SHIM ART SERVICES LLC
Effective as of March 1, 2019
EXHIBITOR GROUP MEMBERSHIP BENEFITS AND RESPONSIBILITIES
1. TERMS OF SERVICE
Welcome to SHIM Art Network. The SHIM Art Network website (the "Site") is comprised of various web pages operated by SHIM Art Services ("SHIM"). SHIM Art Network is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the "Terms"). Your use of SHIM Art Network constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference. The purpose of the SHIM Art Network Website is to promote the online and analog exhibition activities of the network's Exhibitor Groups and individual Member Artists, and to facilitate an application process for prospective applicants to learn about SHIM's opportunities and services and apply for membership in an Exhibitor Group, or apply to create their own.
Visiting SHIM Art Network or sending emails to SHIM constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
Children Under Thirteen
SHIM does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use SHIM Art Network only with permission of a parent or guardian.
Member Artists may cancel their Membership to an Exhibitor Group at any time. All Application Fees and Membership Fees are fully non-transferable and non-refundable.
Links to Third Party Sites/Third Party Services
SHIM Art Network may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of SHIM and SHIM is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. SHIM is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SHIM of the site or any association with its operators. Certain services made available via SHIM Art Network are delivered by third party sites and organizations. By using any product, service or functionality originating from the SHIM Art Network domain, you hereby acknowledge and consent that SHIM may share such information and data with any third party with whom SHIM has a contractual relationship to provide the requested product, service or functionality on behalf of SHIM Art Network users and customers.
No Unlawful or Prohibited Use/Intellectual Property
The Service is controlled, operated and administered by SHIM from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the SHIM Content accessed through SHIM Art Network in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless SHIM, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney's fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. SHIM reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SHIM in asserting any available defenses.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH USER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and SHIM agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
SHIM reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of New York and you hereby consent to the exclusive jurisdiction and venue of courts in New York in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SHIM as a result of this agreement or use of the Site. SHIM's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of SHIM's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by SHIM with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and SHIM with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and SHIM with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
Changes to Terms
SHIM reserves the right, in its sole discretion, to change the Terms under which SHIM Art Network is offered. The most current version of the Terms will supersede all previous versions. SHIM encourages you to periodically review the Terms to stay informed of our updates.
SHIM welcomes your questions or comments regarding the Terms:
SHIM Art Services
Email Address: email@example.com
2. MEMBERSHIP BENEFITS AND RESPONSIBILITIES
The following are the full Membership Benefits and Responsibilities agreed to between Member Artists (aka “The Artist”), the designated Exhibitor Group Connector representing the Exhibitor Group (aka “The Group Connector”), and SHIM Art Services LLC (aka “SHIM”) for digital and analog exhibition services within the SHIM Art Network as an Exhibitor Group Member Artist. The terms outlined below are binding and effective at the start of the Member Artist’s membership term, as determined by the acceptance of the Artist’s application for membership and the Artist’s payment of an annual Membership Fee.
Applying to a SHIM Exhibitor Group
Individual artists may apply for membership to the Exhibitor Group via the SHIM Artist Application, or via special invitation from SHIM and/or the Group Connector. Applicants agree to pay a non-transferable and non-refundable application fee when applying through the SHIM Artist Application, and acknowledge that membership to the Exhibitor Group is offered at the sole discretion of SHIM and/or the Group Connector upon review of the Artist’s application and qualifications for membership.
Member Artists are required to pay a non-transferable and non-refundable annual Membership Fee upon acceptance to the group as a Member Artist.
2. Participating in Exhibitor Group Exhibition Projects and the SHIM Art Network
Member Artists are invited, pursuant to specific benefits offered only to specific membership tiers within the Exhibitor Group and additional terms agreed to by the Member Artist via Member Info forms, to submit images and information for up to and no more than four artworks every three months during the Artist’s annual membership term. These artworks will be listed as available works for sale by SHIM through the SHIM Art Network Artsy.net platform. All artworks submitted will be done so according to a regular quarterly calendar schedule determined by SHIM and the Group Connector, the first quarter of which will begin concurrent with the start of Member Artist’s annual membership term and advertised deadlines for accepting new members for enrollment. Artworks submitted to the SHIM Art Network Artsy.net platform each quarter will be listed in replacement of and not in addition to artworks submitted in previous quarters.
Failure by the Member Artist to submit updated artworks in advance of announced quarterly deadlines for the SHIM Art Network Artsy.net platform will result in the previous quarter’s artworks carrying over into the next quarter of listings, and the Member Artist waives their right to update their artworks in the platform until the following quarterly submission period. Exceptions to this term is made at the sole discretion of SHIM.
Member Artists agree to notify and update the Group Connector and SHIM regarding any change in the availability of any artwork listed for sale in the SHIM Art Network Artsy.net platform, so that SHIM may indicate such changes within the artwork info in the platform. A change in availability includes but is not limited to instances where an artwork listed for sale by SHIM is sold to, promised to, consigned to, or on loan to an individual, institution, or exhibition outside of the SHIM Art Network and the Exhibitor Group, whether definitely or indefinitely, which would prohibit its immediate sale to a buyer.
Member Artists will be invited to participate in Exhibitor Group exhibition projects throughout the term of their membership offered to the Exhibitor Group membership according to schedules and criteria determined in advance by the Group Connector and SHIM. Participation in Exhibitor Group exhibition projects is optional and at the sole discretion and consent of the Member Artist.
Member Artists are required to pay one-time and standard Exhibitor Fees for each exhibition project in which they participate through the Exhibitor Group, the amount of which will be advertised with the information included in invitations and calls to entry sent to group members to solicit interest in participation. Exhibitor Fees are calculated per exhibition opportunity, and factor in the cost of exhibition space, duration of the exhibition, installation, promotion, and other services provided per participating Member Artist by the Group Connector and SHIM.
Member Artists are invited to assist in administering Exhibitor Group projects only with the express permission and invitation of the Group Connector, and Member Artists are invited to propose exhibition opportunities to the Exhibitor Group and its members, only at the discretion and with the approval of the Group Connector.
Member Artists agree to personally participate in promotional activity on behalf of the Exhibitor Group and its individual Member Artists and exhibitions, in collaboration with SHIM and on a regular basis, including but not limited to such activities as media outreach and email and social media marketing.
Member Artists accept sole responsibility for the cost of shipping their artworks to and from any and all exhibition projects in which they take part through SHIM and the Exhibitor Group.
Member Artists agree to provide the Group Connector and/or SHIM with artwork(s) to be exhibited in a timely manner and according to announced deadlines in advance of any exhibition projects in which the Member Artist has agreed to participate.
Member Artists agree that neither the Group Connector nor SHIM shall be responsible for any incidental damage to any and all artworks during shipment or while in their custody during any exhibition projects in which they participate.
Member Artists agree and acknowledge that any insurance coverage for any and all artworks during shipment or while in the custody of the Group Connector and/or SHIM during group exhibition projects will be the sole responsibility of the Member Artist individually.
Member Artists reserve the right when submitting artworks for sale in the SHIM Art Network Artsy.net platform or in Exhibitor Group Exhibitions to authorize the Group Connector and/or SHIM to negotiate discounts, not to exceed a stated percentage of sales prices determined and provided in advance by the Member Artist, on behalf of the Member Artist for artworks available via Exhibitor Group exhibitions or SHIM’s Artsy.net platform.
3. SHIM and Group Connector Rights and Responsibilities
The Group Connector agrees to perform administrative duties on behalf of the Exhibitor Group and to coordinate Exhibitor Group exhibition activities with SHIM.
The Group Connector agrees to act as lead curator for all Exhibitor Group exhibition projects and reserves final authority to make decisions regarding membership status of Member Artists and which Member Artists and which individual artworks will be included in specific Exhibitor Group exhibitions.
The Group Connector agrees to lead promotional activity for the Exhibitor Group and its individual Member Artists and exhibitions in collaboration with SHIM and on a regular basis, including but not limited to such activities as media outreach and email and social media marketing.
The Group Connector agrees to review applications for membership and accept new Member Artists at least once per year and according to enrollment periods to be advertised to the public via an application process administered by SHIM via the SHIM Artist Application.
The Group Connector reserves the right to review and offer membership to the Exhibitor Group to new Member Artists invited by special invitation by the Group Connector.
The Group Connector and SHIM and their respective authorized agents agree to provide art handling and installation services at a professional standard when and where applicable during Exhibitor Group exhibition projects.
SHIM agrees to administer digital promotion for the Exhibitor Group and its Member Artists and exhibitions at SHIM’s sole discretion, including but not limited to such activities as media outreach, website, email, and social media marketing and administration and maintenance of sales listings for Member Artists on the SHIM Art Network Artsy.net platform according to the terms and schedules outlined and agreed to between Member Artists and the Group Connector and SHIM.
SHIM reserves the right to solicit Exhibitor Group Member Artists for participation in exhibition projects organized by the SHIM Art Network in which the Exhibitor Group is not participating as such. .
SHIM and the Group Connector reserve final authority to reject submitted artworks at their discretion for publishing on the SHIM Art Network Artsy.net platform or for exhibition in an Exhibitor Group exhibition in cases including but not limited to artworks that do not meet technical or curatorial standards or criteria, limits on the number of total participating artists and/or artworks, digital image file quality, or physical damage to or improper condition of the artwork. In such a case regarding artworks submitted to the SHIM Art Network Artsy.net platform, the Group Connector will request new submissions from the Artist as replacements so as to identify artworks that qualify for publishing.
SHIM and/or the Group Connector reserve final authority to deny access to an Exhibitor Group exhibition or project to, or fully revoke the membership of, any Member Artist found to be acting in disruption of or contrary to the mission or goals of the Exhibitor Group.
The Group Connector agrees to develop exhibition proposals in collaboration with SHIM on a schedule and basis consistent with the mission statement of the Exhibitor Group and the stated collective goals of the Artist Members.
SHIM reserves the right and authority at its sole discretion to remove a Group Connector from their role in charge of the Exhibitor Group to resolve valid and serious disputes or complaints raised by SHIM and/or Member Artists.
4. Rules Governing Sale of Artworks
Member Artists agree that a sales commission, calculated as a percentage of the final sales price of any artwork sold via an Exhibitor Group exhibition or the SHIM Art Network Artsy.net platform, will be retained by the Group Connector upon completion of any sales transaction, regardless of whether the transaction is fulfilled by the Member Artist, the Group Connector, or SHIM. The sales commission percentage rate applying to artwork sales fulfilled via the Exhibitor Group shall be a fixed and invariable rate that applies to the final sale price of any and all artworks, after the transaction fees described below have been deducted. The sales commission percentage rate shall be determined by the Group Connector with the advice and consent of SHIM, and shall be stated and agreed to by Member Artists each time they submit artworks for listing on the SHIM Art Network Artsy.net platform or for inclusion in Exhibitor Group Exhibitions.
In any and all cases in which a sales commission agreement is in place between the Group Connector and Member Artists regarding the sale of an artwork, sales inquiries received by SHIM will be referred to the Group Connector for fulfillment. In any and all cases in which no sales commission agreement between the Group Connector and the Member Artist applies, sales inquiries received by either SHIM or the Group Connector will be referred directly to the Member Artist for fulfillment.
In any and all cases where a Member Artist completes a sales transaction with a buyer referred to them by SHIM or the Group Connector outside of a sales commission agreement with the Group Connector, the Member Artist shall be solely responsible for fulfilling and guaranteeing the transaction between themselves and the buyer, waives any right to hold the Group Connector or SHIM as a responsible or liable party to any disputes between the Member Artist and the buyer that may arise before, during, or after the transaction.
In any and all cases where a Member Artist completes a sales transaction with a buyer referred to them by the Group Connector where a sales commission agreement between themselves the Group Connector applies to the transaction, the Group Connector shall be solely responsible for fulfilling and guaranteeing the transaction between themselves and the buyer according to the general terms and policies for sales transactions outlined in this document. In such cases, both the Member Artist and Group Connector waives any right to hold SHIM as a responsible or liable party to any disputes between the Member Artist, the Group Connector, and/or the buyer that may arise before, during, or after the transaction.
In any and all cases where a sales inquiry is made for an artwork listed for sale via an Exhibitor Group exhibition of the SHIM Art Network Artsy.net platform, Member Artists and/or the Group Connector may authorize and enlist SHIM in advance at their discretion to provide transaction fulfillment services as an intermediary between the buyer and the Member Artist and the Group Connector. In such cases where SHIM is enlisted to fulfill the transaction, SHIM shall retain a transaction fee in the amount of $50 from the sale, included in the list price for the artwork as described in the following term.
In order to account for additional fees and expenses likely to occur when fulfilling a sales transaction, and to preserve in full artwork prices provided by the Member Artist, the Member Artist authorizes SHIM to publish list prices for their artworks with these costs added. List prices are calculated as the price provided by the Member Artist, plus 10% of the price provided by the Member Artist, plus US$50. This calculation is based on an expected standard credit card transaction fee of 3%, an expected average sales tax rate of 7%, pursuant to all applicable local and state sales tax rules and regulations governing the jurisdictions between which the transaction takes place, and an additional flat rate of $50 applied to all sales and retained by SHIM as a transaction fee per artwork in instances where SHIM is contracted to fulfill the transaction on behalf of the Member Artist and/or the Group Connector. In instances where SHIM does not provide transaction fulfillment, the $50 shall first be applied to any remaining sales tax owed, then applied to any additional expenses incurred by the Member Artist and/or Group Connector in fulfillment of the transaction, including but not limited to shipping and handling, or related logistical costs.
In the event an artwork is sold to a buyer, the full shipping and handling costs will be charged in addition to the list price to the buyer by the party that fulfills shipping and handling of the artwork, unless SHIM, the Group Connector, and/or the Member Artist have agreed to cover this expense otherwise in advance.
In cases where SHIM fulfills a sales transaction on behalf of a Member Artist and/or Group Connector, SHIM agrees to enforce a general policy between itself and the buyer that establishes that all sales are final and non-refundable, and that all artworks are sold in as-is condition. The Member Artist and/or Group Connector agrees to guarantee the condition of the sold artwork is suitable and as advertised to the buyer. In cases where the Member Artist and/or Group Connector fulfills a transaction, the Member Artist and or/Group Connector agree to enforce a general refund policy consistent with SHIM’s stated policy. SHIM agrees to and reserves the right to act as final arbiter and intervene as necessary between the buyer and the Member Artist and/or the Group Connector to resolve any disputes between those parties that arise in the process of fulfilling a transaction.
SHIM and/or the Group Connector agrees to remit payment to the Member Artist for any artwork sale transactions fulfilled by SHIM and/or the Group Connector on their behalf. Payment shall be remitted no sooner than 45 days and no later than 90 days after payment has been made by the buyer. This holding period of 45 days is to account for any disputes that may be lodged by the buyer or by the Member Artist concerning the completion of the transaction, including cases such as but not limited to refund requests, artwork damage, etc. Payment remitted shall be at an amount calculated as the final sale price of the artwork(s), minus the applicable transaction fees and Group Connector sales commission described above and agreed to in advance of the transaction.
In cases where SHIM fulfills a sales transaction on behalf of a Member Artist and/or Group Connector, SHIM agrees to remit payment to the Group Connector for any artwork sale transactions fulfilled by SHIM on their behalf. Payment shall be remitted no sooner than 45 days and no later than 90 days after payment has been made by the buyer. This holding period of 45 days is to account for any disputes that may be lodged by the buyer or by the Member Artist concerning the completion of the transaction, including cases such as but not limited to refund requests, artwork damage, etc. Payment remitted shall be at an amount calculated as a percentage of the final sale price of the artwork(s) agreed to between the Member Artist and Group Connector in advance of the transaction, minus the applicable transaction fees described above and agreed to in advance of the transaction.
5. Dispute Resolution
Member Artists agree to collectively act as adjudicators for any disputes or complaints lodged by SHIM against the Group Connector or by the Group Connector against SHIM.
Member Artists, both individually and collectively, reserve the right to lodge valid disputes or complaints against SHIM or against the Group Connector regarding the terms and responsibilities outlined in this contract.
The Group Connector agrees to act as adjudicator for any disputes or complaints lodged by Member Artists against SHIM or by SHIM against Member Artists.
The Group Connector reserves the right to lodge valid disputes or complaints against SHIM or against any individual Member Artist or the membership as a collective regarding the terms and responsibilities outlined in this contract.
SHIM agrees to acts as adjudicator for any disputes or complaints lodged by Member Artists against the Group Connector or by the Group Connector against Member Artists.
SHIM reserves the right to lodge valid disputes or complaints against the Group Connector or against any individual Member Artist or the membership as a collective regarding the terms and responsibilities outlined in this contract.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these terms, such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act as described in full in the Terms of Service section of this document.