Foundation for Artist Catalogues

Master Service Agreement

Foundation for Artist Catalogues Inc.

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Provider: Foundation for Artist Catalogues Inc., a New York nonprofit corporation

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Customer: the organization or individual that has accepted a Proposal, Order Form, or other document referencing this Agreement ("Customer")

 

This Master Service Agreement (the "Agreement") establishes the terms that govern all services provided by Foundation for Artist Catalogues Inc. to Customer. Specific services are described in separate Service Agreements that reference this Agreement.

 

1. STRUCTURE OF THIS AGREEMENT

 

1.1 Service Agreements

 

This Agreement works together with one or more Service Agreements. Each Service Agreement describes a specific service, including features, pricing, and service-specific terms. If there is a conflict between this Agreement and a Service Agreement, the Service Agreement controls for that specific service.

 

"Schedule A" means the pricing, service tier, user allotment, modules, and other order-specific terms agreed by the parties, as set forth in a signed Order Form, an accepted online Proposal or estimate, or other document referencing this Agreement.

 

1.2 Adding and Modifying Services

 

Services are added when Customer accepts a Proposal, Order Form, or other document that references this Agreement and sets forth the applicable Schedule A. Services may be modified by mutual agreement to a revised Schedule A.

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2. INTELLECTUAL PROPERTY RIGHTS

 

2.1 Provider's Intellectual Property

 

Provider retains all ownership rights in its platforms, software, technology, and services, including all code, designs, algorithms, documentation, and improvements. Customer receives only the rights to use Provider's services as specified in the applicable Service Agreements. No ownership rights in any of Provider's intellectual property are transferred to Customer.

 

2.2 Customer Data Ownership

 

Customer retains all ownership rights in data and content uploaded to or created within Provider's services ("Customer Data"). Customer grants Provider a limited license to host, store, process, and transmit Customer Data solely as necessary to deliver the services.

 

2.3 Improvements and Enhancements

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All improvements, enhancements, and new features developed by Provider remain Provider's property, even if based on Customer's suggestions or requirements.

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2.4 Customer Feedback

 

If Customer provides suggestions, ideas, or feedback about Provider's services, Provider may use such feedback without restriction or obligation to Customer. Provider owns all right, title, and interest in any improvements, enhancements, or derivative works created from such feedback, including all intellectual property rights.

 

2.5 Aggregated Data

 

Provider owns all anonymized, aggregated usage data derived from the Services ("Aggregated Data"). Provider may use Aggregated Data for product improvement, research, and benchmarking. Aggregated Data will not identify Customer or contain Customer-specific information.

 

3. CUSTOMER DATA AND RESPONSIBILITIES

 

3.1 Customer Obligations

 

Customer is responsible for:

• The accuracy, legality, and quality of Customer Data

• Obtaining all necessary rights and permissions for Customer Data

• Maintaining independent backups of Customer Data

• Compliance with all applicable laws and regulations

• Activities of all authorized users under Customer's account

 

3.2 Prohibited Uses

 

Customer may not use Provider's services to upload, store, or transmit:

• Content that infringes third-party intellectual property rights

• Malicious code, viruses, or harmful software

• Content that violates applicable laws

• Defamatory, threatening, or harassing material

• Personal Information (as defined by applicable privacy laws including GDPR and US state privacy laws) without proper legal basis and authorization

• Confidential information of third parties without authorization

 

Provider may remove content that violates these restrictions.

 

3.3 Data Security

 

Provider implements reasonable security measures to protect Customer Data from unauthorized access, disclosure, or destruction. However, Customer acknowledges that no security system is completely secure.

 

3.4 Data Breach Notification

 

If Provider becomes aware of unauthorized access to or disclosure of Customer Data, Provider will promptly notify Customer and take commercially reasonable steps to remediate the breach. Provider will provide Customer with available information about the breach to assist Customer in meeting any notification obligations.

 

3.5 Data Privacy

 

Provider will handle Customer Data in accordance with applicable data protection laws, including the General Data Protection Regulation (GDPR) where applicable.

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For Customer Data that includes personal data of individuals in the European Union, Provider and Customer will enter into a Data Processing Addendum (DPA) that includes Standard Contractual Clauses approved by the European Commission for international data transfers. The DPA is incorporated by reference into the EU Customer Addendum or is available at https://artistcatalogues.org/legal/dpa or upon request.

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Provider will access Customer Data only as necessary to provide services, resolve technical issues, or as required by law.

 

4. FEES AND PAYMENT

 

4.1 Service Fees

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Fees for each service are specified in the applicable Service Agreement. All fees are in U.S. dollars and are non-refundable except as expressly stated in a Service Agreement.

 

4.2 Invoicing and Payment

 

Provider will invoice Customer according to the billing schedule in each Service Agreement. Payment is due upon receipt of invoice. Provider grants a thirty (30) day grace period from the invoice date before late fees apply.

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4.3 Late Payment

 

Payments not received within thirty (30) days of the invoice date accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is less. Provider may suspend services after providing ten (10) days written notice if payment remains outstanding beyond the grace period.

 

4.4 Price Changes

 

Provider may modify fees with sixty (60) days written notice. Price changes take effect at the start of the next billing period. Customer may terminate the affected Service Agreement if Customer does not accept the price change.

 

4.5 Taxes

 

All fees are exclusive of applicable taxes. Provider will charge sales tax and other applicable taxes as required by law, which will be separately stated on invoices. Customer must provide valid tax exemption certificates to avoid tax charges. Customer is responsible for all taxes except those based on Provider's net income.

 

5. CONFIDENTIALITY

 

5.1 Confidential Information

 

"Confidential Information" means non-public information disclosed by one party to the other that is marked as confidential or should reasonably be understood as confidential. Provider's Confidential Information includes its technology, source code, and business information. Customer's Confidential Information includes Customer Data.

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5.2 Protection Obligations

 

Each party will:

• Protect the other party's Confidential Information with reasonable care

• Use Confidential Information only for purposes of this Agreement

• Limit disclosure to employees and contractors who need access and are bound by confidentiality obligations

• Notify the other party promptly of any unauthorized disclosure

 

5.3 Exclusions

 

Information is not confidential if it:

• Is or becomes publicly available without breach of this Agreement

• Was known to the receiving party before disclosure

• Is received from a third party without confidentiality restrictions

• Is independently developed without using the Confidential Information

• Must be disclosed by law (with prompt notice to the disclosing party)

 

5.4 Duration

 

Confidentiality obligations continue for five (5) years after disclosure or for as long as trade secret protection applies, whichever is longer.

 

6. WARRANTIES

 

6.1 Mutual Warranties

 

Each party represents that:

• It has authority to enter this Agreement

• This Agreement creates valid and binding obligations

• Its performance will not violate other agreements or applicable laws

 

6.2 Provider Warranties

 

Provider warrants that its services will perform substantially as described in the applicable Service Agreement and will be provided in a professional manner.

 

6.3 Customer Warranties

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Customer warrants that:

• Customer owns or has rights to all Customer Data

• Customer Data does not infringe third-party rights

• Customer's use of the services complies with applicable laws

 

6.4 Disclaimer

 

EXCEPT AS STATED IN SECTION 6.2 ABOVE, PROVIDER'S SERVICES ARE PROVIDED "AS IS." PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE SERVICE.

 

7. LIMITATION OF LIABILITY

 

7.1 Exclusion of Consequential Damages

 

NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, DATA, OR BUSINESS OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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7.2 Liability Cap

 

PROVIDER'S TOTAL LIABILITY UNDER THIS AGREEMENT AND ALL SERVICE AGREEMENTS WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS BEFORE THE EVENT CAUSING LIABILITY. FOR FREE SERVICES, PROVIDER'S LIABILITY WILL NOT EXCEED $100.

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7.3 Exceptions

 

These limitations do not apply to:

• Either party's indemnification obligations

• Breach of confidentiality obligations

• Customer's violation of Provider's intellectual property rights

• Either party's gross negligence or willful misconduct

• Liability that cannot be limited by law

 

8. INDEMNIFICATION

 

8.1 Provider Indemnification

 

Provider will defend Customer against third-party claims that the Services, as provided by Provider and used in accordance with this Agreement, infringe a United States patent, copyright, or trademark. Provider will pay damages finally awarded by a court or agreed in settlement.

 

This obligation does not apply to claims arising from: (a) Customer Data; (b) modifications to the Services not made by Provider; (c) use of the Services in combination with products or services not provided by Provider; or (d) Customer's breach of this Agreement.

 

If the Services become, or in Provider's opinion are likely to become, the subject of an infringement claim, Provider may at its option: (a) obtain the right for Customer to continue using the Services; (b) replace or modify the Services to make them non-infringing; or (c) terminate the affected Service Agreement and refund any prepaid fees for the terminated portion on a pro-rata basis.

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This Section 8.1 states Provider's entire liability and Customer's sole remedy for any actual or alleged infringement of intellectual property rights.

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8.2 Customer Indemnification

 

Customer shall defend Provider against any third-party claim arising from: (a) Customer Data; (b) Customer's use of the Services in violation of this Agreement or applicable law; (c) claims that Customer lacks rights to Customer Data; or (d) breach of any provision of this Agreement or any associated Service Agreement. Customer will pay damages finally awarded or agreed in settlement.

 

9. TERM AND TERMINATION

 

9.1 Term

 

This Agreement begins when Customer accepts a Proposal, Order Form, or other document referencing this Agreement, and continues until terminated by either party.

 

9.2 Termination of Service Agreements

 

Service Agreements may be terminated as specified in each Service Agreement. Terminating a Service Agreement does not terminate this Agreement.

 

9.3 Termination of Master Service Agreement

 

Either party may terminate this Agreement with thirty (30) days written notice if no Service Agreements are active. Either party may terminate immediately if the other party materially breaches this Agreement and fails to cure within fifteen (15) days of written notice.

 

9.4 Effect of Termination

 

Upon termination of this Agreement:

• All active Service Agreements terminate immediately

• All rights granted under this Agreement end

• Customer must immediately stop using all Provider services

• Each party must return or destroy the other party's Confidential Information

• Sections 2 (Intellectual Property), 5 (Confidentiality), 6.4 (Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), and 10 (General Provisions) survive termination

 

10. GENERAL PROVISIONS

 

10.1 Entire Agreement

 

This Agreement and all Service Agreements constitute the entire agreement between the parties and supersede all prior agreements and understandings regarding the subject matter.

 

10.2 Amendments

 

This Agreement may only be modified by a written document signed by both parties, except as specifically provided in individual Service Agreements. Waiver of any provision requires written consent and does not waive other provisions or future breaches.

 

10.3 Governing Law

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Unless otherwise specified in a regional addendum or Schedule to this Agreement:

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This Agreement is governed by New York law, without regard to conflict of law principles. Any disputes must be resolved in the state or federal courts located in New York County, New York. Both parties consent to the exclusive jurisdiction of these courts.

 

For customers located in the European Union, alternative governing law and dispute resolution provisions may apply as set forth in the EU Customer Addendum.

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10.4 Assignment

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Customer may not assign this Agreement without Provider's written consent. Provider may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of assets. This Agreement binds and benefits the parties and their permitted successors and assigns.

 

10.5 Force Majeure

 

Neither party is liable for delays or failures in performance caused by circumstances beyond its reasonable control, including natural disasters, war, terrorism, labor disputes, or internet service failures. If such circumstances continue for more than thirty (30) days, either party may terminate the affected Service Agreement.

 

10.6 Severability

 

If any provision is found invalid or unenforceable, the remaining provisions continue in full force and the invalid provision will be reformed to approximate the parties' intent while being enforceable.

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10.7 Independent Contractors

 

The parties are independent contractors. This Agreement does not create a partnership, joint venture, or employment relationship.

 

10.8 Notices

 

Notices must be in writing and sent to the addresses below. Notices are effective when delivered in person, one business day after sending by overnight courier, three business days after certified mail, or when sent by email (with confirmation by another method).

 

Provider: Foundation for Artist Catalogues Inc., Email: agreements@artistcatalogues.org

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Customer: the email address associated with Customer's account, or the email address used to accept the applicable Proposal, Order Form, or other document referencing this Agreement.

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10.9 Third-Party Beneficiaries

 

This Agreement is solely for the benefit of the parties. No third party has any rights under this Agreement.

 

10.10 Compliance with Laws

 

Each party will comply with all applicable laws and regulations in performing under this Agreement.

 

10.11 Export Control

 

Customer will comply with all export control laws and will not export or transfer Provider's services to prohibited countries, entities, or persons.

 

10.12 Electronic Signatures

 

This Agreement may be accepted electronically, including by signing or accepting a Proposal, Order Form, or other document referencing this Agreement. Electronic acceptance has the same effect as a handwritten signature.