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terms of service

goARTful Terms of Service

Effective Date:

July 13, 2017.

The following Terms of Service (“Terms”) between you (“you” or “your”) and goARTful, Inc. (“we,” “our,” “us,” or “ART”) describes the terms and conditions on which you may access and use the ART website located at goartful.com (the “Site”), the ART mobile app (the “App”) and related services including ART’s product rental and sale services (together with the Site, the App, and the ART Content, as defined below, the “Services”). These Terms also apply to in-person rentals and sales, which are part of the Services. By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.

Notice of Agreement to Arbitrate and Class Action Waiver

By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 8 of these Terms below.

1. About the Services

2. Rental and Sale of Products

3. Special Trial Programs

4. Use of the Services

5. Intellectual Property

6. Termination

7. Disclaimer of Warranties; Limitation of Liability

8. Dispute Resolution, Arbitration and Class Action Waiver

9. Miscellaneous

 

1. ABOUT THE SERVICES

A. Introduction

Through the Services, we aim to give you access to beautiful art, design advice and other content to help you decide which items are perfect for you and for your space.

B. Mobile Charges

To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.

C. Eligibility

Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site and App under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any artistic works or design services (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.

D. Modification of the Services or the Terms

ART may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, ART will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to ART upon registration.

E. Privacy

To learn more about our privacy practices, please read our Privacy Policy, which is available at http://goartful.webflow.io/privacy-policy (the “Privacy Policy”).

2. RENTAL AND SALE OF PRODUCTS

A. General Conditions

 

The Services include the rental and sale of Products. This Section 2(A) sets out terms and conditions that apply to your rental or purchase of any Product.

 

18 YEARS OR OLDER. Products may be rented or purchased for use by individuals under 18 years of age, but we rent and sell only to adults, who may rent or purchase the Products with a payment card or other approved payment method. By clicking agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.

 

LIMITS. You acknowledge and agree that we may place limits on the rental or purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals or sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns.

 

DELIVERY. Your Products will be ordered and couriered to you on the Sunday following the placement of your order or request to exchange. As of September 1, 2017 ART is operating only within the DC-Maryland-Virginia region (“DMV”). As such all deliveries or requests for delivery must be to jurisdictions within 10 miles of the borders of Washington, DC. The shipping method used will be at the discretion of ART.

 

COLLECTIONS. If you do not pay the amounts you owe to ART when due, then ART will need to institute collection procedures. You agree to pay the cost of the rented piece and ART’s costs of collection, including without limitation reasonable attorneys' fees.

 

COMMUNICATIONS. You consent to receive communications from us, including email, text messages, calls, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, informing you about pieces by artists you favorite or rent from, and providing other information.. You may opt out of receiving communications by following the unsubscribe procedures we provide to you within these communications. You acknowledge that opting out of receiving communications may impact your use of the Services."

B. Rentals

The following additional conditions apply to the rental of any Product.

 

RENTAL FEE. The rental fee (“Rental Fee”) for the Product will be the total of the insurance charges and delivery charges listed on the Site or App for your rental of the Product. When you place your rental order for a Product, you hereby authorize ART to charge your payment card for the Rental Fee. ART will charge your payment card the amount of the Rental Fee immediately upon your rental order or exchange request. A reservation of a Product on the Site or App is an order for the rental of that Product, regardless of how far in advance that Product is reserved. In addition, at the time of your rental order for a Product, you hereby authorize ART to charge your payment card for an amount equal to 200% of the original retail value of the Product set forth on the Site or App (“Retail Value”) plus applicable sales taxes; provided that ART will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by ART, shall be paid by you to ART in connection with your rental order.

CANCELLATION POLICY. You may cancel your rental order subject to the following cancellation fees and policies: 

i.         If you cancel thirty (30) or more days in advance of the delivery date, there is no cancellation fee and you will receive a full refund issued to the payment card you used for the order.

ii.         If you cancel less than thirty (30) days but more than fourteen (14) days in advance of the delivery date, you will not receive any refund, but you will receive a full credit to your ART account for the Rental Fee associated with the cancelled order. This credit can be applied to any future ART rental.

 

RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a Secure Shipping Address is required. A “Secure Shipping Address” means a location where an individual can physically receive Product(s). In the event that an un-secure shipping address is provided, ART does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which ART will not be liable. You will be liable for all such delays and additional delivery fees.

 

USE OF THE PRODUCTS. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, major stains or any other cause . If you return a Product with any damage, you agree that we shall charge you, and you shall pay, for the price for repairing or compensating the artist, as determined in our discretion, up to the Retail Value for the Product.

RETURN OF THE PRODUCTS; EXTENSIONS. You agree to surrender Products to ART upon cancellation of service or request for any exchange. You may exchange your order for a Product at any time via the Site, App or by phone to ART. You must return the Product by making it available to an ART representative at the time of exchange agreed upon in the order of any new piece.

 

PAYMENT OF 200% RENTAL VALUE ART will not charge you for more than an amount equal to 200% of the Retail Value plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay ART an amount equal to 200% of the Retail Value under this Section 2(B) and you still possess the Product, the Product is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).

 

LIMITED WARRANTIES. The following are the limited warranties ART provides in connection with Product rentals. ART’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee (excluding insurance and delivery charges) as determined by ART. See Section 7(A) below.

·       CORRECT PRODUCTS. Subject to availability, we will deliver the Products you ordered, including the specified size or framing, on or before the delivery date for which you ordered them, except in the rare event that the Product is damaged beyond repair or there is an occurrence subsequent to the placing of the order that prevents timely delivery. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. Products may appear different than as displayed on the Site or App.

·       FRAMED AND READY TO HANG OR DISPLAY. The Products will be delivered ready to display. ART inspects each Product with the utmost care, but use of the Product is at your own risk and ART shall not be held liable for any health-related complaints associated with any Product.

·       EXCHANGES. If your Product does not fit your needs, then you may place an exchange request on the ART site or app at any time. Your exchanged piece will be delivered on the first Sunday following any such request, provided such a requires occurs before 5pm on the Friday of the preceding week or earlier in the event of a holiday.

·       ADDITIONAL PIECES. You are entitled to the order of exchange of a set Product or Products pursuant to your subscription level. You may also order additional Product (an “Added Product”) for an additional fee, as set forth on the Site or App. Added Products become the primary product upon the surrender of any Primary Product ordered. These Terms apply to any Added Products just as to any other Product; We may discontinue the availability of Added Products at any time.

C. Sales

The following additional conditions apply to the sale of any Product.

 

PRODUCTS ARE USED; ALL SALES ARE FINAL AND “AS IS.” You acknowledge and agree that only those Products designated by us on the Site or App as available for purchase are eligible for purchase by you. ART will professionally clean and inspect Products in the possession of ART before they are delivered to you. However, all Products are sold on an “as is” basis, without any warranty whatsoever, and all Product sales are final.

 

PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site or App in connection with your purchase of the Products. Purchase Price is as listed on the ART website at the time of purchase, and is subject to change. ART reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize ART to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by ART, shall be paid by you to ART in connection with your purchase order. Purchase orders are final and cannot be cancelled.

 

PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products can also be paid in the form of financing (“Finance Charge”). In such instances Purchase Price remains as listed on the ART website at the time of purchase, and remains subject to change. Yet ART will divide the Purchase Price by six and charge the price as an additional charge when billing your monthly subscription, or if paying annual in six monthly payments. We will charge your payment card the amount of the first Finance Charge immediately upon your Finance Charge order. The full Purchase Prices paid through the Finance Charges exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by ART, shall be paid by you to ART in connection with your purchase order. Purchase orders are final and cannot be cancelled.

B. ART BASIC.

 

The following additional terms and conditions apply if you subscribe to our ART Basic service (“ART Basic”).

 

ART BASIC SERVICE. If you subscribe to ART Basic, you will be entitled to certain benefits when you rent Products, as more fully described here. Subject to your compliance with these Terms (including payment of fees) and our right to terminate ART Basic, we do not impose any limitations on the time period during which you may keep any Product we have sent to you through ART Basic. After four months, you will be required to decide whether to purchase or exchange the Product. Because ART Basic is a beta, membership is limited and may not always be available.

 

FEES. If you subscribe to ART Basic, ART will charge you a recurring automatic monthly subscription fee. The current ART Basic subscription fee is set out here, but is subject to change at our discretion and any such change will be effective for any subsequent renewal subscription period. You hereby authorize ART or our third party payment processor to charge your payment card for the applicable ART Basic subscription fee. ART Basic subscription fees are non-refundable except as expressly set forth below. Taxes may apply on ART Basic subscription fees.

 

SUBSCRIPTION CANCELLATION AND RENEWAL. You may cancel ART Basic at any time, but your cancellation will be effective at the end of the current annual subscription period. This means your ART Basic subscription will continue for the remainder of that period and you will not receive a refund. Your Pro subscription renews automatically on an annual basis at the then current fee and benefits then in effect until you cancel. You may cancel or renew ART Basic or find out more information about your ART Basic subscription, including your annual expiration date, by contacting info@goartful.com.

C. ART Flight.

 

The following additional terms and conditions apply if you subscribe to our ART Flight (“Flight”).

 

ART FLIGHT. If you subscribe to Flight, you will be entitled to rent up to three (3) Products at any time from a range of Products designated on the Site (such Products, the “ART Flight Products”), as more fully described here. Exceptions from the ART Flight are determined by us in our sole discretion. Subject to your compliance with these Terms (including payment of fees) and our right to terminate Flight, we do not impose any limitations on the time period during which you may keep any Product we have sent to you through Flight. Because Flight is a beta, membership is limited and may not always be available. Fees. If you subscribe to Flight, ART will charge you a pre-paid subscription fee or a monthly subscription fee that will automatically renew and you will be billed every 30 days at the then current fee to your payment method on file. After a pre-pay period ends, your subscription membership will automatically renew and you will be billed every 30 days at the then current fee to your payment method on file. The current monthly Flight subscription fee is set out here, but is subject to change at our discretion and any such change will be effective for any subsequent renewal subscription period. You hereby authorize ART or our third party payment processor to charge your payment card for the applicable Flight subscription fee on a monthly or recurring pre-pay basis until you cancel. The subscription fees include shipping and limited insurance, covering minor mishaps but not significant damage, loss or theft. Flight subscription fees are non-refundable except as expressly set forth below. Taxes may apply on Flight subscription fees. Cancellation of Your Membership. There are no refunds to a pre-paid Flight membership. Your monthly Flight subscription automatically renews and you will be billed every 30 days. To cancel your monthly membership, email info@goartful.com. You must surrender your ART Flight Products before the end of your current bulling period (located in account settings) to avoid additional fees. If ART does not receive your ART Flight Products by the end of your billing period in which you want to cancel your membership, ART will charge you 100% of the retail price or value of each ART Flight Product.

 

DELIVERY. All deliveries will be through ART or ART's shipping partners, which may change from time to time at our discretion. The shipping method used will be at the discretion of ART. The courier services described in Section 2(A) will be available for deliveries in Washington, DC. We will provide you with information about estimated delivery and arrival times of ART Flight Products through by email from an ART representative. The Products we send to you will be cleaned and ready for display. We clean and inspect each Product we send to you, but use of the Products is at your own risk and ART shall not be held liable for any health-related complaints associated with any Product.

 

RETURNS OR EXCHANGES. With each shipment of Products we send you, we will include one Return Packaging (which may be our ART carrying case – as defined in section 2(b)), which you can use to return one (1), some or all of the ART Flight Products you currently have. If you have three (3) Products, you must return at least one (1) Product to us in order to be eligible to receive another. When we receive any returned Products from you, the next shipment we send you will contain the same number of Products that you have returned. We will use reasonable efforts to send you new Products promptly upon processing your exchange request, but you acknowledge that as a result of processing and delivery, there will be a delay between your exchange of a Product and receipt of a new Product through Flight. You agree to return any Product using the Return Packaging, including the ART carrying case (as defined in Section 2(B)).

 

ADDITIONAL OBLIGATIONS. Without limiting the application of the rest of these Terms, all of your obligations set out under Sections 2(A) and (B), including but not limited to the obligations relating to receipt and care of Products, apply to your participation in Flight, except to the extent they conflict with this Section 3(C). Except as expressly stated in this Section 3(C), none of the limited warranties set out under Section 2(B) apply to ART Flight Products.

 

DAMAGE, FAILURE TO RETURN PRODUCTS. Unless you cancel your Flight subscription, it will automatically renew on a monthly or recurring pre-pay basis. You expressly authorize us to collect the applicable subscription fee and any taxes, using any payment card on record for you, in connection with any such auto-renewal. You may cancel your Flight subscription or find out more information about your Flight subscription, including your monthly or recurring pre-pay renewal date, by contacting info@goartful.com. As soon as you cancel, you will not be eligible to receive any additional Products through Flight. You may continue to keep Products you have already received through Flight, but you must return to ART all such Products on or before the last day of the applicable subscription period during which you cancel. If we don't receive your items on time, you will be charged up to 100% of the retail price. You will not be entitled to any refund of subscription fees.

 

CHANGES TO AND TERMINATION OF FLIGHT. AAs Flight is a beta program, we reserve the right to modify Flight (including the subscription fee) or terminate Flight or your Flight subscription at our sole discretion without prior notice. If we terminate your Flight subscription, we will provide you with, as determined in our sole discretion, either (a) a prorated refund for the remainder of your current applicable subscription, or (b) continued access to Flight for the remainder of that applicable period, in accordance with these Terms. However, we will not give any refund for termination related to conduct that, in our discretion, violates any terms set out in these Terms or any applicable law. If we choose to provide you with continued access to Flight for the remainder of that applicable period of your subscription, you will continue to have access to Flight during that period, except that we will not send you any Products within ten (10) days of the end of that period. Prior to the end of that period (or, if we do not provide you with continued access to Flight, immediately upon our termination of Flight or your Flight subscription), you must also return to ART all Products you have received in connection with Flight.

 

CORPORATE SUBSCRIPTIONS. If you subscribe to Flight through a corporate partnership with your employer, you are subject to our Terms of Service, including without limitation the terms detailed above under this Flight Section. ART will charge you a monthly subscription fee that will automatically renew and you will be billed every 30 days to your payment method on file. After your subsidized corporate subscription ends after the first six months, your membership automatically renews and you will be billed every 30 days at the full monthly amount thereafter to your payment method on file. To cancel your monthly membership, email at info@goartful.com. You must return your ART Flight Products before the end of your current bulling period (located in account settings) to avoid additional fees. If ART does not receive your ART Flight Products by the end of your billing period in which you want to cancel your membership, ART will charge you 100% of the retail price or value of each ART Flight Product.

C. Biz Art.

 

The following additional terms and conditions apply if you subscribe to our Biz ART (“Biz Art”).

 

BIZ ART. If you subscribe to Biz Art, you will be entitled to rent multiple Products at any time from a range of Products designated on the Site (such Products, the “ART Flight Products”), as more fully described here. Exceptions from the Biz Art are determined by us in our sole discretion. Subject to your compliance with these Terms (including payment of fees) and our right to terminate Biz Art, we do not impose any limitations on the time period during which you may keep any Product we have sent to you through Biz Art. Because Biz Art is a beta, membership is limited and may not always be available. Fees. If you subscribe to Biz Art, ART will charge your business an annual subscription fee that will automatically renew and you will be billed every 365 days at the then current fee to your payment method on file. After a pre-pay period ends, your subscription membership will automatically renew and you will be billed every 365 days at the then current fee to your payment method on file. The current annual Biz Art subscription fee is set out here, but is subject to change at our discretion and any such change will be effective for any subsequent renewal subscription period. You hereby authorize ART or our third party payment processor to charge your payment card for the applicable Biz Art subscription fee on an annual recurring pre-pay basis until you cancel. The subscription fees include shipping and limited insurance, covering minor mishaps but not significant damage, loss or theft. Biz Art subscription fees are non-refundable except as expressly set forth below. Taxes may apply on Biz Art subscription fees. Cancellation of Your Membership. There are no refunds to a pre-paid Biz Art membership. Your annual Biz Art subscription automatically renews and you will be billed every 365 days. To cancel your annual membership, email ART. You must surrender your Biz Art Products before the end of your current bulling period (located in account settings) to avoid additional fees. If Biz Art does not receive your Biz Art Products by the end of your billing period in which you want to cancel your membership, Biz Art will charge you 100% of the retail price or value of each Biz Art Product.

 

DELIVERY. All deliveries will be through ART or ART's shipping partners, which may change from time to time at our discretion. The shipping method used will be at the discretion of ART. The courier services described in Section 2(A) will be available for deliveries in Washington, DC. We will provide you with information about estimated delivery and arrival times of ART Flight Products through by email from an ART representative. The Products we send to you will be cleaned and ready for display. We clean and inspect each Product we send to you, but use of the Products is at your own risk and ART shall not be held liable for any health-related complaints associated with any Product.

 

RETURNS OR EXCHANGES. With each shipment of Products we send you, we will include one Return Packaging (which may be our ART carrying case – as defined in section 2(b)), which you can use to return one (1), some or all of the ART Flight Products you currently have. If you have three (3) Products, you must return at least one (1) Product to us in order to be eligible to receive another. When we receive any returned Products from you, the next shipment we send you will contain the same number of Products that you have returned. We will use reasonable efforts to send you new Products promptly upon processing your exchange request, but you acknowledge that as a result of processing and delivery, there will be a delay between your exchange of a Product and receipt of a new Product through Flight. You agree to return any Product using the Return Packaging, including the ART carrying case (as defined in Section 2(B)).

 

ADDITIONAL OBLIGATIONS. Without limiting the application of the rest of these Terms, all of your obligations set out under Sections 2(A) and (B), including but not limited to the obligations relating to receipt and care of Products, apply to your participation in Flight, except to the extent they conflict with this Section 3(C). Except as expressly stated in this Section 3(C), none of the limited warranties set out under Section 2(B) apply to Biz Art Products.

 

DAMAGE, FAILURE TO RETURN PRODUCTS. Unless you cancel your Biz Art subscription, it will automatically renew on a monthly or recurring pre-pay basis. You expressly authorize us to collect the applicable subscription fee and any taxes, using any payment card on record for you, in connection with any such auto-renewal. You may cancel your Biz Art subscription or find out more information about your Biz Art subscription, including your monthly or recurring pre-pay renewal date, by contacting info@goARTful.com. As soon as you cancel, you will not be eligible to receive any additional Products through Biz Art. You or any employees or associates may continue to keep Products you have already received through Biz Art, but your organization is responsible for the surrender and return to ART of all such Products on or before the last day of the applicable subscription period during which you cancel. If we don't receive your items on time, you will be charged up to 100% of the retail price. You will not be entitled to any refund of subscription fees.

 

CHANGES TO AND TERMINATION OF FLIGHT. As Biz Art is a limited program, we reserve the right to modify Biz Art (including the subscription fee) or terminate Biz Art or your Biz Art subscription at our sole discretion without prior notice. If we terminate your Biz Art subscription, we will provide you with, as determined in our sole discretion, either (a) a prorated refund for the remainder of your current applicable subscription, or (b) continued access to Biz Art for the remainder of that applicable period, in accordance with these Terms. However, we will not give any refund for termination related to conduct that, in our discretion, violates any terms set out in these Terms or any applicable law. If we choose to provide you with continued access to Biz Art for the remainder of that applicable period of your subscription, you will continue to have access to Biz Art during that period, except that we will not send you any Products within ten (10) days of the end of that period. Prior to the end of that period (or, if we do not provide you with continued access to Biz Art, immediately upon our termination of Biz Art or your Biz Art subscription), you must also return to ART all Products you have received in connection with Biz Art.

 

4. Use of the Services

A. ART Content

 

CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“ART Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The ART Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any ART Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the ART Content.

 

UPDATES We may update the ART Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to info@goartful.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.

B. Third Party Content

 

LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-ART websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and ART is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from ART, and ART has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that ART endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.

C. Acceptable Use Policy

 

USE OF ART CONTENT. No part of the Services, including the ART Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that ART authorizes you to view, copy, download, and print ART Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the ART Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the ART Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the ART Content.

 

USE OF THE SERVICES. ART exists to democratize access to art and creating new revenue streams, marketing opportunities, and sales channels for artists. Pursuant to this mission you may not use the Services to: (i) transmit any content, information or other materials that are, or which ART considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a ART representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.  You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.

 

INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend ART and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.

D. Your Content

 

If you post, upload or make available to ART or the Services, or otherwise submit to or through ART as part of your use of the Services, including the Site or App, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to ART a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 4(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize ART to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.

E. Your Account

 

Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify ART Basic promptly of any unauthorized use of your account or password.

F. Delays

 

There may be delays, omissions, or inaccuracies in the Services, including the ART Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.

G. Job Postings

 

ART may list open employment positions on or through the Services. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.

5. INTELLECTUAL PROPERTY

A. Ownership of the Services

 

The Services, including the ART Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of ART and its artist partners, affiliates, and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “ART” and the ART logo are registered trademarks of ART, Inc., under the applicable laws of the United States and/or other countries. Other ART Basic product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of ART and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. ART and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.

 

Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any ART Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of ART or such third party that may own such ART Content.

B. Services License

 

Subject to your compliance with these Terms, ART grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.

D. Feedback

 

By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that ART may use your Feedback without restriction or obligation to you or any third party.

E. Notice and Take Down Procedures; Copyright Agent

 

If you believe any ART Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting ART’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.

 

 

 

 

6. TERMINATION

A. Termination By You

 

You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at info@goartful.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.

B. Termination By ART

 

Any violation of these Terms, including any of the prohibitions in Section 4(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. ART may also terminate your account if ART determines that your conduct poses a risk or liability to ART, or for any other reason as determined by ART in its sole discretion.

C. Effects of Termination

 

In each of these cases, the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C), 3(A) (Failure to Pay Fees), 4(A)-(D), 5(A), 5(C) (Acknowledgment), 5(D), 6(C), and 7-9, including the mandatory arbitration and class-action waiver provisions.

7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

A. Limited Warranties

 

The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by ART in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.

 

Your sole and exclusive remedy and ART's sole and exclusive liability for a breach by ART of the limited warranties set out in Section 2(B) shall be, at ART's option, ART's use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).

B. Disclaimer of Warranties

 

EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, ART DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE ART CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.

C. Limitation of Liability

 

UNDER NO CIRCUMSTANCES SHALL ART BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF ART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.

8. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER

 

This Section 8 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.

A. Informal Process First

 

Both you and ART agree that in the event of any dispute between us, you and ART will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.

B. Mandatory Arbitration of Disputes

 

All disputes between you and ART will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of ART or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either ART or you pursuant to the following conditions:

 

(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area or at a JAMS facility in New York City.

 

(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.

 

(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.

 

(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.

 

(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with ART remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.

 

(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions. 

 

C. Class Action Waiver

 

The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and ART shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

9. MISCELLANEOUS

 

JURISDICTIONAL ISSUES. ART makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that ART intends to announce or make available such products or services to the general public, or in your country. Contact ART at info@goartfu.com to determine which products and services may be available to you.

 

EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the ART Content, or any part thereof, in any way, in violation of United States law.

 

GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.

 

ENTIRE AGREEMENT. These Terms are the entire agreement between you and ART relating to the subject matter herein and shall not be modified except by ART in accordance with these Terms, or as otherwise agreed in writing by you and ART. No employee, agent or other representative of ART has any authority to bind ART with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.

 

SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

 

ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. ART may assign these Terms at any time without notice to you.

 

FORCE MAJEURE. ART will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond ART’s reasonable control.

 

CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to ART at info@goartful.com.

 

G. Marketing

 

The information you provide as a member of the ART Refer a Friend program will be managed by ART. By participating in the ART Refer a Friend program, you to agree to receive advertising, marketing materials and other communications from ART. You may opt out of receiving these emails by clicking on the opt out on the bottom of any of the emails and following the instructions.

H. Limitation of Liability

 

ART SHALL NOT BE LIABLE FOR ANY CLAIMS, ACTIONS, INJURY, LOSS OR DAMAGE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, RESULTING FROM THE ART REFER A FRIEND PROGRAM. THIS LIMITATION OF LIABILITY IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES; LOSS OF DATA, INCOME, OR PROFIT; LOSS OR DAMAGE TO PROPERTY; AND CLAIMS OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT ART HAS NOT MADE AND IS NOT IN ANY MANNER RESPONSIBLE OR LIABLE FOR ANY WARRANTY, REPRESENTATION, OR GUARANTEE, STATUTORY, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE), IN FACT OR IN LAW, RELATIVE TO THE ART REFER A FRIEND PROGRAM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ART DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ART.COM AND ART SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATED THERETO. THIS PARAGRAPH SHALL NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.

Advocates may be personally liable for civil and/or criminal penalties under applicable law.

I. Governing Law

 

Governing Law and Venue. The ART Refer a Friend program will be governed and interpreted pursuant to the laws of Washington, DC, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action shall be resolved exclusively by a state or federal court located in Washington, DC, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.

 

You and ART agree that the Mandatory Arbitration and Class-Action Waiver provisions as set forth in Paragraph 8 above apply to the ART Refer a Friend program and are incorporated into this paragraph by reference as if fully set forth herein.