1. Conditions on Using the Services
a. Basic Terms. This Agreement applies to your use of the Services whether or not you register for an Artkick account, and whether you use the Services to browse, search, display, exhibit or share Content (as defined below) or otherwise. If you are accepting this Agreement on behalf of a business or other entity, you represent and warrant that you are authorized to bind the entity to this Agreement, in which case the terms “you” and “your” in this Agreement will refer to the entity.
b. Your Account. In order to use certain features of the Services, you will be required to register for an Artkick account. You agree to provide only accurate and true information in connection with your account and to update your information as necessary so it is always accurate and current. You may not rent, sell or otherwise transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services.
2. Content and Ownership
a. Content Generally. In this Agreement, the term “Content” includes all of the images, text, information, data, audio, video, graphics and other material included on or otherwise made available through the Services. Content includes but is not limited to User Content. In this Agreement, the term “User Content” includes all Content that is submitted, posted or otherwise provided on or through the Services by users. We do not claim ownership over any User Content, and each user is solely responsible for any User Content that they make available through the Services.
b. Proprietary Rights. Other than images of artwork within the public domain, all Content is owned by Zwamy or by others who have licensed their Content to us, and is protected by U.S. and international copyright laws, trademark laws and/or other proprietary rights and laws. As between you and Zwamy and its licensors, Zwamy or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, all Content that we or our licensors create and that we make available to you through the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, moral rights, database rights and other intellectual property and proprietary rights therein. “ARTKICK” and the associated logo and the other trademarks, service marks, logos and trade names displayed on or in connection with the Services are the registered and unregistered trademarks and service marks of Zwamy or third parties in the United States and/or other countries. Your use of the Services does not grant you any ownership over any Content, and except for the limited license and permission to access and use the Services that we grant you under this Agreement, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Zwamy or any third party, whether by implication, estoppel or otherwise. We reserve all rights not expressly granted to you in this Agreement.
c. Use of Services; Content. Zwamy grants you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, in the manner permitted by this Agreement. You may view, on your internet-connected television or other internet-connected device, Content within the Services for your own personal, internal use in connection with your use of the Services, in accordance with the normal functionality and restrictions of the Services. We may also provide interactive features that enable you to post or share certain Content in a way that will be accessible to others, including through the Services’ “viewlist” function, in which case you may use such features to post or share such Content, but only in accordance with the normal functionality and restrictions of such features; and such features do not imply any further permission to use, or for any third party to use, any Content in any other manner. Except as expressly permitted in this Agreement, you may not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any Content for any purpose without express prior written permission from us or the applicable rights holder. Any commercial exploitation of any Content without express prior written permission from us or the applicable rights holder is strictly prohibited.
d. Software. All software used on the Website and in connection with delivery of the Services (the “Software”) is proprietary to us or to third parties and, except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such Software to human-readable form is prohibited. Without limitation of the foregoing, in no event shall you reverse engineer or otherwise use the Software, Services or Website in connection with the development of any product or service that competes with the Website or Services. Software (if any) that is made available to download from the Website, the Apple AppStore or through Google play is the copyrighted work of Zwamy and/or its suppliers. Your use of such Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (an “End User License Agreement”). You may not install or use any Software that is accompanied by or includes an End User License Agreement unless you first agree to the terms of such End User License Agreement. If there is any conflict between any such End User License Agreement and this Agreement, the relevant provisions of the End User License Agreement will apply as it relates to your use of the Software, but not to your use of any other features of the Services. You agree that we may update the Software that we make available to you without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.
e. Mature Content Warning. Please note that Content displayed on and in connection with the Services covers a wide range of art and subject matter, is generally uncensored, and may include material that some people may consider offensive or inappropriate for children and minors. If you allow your child or any other minor to use any device on which the Content may be displayed, it is solely your responsibility to prevent them from accessing any Content that you think is or may be inappropriate for them.
3. User Content
b. User Content License. We do not claim any ownership rights in your User Content, and you remain the owner of any intellectual property rights that you have in your User Content. By submitting, posting or providing any User Content on or through the Services, you grant us a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute, publish, adapt, modify, translate, create derivative works from, publicly perform and publicly display your User Content, in any media now known or later developed, for the purposes of developing, distributing, promoting and providing the Services. You represent and warrant that you own or otherwise control all of the rights to your User Content, and that the use of your User Content does not violate this Agreement and will not violate any rights of or cause injury to any person or entity.
c. Right to Monitor or Remove. We reserve the right, but do not have an obligation, to monitor or review any User Content or activity on the Services, to investigate alleged or suspected violations of this Agreement or to otherwise administer and operate the Services, at any time and in our sole discretion, and we may disclose any User Content or activity if we believe that disclosure is reasonably necessary to comply with any law, regulation, legal process or government request. We also reserve the right to remove or refuse to publish any User Content, in whole or in part, if we believe that such User Content may violate this Agreement, the law or any third party rights, or for any other reason or no reason, without notice or liability, at any time and in our sole discretion. You agree that we will not be liable for any use of your User Content by us in accordance with this Agreement.
d. No Endorsement. We do not endorse or make any representations or warranties as to the accuracy, completeness, truthfulness or reliability of any User Content or any advice, ideas or information communicated on or in connection with the Services by any users or other third parties. You agree that any reliance by you on any such advice, ideas or information is solely at your own risk. You agree that we have no obligation to review or screen any User Content before it is published on the Services, and you acknowledge that by using the Services, you may be exposed to User Content that is inaccurate or misleading or that you otherwise find objectionable. You agree that we will not be liable or responsible for the User Content of any other user.
4. Rules and Guidelines
You agree that you will not do any of the following:
a. submit, post or provide any User Content, or take any other action that: (i) violates or infringes any third party rights (including but not limited to any copyrights, moral rights, trademark rights, trade secret rights, patent rights, privacy rights, publicity rights or contract rights): (ii) violates or infringes any applicable local, state, national or international laws, rules or regulations of the United States or any other applicable jurisdiction (including but not limited to any tax laws, consumer protection laws, or laws governing the export and/or import of data, software or any other property); (iii) is deceptive, misleading, fraudulent, defamatory, libelous, abusive, harassing, discriminatory, hateful, malicious, inciting of violence, threatening, sexually explicit or obscene;
b. impersonate or misrepresent your affiliation with any person or entity, including but not limited to creating a misleading user profile with inaccurate or untrue information;
c. access, tamper with or use any non-public areas of the Services, our computer systems, or the technical delivery systems of our service providers;
d. probe, scan or test the vulnerability of the Services or breach any security or authentication measures; or take any other action intended to obtain unauthorized access to any personal or proprietary information or property of Zwamy or any other person or entity;
e. interfere or attempt to interfere with the normal operation of the Services or the access of any user, including but not limited to transmitting any viruses or harmful code, flooding the Services with excessive requests or traffic, or taking any other action that creates, in our sole discretion, an unreasonable or disproportionately large load on our servers or systems;
f. use any automated methods or tools to crawl, robot, scrape, spider or otherwise monitor or extract data from any part of the Services without our express prior written permission;
g. decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any of the source code or underlying ideas or algorithms of any part of the Services, except to the limited extent that applicable laws specifically prohibit such restrictions;
h. post or send any unauthorized or unsolicited advertising, promotional materials, marketing email or spam;
i. forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services or any Content to send altered, deceptive or false source-identifying information;
j. mirror or frame any part of the Services on any other website;
k. use any meta-tags or other hidden text or metadata containing any Zwamy trademark, URL or product name without our express prior written permission;
l. use any Zwamy trademark, URL, product name or logo in any way that incorrectly suggests our affiliation with or endorsement of any person, entity, product or service; or use any other trademarks, service marks, trade dress, designs or logos that are confusingly similar to any Zwamy trademark, product name or logo or to the look and feel of the Services;
m. remove, alter or tamper with any copyright, trademark or other proprietary notices or any digital watermarks or other technical measures used to indicate the source and/or ownership of any images or other Content; or
n. assist or encourage any third party to do any of the above activities prohibited in this section or to otherwise violate any Zwamy agreement or policy.
You represent and warrant that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into, abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. In any case, you affirm that you are over the age of 13, as THE WEBSITE IS NOT INTENDED FOR CHILDREN UNDER 13.
6. Other Websites and Services
The Website or Services may provide links and features that enable you to access other third-party websites or services that are not owned or controlled by us. Any such websites or services are not under our control, and we are not responsible for the contents of any linked site. We provide these links or otherwise enable such access as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Zwamy. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
7. Warranty Disclaimers and Limitations of Liability
If you are a paying Artkick subscriber, we warrant that the Services will materially perform the functions described for them on the Website. Your sole and exclusive remedy, and Zwamy’s sole and exclusive liability, with respect to any breach of this warranty shall be that Zwamy shall remedy the non-conformance upon receipt of written notice from you detailing such non-conformance or, if we are unable to do so, we will refund the fees you paid for the Services during the period of non-conformance. EXCEPT AS STATED IN THIS PARAGRAPH, ZWAMY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, THE CONTENT OR THE WEBSITE. EXCEPT TO THE EXTENT THAT SUCH WARRANTIES CANNOT BE DISCLAIMED BY LAW, ZWAMY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES, WEBSITE AND THE CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE CONTENT.
If you are not a paying Artkick subscriber, you use the Services, the Content and the Website at our own risk, and you acknowledge that you are responsible for verifying and confirming the quality, performance, accuracy and reliability of the Services and of any data obtained by you from the Services. The Services, Website and Content are provided in “AS IS” condition, and Zwamy EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES, WEBSITE AND THE CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE CONTENT. No advice or information, whether oral or written, obtained by you from Zwamy, or through the Services, the Website or Content will create any warranty not expressly stated herein.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM ZWAMY ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICES, WEBSITE OR CONTENT, EVEN IF ZWAMY HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
ZWAMY’S MAXIMUM AGGREGATE LIABILITY TO YOU WITH RESPECT TO ANY DAMAGES ARISING IN CONNECTION WITH USE OF THE SERVICES, THE WEBSITE OR SITE CONTENT SHALL BE THE GREATER OF $10 OR THE AMOUNT OF ANY SUBSCRIPTION FEES RECEIVED BY ZWAMY FROM YOU, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING REMEDIES AND LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold Zwamy and our officers, directors, agents and employees harmless from and against any action or claim asserted by any third party arising out of or related to your breach of this Agreement, your User Content, any misrepresentation made by you, or your violation of any applicable law or any third party right, including any damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of any such action or claim. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with us in asserting any available defenses. This indemnification and defense obligation will survive this Agreement and your use of the Services.
9. Applicable Law and Jurisdiction
The Website and the Services are operated by Zwamy from the United States, and we do not represent or warrant that use of the Website or the Services is lawful in other jurisdictions. All matters arising from or relating to this Agreement, the Website or to the use and operation of the Services shall be governed by the substantive laws of the State of California, without regard to its conflicts of laws principles. Without derogation of the obligation to arbitrate set forth in Section 10 below, you and we agree to submit to the personal jurisdiction of the state and federal courts located in San Francisco, California. The Uniform Computer Information Transactions Act shall not apply to this Agreement. If you gain access to the Services from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the Services or Content in violation of U.S. export laws or regulations.
10. Arbitration and Dispute Resolution
All disputes arising out of or relating to this Agreement, the Website or the Services shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect (for information on the AAA and its rules, see www.adr.org.) and the further procedures set forth herein, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The arbitration shall be conducted in San Francisco, California, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Zwamy does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement, the Website or the Services shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting San Francisco, California except that, following confirmation of an arbitration award in a state or federal court in San Francisco, California, a judgment arising therefrom may be executed in any court of competent jurisdiction.
11. Changes to this Agreement
This version of this Agreement became effective on March 28, 2014 and amends, restates and replaces any version effective prior to such date. We reserve the right, in our sole discretion, to modify this Agreement, in whole or in part, at any time, with or without your consent. Notification of any amendment will be posted on the Website and will be effective immediately. You are under an obligation to review the current version of this Agreement and other Zwamy policies before using the Website or the Services. Your use of the Website or the Services following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.
You may discontinue your use of the Services at any time. You agree that we may terminate this Agreement, or limit, terminate or suspend your access to or use of any or all of the Services at any time and in our sole discretion, without notice or liability, for any reason or no reason, including but not limited to your breach this Agreement. After any termination of this Agreement and/or after you otherwise stop using the Services, the following will survive and remain enforceable and in full force and effect: (i) all outstanding obligations between you and us, including any payment obligations; (ii) all remedies for breach of this Agreement; and (iii) the following sections of this Agreement: 2 (Content and Ownership), 3 (User Content), 6 (Other Websites and Services), 7 (Warranty Disclaimers and Limitations of Liability), 8 (Indemnity), 9 (Applicable Law and Jurisdiction), 10 (Arbitration and Dispute Resolution), 12 (Termination) and 18 (Miscellaneous Provisions).
13. Miscellaneous Provisions
No delay or omission by Zwamy in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Zwamy of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, “including” means “including but not limited to.” If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Zwamy regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.
14. Digital Millennium Copyright Act
Zwamy complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Services you may contact our Designated Agent at the following address: Zwamy Designated Agent, Zwamy, Inc. 27811 Saddle Court, Los Altos Hills, CA. 94022 – TEL: 925-997 4305 – EMAIL: email@example.com/
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (a) a physical or electronic signature of the subscriber; (b) identification 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 to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of the United States District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Zwamy may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
15. Electronic Communications
You consent to receive communications from us electronically, and you agree that we may communicate with you by email or by posting notices on the Services. You agree that all agreements, notices, disclosures and other communications that we provide to you, or that you provide to us, electronically satisfy any legal requirement that such communications be in writing. We are not responsible for any automatic filtering that may be applied to any email notices that we send to the email address you have provided.