MYARTWORK.COM INC. USER AGREEMENT
myArtwork.comís mission is to build a strong social marketplace where its users can discuss, buy and sell art. The Internet (ďSiteĒ) is located at http://www.myartwork.com . myArtwork.com Inc. allows individuals to list and sell their photographs, paintings, sculptures, digital-art, drawings, glass, jewelry, crafts and other works of art (collectively "Art"). The listing and sale services (the "Services") are provided by myArtwork.com INC. ("myArtwork.com" or "we") to you ("you" or "user") subject to the following terms and conditions set forth in this User Agreement (this "User Agreement").
Acceptance of Terms. Before you attempt to sell or purchase any Art through myArtwork.com and/or begin participating in the Services, we require that you read and accept this User Agreement. BY CHECKING ON THE SPACE BELOW NEXT TO THE BUTTON MARKED "ACCEPT," YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND ALL AGREEMENTS AND POLICIES INCORPORATED BY REFERENCE. If you choose not to accept this User Agreement, you may not access or otherwise use the Site. If you have any questions regarding this User Agreement, please contact our Customer Service department by going to http://www.myartwork.com.com/contact .
Amendment. We may, at our sole discretion, change, modify, add or remove any portion of this User Agreement, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. Your continued use of the Site and the Services after such changes are posted will constitute your agreement to such changed User Agreement. This User Agreement was last revised on April 30, 2009.
Capacity to Contract. The Services are available only to individuals or entities who can form legally binding contracts. Without limiting the foregoing, neither minors (persons under the age of 18) nor individuals who have been suspended from the Services may participate in the Services. If you are under the age of 18, you can use the Services only in conjunction with, and under the supervision of, your parents or guardians. If you are registering as a business entity, you represent that you have the authority to bind the entity to this User Agreement.
Registration. In order to participate in the Services, you must register with myArtwork.com by filling out our registration form and providing certain information to myArtwork.com. To become a member, first go to http://www.myartwork.com.com/signup.php. When myArtwork.com has notified you that your registration form has been approved, you will become a "Registered User." You agree that the information on your registration form is complete and accurate, and that you will update it in order to keep it current. myArtwork.com reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion, and to prohibit you from participating in the Services. Further, the rights granted to you as a Registered User may not be transferred or sold to another party.
Username, Password and Security. During the registration process, you will select a user name and password. You are solely responsible in all respects for all use of and for protecting the confidentiality of your username and password. You agree to notify myArtwork.com immediately of any unauthorized use of any username and password and any other breach of security regarding the Services.
myArtwork.com's Relationship to You. myArtwork.com is not a party to any transaction relating to the Art. myArtwork.com is a venue for sellers to list Art and for buyers to purchase such Art. myArtwork.com has no control over the sellers, buyers or any aspect of the transactions. We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of any state or federal law, including without limitation, any state version of the Uniform Commercial Code, under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller.
Release. In the event that you have a dispute with one or more users, you release myArtwork.com (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code ß1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Information Control. myArtwork.com cannot control the information provided by users which is made available through the Services. Users may find other users' information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using the Site. myArtwork.com has no control over the quality or legality of the Art listed, the truth or accuracy of the listings or any other information provided by a user about the Art.
Displaying. You must be a Registered User in order to display Art.
Displaying Policy. In order to display your Art on the Site, you can add images of your Art through myArtwork.comís control panel. Registered Users must maintain their Art so that it stays accurate. myArtwork.com reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion if any of the Art added does do not contain accurate information. myArtwork.com reserves the right to disapprove for any reason, at its sole discretion any Art displayed.
Displaying Period. The registered user may add or remove their Art from the Site at any time.
LISTING AND SELLING ART
Listing and Selling. You must be a Registered User in order to list and sell Art.
Listing Policy. In order to list your Art for sale on the Site, you must complete the billing section within your profile and keep this information current (http://www.myartwork.com.com/profile.php?action=billing_preferences). After completing this section, you may then add products to any of the works or art you previously displayed through myArtwork.comís control panel. Sellers must maintain all of their listings so that they stay accurate. myArtwork.com reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion if listings do not contain accurate information such as accurate shipping guidelines and pricing. myArtwork.com reserves the right to disapprove for any reason, at its sole discretion any listings.
Listing Period. The seller may add or remove their Art from the Site at any time.
Basic Listing Obligation. By listing Art on the Site, the seller agrees to sell the Art once a buyer has completed the check-out process and must abide by the pricing and shipping guidelines the seller had in place at the time the check-out process was completed.
Listing Pricing Policy. The Art listed on the Site must be offered at a price lower than or equal to any price at which the Art is offered on other websites.
Purchasing. You must be a Registered User in order to purchase the Art. Buyers are obligated to complete the sale transaction upon completion of the check-out process.
Buyer Liable for Purchase Price, Freight and Transportation Fees and Sales Tax. Buyers are liable for the posted purchased price of the piece(s) of Art, any insurance, packing, freight and shipping fees associated with the purchase, and any applicable sales tax (collectively, the "Purchase Fees").
Payments. Payment for the Art will be made directly to the seller by the payment method set by the seller for the Art purchased. This payment method could be Paypal or by check payable to the seller. All posted purchase prices are listed according to their value in U.S. dollars. If payment is made by check, it is at the sellerís sole discretion if the piece(s) of Art will be shipped before the check clears.
DELIVERING THE PURCHASED ART
Shipping and Packing. Seller shall pack the piece(s) of Art and ship them to the address specified by buyer. The piece(s) of Art should be packed so as to protect them during shipment. myArtwork.com shall not participate in the packing and shipping process, and in no event shall myArtwork.com be liable for any damages of any kind arising from the packing or shipment of any Art.
Freight and Transportation. The buyer is responsible for the costs associated with all freight, shipping and other costs related to transporting the Art from the seller's location.
Ownership Transfer. The Art shall be and remain the risk of the seller until it is shipped to the buyer, and thereafter the risk shall shift to the buyer.
Return Period. It is at the sellerís sole discretion if they want to offer a return.
Return Process. If the returned piece of Art has not been altered and the seller offers a return policy, the seller shall accept the returned piece of Art and notify the buyer and myArtwork.com of its acceptance of the returned piece of Art. Once the seller, receives the returned piece of Art, the Purchase Fees less any insurance, packing, freight and transport fees associated with buyer's purchase shall be reimbursed to the buyer by the seller for the same amount within thirty (30) days of receiving verification. myArtwork.com shall have no obligation to reimburse the buyer or seller for any returned Art. The seller shall have no obligation to reimburse buyer for any returned Art unless and until the seller, has viewed the returned piece and find it in its original state. Insurance, packing and shipping fees associated with the return of the returned piece of Art shall be the sole responsibility of the buyer, and myArtwork.com shall have no obligation to reimburse the buyer for such amounts. Once myArtwork.com receives notification of seller's acceptance of the returned piece of Art, myArtwork.com shall refund the commission fees associated with buyer's purchase. Reimbursement shall be made to the seller by issuing a credit card refund.
FEES AND COMMISSIONS
Fees and Commissions. Our fees and commissions are available at http://www.myartwork.com.com/tour.php?page=6 and are hereby incorporated by reference. myArtwork.com may change its fees, payments and commissions from time to time.
Tax Responsibility. Title to the Art does not pass to myArtwork.com. The seller is the retailer for sales tax purposes. The seller shall file all sales tax returns in accordance with applicable law, and each seller shall indemnify myArtwork.com against any tax, cost or expense relating to the failure of such seller to satisfy any tax liability related to the sale of such seller's Art.
Tax Procedures. Upon registering the seller shall include in their purchase price the sales tax rate for the state within which the seller must pay taxes. If a buyer purchases a piece of Art from a seller that resides in the same state, the seller will be responsible for the sales tax at the rate for the state within which such buyer lives, and such sales tax charged and collected must be paid to the state by the seller.
Any information you provide during the registration, listing or sale/purchase process and your activities on the Site shall not: (i) be false, inaccurate or misleading; (ii) be fraudulent or involve the sale of counterfeit or stolen items; (iii) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iv) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (v) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (vi) be obscene or contain child pornography; (vii) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) create liability for myArtwork.com or cause it to lose (in whole or in part) the services of its ISPs or other suppliers; or (ix) link directly or indirectly to or include descriptions of goods or services that: (a) are prohibited under this User Agreement; (b) are concurrently listed for sale on a website other than the Site; or (c) you do not have a right to link to or include.
Your Information. You agree to grant myArtwork.com a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to exercise the copyright, publicity, and database rights you have in the information you have provided to us, in any media now known or not currently known, including, without limitation, any images of your pieces of Art. myArtwork.com will use such information solely to enable it to provide the Services.
The Site and Services. The trademarks, trade names, designs and all material contained on this Site, including all portions of the website, content, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of myArtwork.com or its licensors. The use of any such property for any other reason, on any other website, or the modification, distribution or republication of this material without the prior written permission of myArtwork.com, is strictly prohibited.
Copyright Violations. If you believe that your material or the material of another user has been wrongfully used in a way that constitutes copyright infringement, myArtwork.com has a process for you to register your complaint through the following link: http://www.myartwork.com.com/contact.php
In order for myArtwork.com to investigate and address your complaint, please provide myArtwork.com with all of the information requested. If a clear infringement of copyright, trademark, patent, publicity rights or other right comes to the attention of myArtwork.com, myArtwork.com reserves the right to delete all infringing material from the Site and to suspend you from using the Services, even without receiving a complaint from the person whose rights have been infringed.
How We Handle Copyright Violations. Upon receiving notice of a potential copyright infringement, myArtwork.com may immediately delete or suspend access to the infringing material. myArtwork.com may also provide the user who posted the allegedly infringing material with contact information for the complaining party and may ask that the user work with the complaining party to resolve the dispute. If myArtwork.com has deleted or suspended access to materials you posted on the Site because of a complaint that the posting infringed someone else's copyright, it will attempt to provide you with written notice of its actions. If you disagree with such actions and want to have the materials returned to the Site, please provide us with a written response within ten (10) days after receiving the notice from us (a "Response"). Each Response must contain the following:
Your physical or electronic signature;
Identification of the material that was deleted or made inaccessible;
A statement under penalty of perjury that you have a good faith belief that the material was removed or made inaccessible as a result of mistake or misidentification;
Your name, address and telephone number and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which myArtwork.com may be found, and that you will accept service of process from the person who complained that posting the materials constituted a copyright infringement or from an agent of that person.
A copy of your Response, including your name and address, will be sent to the person who complained about your posting. myArtwork.com will then decide, in its sole discretion, whether to re-display the deleted materials on the Site.
DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY
Disclaimer. THE ART, SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE OR THE SERVICES, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MYARTWORK.COM DOES NOT WARRANT THAT THE ART, SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT OF THE SITE WILL BE TIMELY, ACCURATE, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. MYARTWORK.COM MAKES NO WARRANTY THAT THE ART, SITE OR SERVICES WILL MEET USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING ART ON THE SITE, THE LISTED ART WILL BE SOLD. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES. MYARTWORK.COM MAKES NO WARRANTY REGARDING ANY ART PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MYARTWORK.COM OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. MYARTWORK.COM EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY ART SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
Limitation of Liability. IN NO EVENT SHALL MYARTWORK.COM BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (I) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE ART (II) DEFECTS IN SUCH ART ON ANY THEORY OF LIABILITY OR (III) ANY RETURN OF ANY ART. IN ADDITION, IN NO EVENT SHALL MYARTWORK.COM BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF MYARTWORK.COM OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL LIABILITY OF MYARTWORK.COM TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS USER AGREEMENT OR YOUR USE OF THE SITE AND THE SERVICES EXCEED, IN THE AGGREGATE, $100.00.
Indemnity. You agree to defend, indemnify and hold harmless myArtwork.com, its officers, directors, agents, subsidiaries and employees, from claims, demands and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any breach or violation by you of this User Agreement, any use by you of the Site or any disputes or damages arising out of your use of or contracts formed with you through this Site.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). THE ARBITRATION SHALL BE BEFORE A SINGLE ARBITRATOR AND THE ARBITRATION SHALL TAKE PLACE IN DALLAS, TEXAS. IF NOT MUTUALLY AGREED UPON, THE ARBITRATOR SHALL BE SELECTED ACCORDING TO AAA RULES FROM A LIST, PREPARED BY THE AAA, OF PERSONS HAVING EXPERTISE IN THE SUBJECT MATTER. THE AWARD SHALL BE IN WRITING AND IN ACCORDANCE WITH APPLICABLE LAW. JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS PROVISION IS SELF-EXECUTING, AND IN THE EVENT THAT EITHER PARTY FAILS TO APPEAR AT ANY PROPERLY NOTICED ARBITRATION PROCEEDING, AN AWARD MAY BE ENTERED AGAINST SUCH PARTY NOTWITHSTANDING SAID FAILURE TO APPEAR.
Eligibility. Only Registered Users are eligible to participate in the Services.
Third Party Links. Where myArtwork.com provides links to third party Internet sites, no representations or endorsements are made in connection with such sites. myArtwork.com is not liable for any damages or injury arising from use of such sites.
Modification and Availability. myArtwork.com may, at any time, delete, modify or supplement the content of the Site without prior notice. myArtwork.com reserves the right, for any reason, at its sole discretion, to terminate, change, suspend or discontinue any aspect of the Site or the Services, including, but not limited to, content, features or hours of availability. myArtwork.com may also impose limits on certain features of the Services or restrict your access to part or all of the Site or the Service without notice or penalty.
Monitoring. You agree that myArtwork.com has the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content on the Site. myArtwork.com reserves the right at all times to edit, disclose or refuse to post any material or information or request removal of or remove any material or information from the Site.
Access and Interference. You agree that you will not use any automatic device or manual process to monitor or copy myArtwork.com's web pages or the content contained herein. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on myArtwork.com's infrastructure.
Service Integrity. myArtwork.com makes reasonable commercial efforts to make its Services and Site available at all times. However, myArtwork.com is not responsible for any interruptions, including, but not limited to, interruptions that may affect the receipt, processing or acceptance of any aspect of a sale.
Termination. This User Agreement constitutes a legally binding agreement between you and myArtwork.com until terminated by you or myArtwork.com, which myArtwork.com may do at any time, without notice, at myArtwork.com's sole discretion. If you become dissatisfied with the Services or the Site in any way, your only recourse is to immediately discontinue use of the Services.
Governing Law. This User Agreement is made and shall be governed by and construed in accordance with the laws of the State of Illinois, excluding its choice of law principles.
Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this User Agreement, breach of the provisions of this User Agreement by you will cause myArtwork.com irreparable damage for which recovery of money damages would be inadequate, and that we shall therefore be entitled to obtain timely injunctive relief to protect our rights under this User Agreement in addition to any and all other remedies available at law or in equity.
Waiver. The failure of you or us to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Severability. In the event that any provision of this User Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this User Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Entire Agreement. This User Agreement comprises the entire agreement between you and myArtwork.com and supersedes all prior agreements between the parties, regarding the subject matter contained herein. All provisions in this User Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this User Agreement.