due to the Owner, the latter shall automatically and without need for demand, be entitled to collect the unpaid fee and recover damages by way of indemnity.
Neither party incurs in delay if the other party does not comply or is not ready to comply in a proper manner with what is incumbent upon the latter. From the moment one of the parties fulfills the obligations concerned, delay by the other begins.
K.
The Owner shall transfer and assign the IP Rights in such a manner that it has the specifications agreed upon and has no defects which destroy or lessen its value or fitness for its ordinary or stipulated use. If the IP Rights is not of such specifications, the Purchasing Member may require that the Owner remove the defect.
If the Owner fails or refuses to comply with this obligation, the Purchasing Member may have the defect removed, at the reasonable cost of the Owner. Acceptance of the IP Rights by the Purchasing Member relieves the Owner of liability for any defect in the IP Rights, unless the defect is hidden and the Purchasing Member is not, by lack of special knowledge, expected to recognize the same.
Unless the parties stipulate otherwise, the indemnity for delay in delivery, transfer and assignment of the IP Rights shall be in the form of liquidated damages computed at the rate of 1/10 or 1% of the total value of the IP Sales Contract, but shall not in any case exceed 10% of the said value. Unless the parties stipulate otherwise, the indemnity for delay in payment shall be in the form of interests computed at the rate of six percent (6%) per annum.
To the full extent permitted by law, and notwithstanding anything else in this agreement, neither party shall be liable for any incidental, consequential, exemplary, punitive, indirect damages of any kind including lost profits, lost data, or costs of procuring substitute products or services, whether in an action in contract or tort or other source of legal obligation, even if such party has been advised of the possibility of such damages, except in the case of gross negligence or willful misconduct.
L.
Purchasing Member’s transfer of full and timely payment to Owner shall be deemed to confirm the successful completion and satisfactory fulfillment of the IP Sales Contract terms and conditions and completion requirements. Such payment shall be in the mutually specified amount and currency via the selected method of financial transfer or remittance.
The proper and timely payment shall automatically to IP Sales Contract closure Purchasing Member must either confirm IP Sales Contract closure or initiate IP Sales Contract Dispute within two days (48 hours), following Contract’s set date and time of completion. Closed IP Sales Contracts record the mutually satisfactory fulfillment of collaborative engagement.
Registering IP Sales Contract Dispute suspends all activity and settlement of all outstanding billings, pending the resolution of the dispute, in accordance with the procedure established under the Contract. Failure of Purchasing Member to register a Closed or Disputed IP Sales Contract within two days (48 hours), following IP Sales Contract’s set date and time of completion, the transfer and assignment of the IP Rights shall be deemed as timely and properly made, and shall automatically authorize settlement of all outstanding billings is initiated, such amount and currency necessary to settle the billings in full shall immediately be deducted or debited from the account of the Purchasing Member, without need for any further authorization.
M.
Purchasing Member may authorize independent or separate Contract settlement, or the transfer payment directly to Venue, even for such amounts that exceed the original or existing registered Contract’s cumulative total limits.
For and up to the Contract’s registered cumulative total limits, the Purchasing Member remains comprehensively and financially liable to ensure the full settlement of all outstanding billings.
The process of settling billings is subject to reasonable transaction fees or processing costs which shall be for the account of the Purchasing Member.
N.
In the event of discrepancy or conflict between the Contract that is written in English, and any associated contractual documentation that is written in another language, the Contract in English shall prevail.
O.
If any provision of this agreement shall be void or unenforceable for any reason, such provision shall be ineffective to the extent of such voidability or unenforceability without invalidating the remaining provisions hereof, provided however, that the parties shall replace any void or unenfoceable provision by a valid or enfoceable language as comes nearest to the original provision in economic impact and intent. The provisions relating to confidentiality and remedies in case of material breach shall survive the termination of the Contract.
