THE FOLLOWING DESCRIBES THE TERMS ON WHICH ART.COM OFFERS YOU ACCESS TO THE ART.COM ARTPAD SERVICES. BY LOADING OR AGREEING TO HAVE LOADED CONTENT UPON THE ART.COM WEBSITE, OR ANY ELEMENT OR DERIVATION THEREOF, YOU AGREE TO BE BOUND BY THE TERMS HEREIN.
This ArtPad Agreement (this "Agreement") is by and between Art.com, a Delaware company, ("Art.com", "we" or "us" and "our" shall be construed accordingly) and you ("User" or "you" and "your" shall be construed accordingly), individually a "Party" and collectively the "Parties".
Art.com operates a website on the World Wide Web found on http://www.art.com (the "Website") and has developed proprietary technology to enable digital drawings, designs and other content to be loaded onto the Website ("ArtPad"). User desires to create drawings, designs and other content using ArtPad (the "Content" as defined more specifically herein) which may be displayed on the Website and for which links may be transmitted electronically.
BEFORE YOU USE ARTPAD, IT IS IMPORTANT THAT YOU CAREFULLY REVIEW THE TERMS AND CONDITIONS SET OUT BELOW. In addition to the provisions set forth below, the following policies (as modified from time to time) are incorporated into this Agreement by reference and relate to you as a user of the Website:
In addition, specific pages on the Website may set out additional terms and conditions, all of which are incorporated by reference into this Agreement. Terms may be changed or updated at any time, but you can find the most recent version on the Website. In the case of inconsistencies between this Agreement and information included in off-line materials, (e.g., promotional materials and mailers), this Agreement will always control. We suggest that you periodically check the Website to make sure you are up to date.
By using ArtPad, you indicate that you accept this Agreement and that you agree to be bound by and subject to the terms and conditions contained herein and any subsequent modifications. Acceptance of this Agreement creates a binding legal agreement between you and Art.com that you will use ArtPad and the Website only in a manner that is consistent with this Agreement. Your use of ArtPad is entirely conditioned on and subject to your compliance with this Agreement. If at any time you do not agree with this Agreement, do not proceed to access or use ArtPad.
2. ArtPad Services.
ArtPad is intended solely for recreational purposes. ArtPad is designed for participants aged 18 and above who can form legally binding contracts under applicable law. By accepting this Agreement and using ArtPad, you acknowledge that you are age 18 or above.
By loading or agreeing to have the Content loaded onto the Website, you agree that you will cooperate fully with us and comply with this Agreement at all times in a manner consistent with our current policies. You acknowledge that Art.com shall determine in its sole discretion whether the Content adheres to the letter and spirit of such policies. You agree and represent that no character art, branding or logos, trademarked word marks, designs or otherwise, or likenesses thereof, the intellectual property rights of which belong to others, shall be uploaded, drawn, written and/or otherwise used in connection with any Content. You may not falsely state or otherwise misrepresent your affiliation with a person or entity in any way.
Art.com reserves the right at any time to change, modify, add to, discontinue or retire any aspect or feature of the Website or ArtPad including but not limited to storage of the Content, email capabilities, access, server capacity or ability to use on any particular device or communications service. Art.com has no obligation to provide you with notice of any such changes and shall have no liability therefore. You understand that your use of ArtPad and the Website is at your own risk and that Art.com is under no obligation to provide assistance, error corrections, updates, upgrades, corrections and/or other enhancements of ArtPad services or the Website.
3. The User Content.
You agree and acknowledge that you shall not use the Website or ArtPad (i) as storage for remote loading or as a door or signpost to another home page, whether internal or external to Art.com; (ii) to solicit for advertisers or sponsors; (iii) to conduct raffles or contests of any type; or (iv) to display a sponsorship banner of any kind, including those that are generated by banner or link exchange services. You agree not to upload, post or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware including ArtPad and the Website.
You will be solely responsible for all elements of the Content loaded by or for you using ArtPad including but not limited to all drawings, designs, textual information digitally displayed on ArtPad (the "Renderings") and other content such as email addresses, names and commentary on the Renderings (collectively, the "Content") and the accuracy and propriety of the same. The Content, including any communications generated from it (via email mechanism or otherwise) shall not (i) be pornographic, obscene, indecent or of an "adult" sexual nature; (ii) violate or infringe upon the rights of any third party; (iii) be libelous; (iv) advocate or promote violence or conduct that constitutes a criminal offense; (v) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise; (vi) be harmful to children; (vii) give rise to a civil liability or (viii) otherwise be illegal. Recognizing the global scope of the Internet, you further agree to comply with all applicable laws regarding the transmission of electronic data exported from the country in which you reside.
You acknowledge that Art.com may (but is not obligated to) pre-screen content, and that Art.com shall have the right (but not the obligation) in its sole discretion to reject or remove any element of the Content that is available through ArtPad services or any other part of the Website at any time, for any reason. Notwithstanding the foregoing, you agree that you must evaluate, and bear all risks associated with, the use of any of the Content.
You agree to that your use of ArtPad shall be exclusively for your personal, non-commercial use. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any elements of the Content. Any information you provide to us, post or load onto the Website in general or onto ArtPad specifically or that you otherwise communicate to third parties using ArtPad services shall not be false, inaccurate, misleading, illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable. You may not use ArtPad to send unsolicited bulk communications and/or marketing communications by email or instant messaging. You hereby agree not to upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, software viruses, political campaigning, commercial solicitation, mass mailings, "junk mail," "spam," "chain letters," or "pyramid schemes" or other such solicitations. You shall not "stalk" or otherwise harass any other Website user, participant in any of Art.com programs or other third party using ArtPad or the Website.
You hereby acknowledge that the Website is, generally, directed to users 18 years old or older. In line with this policy, you acknowledge and agree that you will only communicate via ArtPad services with individuals who are 18 years old or older. If it comes to your attention that an individual is under age 18, you must not communicate with such user. Art.com reserves the right, though it does not have the obligation, to monitor the Website and any communications to or from ArtPad. If, at any time, we discover that you are using ArtPad or the Website for any reason other than as in accordance with this Agreement, your participation in ArtPad services will be terminated immediately.
5. Termination of this Agreement.
The term of this Agreement will begin upon your acceptance of this Agreement and will continue as long as you use ArtPad services.
You acknowledge that Art.com owns ArtPad and the Website and all elements and rights therein. Art.com grants you a revocable, non-exclusive, non-transferable, limited right to access, use and display the Content. You grant to us a non-exclusive, worldwide, royalty-free license to utilize the Content, to advertise, market, promote, and publicize in any manner including but not limited to all areas of the Website, our partner affiliate sites, in internet advertising and off-line multi-media materials; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the expiration or termination of this Agreement unless otherwise specifically stated in this Agreement.
You shall not make any use of any Art.com trademarks, logos, or trade dress; however, Art.com shall reserve the right to display any such trademarks, trade dress and logos on any part of the website, including without limitation, ArtPad. You shall not incorporate into any other product, copy or otherwise attempt to recreate any element of the Website or ArtPad, including any source code or functionality and you shall not authorize or assist any third party to do so.
The rights granted by Art.com herein do not constitute any assignment of ownership or other transfer of ownership interests therein or in any property of Art.com, including without limitation, any intellectual property of Art.com to User and User shall not sell, assign or otherwise transfer any right in the Website, ArtPad or the Content. Art.com may terminate the authorization, rights and licenses granted herein at any time and require you, upon notice of such termination, to destroy any and all Content.
All licenses, rights and interests in, to and with respect to ArtPad, the Website, the elements and parts thereof and the media of exhibition not specifically granted herein to User (including, without limitation, all rights of copyright) shall be entirely reserved, as between the Parties, to Art.com and may be fully utilized by Art.com without limitation and without regard to any licenses and rights granted herein.
You acknowledge that the Renderings created using ArtPad shall be the property of Art.com and you agree that, in consideration for using ArtPad services, you agree that all copyrights and other intellectual property rights in the Renderings are assigned to Art.com. Art.com shall have all rights of such ownership including the perpetual, worldwide right to reproduce, distribute, sell, display, perform, adapt and promote the Renderings in any medium. You waive any right to inspect or approve uses of the Renderings or to be compensated for any such uses and you waive any moral rights including rights of attribution. Subject to your compliance with and acceptance of this Agreement, Art.com authorizes you to use ArtPad to view the Renderings on the Website and forward email links thereto only for your personal, non-commercial use.
THE ARTPAD, CONTENT, WEBSITE AND ANY INFORMATION AND MATERIALS CONTAINED THEREIN ARE PROVIDED "AS IS". WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ARTPAD, CONTENT OR WEBSITE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF ARTPAD OR THE WEBSITE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT VIRUSES, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, ERRORS OR VIRUSES. SOME JURISDICTIONS DO NOT ALLOW SUCH EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9. Disclosure for Legal Purposes.
You hereby authorize us to disclose information if we believe the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with ArtPad specifically or the Website in general, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put us at risk for liability or is otherwise required by law. We will, whenever we believe reasonably possible, use our reasonable efforts to inform you if such information may be so revealed.
10. Representations and Warranties.
You hereby represent and warrant to us as follows:
YOU POSSESS ALL REQUISITE RIGHTS IN AND TO ALL ELEMENTS OF THE CONTENT IN ORDER TO GRANT TO ART.COM THE RIGHTS GRANTED IN THIS AGREEMENT AND CONTEMPLATED HEREIN AND AGREE TO PROVIDE ART.COM WITH DOCUMENTATION EVIDENCING THE SAME, UPON ART.COMíS REQUEST.
You hereby agree to indemnify and hold harmless Art.com and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that any element of the Content as used in connection with this Agreement infringes on any trademark, trade name, service mark, copyright, license, publicity right, privacy right, goodwill, patent, or other intellectual property or proprietary right of any third party; (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein; or (iii) any claim related to any element of the Content.
12. Limitation of Liability.
ART.COM SHALL NOT BE LIABLE TO YOU OR ANY ENTITY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, PROFITS, OR DATA ARISING IN CONNECTION WITH ANY ASPECT OF THIS AGREEMENT, ARTPAD, THE CONTENT OR THE WEBSITE EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
14. Entire Agreement and Amendments.
Except as otherwise specifically provided herein, this Agreement constitutes the entire agreement between the Parties relating to this subject matter, and all prior negotiations and understandings, whether oral or written, are superseded.
15. Governing Law.
This Agreement will be governed by the laws of the United States and the State of North Carolina, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Wake County, North Carolina, and you irrevocably consent to the jurisdiction of such courts.
Art.comís failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
17. Survival of Provisions.
The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 15 and 17 hereof shall survive termination of this Agreement.