By using the Site in any manner, including but not limited to visiting or browsing the Site, you (the "user" or "you") agree to be bound by this Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. This Agreement applies to all users of the Site, including without limitation users who are vendors, customers, merchants and contributors of content, information and other materials or services on the Site.
If you have any questions, please contact us via email.
1. COMPANY is a Venue
COMPANY acts as a venue to allow users who comply with COMPANY 's policies to offer, sell and buy certain artwork within a fixed-price format. COMPANY is not directly involved in the transaction between buyers and sellers. As a result, COMPANY has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items.
COMPANY does not pre-screen users or the content or information provided by users. COMPANY cannot ensure that a buyer or seller will actually complete a transaction. Consequently, COMPANY does not transfer legal ownership of items from the seller to the buyer. COMPANY cannot guarantee the true identity, age, and nationality of a user. COMPANY encourages you to communicate directly with potential transaction partners through the tools available on the Site. You may also wish to consider using a third-party escrow service or services that provide additional user verification. You agree that COMPANY is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on COMPANY. You use the COMPANY service at your own risk.
2. Membership Eligibility
Age: COMPANY's services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful.COMPANY may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions. Individuals under the age of 18 must at all times use COMPANY 's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In this all cases, the adult is the user and is responsible for any and all activities.
Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes. In addition, you must abide by COMPANY's policies as stated in the Agreement and the COMPANY policy documents listed below (if applicable to your activities on or use of the Site) as well as all other operating rules, policies and procedures that may be published from time to time on the Site by COMPANY, each of which is incorporated herein by reference and each of which may be updated by COMPANY from time to time without notice to you:
• Fees Policy
• Copyright and Intellectual Property Policy
In addition, some services offered through the Site may be subject to additional terms and conditions promulgated by COMPANY from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify COMPANY of any unauthorized use of your password or any breach of security. You also agree that COMPANY cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than COMPANY without COMPANY's express written permission.
Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on COMPANY you must provide and maintain valid payment information such as valid credit card information or a valid PayPal account.
Account Transfer: You may not transfer or sell your COMPANY account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service: COMPANY's services are not available to temporarily or indefinitely suspended COMPANY members. COMPANY reserves the right, in COMPANY's sole discretion, to cancel unconfirmed or inactive accounts. COMPANY reserves the right to refuse service to anyone, for any reason, at any time.
3. Fees and Services
Joining and setting up an account on COMPANY is free. COMPANY only charges transaction fees for COMPANY Consignment upon initiation of transaction. COMPANY's Fees Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees Policy and the fees for COMPANY's services are effective after COMPANY provides you with at least seven (7) days' notice by posting the changes on the Site. However, COMPANY may choose to temporarily change the Fees Policy and the fees for COMPANY's services for promotional events (for example, free listing days); such changes are effective when COMPANY posts the temporary promotional event on the Site. COMPANY may, at COMPANY's sole discretion, change some or all of COMPANY's services at any time. In the event COMPANY introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD). You are responsible for paying all fees and applicable taxes associated with using COMPANY. COMPANY keeps accepted payment information on file. A seller must pay the amount due in full within 10 days of the date of any invoice.
Fees and Termination: If COMPANY terminates a listing or your account, if you close your account, or if the payment of your COMPANY fees cannot be completed for any reason, you remain obligated to pay COMPANY for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel). If you have a question or wish to dispute a charge, contact COMPANY.
4. Listing and Selling
Listing Description: By listing an item on the Site, you warrant that you and all aspects of the item comply with COMPANY's published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your COMPANY listings. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the artwork for sale in that listing. Each artwork must have its own listing.
All sellers are urged to outline their requested payment and shipping policies for their listings on COMPANY’s Market. These policies may include, for example, shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All seller policies must comply with COMPANY's site-wide policies. Sellers are responsible for enforcing their own reasonable policies. COMPANY reserves the right to request that a seller modify a shopping policy.
Binding Sale: All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller's listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.
Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item's price after a sale for the purpose of avoiding COMPANY transaction fees, misrepresent the item's location, or use another user's account without permission.
5. Prohibited, Questionable and Infringing Items and Activities
You are solely responsible for your conduct and activities on and regarding to COMPANY and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that you submit, post, and display on COMPANY.
Restricted Activities: Your Content and your use of COMPANY shall not:
1. Be false, inaccurate or misleading
2. Be fraudulent or involve the sale of illegal, counterfeit or stolen items
3. Infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy (see also, COMPANY's Copyright and Intellectual Property Policy)
4. Violate this Agreement, The DOs & DON'Ts of COMPANY, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
5. Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall
6. Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including COMPANY staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
7. Be obscene or contain child pornography
8. Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
9. Host images not part of a listing
10. Modify, adapt or hack COMPANY or modify another website so as to falsely imply that it is associated with COMPANY
11. Appear to create liability for COMPANY or cause COMPANY to lose (in whole or in part) the services of COMPANY's ISPs or other suppliers
Re-Posting Content: By posting Content on COMPANY, it is possible for an outside website or a third party to re-post that Content. You agree to hold COMPANY harmless for any dispute concerning this use. If you choose to display your own COMPANY-hosted image on another website, the image must provide a link back to its listing page on COMPANY.
Idea Submissions: COMPANY considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the "Material") to be non-confidential and non-proprietary, and COMPANY shall not be liable for the disclosure or use of such Material. If, at COMPANY's request, any member sends Material to improve the site (for example through the Forums or to customer support), COMPANY will also consider that Material to be non-confidential and non-proprietary and COMPANY will not be liable for use or disclosure of the Material.
Any communication by you to COMPANY is subject to this Agreement. You hereby grant and agree to grant COMPANY, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sub-licensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without compensation or accounting to you and without further recourse by you.
7. Information Control
COMPANY does not control the Content provided by users that is made available on COMPANY. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using COMPANY, you agree to accept such risks and that COMPANY (and COMPANY's officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on COMPANY. Please use caution, common sense, and practice safe buying and selling when using COMPANY.
Other Resources: COMPANY is not responsible for the availability of outside websites or resources linked to or referenced on the Site. COMPANY does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that COMPANY shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
Users may arrange and attend online virtual meetings or in-person meetings ("Meetings") with one or more individuals. Users are solely responsible for interactions with others. Users must comply with COMPANY's policies and acknowledge and agree to comply with the laws of the city, county and country in which the Meeting occurs. Additional eligibility requirements for a particular group or Meeting may be set by the group's contact person. COMPANY is not involved with user generated groups, the groups' requirements, or the Meetings.
COMPANY does not supervise or control the Meetings, user-initiated online or offline gatherings, or the interactions among and between users and other persons or companies. Users are solely responsible for interactions with others. Users understand that COMPANY does not in any way screen its users. All users agree to exercise caution and good judgment in all interactions with others, particularly if meeting offline or in person.
Groups or User Fees: Some user-generated groups may require or request that users pay fees in order to be a member of the group, participate in a promotion, or participate in Meetings. http://www.welcometoCOMPANY.com IS NOT INVOLVED IN THE TRANSACTIONS, THE PAYMENTS OR THEIR PROCESSING. THE PAYMENT DOES NOT GO TO COMPANY; THIS MONEY IS SEPARATE FROM ANY FEES OR CHARGES ASSESSED BY COMPANY, AND COMPANY HAS NO CONTROL OVER THE MONEY, THE USER-GENERATED GROUPS, PROMOTIONS, THE MEETINGS, OR THE LEADER OF THE GROUP IN CONNECTION WITH ITS USE. YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NEITHER INVOLVED NOR A PARTY IN ANY PAYMENT, TRANSACTION OR INTERACTION BETWEEN OR AMONG USER-GENERATED GROUPS, COMPANY USERS AND/OR THIRD PARTIES (together a "Third Party Transaction"), AND THAT YOU BEAR ALL RISK IN CONNECTION WITH YOUR THIRD PARTY TRANSACTIONS. Users should use common sense and be careful in deciding whether to contribute money.
9. Resolution of Disputes and Release
In the event a dispute arises between you and COMPANY, please contact COMPANY. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS.
The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Southern District of New York. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and COMPANY agree that any cause of action arising out of or related to the Site (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
Should you have a dispute with one or more users, or an outside party, you release COMPANY (and COMPANY's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. COMPANY encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
COMPANY, for the benefit of users, may try to help users resolve disputes. COMPANY does so in COMPANY's sole discretion, and COMPANY has no obligation to resolve disputes between users or between users and outside parties. To the extent that COMPANY attempts to resolve a dispute, COMPANY will do so in good faith based solely on COMPANY's policies. COMPANY will not make judgments regarding legal issues or claims.
10. COMPANY's Intellectual Property
COMPANY graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of COMPANY, Inc. in the U.S. and/or other countries. COMPANY's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
11. Access and Interference
1. Take any action that imposes, or may impose, in COMPANY's sole discretion, an unreasonable or disproportionately large load on COMPANY's infrastructure
3. Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site
4. Bypass COMPANY's robot exclusion headers or other measures COMPANY may use to prevent or restrict access to COMPANY
Without limiting any other remedies, COMPANY may, without notice, and without refunding any fees, delay or immediately remove Content, warn COMPANY's community of a user's actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user's account privileges, terminate a user's account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
14. No Warranty
COMPANY, COMPANY'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND COMPANY'S SUPPLIERS PROVIDE COMPANY'S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. COMPANY, COMPANY'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND COMPANY'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
15. Liability Limit
IN NO EVENT SHALL COMPANY, AND (AS APPLICABLE) COMPANY'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR COMPANY'S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, COMPANY'S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
COMPANY'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF COMPANY'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO COMPANY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD COMPANY AND (AS APPLICABLE) COMPANY'S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
17. No Guarantee
COMPANY does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside COMPANY's control.
18. Legal Compliance; Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any COMPANY service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on COMPANY's net income).
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
20. No Agency
You and COMPANY are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
21. COMPANY Service
22. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of New York, Westchester County, excluding its conflicts of laws rules, and the United States of America.
Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 7 (Information Control), 8 (Meetings, Groups or User Fees), 9 (Resolution of Dispute and Release), 10 (COMPANY's Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to COMPANY; Attn: Legal Department; 6 West 20th Street, 5th Floor, New York, NY 10011 (in the case of COMPANY) or, in your case, to the email address you provide to COMPANY (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, COMPANY may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to COMPANY. In such case, notice shall be deemed given three days after the date of mailing.
For issues with intellectual property, please provide the notice as specified in COMPANY's Copyright and Intellectual Property Policy.