These Terms and Conditions for Artists (the “Agreement”), by and between the individual or company identified below (“You”) and Bombsheller, apply solely to the designs you choose to make available on Bombsheller (“Art”). By opting to use Bombsheller, you agree to be cool. You also agree to the following terms and conditions:
1. Review of Image(s). You must submit all of Your Art to us for review in accordance with the Bombsheller Art Submission Guidelines, and we may accept or reject it for any reason. You are responsible for ensuring that Your Art complies with this Agreement, our Acceptable Use Policy, and the Art Submission Guidelines. Bombsheller reserves the right to designate your design as a premium (“Radioactive Design”) or standard (“Standard Design”). Bombsheller has the sole discretion to change the designation of designs for any reason and at any time.
2. Design modification. In order to improve quality, Bombsheller may at its discretion adjust or modify your designs to achieve optimal results.
3. Responsibility for Your Art. You are responsible for Your Art. You represent and warrant to us that you have all rights in Your Art necessary to promote, license, sell or grant access to Your Art through Bombsheller.
4. Maintenance and Removal of Your Art. You may remove a listing of Your Art from Bombsheller at any time in accordance with the Art Submission Guidelines. We may also remove any listing for Your Art from Bombsheller at any time for any reason. Any removal by you or us of any listing of Your Art from Bombsheller will apply to prospective customers only and you will continue to enable Bombsheller to use Your Art for current customers after removal of the listing until current customers terminate their use.
5. Our Role. Except as expressly set forth in this Agreement, we are not involved in any underlying transaction between you and any customer. We are not responsible for any dispute between you and any customer, but we may elect to assist in the resolution of any dispute between you and any customer if asked to do so by the customer. If we elect to assist in the resolution of a dispute, you agree to cooperate with us to resolve the dispute.
6. Customer Ratings and Feedback. We may implement mechanisms that rate, or allow customers to rate and provide feedback about you and Your Art (including information about Your Art that has been removed from Bombsheller). We may make these ratings and feedback publicly available.
7. License Grant. You grant us a nonexclusive, worldwide license to: (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), Your Art through Bombsheller, and (b) display (i) your trademarks and logos in the form you provide them to us (with any modifications to optimize their viewing), and (ii) Your Art in connection with marketing and advertising purposes. You also grant us the right to adapt your art to all apparel and related products sold by Bombsheller. We may permit our affiliates and independent contractors to exercise the rights that you grant to us in this Agreement.
8. Processing of Transactions; Collection of Transaction Proceeds. We will process all payments and refunds for Transactions and collect the applicable Transaction Proceeds. We do not guarantee payment on behalf of any customers. We may withhold for investigation, or refuse to process, any Transactions that we suspect are fraudulent, unlawful or otherwise violates our Policies.
9. Payment and Sales
9.1. Retail Price. Bombsheller will set the retail price for product(s) bearing your design when sold through Bombsheller.
9.2. Royalty. You may set your own royalty rate, subject to Bombsheller’s approval, in dollar increments rounded to the nearest even dollar amount. Bombsheller reserves the right to reject any royalty rates that Bombsheller determines are unreasonable.
9.3. Offset against payments. Bombsheller and its affiliates will be entitled to an offset against payments due to you for i) customer refunds and credits issued by us and ii) bad debt.
9.4. Design eligibility. Some designs may not be made available on Bombsheller. Bombsheller will determine eligibility at its sole discretion.
9.5. Payment. Royalty payments are subject to any applicable discounts or markdowns, and minus any shipping and handling charges or sales and use taxes. If a product bearing your design(s) is sold at a discounted price or markdown, your royalty payment will also be subject to the same discount or markdown. Bombsheller also reserves the right to give away products for promotional purposes, in which case you will not receive royalty payments for such products.
9.6. Payment schedule. For transactions occurring in each calendar month, we will issue payments to you within 60 calendar days after the end of the month. We will send you payments via PayPal, provided the balance paid to you is over $20.00. All amounts will be represented and paid in US Dollars (USD). If Bombsheller owes you less than $20.00, we reserve the right to roll your accumulated royalties forward to the following month or until $20 is reached. The responsibility of creating and maintaining a PayPal account in order to receive payment is yours. If your account is inactive or terminated and Bombsheller is unable to contact you using the information in your account, we may also charge a termination fee equal to the unpaid royalty amount in your account in order to cover the cost of administration.
10. Term and Termination. The term of this Agreement will commence on the Effective Date and will continue until terminated. Either party may terminate this Agreement for any or no reason by providing 30 days’ written notice to the other party. If a party materially breaches this Agreement, then the other party may terminate this Agreement upon written notice if the breaching party fails to cure the breach within 30 days after written notice of a breach. We may terminate access for existing subscribers upon termination of this Agreement.
11. Indemnification. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) alleged infringement or misappropriation of any third-party rights by Your Art, or by the use, distribution, sale, development, design, production, advertising or marketing of Your Art; or (b) a dispute between you and any customer to Your Art.
12. Disclaimers; Limitations of Liability. EXCEPT AS MAY BE EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT, WE, OUR AFFILIATES AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ALL SERVICES OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE, OUR AFFILIATES AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
13.1. Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms, sea monsters or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.2. Independent Contractors; Non-Exclusive Rights. The parties to this Agreement are independent contractors, and neither party, or any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Each party reserves the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third parties who may offer products or services which compete with the other party’s products or services.
13.3. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.4. Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which the subscriber accesses and uses Your Marketplace Content.
13.5. Notices. We will send all notices and other communications to you at the e-mail address registered under Your account with Bombsheller.
13.6. Assignment. Neither party may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement without the prior written approval of the other party; except that either party may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without the consent of the other party (a) in connection with a merger, acquisition or sale of all or substantially all of its assets, or (b) to any affiliate or as part of a corporate reorganization. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
13.7. No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party’s right to enforce such provision at a later time. All waivers by a party must be in writing and sent in accordance with our Notice requirements above.
13.8. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.9. Governing Law; Venue. The laws of the State of Washington, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between the parties. Any dispute relating in any way to this Agreement will only be adjudicated in a state or federal court located in King County, Washington. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.10. Entire Agreement. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.
13.11. Changes. Notwithstanding anything in this Agreement to the contrary, we may update or change the terms of this Agreement at anytime by posting updated terms on the Bombsheller Site. You are responsible for periodically reviewing these Terms and Conditions for applicable changes.
Version 7.1, Updated April 20, 2014