SEVEN point FOUR
7.4 | PERFORMANCE
[Collaborative Hypermedia Contract Additions]
The Terms and Conditions below are for inclusion or incorporation by reference to the collaborative hypermedia contractual documentation as independently and autonomously generated by and between the collaborating [NEST®] Biosphere members. Please follow this link for a walk through of the uses and meanings of the terms listed below:
The purchaser, herein after referred to as “Purchasing Member”, is entering into a service contract with a Performance Artist hereinafter referred to as “PRFM/Artist”, who has currently posted his or her Biosphere profile in the art/work or provider member categories. With the express objective of entering into mutually binding collaborative engagement the Purchasing Member pays for the official NEST® registration at the space and time indicated to confirm the start of the legally and contractually binding relationship between the parties.
The following clauses, 7.4a to 7.4o, are incorporated by reference to the collaboration contract, read as if written into the main body of such contract and shall thereby apply to the registered collaborative hypermedia contractual documentation (“Contract”). The objective or purpose of the Contract is the creation and delivery or “Performance” of the Work by the PRFM/Artist to the Purchasing Member. Purchasing Member shall in consideration of the creation and delivery, pay or transfer payment of the fee due to the PRFM/Artist. The Terms and Conditions of collaboration are determined by and between the parties, using for this purpose the template provided in this NEST® Biosphere;
A.
Parties mutually represent, warrant and declare they have full legal and personal ability, capacity and intent to enter into a binding Contract under the NEST® Biosphere, and under their respective legal jurisdictions based on both nationality and domicile, without any legal impediment whatsoever.
B.
PRFM/Artist represents and warrants that he or she is an independent contractor, PRFM/Artist is responsible for providing his or her own operating requirements, tools, equipment, hardware, software and other instruments or devices to enable the performance of the specified collaborative engagement and to ensure the timely and proper completion of the work or engagement without any delay or defect.
PRFM/Artist is solely responsible for compliance and solely liable for any non-compliance, with any applicable government or non-government permit, licensing, accreditation and registration requirements necessary or desirable for enabling or authorizing the collaborative activity under the NEST® Biosphere, alongside his or her personal reporting, recording and or settling of applicable taxes or duties as may now or in future be owed or required.
PRFM/Artist shall control the manner, means and details of his or her collaborative engagement performance, completion and delivery of the Work subject to his or her adherence to deadlines, descriptions, other terms and conditions stipulated in writing by the parties.
C.
In good faith the Parties enter into a binding Contract with the mutual intent and commitment to honor and reasonably fulfill all engagement, performance, completion, delivery and payment requirements. Obligations arising from the Contract shall have the force of law between the parties. These obligations shall be complied with in good faith PRFM/Artist is responsible for the safe, proper and timely creation and delivery of the Performance described as having been commissioned by Purchasing Member in so far as to provide, create, produce or otherwise deliver the work, goods, items, service or results stipulated in writing by the parties. PRFM/Artist undertakes to exercise due diligence to foresee or anticipate, and thereby plan and implement such reasonable measures to ensure the timely and proper creation and delivery of the Work.
Purchasing Member is reciprocally responsible for adhering to the terms and conditions of the collaborative engagement undertaking to refrain or avoid any act or omission that may reasonably impede or hinder the performance of the works and creation of the Work by the PRFM/Artist.
D.
The Purchasing Member may by written notice to NEST®, withdraw at will from the commission of the work without need for any cause, although it may have been commenced, indemnifying the PRFM/Artist for all the latter’s expenses, work, and the usefulness which the Purchasing Member may obtain therefrom, and for reasonable damages.
In the event of PRFM/Artist’s physical disability or incapacity to create or complete the commissioned Work due to unforeseeable or unexpected situations such as illness or injury thereby hindering, impeding or preventing the timely or proper performance of his or her collaborative engagement, or exchange completion requirements, the Purchasing Member may cancel or terminate the registered Contract by written notice to NEST®.
The Contract is automatically terminated upon the death of the PRFM/Artist. In case of termination of the Contract due to such disability, incapacity or death, the Purchasing Member shall pay the PRFM/Artist, or the heirs of the PRFM/Artist in case of death, a part of the price agreed upon, in proportion to the value of the part of the work done, and of the materials prepared, provided the latter yield some benefit to the Purchasing Member.
E.
PRFM/Artist or his or her representative designated in writing may document the PRFM/Artist’s Contract execution, implementation and consummation activity including but not limited to collection of multimedia content created throughout the collaborative engagement separately and independently of registration or recording under the NEST® Biosphere.
To the full extent permitted by the applicable laws, and unless otherwise provided by Contract, the PRFM/Artist shall own and possesses all intellectual property rights including copyright or economic rights and moral rights, to the Work, throughout the entire world in perpetuity except only for the ownership and possession of the material object or digital asset created as a result of the commission of the piece of which which shall belong to the Purchasing Member.
F.
The fee due to the PRFM/Artist shall be limited to the price agreed upon in writing by the parties at the time and space of Contract execution and signing. No additional charges shall be due, except only those charges that may be subsequently agreed upon in writing by the parties. Additional charges may include but not limited to registered and mutually verified changes to the commissioned Work; premium fee for expeditious Contract execution; alteration requests to Work or Contract made by Purchasing Member or additional sale or provisions of products, goods, equipment, items and or services.
In good faith additional charges, being detailed and categorized in writing, may be recorded at PRFM/Artist’s reasonable discretion, subject to the written acceptance of the Purchasing Member. Upon verified acceptance, Purchasing Member assumes full responsibility and liability to settle the additional charges invoiced by the PRFM/Artist.
G.
Purchasing Member shall process the payment or transfer of the fee due to PRFM/Artist following the verified delivery and receipt of the Work, in accordance with the terms and conditions of the commission. Payment by the Purchasing Member shall be based on the monetary amount and currency invoiced by the PRFM/Artist in accordance with the terms and conditions of the Contract.
Payment shall be made by remittance of fiat currency through government licensed bank channels, unless the parties expressly provide in writing for another mode or currency payment. An electronic message sent to or posted at the NEST® Biosphere by the Purchasing Member of the completion of the Contract shall be deemed to confirm that payment of the fee due to the PRFM/Artist has been made, where the member submits electronic documentation showing that the final or only invoice of the PRFM/Artist has been paid, simultaneous with or subsequent to the sending or posting of the message. Purchasing Member assumes full financial responsibility and liability for the settlement of the Contract price if such settlement is verified as owed or unpaid.
H.
Throughout the duration of the Contract, independently at their own expense, Purchasing Member and PRFM/Artist are respectively understood to have adequate financial resources to discharge their contractual obligations, or otherwise obtain and maintain adequate personal insurance coverage to cover their potential contractual liabilities.
Each party agrees to indemnify the other party concerned, the latter’s agents and employees, against all claims, damages, losses, and expenses, including reasonable attorney’s fees, that the latter may incur or suffer, resulting from or arising out of the acts or omissions involving fault or negligence in whole or in part of the former, including those acts or omissions of anyone employed by the former for whose acts or omissions it may be liable.
I.
Unless otherwise agreed by the parties, the failure or delay of a party to perform any obligation under the Contract solely by reason of acts of God or nature, natural disaster, acts of government, riots, wars, accidents, force majeure, or other similar causes beyond its control, shall not be deemed to be a breach of the Contract.
Notwithstanding the foregoing, the party prevented from complying with the Contract shall continue to take all actions within its power and control to comply as fully as possible with the Contract, and to use its best efforts to remove or remedy the force majeure with all reasonable dispatch. Except where the nature of the event prevents it, the party suffering the force majeure shall notify the other party of such event within two calendar days (48 hours) after its occurrence.
J.
Any of the following events shall constitute a default of this Contract:
i) An affirmative act of insolvency by a party or the filing by a party of a petition under any bankruptcy, reorganization, insolvency, or moratorium law, or any law for the relief of, or relating to, debtors;
ii) The filing of any involuntary petition under any bankruptcy statute against a party, or the appointment of any receiver or trustee to take possession of property of a party, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within ninety (90) days of the date of such filing or appointment;
iii) A final judgment or the un-appealed decision of a government regulatory officer or agency that results in temporary or permanent suspension of any permit, license, accreditation or registration, the possession of which is a prerequisite to performance by a party under applicable law;
iv) Failure to provide the service or perform the work in accordance with the material terms and conditions of the Contract, resulting to substantial delay in delivery or material defect in the Work;
v) Failure to make payment in accordance with the material terms and conditions of the Contract, resulting to substantial delay in payment, total non-payment, or partial but substantial non-payment.
In case of material default or substantial delay by the PRFM/Artist in creating or delivering the Work, the Purchasing Member who is not in default or delay, shall automatically and without need for demand, be entitled to terminate the Contract and recover damages by way of indemnity.
In case of material default or substantial delay by the PRFM/Artist in creating or delivering the Work, the Purchasing Member who is not in default or delay, shall automatically and without need for demand, be entitled to terminate the Contract and recover damages by way of indemnity.
Neither party incurs in delay if the other party does not comply or is not ready to comply in a proper manner with what is incumbent upon the latter. From the moment one of the parties fulfills the obligations concerned, delay by the other begins.
K.
The PRFM/Artist shall execute the work in such a manner that it has the qualities agreed upon and has no defects which destroy or lessen its value or fitness for its ordinary or stipulated use. If the work is not of such quality, the Purchasing Member may require that the PRFM/Artist remove the defect or execute another work. If the PRFM/Artist fails to comply with this obligation, the Purchasing Member may have the defect removed or another work executed, at the reasonable cost of the PRFM/Artist.
Acceptance of the Work by the Purchasing Member relieves the PRFM/Artist of liability for any defect in the work, unless the defect is hidden and the Purchasing Member is not, by lack of special knowledge, expected to recognize the same If, in the execution of the work, an act of the Purchasing Member is required, and the same incurs delay or fails to perform the act, the PRFM/Artist shall be entitled to reasonable compensation. Unless the parties stipulate otherwise, the indemnity for delay in delivery shall be in the form of liquidated damages computed at the rate of 1/10 of 1% of the total value of the Contract, but shall not in any case exceed 10% of the said value.
Unless the parties stipulate otherwise, the indemnity for delay in payment shall be in the form of interests computed at the rate of six percent (6%) per annum. To the full extent permitted by law, and notwithstanding anything else in this agreement, neither party shall be liable for any incidental, consequential, exemplary, punitive, indirect damages of any kind including lost profits, lost data, or costs of procuring substitute products or services, whether in an action in law, contract, quasi-contract, delict, quasi-delict or equity, or other source of legal or equitable obligation, even if such party has been advised of the possibility of such damages, except in the case of gross negligence or willful misconduct.
L.
Within two days (48 hours) following the Contract’s set date and time of completion Purchasing Member must either confirm Contract closure or initiate Contract Dispute. Closed Contracts record mutually satisfactory fulfillment of the collaborative engagement or reciprocal performance of obligations.
Registering Contract Dispute suspends all work activity and settlement of all outstanding billings, pending the resolution of the dispute, in accordance with the procedure established under the Contract. In case of failure by the Purchasing Member to register a Closed or Disputed Contract within two days (48 hours), following the Contract’s set date and time of completion, the Work shall be deemed as timely and properly delivered and automatically authorize the settlement of all outstanding billings on behalf and for the account of the Purchasing Member.
Once the settlement billing is initiated, such amount and currency necessary to settle the billings in full shall immediately be deducted or debited from the account of the Purchasing Member, without need for any further authorization.
M.
Purchasing Member may authorize independent or separate Contract settlement, or the transfer payment directly to the PRFM/Artist, even for such amounts that exceed the original or existing registered Contract’s cumulative total limits. For and up to the Contract’s registered cumulative total limits, the Purchasing Member remains comprehensively and financially liable to ensure the full settlement of all outstanding billings.
The process of settling billings is subject to reasonable transaction fees or processing costs which shall be for the account of the Purchasing Member.
N.
In the event of discrepancy or conflict between the Contract that is written in English, and any associated contractual documentation that is written in another language, the Contract in English shall prevail.
O.
If any provision of this agreement shall be void or unenforceable for any reason, such provision shall be ineffective to the extent of such voidability or unenforceability without invalidating the remaining provisions hereof, provided however, that the parties shall replace any void or unenfoceable provision by a valid or enfoceable language as comes nearest to the original provision in economic impact and intent. The provisions relating to confidentiality and remedies in case of material breach shall survive the termination of the Contract.
