Penrod Arts Fair 2018 (52nd Annual) Agreement

LEGAL AGREEMENT FOR THE PENROD ARTS FAIR

 

By submitting an Application for the Fair using the ZAPP Service and paying the Application fee, you are requesting that The Penrod Society review and evaluate your Application to determine whether we will invite you to participate in the Fair.  In exchange for our review and evaluation of your Application—and, if you are invited to participate in the Fair, as a condition of your participation in the Fair—you agree to be bound by, and adhere to, the terms and conditions stated throughout the Application and in this Agreement, as follows:

 

1.  Definitions.  Defined terms herein are set forth in lowercase letters but capitalized.  Unless different forms of the same term are separately defined herein, a defined term’s definition herein pertains and extends to the singular, plural, and all possessive forms of the defined term, regardless of which form in particular may be defined herein.  If any word or phrase herein is set forth in ALL UPPERCASE LETTERS and would, if set forth in lowercase letters but capitalized, constitute a defined term herein, then such word or phrase carries the meaning ascribed to the associated defined term.  If a word or phrase is not capitalized that would, if capitalized, constitute a defined term, then such word or phrase should be accorded its ordinary meaning in view of the context in which it is used; all other words and phrases, whether or not capitalized, should be accorded their ordinary meaning in view of the context in which they are used.  In addition to the defined terms set forth between parentheses and quotation marks (“_”) elsewhere herein, all of which apply herein, the following definitions shall apply throughout this Agreement:

 

1.1.  “Agreement” means this Legal Agreement for the Penrod Arts Fair.

 

1.2.  “Applicant” means the individual and/or entity who submits an Application, or on whose behalf an Application is submitted, and who agrees to and accepts the terms and conditions stated throughout the Application and in this Agreement by clicking on the “I confirm that I have read and agree to the Penrod Arts Fair’s terms and conditions” box within the Application, and further includes all officers, directors, representatives, members, volunteers, employees, agents, contractors, heirs, successors, alter egos, assigns, and Guests of the aforementioned individual and/or entity.  All uses of “you,” “your,” and “yours” herein refer to the Applicant.

 

1.3.  “Application” means all information set forth in the Fair’s online application provided by the ZAPP Service, including all information requested therein concerning an Applicant’s personal data and history, training, education, experience, and Artwork, as well as all responsive information submitted by Applicant in the course of completing the Fair’s online application provided by the ZAPP Service.

 

1.4.  “Artwork” shall mean Applicant’s works of art or craft of any kind or description whatsoever that are fixed in a tangible medium.

 

1.5.  “Fair” means, collectively, (a) the Penrod Arts Fair that takes place in the year in which Applicant submits its Application, (b) any other scheduled event(s) that may occur at any time during the weekend of (i.e., the Friday immediately preceding, the Saturday of, and the Sunday immediately following) that Penrod Arts Fair on the grounds of the Indianapolis Museum of Art, including, but not limited to, The Penrod Society’s Evening with Penrod at the IMA event, and (c) all other times, and events that make take place, on the Thursday and Friday immediately preceding, the Saturday of, and the Sunday immediately following that Penrod Arts Fair.

 

1.6.  “Guest” means any and all individual(s) who may accompany Applicant to the Fair.

 

1.7.  “Host Entities” means the Indianapolis Museum of Art and The Penrod Society.

 

1.8.  “Hosts” means all entities and individuals who host, hold, plan, sponsor, direct, organize, run, or manage, directly or indirectly, the Fair or any particular aspect thereof, and includes, but is not limited to, the Indianapolis Museum of Art, The Penrod Society, and those organizations’ respective officers, directors, representatives, members, volunteers, employees, agents, contractors, heirs, successors, alter egos, and assigns, including, but not limited to, the Artist Chairman for the Fair.  All uses of “us,” “we,” “our,” and “ours” herein refer to the Hosts.

 

1.9.  “Images” means the digital images of the Artwork that Applicant submitted with its Application.

 

1.10.  “Parties” means the Hosts and the Applicant, collectively.

 

1.11.  “Party” means one of the Parties.

 

1.12.  “Property” means any and all personal property of any kind or description whatsoever that Applicant may bring to, acquire at, or otherwise possess at the Fair, including, for example, but not limited to, works of art or craft of any kind, Artwork, supplies, tents, equipment, tools, tables, chairs, shelving, easels, carts, dollies, computers and other electronics, booth and display items, vehicles, trailers, personal items, wallets, purses, keys, credit cards, debit cards, checks, and cash.

 

1.13.  “The Penrod Society” means The Penrod Society Ltd.

 

1.14.  “Trademarks” means the following phrases, in all of their possible forms, fonts, and sizes, with or without surrounding images or text, and regardless of color, which are claimed as trademarks and actively used as such by The Penrod Society:  THE PENROD SOCIETY, PENROD ARTS FAIR, INDIANA’S NICEST DAY, INDIANA’S NICEST EVENING, INDIANA’S NICEST WEEKEND, EVENING WITH PENROD, The Penrod Society’s stylized “PS” logo, and the Penrod Arts Fair’s six-petal flower logo.

 

1.15.  “ZAPP” shall mean ZAPP Software, LLC.

 

1.16.  “ZAPP Service” shall mean the web-based service, owned and made available by ZAPP, through the ZAPP Website, which creates and manages an electronic database to receive applications for entry into art shows, such as the Fair, and associated fees.

 

1.17.  “ZAPP Website” shall mean www.zapplication.org.

 

2.  Incorporation of Application Terms and Conditions.  The terms and conditions set forth by The Penrod Society throughout the Application are hereby incorporated into, and made a part of, this Agreement by reference.  Other than by agreeing to and accepting the terms and conditions set forth by The Penrod Society throughout the Application by clicking on the “I confirm that I have read and agree to the Penrod Arts Fair’s terms and conditions” box within the Application, Applicant may not impose any term or condition on the Hosts through Applicant’s use of, or statements in, the Application.

 

3.  Trademarks.  Applicant hereby acknowledges that The Penrod Society claims and actively uses the Trademarks as trademarks and that the Trademarks are the sole and exclusive property of The Penrod Society.  Applicant agrees that it will not use any of the Trademarks for any commercial purpose or in any other way that would infringe, dilute, disparage, or tarnish any of the Trademarks.

 

4.  Copyrights.  To the extent that Applicant holds any copyright(s) in or to Artwork, nothing in this Agreement shall affect Applicant’s rights, in any way, in or to any such Artwork or the copyright(s) therein.  In no event will the Hosts reproduce Artwork in its original medium or otherwise for resale.  Applicant hereby grants the Host Entities, separately and individually, a nonexclusive, royalty-free, perpetual license to record during the Fair, use, and publicly display Artwork, in whole or in part, for the limited purposes of the Host Entities’ respective marketing, advertising, promotional, publicity, or historical-documentation activities, in any format, including, for example, but not limited to, photographs, audio recordings, video recordings, and digital or digitized versions of any of the aforementioned mediums.  The limited rights and license granted herein do not include any assignment or transfer of any copyright(s) in the Artwork and do not include any right to otherwise reproduce, digitize, edit, modify, distribute, or publicly display the Artwork, in whole or in part.

 

5.  Use of Applicant’s Likeness, Actions, and Voice.  Applicant hereby grants the Host Entities, separately and individually, a nonexclusive, royalty-free, perpetual license to record during the Fair, use, and publicly display Applicant’s physical likeness, actions, and voice, together or separately, in whole or in part, for the limited purposes of the Host Entities’ respective marketing, advertising, promotional, publicity, or historical-documentation activities, in any format, including, for example, but not limited to, photographs, audio recordings, video recordings, and digital or digitized versions of any of the aforementioned mediums.

 

6.  Applicant’s Representations and Warranties.  Applicant hereby represents and warrants that (a) unless Applicant is an art gallery, the Artwork was originated and hand-made exclusively by Applicant or jointly by Applicant with a co-artist; (b) unless Applicant is an art gallery, Applicant is the sole owner, or joint owner with a co-artist, of all rights in the Artwork; (c) by entering into this Agreement, submitting the Application and Images through the ZAPP Service, and displaying the Artwork at the Fair, Applicant is not violating any agreement with any third party; (d) the Artwork does not violate or infringe upon any intellectual property, privacy, publicity, or other rights of any third party; and (e) if Applicant is an art gallery, the Artwork sold by Applicant is hand-made and original (collectively, “Applicant’s Representations”).  Applicant agrees to provide the Hosts with appropriate documentation verifying Applicant’s Representations in a form as may be reasonably requested by the Hosts.

 

7.  Return of Images.  The Hosts have no responsibility to Applicant for the return, removal, or taking down of any Images or other Artwork submitted by Applicant through the ZAPP Service.

 

8.  RELEASE AND HOLD-HARMLESS.  APPLICANT HEREBY RELEASES THE HOSTS AND HOLDS THEM HARMLESS FROM ANY AND ALL LIABILITIES, LOSSES, DAMAGES, THEFTS, OR INJURIES OF ANY FORM OR NATURE WHATSOEVER RELATED TO APPLICANT’S PERSON OR PROPERTY, INCLUDING APPLICANT’S DEATH—AND FURTHER INCLUDING ANY LEGAL ACTION, LAWSUIT, OR FORMAL OR INFORMAL CLAIM OR GRIEVANCE BASED ON ANY OF THE AFOREMENTIONED EVENTS—SUSTAINED BY APPLICANT OR APPLICANT’S PROPERTY WHILE APPLICANT OR APPLICANT’S PROPERTY IS (A) PRESENT ON THE GROUNDS OF THE INDIANAPOLIS MUSEUM OF ART IN CONJUNCTION WITH OR DURING THE FAIR, (B) PRESENT WITHIN ANY PARKING LOT OR PARKING AREA SPECIFICALLY DESIGNATED FOR USE IN CONJUNCTION WITH OR DURING THE FAIR, (C) PRESENT WITHIN ANY OTHER PARKING LOT, PARKING AREA, OR PARKING LOCATION THAT APPLICANT MAY CHOOSE TO USE IN CONJUNCTION WITH OR DURING THE FAIR, (D) OTHERWISE PRESENT WITHIN THE CITY OF INDIANAPOLIS, OR ELSEWHERE WITHIN THE STATE OF INDIANA, IN CONJUNCTION WITH OR DURING THE FAIR, OR (E) EN ROUTE IN A VEHICLE OR OTHERWISE TO, FROM, OR BETWEEN ANY OF THE AFOREMENTIONED LOCATIONS.

 

9.  INDEMNIFICATION AND REIMBURSEMENT.  APPLICANT HEREBY AGREES TO INDEMNIFY, DEFEND, AND PROTECT THE HOSTS IN AND AGAINST ANY LEGAL ACTION, LAWSUIT, OR FORMAL OR INFORMAL CLAIM OR GRIEVANCE—OR, AT THE HOSTS’ OPTION, REIMBURSE THEM FOR ALL COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES) INCURRED BY THE HOSTS DUE TO THEIR INVOLVEMENT OR PARTICIPATION THEREIN, INCLUDING ANY DAMAGES OR REMUNERATION OF ANY FORM OR NATURE WHATSOEVER AWARDED AGAINST, OR OTHERWISE PAID BY, ANY OF THE HOSTS—THAT MAY BE BROUGHT AGAINST ANY OF THE HOSTS BY ANY THIRD PARTY AS A DIRECT OR INDIRECT RESULT OF ANY ACTUAL OR ALLEGED ACT(S) OR OMISSION(S) BY APPLICANT WHILE APPLICANT OR APPLICANT’S PROPERTY IS (A) PRESENT ON THE GROUNDS OF THE INDIANAPOLIS MUSEUM OF ART IN CONJUNCTION WITH OR DURING THE FAIR, (B) PRESENT WITHIN ANY PARKING LOT OR PARKING AREA SPECIFICALLY DESIGNATED FOR USE IN CONJUNCTION WITH OR DURING THE FAIR, (C) PRESENT WITHIN ANY OTHER PARKING LOT, PARKING AREA, OR PARKING LOCATION THAT APPLICANT MAY CHOOSE TO USE IN CONJUNCTION WITH OR DURING THE FAIR, (D) OTHERWISE PRESENT WITHIN THE CITY OF INDIANAPOLIS, OR ELSEWHERE WITHIN THE STATE OF INDIANA, IN CONJUNCTION WITH OR DURING THE FAIR, OR (E) EN ROUTE IN A VEHICLE OR OTHERWISE TO, FROM, OR BETWEEN ANY OF THE AFOREMENTIONED LOCATIONS.

 

10.  Duty of Care.  The Hosts understand that ZAPP will use reasonable efforts to control and maintain the security of the ZAPP Service and data submitted by Applicant through the ZAPP Service, but the Hosts cannot and do not warrant that the ZAPP Service or the ZAPP Website will be able to protect Artwork and Images from infringement, piracy, or theft.  Applicant acknowledges that technological advances and the skills of those trying to break digital encryption algorithms may outpace the technology of digital encryption and security techniques and that there is no such thing as an absolutely secure web-based service or website.  Applicant further acknowledges that the publication of digitized data on the Internet necessarily makes it possible for the Artwork to be copied in some form.  APPLICANT HEREBY RELEASES THE HOSTS AND HOLDS THEM HARMLESS FROM ANY AND ALL LIABILITIES, LOSSES, DAMAGES, THEFTS, OR INJURIES OF ANY FORM OR NATURE WHATSOEVER DUE TO, DIRECTLY OR INDIRECTLY, ANY SECURITY BREACH OR FAILURE OF, OR ASSOCIATED WITH, THE ZAPP SERVICE AND/OR THE ZAPP WEBSITE.

 

11.  LIMITATION OF THE HOSTS’ LIABILITY.  IN NO EVENT WILL THE HOSTS BE LIABLE TO APPLICANT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY FORM OR NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR OFFENDED MORAL RIGHTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE HOSTS SHALL HAVE NO OBLIGATION TO PROTECT APPLICANT’S MORAL RIGHTS, IF ANY, IN THE ARTWORK AND IMAGES.  APPLICANTS’ SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY ANY HOST, FOR ANY UNAUTHORIZED PUBLICATION OF ARTWORK OR IMAGES THROUGH THE ZAPP SERVICE OR THE ZAPP WEBSITE, OR FOR ANY OTHER CLAIMED HARM FROM USING THE ZAPP SERVICE OR THE ZAPP WEBSITE, WHETHER CAUSED OR ALLEGED TO BE CAUSED BY THE HOSTS, SHALL BE APPLICANT’S ACTUAL DAMAGES, IF ANY, BUT IN NO EVENT SHALL THE AMOUNT OF ANY SUCH REMEDY EXCEED THE AMOUNT OF APPLICANT’S BOOTH FEE PAID THROUGH THE ZAPP SERVICE.

 

12.  Legal Advice.  Applicant acknowledges and agrees that, prior to executing this Agreement by clicking on the “I confirm that I have read and agree to the Penrod Arts Fair’s terms and conditions” box within the Application, Applicant either obtained, or had ample opportunity to obtain but, after reviewing the Agreement, consciously decided not to obtain, the advice of legal counsel regarding this Agreement and the propriety of entering into it.

 

13.  Independent Contractors.  Nothing contained in this Agreement creates an employment, agency, joint venture, or partnership relationship between the Parties or any of their respective officers, directors, representatives, members, volunteers, employees, agents, contractors, heirs, successors, alter egos, or assigns.  Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.

 

14.  Assignment.

 

14.1.  By the Hosts.  This Agreement shall inure to the benefit of the respective transferees, successors, lessees, and assigns of the Hosts.  The Hosts may freely assign or transfer this Agreement; this Agreement is fully assignable and transferable by the Hosts without any amendment to this Agreement or other further action by the Parties.

 

14.2.  By Applicant.  No aspect of this Agreement, or Applicant’s rights or obligations hereunder, are assignable, transferable, or delegable by Applicant; any purported assignment, transfer, or delegation by Applicant of this Agreement, or any of Applicant’s rights or obligations hereunder, shall be null and void.

 

15.  No Waiver by the Hosts.  No waiver by the Hosts, whether express or implied and whether in a single instance or in multiple instances, of any breach by Applicant of any term, condition, or obligation under this Agreement shall be, or shall be construed as, a waiver of any subsequent breach by Applicant of that term, condition, or obligation or of any other term, condition, or obligation of this Agreement.

 

16.  Governing Law and Venue.  All aspects of this Agreement and performance hereunder shall be governed by and construed in accordance with the substantive laws of the state of Indiana without regard to and excluding any conflicts of laws principles applicable therein.  Any dispute between the Parties arising under, out of, or as a result of this Agreement shall be subject to the exclusive jurisdiction and venue of, and shall be brought in, an appropriate court sitting in Indianapolis, Indiana.  For purposes of any such dispute, the Parties hereby consent to, and waive all rights to challenge, the exercise of personal jurisdiction by such court.

 

17.  Amendment.  No amendment, modification, or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by a duly authorized representative of each Party.

 

18.  Severability.  If any provision of this Agreement is found invalid or unenforceable, then such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

19.  Interpretation.  For the purposes of interpreting and construing this Agreement or any of the provisions herein:  (a) each provision of this Agreement is subject to the others; (b) neither Party individually shall be considered the author of this Agreement; (c) this Agreement is made between commercially sophisticated parties and may not be construed or interpreted for or against either Party; (d) the title of this Agreement and the various bolded and underlined descriptive prefaces to certain of the paragraphs herein are for convenience only and shall not be given any force or effect; and (e) the words “herein,” “hereof,” and “hereunder,” wherever used in this Agreement, refer to this Agreement as a whole and not any particular paragraph or provision of the Agreement.

 

20.  Merger.  This Agreement constitutes and embodies the entire understanding and agreement contemplated by the Parties, and this Agreement supersedes and replaces all previous communications, representations, understandings, and agreements regarding the subject matter addressed herein, either oral or written, between the Parties.