ART START ART LLC
- 1. Art Start Art Platform. Art Start Art offers Users access to its website located at http://www.artstartart.com and mobile applications (collectively, the “Platform”) through which Users can browse and purchase various pieces of artwork (the “Artwork”) created by college students (“Artists”). To access certain functionality of the Platform you must register for a personal user account (a “User Account”).
- 2. Use of the Platform. As long as you comply with this Agreement, Art Start Art grants you a personal, non-exclusive, non-transferable, limited permission to access and use the Platform. No person under the age of thirteen may access or use the Platform, and no person under the age of eighteen may use the Platform without the consent of their parent or legal guardian.
- 3. Registration and Account Information. When you register for a User Account, you will choose a username and password. You represent and warrant that the information you supply during the registration process is true, accurate, current, and complete information about yourself. If the information becomes inaccurate, then it is your responsibility to update your User Account. If Art Start Art has reasonable grounds to believe that your registration information is untrue, inaccurate, incomplete, or outdated, then Art Start Art may suspend or terminate your use of the Platform. Art Start Art may disallow the use of any username that Art Start Art deems offensive or inappropriate. You are responsible for preserving the confidentiality of your password and for the actions of persons accessing the Platform through usernames and passwords selected by you. You agree to immediately notify Art Start Art of any unauthorized use of your username or password.
- 4. Pricing and Orders; Payment; Shipping; Return Policy.
- (i) Pricing and Orders. The price for each piece of Artwork is set forth on its applicable page accessible through the Platform. All orders of Artwork are subject to acceptance by Art Start Art. Orders will be considered accepted once Art Start Art sends you an order acknowledgment to the email address on file in your User Account.
- (ii) Payment. Payment for each piece of Artwork is due at the time the applicable order is placed. All payments will be made in US dollars, unless otherwise specified.
- (iii) Shipping. You are responsible for all shipping and handling fees associated with your orders of Artwork, including insurance if you wish to purchase it. Additionally, any shipping estimates provided by Art Start Art are estimates only. Artists are solely responsible for preparing and shipping Artwork. Art Start Art shall have no liability for losses or claims resulting from damage to or late delivery of Artwork.
- (iv) Return Policy. Artwork may be returned within seven days of receipt of the Artwork (the “Return Period”). To return any Artwork you must notify Art Start Art in writing and return the Artwork to the Artist both within the Return Period.
- (v) Liability.
- 5. Prohibited Uses. Art Start Art may restrict, suspend, or terminate your User Account if you abuse or misuse the Platform as determined by Art Start Art in its sole discretion. You agree to not undertake any of the following prohibited actions:
- (i) Use any automated means to access the Platform or collect any information from the Platform (including robots, spiders, scripts, or other automatic devices or programs);
- (ii) Engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining Materials (as defined below), lists of Users, or other information;
- (iii) Use the Platform in any manner that is inconsistent with, or in violation of, applicable law or that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use of the Platform;
- (iv) Access, tamper with, or use non-public or non-authorized areas of the Platform;
- (v) Solicit or gather any other party’s information that may be available via the Platform, such as other User’s names and email addresses, or to transmit any unsolicited communications, including advertising, “junk mail,” “spam,” or “chain letters;”
- (vi) Impersonate or misrepresent your affiliation with any person or entity or create a false identity for purposes of misleading others;
- (vii) Post or transmit any content that infringes a third party’s intellectual property rights or rights of publicity or privacy or content that is unlawful, untrue, fraudulent, harassing, libelous, defamatory, abusive, threatening, pornographic, racist, harmful (including viruses, corrupt files, or any other similar software or programs), disparaging of Art Start Art or other Users, or otherwise objectionable;
- (viii) Violate any other policies stated herein or included in the Platform;
- (ix) Repeat any action after you receive a warning or request from Art Start Art to stop, whether or not that action is explicitly prohibited (including continuing to use the Platform under the same User Account, a different User Account, or registering again under a new User Account after your User Account has been temporarily suspended, indefinitely suspended, or terminated);
- (x) Fail to respond to an email from Art Start Art regarding a violation, dispute, or complaint;
- (xi) Reverse engineer, decompile, disassemble, decipher, or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Platform, or any part thereof;
- (xii) Adapt, modify, or create derivative works based on the Platform or technology underlying the Platform;
- (xiii) Remove any copyright, trademark, or other proprietary rights notices contained in or on the Platform;
- (xiv) Remove, cover, or otherwise obscure any form of advertisement included in the Platform;
- (xv) Attempt to or actually override any security component included in or underlying the Platform; or
- (xvi) Interfere with or disrupt the Platform.
- 6. Termination and Expiration. You may terminate this Agreement, for any or no reason, at any time, with notice to Art Start Art. This termination will be effective upon Art Start Art processing your notice. Art Start Art may terminate this Agreement and your User Account for any reason or no reason, at any time, with or without notice. This termination will be effective immediately or as may be specified in the notice. Termination of your User Account includes disabling your access to the Platform. Notwithstanding the foregoing, Articles 3 through 17 shall survive any termination or cancellation of this Agreement.
- 7. Ownership of Materials; No Other Licenses. The Platform and all information, data, text, communications, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, and computer code contained in the Platform or in emails or notices sent to you by Art Start Art (the “Materials”) are owned, controlled, or licensed by or to Art Start Art, and are protected by trade dress, copyright law, patent law, trademark law, and various other intellectual property rights. All rights in and to the Platform are reserved to Art Start Art. You may download, print, and view Materials from the Platform as long as you use the Materials only for non-commercial, personal use and as long as you do not modify or alter the Materials. You may not copy, republish, distribute, prepare derivative works, modify, or otherwise use the Materials other than as expressly permitted herein. Art Start Art reserves the right to revoke at any time the authorization to download, print, and view the Materials, and you must discontinue such use immediately upon notice from Art Start Art. The design, layout, and look and feel of the Platform are protected by law, including trade dress, trademark, copyright, and other laws, and may not be copied or imitated. No trademark, service mark, graphic, sound, or image from the Platform may be copied or retransmitted unless expressly permitted by Art Start Art in writing.
- 8. Posting Information on the Platform; Submissions. To operate the Platform, Art Start Art needs certain rights. When you post images, information, text, video, audio, files, links, attachments, or other materials (collectively “User Content”) to publicly visible areas via the Platform (including public pages, chat areas, message boards, profile pages, and “blogs”), you are granting to Art Start Art, or representing that the owner of such User Content has granted, a worldwide, royalty-free, perpetual, irrevocable, sublicensable, non-exclusive right and license to use, reproduce, modify, transmit, distribute, perform, and display such User Content (in whole or in part) and to incorporate such User Content in other works in any form, media, or technology. All User Content that you upload, publish, distribute, post, or disseminate via the Platform will be treated as non-confidential and non-proprietary, and may be used or disseminated by Art Start Art or its affiliates for any purpose. You also acknowledge and agree that Art Start Art is free to use any ideas, concepts, know-how, feedback, or techniques that you provide for any purpose without any compensation to you. You will use good judgment when posting any User Content regarding other Users, Art Start Art, or any other third party. You agree to use extra care when disclosing any personally identifiable information about yourself or others when you post or otherwise submit any User Content via the Platform. You may be held legally responsible for damages suffered by other Users, Art Start Art, or other third parties as a result of any legally actionable or defamatory User Content that you post to the Platform. Art Start Art is not legally responsible for any User Content posted or made available via the Platform by any User or third party, even if such information or User Content is defamatory or otherwise legally actionable. Art Start Art is not responsible for and does not monitor or censor User Content for accuracy or reliability. However, Art Start Art may remove or restrict access to information or User Content posted or made available via the Platform by its Users or any third party if ordered to do so by a court or if Art Start Art considers such information or User Content to be in violation of this Agreement or posted rules or policies.
- 9. Links to External Sites. Art Start Art may provide you with links in the Platform and email communications to other independent websites on the Internet that are owned and operated by third-party vendors or other third parties not under the control of Art Start Art. These links are not intended as an endorsement by Art Start Art of the entity or individual operating the website or a warranty of any type regarding the website or the information on the website. By using the Platform, you acknowledge that Art Start Art is not liable or responsible 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 applicable third-party site or resource.
- 10. Accuracy of Information. Art Start Art attempts to provide only accurate information, but some inaccuracies may occasionally be present. By using the Platform, you acknowledge that Art Start Art will not be liable or responsible for any damage or loss caused by, or in connection with, the use of, or reliance on, any information within the Platform, including information provided by Art Start Art or other Users. If you find any information within the Platform to be inaccurate, please alert Art Start Art at firstname.lastname@example.org.
- 11. Recommendations; Dealings with Advertisers and Other Third Parties. Art Start Art, via the Platform, may recommend Artwork, products, or services for you to consider based on the information you have provided through the Platform. Art Start Art cannot guarantee that you will be satisfied with the recommended Artwork, products, or services and has no liability whatsoever for your dissatisfaction with those items or any liability that may arise from the purchase or use of those items. Your correspondence or business dealings with, or participation in promotions of, advertisers or affiliates found through the Platform, including delivery of related goods or services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and the applicable advertiser or affiliate. You agree that Art Start Art is not responsible or liable for any loss or damage incurred as the result of any dealings with or as the result of the presence of advertisers or affiliates within the Platform.
- 12. Indemnity. You agree to indemnify, defend, and hold Art Start Art, and its subsidiaries, affiliates, officers, agents, co-branded partners or other partners, advertisers, and employees, harmless from any claims, damages, expenses (including reasonable attorney’s fees), allegations, losses, and liabilities arising from or related to: (i) any violation of this Agreement by you; (ii) your use of the Platform; (iii) User Content that you submit, post to, or transmit via the Platform; (iv) your access to or use of external linked sites; and (v) any dealings between you and any third parties advertising or promoting via the Platform.
- 13. Void Where Prohibited. The Platform is controlled, operated, and administered by Art Start Art from its offices in Austin, Texas, USA. Although the Platform is accessible worldwide, not all features, products, or services offered through the Platform are available to all persons or in all geographic locations, nor are they appropriate or available for use outside the United States. Art Start Art reserves the right to limit the provision and quantity of any feature, product, or service to any person or geographic area. Any offers for features, products, or services made through the Platform are void where prohibited. If you choose to access the Platform from outside the United States, then you do so on your own initiative and you are responsible for complying with all applicable local laws.
- 14. Disclaimer of Warranties. THE PLATFORM, THE ARTWORK, THE MATERIALS, AND ALL INFORMATION AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ART START ART DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE ARTWORK, THE MATERIALS, AND ALL INFORMATION AND SERVICES PROVIDED BY ART START ART, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. IF YOU ARE DISSATISFIED OR HARMED BY ART START ART, THE PLATFORM, THE ARTWORK, THE MATERIALS, OR THE INFORMATION AND SERVICES PROVIDED BY ART START ART IN ANY WAY, THEN YOU MAY CLOSE YOUR USER ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ARTICLE 5 AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. ART START ART DOES NOT GUARANTEE THAT THE PLATFORM OR THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS. IN PARTICULAR, THE OPERATION OF THE PLATFORM MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. ART START ART DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, ART START ART DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE PLATFORM DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
- 15. Limitation of Liability. NEITHER ART START ART, NOR ANY OF ITS AFFILIATES, ADVERTISERS, SUPPLIERS, EMPLOYEES, MEMBERS, OR MANAGERS, WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, OR LOSS OF PROFITS DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, THE ARTWORK, THE MATERIALS, OR THE INFORMATION AND SERVICES PROVIDED BY ART START ART. EXCEPT FOR DAMAGES CAUSED BY ART START ART’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ART START ART’S LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PLATFORM, THE ARTWORK, THE MATERIALS, OR THE INFORMATION AND SERVICES PROVIDED BY ART START ART ARISING UNDER ANY THEORY OF LAW (INCLUDING CLAIMS OF BREACH, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE), SHALL NOT EXCEED THE GREATER OF (I) THE FEES PAID FOR THE ARTWORK GIVING RISE TO THE CLAIM, OR (II) $50 (USD). You acknowledge that this represents a reasonable allocation of risk between the parties and that Art Start Art would not make the Platform available but for this allocation of risk.
- 16. Copyright Policy.
- (i) Reporting Claims of Copyright Infringement. Art Start Art takes claims of copyright infringement seriously and will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Platform infringe your copyright, then you may request removal of those materials (or access to them) from the Platform by submitting written notification to Art Start Art’s Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- (a) Your physical or electronic signature;
- (b) Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Platform, a representative list of such works, including all relevant details to allow Art Start Art to locate that material;
- (c) Adequate information by which Art Start Art can contact you (including your name, postal address, telephone number and, if available, email address);
- (d) A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
- (e) A statement that the information in the written notice is accurate; and
- (f) A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Art Start Art’s designated Copyright Agent to receive DMCA Notices is:
[FIRST AND LAST NAME OF AGENT]
[PHYSICAL ADDRESS OF AGENT]
[TELEPHONE NUMBER OF AGENT]
[E-MAIL ADDRESS OF AGENT FOR THIS PURPOSE]
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Platform is infringing your copyright, then you may be held liable for damages (including costs and attorney’s fees) under Section 512(f) of the DMCA.
- (ii) Counter-Notification Procedures. If you believe that material you posted on the Platform was removed or access to it was disabled by mistake or misidentification, then you may file a counter-notification with Art Start Art (a “Counter-Notice”) by submitting written notification to Art Start Art’s Copyright Agent. Pursuant to the DMCA, the Counter-Notice must include substantially the following:
- (a) Your physical or electronic signature;
- (b) dentification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;
- (c) Adequate information by which Art Start Art can contact you (including your name, postal address, telephone number and, if available, e-mail address);
- (d) A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- (e) A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Platform may be found) and that you will accept service from the person (or an agent of that person) who provided Art Start Art with the complaint at issue.
The DMCA allows Art Start Art to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Platform was removed or disabled by mistake or misidentification, then you may be held liable for damages (including costs and attorney’s fees) under Section 512(f) of the DMCA.
- 17. General.
- (i) Governing Law; Venue. This Agreement is governed by the laws of the State of Texas, U.S.A., without regard to its principles of conflicts of law. The exclusive venue for all actions arising under this Agreement shall be in the state and federal courts located in Travis County, Texas, USA.
- (ii) Injunctive Relief. You acknowledge and agree that any use of the Platform or the Materials other than as expressly permitted by this Agreement would cause irreparable harm and significant injury to Art Start Art. Accordingly, the parties agree that Art Start Art shall be entitled to seek injunctive relief as a result of any such misuse by you, without the requirement of securing or posting any bond, in addition to any other remedies that may be available to Art Start Art at law or in equity.
- (iii) Limitation Period. Art Start Art SHALL NOT BE LIABLE FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, THE ARTWORK, THE MATERIALS, OR THE INFORMATION AND SERVICES PROVIDED BY Art Start Art THAT IS BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR THE APPLICABLE CLAIM FIRST AROSE.
- (iv) Force Majeure. Art Start Art shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including acts of nature or governments or interruptions of telecommunications, power, or transportation.
- (v) Entire Agreement; Waiver. This Agreement constitutes the entire agreement between you and Art Start Art regarding your use of the Platform and supersedes any oral or written proposals, prior agreements, or any other communication between you and Art Start Art relating to the subject matter of this Agreement. The word “including” as used in this Agreement shall be understood as meaning “including, without limitation.” No delay or omission by Art Start Art to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by Art Start Art of any breach of any provision hereof shall not be construed to be a waiver of any succeeding breach of that provision or of any breach of any other provision.
- (vi) Modification. Art Start Art reserves the right to modify, supplement, or replace the terms of this Agreement without prior notice, effective upon notifying you that the terms have changed. If you do not wish to be bound by changes to this Agreement, then you may terminate this Agreement at any time in accordance with Article 6 herein. By continuing to use the Platform after the posting of any changes, you agree to be bound by those changes to this Agreement. Furthermore, your access to the Platform is subject to the most current version of this Agreement.
- (vii) Attorney’s Fees; Severability; Ambiguity. If any action is brought by either party to this Agreement against the other regarding the subject matter of this Agreement, then the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorney’s fees and court costs. If any provision of this Agreement is held invalid, then the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.
- (viii) Consent to Receive Emails. When you register for a User Account you hereby authorize Art Start Art to send emails to you (i) for the purpose of advising you of changes or additions to the Platform and (ii) about any other products or services provided by Art Start Art or Art Start Art’s affiliates. If you no longer wish to receive these emails, then you may adjust your email preferences or unsubscribe using the links provided in each email from Art Start Art.
- (ix) Notice. Any notices or other communications required to be given in writing under this Agreement will be effective upon receipt via email to the email address provided by User, personal or courier delivery, or three days after deposit into the U.S. mail (certified mail, return receipt requested), addressed to User at the address on file in User’s User Account or to Art Start Art at Legal@artstartart.com, or at another address that a party may indicate by written notice to the other party.