Bluebird Technologies, Inc
ARTIST TERMS AND CONDITIONS
Welcome to Bluebird Art.
The following Artist Terms and Conditions (“Agreement”) govern the use of the Bluebird Art service and application (the “Service” or “App”) and the sale of your artwork (the “Work”) by Bluebird Technologies, Inc. (“Bluebird”). Your signing up for a Bluebird account will constitute acceptance of the terms of this Agreement, to which you will be bound; if you do not agree to these terms, you must not sign up for an account or utilize the Service or App.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the Agreement, in which case the term “Artist” shall refer to such entity.
Bluebird may amend this Agreement from time to time, by posting the amended Agreement on the App. Bluebird has no obligation to notify you of amendments, so you should check the App from time to time.
Content posted on Bluebird cannot be violent, discriminatory, unlawful, infringing or violating any third party intellectual property right or other right, hateful, or pornographic, or otherwise be damaging to Bluebird’s reputation.
As used in this Agreement, a “Work” refers to original artwork created by the Artist
All Content and Work posted by the Artist under that Artist’s account must be made by the Artist who holds that Bluebird account.
All Content and Work posted by the Artist are one-of-a-kind and intended to be kept in the home.
Bluebird reserves the right to terminate the account for any reason, in its sole discretion.
Bluebird reserves the right to remove any Content that Bluebird, in its sole discretion, believes violates the terms of this Agreement.
Work in the Gallery
As used in this Agreement, “Gallery” means the tab identified as “Gallery” in the App’s Featured Artist or Your Artist sections.
Work posted in the Gallery must be completed, available, ready for sale, and, if applicable, ready to hang, use, or install.
Work posted in the Gallery must be an original and free of blemishes or defects. Any known blemishes or defects must be acknowledged in the description section of Work posted in the Gallery.
Work that has been staged or photographed by Bluebird must be (a) posted in the Gallery within 5 days of the Artist receiving the photographs and (b) made available exclusively to Bluebird for sale for 30 days from the date of posting.
If a Bluebird user made his/her space available for the photography of a Work, Bluebird may acknowledge such user in the Gallery.
Work posted in the Gallery but sold outside of the Bluebird App must be removed from the Gallery immediately upon the sale of the Work.
Sales and commission
Sold Work proceeds: the Artist retains 70% of the listed price of the Work. For example, if a work is listed at $1000 and shipping is $20, the Artist retains $700.
Payment: Within 12 days after receipt of the Work by the buyer, assuming the buyer does not return the Work, Bluebird shall send to the Artist 70% of the sale proceeds (plus any shipping costs incurred by the Artist if the Work is not located in the San Francisco Bay Area).
Returns: the Artist agrees to accept returns under the conditions of Bluebird’s Returns Policy.
The Artist agrees to allow Bluebird to disclose the price of a sold Work to fellow Bluebird artists and Bluebird employees after a Work has been sold.
The Artist agrees to not disclose other artists’ sold Work prices
If a sold Work is located in the San Francisco Bay Area:
Bluebird will pick up the Work from the Artist and ship it directly to the buyer. Bluebird will bear the risk of loss or damage from the time it picks up the Work to the time the Work is delivered to the shipper.
The Artist must make the Work available to be picked up within 2 days after the sale of the Work via the Service.
If a sold Work is located outside of the San Francisco Bay Area:
The Artist will ship the Work himself/herself directly to the buyer, under a shipping method that will allow the work to arrive within 10 business days.
Bluebird will reimburse the Artist for shipping and insurance costs.
Artist shall defend, indemnify, and hold harmless Bluebird and Bluebird’s officers, directors, employees, and agents from and against any and all losses, costs, damages, and liabilities (including but not limited to attorneys’ fees, costs and expenses) related to any claim that a Work infringes, misappropriates, or violates any intellectual property rights, rights of privacy or publicity, or any other rights of a third party.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BLUEBIRD’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE DIFFERENCE BETWEEN (A) THE AGGREGATE SALE PRICE OF THE ARTIST’S WORKS SOLD THROUGH THE APP IN THE 12 MONTHS PRECEDING THE CLAIM AND (B) THE AGGREGATE AMOUNTS REMITTED BY BLUEBIRD TO THE ARTIST DURING THAT TIME PERIOD. THE LIMITS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO CLAIMS FOR INDEMNIFICATION.
Term and Termination
This Agreement shall remain in effect until terminated in accordance with this section. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach. Bluebird may terminate this Agreement at any time by giving the Artist at least thirty (30) days’ written notice. In the event that the Artist becomes insolvent or files a petition in bankruptcy or reorganization or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective), Bluebird may terminate this Agreement immediately by notifying the Artist. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, at law, or otherwise.
The terms of this Agreement, all Customer Data, and any not previously publicly disclosed information about Bluebird’s business, finances, customers, information systems, software or technology provided by Bluebird to the Artist under this Agreement shall be deemed confidential information of Bluebird without any further marking or designation. The Artist will hold in confidence and not use or disclose any of Bluebird’s confidential information. The Artist acknowledges that disclosure of Bluebird’s confidential information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure, Bluebird shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
This Agreement was last updated on March 16, 2015.