This Software Services Agreement, including Sections 1 through 27 (the definitions of capitalized terms being set forth in Section 26), and Exhibit A hereto, is entered at and as of the date (the “Effective Date”) when the Authorized Representative registers and accepts this Agreement or begins utilizing the Service. This Agreement is by and between Ink Finder, Inc., a Florida corporation (“Ink Finder”), and Provider.
Ink Finder grants Provider a non-exclusive, non-transferable, limited right for Provider’s Administrator(s) and Users to access and use the Service during the Term of the Agreement solely for Provider’s internal business purposes for the operation and management of a tattoo parlor or tattoo artist service business at or from any location where this Agreement will govern the relationship of the parties hereto. Provider shall not, and is not permitted or authorized by Ink Finder to, utilize the Service at or from any location where this Agreement will not govern the relationship of the parties hereto. Provider, by and through an Administrator, shall create and manage accounts for each Provider Related Party that Provider desires to have access to or to utilize the Service by providing all required information concerning the User. Ink Finder shall grant each such User access to the Service using the e-mail address (the “Username”) and password selected by the Provider Related Party at the first login and as may be updated through the Username thereafter (the “Password”). Only the designated User provided with the Username and Password shall be entitled to use such Username. Once a natural person is designated as the User with such Username, the Username may not be transferred to any other person or entity, and no other person shall be permitted to utilize such Username or to have access to the Service as, by or through such User or Username. Provider shall cause each Administrator and each User to adhere to and observe all of the obligations of Provider hereunder and to keep his or her Username and Password confidential and secret. Each Administrator and User shall at all times be and remain a Provider Related Party and Provider shall immediately terminate and cancel the Username of each Administrator or User as and when he or she is no longer a Provider Related Party. Ink Finder provides a mechanism through the Service for each Administrator to manage Users associated with the Provider. A User may be Provider Related Party for multiple Providers and may, himself or herself, be a Provider.
Provider shall provide such Content as Provider reasonably determines is appropriate and necessary to participate in the marketplace enabled by the Service, including, without limitation, to enable Collectors to determine if Provider or its employee or contractor artists, products and services are suitable for the Collector’s requirements, to book appointments, and to receive payments for services provided to Collectors. Provider’s information shall be true, correct and complete in all respects. Ink Finder makes no claim to any Content and, to the extent the Content is the property of Provider at the time it is uploaded to the Service, it remains and shall at all times remain so. Ink Finder does not screen or otherwise analyze or review Content at or prior to the time it is uploaded to the Services and its sole obligation concerning the Content shall be as expressly set forth in this Agreement. Ink Finder may delete any Content that infringes or is reported or believed to infringe any third party intellectual property rights or that, in Ink Finder’s sole discretion, violates this Agreement or any Content policy adopted from time to time by Ink Finder. Provider and each of its Administrators and Users grant Ink Finder a fully paid non-terminable license to: (A) utilize Provider’s Content and the Content Related Rights (as defined in Section 11) to: provide the Services; undertake Ink Finder’ other obligations under this Agreement; generate, publish and otherwise utilize information about providers of products and services provided by Provider; advertise locations where artists provide services; generate, publish and otherwise utilize information about the Service (e.g., numbers of users, transactions, etc.); communicate with Collectors and other persons and entities having accounts on the Service and to market the Service, and to sublicense Content, excluding designs and personally identifiable information about Provider and its Administrators and Users that was received exclusively from Provider; (B) make copies and derivative works of Provider’s Content.
Services. Ink Finder shall have the right at any time, and from time to time, to: (A) modify or discontinue, temporarily or permanently, any feature of the Service without notice; and (B) temporarily suspend access to the Service, including, but not limited to, for maintenance, installation of upgrades, or an emergency and will endeavor to provide not less than two (2) business days notice prior to any non-emergency suspension.
Limitations. Provider shall not, and shall not permit or suffer any of the following by an User or Administrator:
accessing or using the Service via any automated means, including, without limitation, using any scripted, robotic or software means, except for such scripts or processes as may be provided by Ink Finder from time to time;
reproducing, duplicating, copying, selling, reselling or otherwise exploiting (except as expressly permitted hereby) access to, or use of, the Service, in whole or in part, including, but not limited to, visual design elements;
modifying, reverse engineering, adapting or otherwise tampering with the Service or modifying another website so as to falsely imply that it is associated with the Service, Ink Finder, or any other software or service provided by Ink Finder;
knowingly using the Service in any manner that: (1) infringes or may infringe any third party intellectual property or moral rights; or (2) is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement; and
using the Service to upload, post, host, or transmit any unsolicited bulk e-mail (e.g., spam), viruses, destructive, malicious or self-replicating computer software.
Rights. The rights granted Provider and its Administrators and Users herein do not include the grant of any right to engage in any other activity relating to or concerning the Service or any part thereof, or which would otherwise infringe on any of Ink Finder’ other intellectual property or moral rights, including, but not limited to, using, copying or sub-licensing the software underlying the Service, permitting, whether or not for consideration, any other person or entity other than an Administrator or User to utilize the Service, modifying of the Service, or using the Service other than as expressly permitted by this Agreement.
Ownership of the Service, the software utilized to provide the Service, and all intellectual property and moral rights therein and pertaining thereto shall be and remain the property solely of Ink Finder and, except for access to the Service on the terms set forth herein, Provider shall not have or receive any rights or interests in any of the foregoing.
In consideration for access to the Service, Provider shall pay Ink Finder the amounts becoming due from time to time in accordance with Exhibit A hereto (the “Fees”). Fees shall be due and payable no later than the earlier of the time that the sale of products or the rendition of the services for a Transaction occurs or Provider receives revenues in connection with a Transaction (e.g., a deposit or prepayment), without presentation of an invoice. Provider may deduct Fees and any other amounts due Provider or third party service providers (e.g., credit card transaction costs) from amounts Ink Finder holds for, or will disburse to, Provider. Provider shall direct parties paying for Transactions to make payments utilizing the Service. If any amounts due Ink Finder are paid or payable by credit card, then Provider and, if the cardholder is not the Provider, such cardholder agree that Ink Finder may automatically charge each credit or debit card provided to Ink Finder from time to time for amounts due Ink Finder at the time an invoice is transmitted or made available to Provider. Payments received by Ink Finder more than three (3) business days from the due date shall be subject to a late fee of the greater of 5% of the amount due or $50.00, to offset Ink Finder’ costs incurred in connection with late payments, and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law. Provider and, if the cardholder is not the Provider, such cardholder agrees that Ink Finder may automatically charge each credit card or debit card provided to Ink Finder from time to time for Fees and any other amounts due to Ink Finder under this Agreement at the time such amounts become due. If any check is returned or any credit card or debit card transaction is rejected or refused for any reason, Ink Finder may charge Provider a fee of $35.00 per returned, rejected or declined transaction. If Provider or the card holder discovers any incorrect charges to any Credit Card or debits to any bank account, it shall be reported to Ink Finder in writing within 60 days of the date a disputed charge first appears on the cardholder’s bill or the applicable bank statement. Ink Finder is not responsible for bank or other fees charged to the cardholder in connection with the billing hereunder.
The term (the “Term”) of this Agreement shall commence on the Effective Date and continue until terminated in accordance herewith. Either party may terminate this Agreement on five (5) business days written notice to the other party; provided that Fees shall continue to be due and payable by Provider even though such Fees become due and payable after termination. Upon a termination of this Agreement, Provider shall immediately cease using the Service and Ink Finder may terminate all of Provider’s Administrators and Users access to the Service in connection with Provider’s operations.
Provider shall: (A) secure and maintain at all times during the Term such authorizations and licenses as may be required for each location to provide tattoo services and such other services as it may advertise via the Service or undertake for any Collector; and (B) confirm and ensure that each employee or independent contractor providing or to be providing services to any Collector has in force all authorizations and licenses as may be required to provide such services.
During the Term, Provider shall obtain and maintain at its cost and expense a comprehensive general liability policy covering bodily injury and property damage with respect to each location from which Provider operates its business and the products, services and operations of Provider in the amount of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate.
Provider shall take all deposits and payments for services provided or to be provided to Collectors utilizing the Service and shall not suggest, enable, permit or cause any Collector to pay for any products or services otherwise.
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREIN BELOW, INK FINDER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED CONCERNING OR RELATING TO ANY OF THE SERVICE OR THE RESULTS OF THE USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO: (A) NO WARRANTIES OF MERCHANTABILITY; (B) NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) NO WARRANTY CONCERNING INTELLECTUAL PROPERTY RIGHTS. THE SERVICE IS PROVIDED WHERE-IS, AS-IS, WITH ALL FAULTS AND, WITHOUT LIMITING THE GENERAL NATURE OF THE FOREGOING, INK FINDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR TIMES OR FOR ANY DURATION. INK FINDER ONLY WARRANTS THAT IT OWNS THE COPYRIGHT OR HAS THE RIGHT USE THE SOFTWARE IN CONNECTION WITH THE PROVISION OF THE SERVICE.
Provider warrants and represents to Ink Finder that Provider owns or otherwise has all rights necessary to copy, display, perform, use, and make derivative works of (the “Content Related Rights”) all of the Content, information, logos and other intellectual property that Provider or any of its Provider Related Parties, uses on or in connection with the Service for or in connection with the business or operations of Provider.
All rights, titles and interests in and to, and the right to pursue protection for, improvements, enhancements and modifications to the Service or any related products or services, or their individual or collective use or applicability that are suggested or made by Provider or any Provider Related Party (being “Improvements”) shall vest solely with Ink Finder, and Provider agrees to assign, and does hereby assign, all such Improvements to Ink Finder. No license is granted to Provider or any Provider Related Party in, to or under any Improvements or other intellectual property or moral right owned or otherwise assertable by Ink Finder by express or implied grant, estoppel or otherwise, except solely when and if incorporated into a future revision of the the Service. All benefits from the use of any such Improvements shall inure solely to Ink Finder.
NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. IN ADDITION, IN NO EVENT SHALL THE DAMAGES PAYABLE BY INK FINDER TO PROVIDER OR ANY PERSON OR ENTITY CLAIMING THROUGH PROVIDER EXCEED THE GREATE OF $500.00 OR THE FEES PAID BY PROVIDER TO INK FINDER IN THE PRIOR THREE CALENDAR MONTHS. EACH PARTY ACKNOWLEDGES THAT:
THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE ARRANGEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF THE SERVICE, STORAGE AND DISSEMINATION OF THE CONTENT AND THE EXERCISE OF THE LICENSED RIGHTS; AND
SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES; AND
THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
Ink Finder shall hold Provider and its officers, directors, managers, employees, contractors and agents, collectively and individually, harmless from any claims, obligations, losses, damages, liabilities, fines, costs and expenses (including, without limitation, reasonable attorney’s fees pretrial, trial and appellate) (collectively “Losses”) arising out of or incurred as a result of or in connection with Ink Finder’s material breach of this Agreement; provided that, the foregoing shall not include any Losses arising from Provider’s or its employees or contractors’ material breach of this Agreement. Provider shall hold Ink Finder and its officers, directors, managers, employees, contractors and agents, collectively and individually, harmless from any Losses arising out of or incurred as a result of or in connection with: (A) Provider’s or its employees or contractors’ material breach of this Agreement; or (B) any third party claim against Ink Finder arising, in whole or in part, from or in connection with Provider’s: (1) use of the Service; (2) Content; or (3) operation of its business, including, but not limited to, the provision of tattoo services; provided that, the foregoing shall not include any Losses arising from Ink Finder’ material breach of this Agreement.
This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth in Section 16, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged.
Ink Finder may at any time and from time to time amend this Agreement by providing not less than fifteen (15) days advance notice (the “Amendment Notice”) to Provider setting forth the substance of such amendment. If Provider determines the amendment to be unacceptable to Provider, Provider may provide a written termination notice to Ink Finder and this Agreement shall terminate in accordance with Section 6. If no timely termination notice is provided by Provider, the amendment shall be effective as of the date set forth in the Amendment Notice and the use of the Service by Provider or any Provider Related Party in connection with Provider’s business or otherwise for the benefit of Provider on or after such date shall confirm acceptance of such amendment.
All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and, except as otherwise specifically provided in this Agreement, their respective permitted successors and assigns. Provider may not assign or delegate its, his or her, rights or obligations under this Agreement. Ink Finder may assign and delegate its rights and obligations under this Agreement without notice to Provider at any time and from time to time.
Any consent, waiver, notice, demand, request or other instrument required or permitted to be given and effective under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (2) in the case of a notice provided by Ink Finder, being sent to the e-mail address for the Provider set forth in the records for the Service; (C) the next business day after transmission by facsimile (with receipt showing successful transmission) to the facsimile number for such party set forth in the records for the Service; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth in the records for the Service. Either party may change its address or facsimile number for notices by changing it on the records for the Service.
The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
The provisions of this Section are a material part of the agreement of the parties. But for the provisions of this Section, Ink Finder would not enter this Agreement or provide access to the Service to Provider or any Provider Related Party in connection with Provider’s business or otherwise for the benefit of Provider. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED UNDER AND BY THE LAWS OF THE STATE OF FLORIDA FOR CONTRACTS EXECUTED AND TO BE PERFORMED IN FLORIDA. EXCLUSIVE VENUE FOR ANY LEGAL ACTION AUTHORIZED HEREUNDER OR RELATING HERETO SHALL BE IN ORANGE COUNTY, FLORIDA.
There are no intended, express or implied third party beneficiaries to this Agreement.
THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND THE PRODUCTS.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same Agreement.
In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to this Agreement or the Service, the Prevailing Party in such litigation, mediation, arbitration or controversy shall be entitled to recover from the other party all reasonable attorneys' fees, expenses and suit costs, including any associated with any appellate proceedings and any post-judgment collection proceedings.
Administrator means: (A) the Authorized Representative, initially; and, thereafter: (B) (1) if the Provider is not a natural person, each natural person that that is a Provider Related Party and acts as the Administrator or is specifically designated by the Provider from time to time and identified to Ink Finder, whether by notice or as a result of receiving the benefits or undertaking the actions of an Administrator, as having the authority to act as the Administrator; or (2) the Provider. Provider shall at all times maintain at least one Administrator.
Agreement means this entire Software Services Agreement (Sections 1 through 27), as may be amended from time to time in accordance herewith.
Authorized Representative means the person who first initiates utilization of the Service on behalf of the Provider.
Collector means an entity or individual that utilizes all or any part of the Service, posts information, images or descriptions of artwork the individual seeks to acquire, or utilizes the Service to communicate with a Provider or Provider Related Party.
Content means any information uploaded or posted to the Service.
Prevailing Party means, generally, the party in any litigation, mediation, arbitration or other controversy (each being a “Dispute”) that prevails on substantially the majority of the issues in the Dispute; provided that, if one party provides an offer of judgment or settlement in any Dispute and the outcome of the Dispute is not material different that such offer, the party making the offer shall be the Prevailing Party in such Dispute. For purposes of this definition, materially different shall include, in the case of money damages, the outcome of the Dispute provides for damages in excess of 115% of such offer.
Provider means the natural person, persons jointly and severally, if more than one, or entity identified by the Authorized Representative as the person, persons, or entity for whom the Services are purchased or utilized (the “Anticipated Provider”); provided that, if the Authorized Representative does not have the authority, whether actual or apparent, to enter this Agreement on behalf of the Anticipated Provider and the Anticipated Provider does not otherwise adopt or accept this Agreement directly or through the utilization of either the Services, then the Authorized Representative shall be the Provider (as the indemnifying party) and shall indemnify Ink Finder (as the indemnified party) in accordance with Section 14.
Provider Related Party means each natural person that is an employee, officer, manager, partner or principal of Provider or an independent contractor currently engaged by, and rendering services to, Provider.
Security Emergency means a violation by Provider of this Agreement that (A) could disrupt any of: (1) Ink Finder’s provision of the Service; (2) the business of other Providers to the Service; or (3) the network or servers used to provide the Service; or (B) provides unauthorized third party access to the Service.
Service means the services provided from time to time by Ink Finder through its Ink Finder Software-as-a-Service offering, including, as of the Effective Date, utilization of software via the Internet that provides an artwork (including body artwork) marketplace for artists, artwork providers, and collectors, and related relationship management, including a method for artists and artwork providers to transmit estimates for artwork and related services to prospective purchasers, and to engage in social media promotion capabilities.
User means a natural person that is provided with access to the Service by a Provider for or in connection with the undertaking of Provider’s business or otherwise for the benefit of Provider, and shall include the Provider where the Provider is a natural person.
Sections 2 through 26 shall survive the termination of this Agreement no matter the means or reason for termination.
The Fees payable to Ink Finder hereunder shall be the sum of: (A) $1 for each Transaction; and (B) 3% of the Net Proceeds for such Transaction; and (C) the returned, rejected or declined transaction fee described in Section 5 to the extent actually incurred by Provider.
Transaction means each sale of goods or services to a Collector arising in whole or in part from, as a result of, or in connection with, utilization of the Service by a Collector, including, but not limited to: setting an appointment or entering an arrangement between Provider or any Provider Related Party (in connection with the Provider’s business) and a Collector through the Service; and engagements of Provider’s employee or contractor artists by Collector creating projects and soliciting bids, in whole or in part, through the Service.
Net Proceeds means the total compensation received by Provider or any Provider Related Party, individually or collectively, from a Transaction, whether in the form or cash or other consideration, excluding, to the extent actually collected and remitted by Provider, sales tax. No deduction from total compensation shall be made for any other amount, including, but not limited to, amounts payable to an artist or show promoter.
If you have any questions about the Terms, please email us at: legal@inkfinder.tattoo.
Last updated on January 31, 2017