Terms and Conditions
UPDATED NOVEMBER 2016
1 . BASIC TERMS
1.1 You may use our Services only if you can form a binding contract with us, and only as permitted by law. You are not allowed to use our Services if you are a person under the age of thirteen (13). Additional eligibility requirements may apply to some Services, and we will notify you of those requirements in these Terms or otherwise in connection with those Services.
1.2 If you are using our Services on behalf of a company or other entity, you represent and warrant that you are at least eighteen (18) years old, and that you are authorized to bind that company or other entity to these Terms, in which case the terms “you” and “your” in these Terms will refer to that entity.
1.3 We offer a variety of Services, and additional guidelines, terms and conditions may apply to some Services (“Service Terms”). By using those Services, you agree to their Service Terms. If any of our Services have Service Terms that conflict with these Terms, those Service Terms will control to the extent of the conflict as relates to those Services.
1.5 You will need to register for an elmgARTS account in order to use some of our Services. You agree to provide only true and accurate information in connection with your account, and to update all such information as necessary to keep it accurate and current.
1.6 You are responsible for maintaining the confidentiality of your account password, and for all activities that occur under or through your account or password. You agree to notify us immediately if you suspect or become aware of any unauthorized access to or use of your account or password or other breach of security on our Services.
1.7 The permission we give you to register for an elmgARTS account and use our Services under these Terms is non-exclusive and non-transferable. You are not allowed to rent, sell, lease, sublicense or otherwise transfer your elmgARTS account, or any access to or use of our Services, to any third party.
1.8 We may reclaim or repurpose any username or URL on our Services, at any time at our sole discretion, for any reason, including if we believe it is necessary to comply with the rights of a third party.
1.9 Some of our Services may be accessible on mobile devices. You agree not to use those Services in a way that distracts you and prevents you from complying with any traffic or safety laws.
1.10 You consent to receive communications from us electronically, and you agree that we may communicate with you by posting notices on our Services and/or by email. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that all notices we provide to you by email will be considered received by you on the day that we send them. If you register for an elmgARTS account or otherwise provide us with an email address, you agree that we are not responsible for any automatic filtering that you or your network provider may apply to any email that we send to the email address you provided.
1.11 You are responsible for providing any equipment (such as computers or mobile devices) and network access necessary for you to use our Services or communicate with us at your own cost.
In these Terms:
“User” means any person or entity that accesses or uses our Services in any way, whether or not they register for an elmgARTS account, including you.
“Content” means any and all images, text, information, data, audio, video, graphics, computer code, software, and other material provided on or through our Services, including when we send you email. Content includes both elmgARTS Content and User Content.
“elmgARTS Content” means any and all Content that we provide on or through our Services, including Content licensed from a third party, but excluding User Content.
“User Content” means any and all Content that a User submits, posts, publishes or otherwise provides on or through our Services.
“Your User Content” means any and all User Content that you submit, post, publish or otherwise provide on or through our Services.
“on our Services” means on the elmgARTS website and/or (as applicable) on any elmgARTS mobile application.
“including” means “including but not limited to” unless we specifically indicate otherwise.
3.1 All Content is owned by elmgARTS 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. Our Services are also protected as a compilation and/or collective work under U.S. and international copyright laws.
3.2 The trademarks, service marks, logos, and product names displayed on or in connection with our Services are the registered and unregistered trademarks and service marks of elmgARTS or third parties in the U.S. and/or other countries.
3.3 As between you and elmgARTS, elmgARTS owns and retains, solely and exclusively, all rights, title, and interest in and to our Services, the look and feel, design and organization of our Services, all elmgARTS Content, and the compilation of all Content on our Services, including all copyrights, moral rights, trademark rights, trade secrets, patent rights, database rights, and other intellectual property and proprietary rights therein.
3.4 These Terms do not grant you any ownership over any Content, or any intellectual property rights in any Content, although you remain the owner of any intellectual property rights that you may have in Your User Content.
3.5 Neither these Terms nor your use of our Services grants you any license or permission under any copyright, trademark, or other intellectual property of elmgARTS or any third party, whether by implication or otherwise.
3.6 These Terms do not grant you the right to use any of our trademarks, service marks, logos, product names, domain names, or other distinctive brand features in any way.
3.7 We welcome feedback, comments and suggestions about our Services (“Feedback”). However, you acknowledge and agree that we will have the right to use any and all Feedback at our sole discretion, for any and all purposes, commercial or otherwise, without any obligation of any kind to you. In any case, we will have no obligation to act on, use or respond to any Feedback in any way.
3.8 We reserve all rights not expressly granted to you in these Terms.
4. GENERAL CONTENT TERMS
4.1 Please note that Content covers a wide range of art and subject matter, is generally uncensored, and may include nudity or other visual or written material that some people may consider offensive or inappropriate for children and minors. If you allow your child or anyone else to use your computer or other device, it is solely your responsibility to prevent them from accessing any Content that you think is or may be inappropriate for them.
4.2 Subject to these Terms, you may access and view Content within our Services for your own personal, non-commercial use, in the context of your elmgARTS User experience, in accordance with the normal functionality and restrictions of our Services.
4.3 We value open source software, and some software used in our Services may be offered under an open source license that we will make available to you. The open source license may contain provisions that override some of these Terms as relates to the use of that software.
4.4 Some Services may enable you to post, embed or transmit some Content in a way that will be accessible to others on our Services or in other locations online (such as other websites and social media services). You may use such Services in accordance with their normal functionality and restrictions, as permitted by any applicable Service Terms. However, the availability of such Services does not imply or give you permission to reproduce, distribute or otherwise use such Content in any other way, whether on our Services or in any other location.
4.5 If you are a teacher, you may display Content on our Services to your students at a non-commercial indoor lecture or seminar conducted by you, provided you do not reproduce or distribute Content outside our Services in any way that is not specifically otherwise permitted by these Terms. Also, if any of your students access or use our Services, these Terms will apply to each of those students individually.
4.6 Except as expressly permitted by these Terms, you must not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any Content in any way without express prior written permission from us or (as applicable) the appropriate third-party rights holder.
4.7 Any commercial exploitation of any image or other Content without express prior written permission from us or (as applicable) the appropriate third-party rights holder, including any commercialized reproduction, distribution, publishing, or creation of derivative works, is strictly prohibited.
5. USER CONTENT AND COMMUNICATIONS
5.1 Some Services may enable Users to submit, post, publish or otherwise provide User Content. Each User is solely responsible for all User Content that they provide on or through our Services.
5.2 We do not endorse or make any representations or warranties of any kind with respect to any User Content and/or any statements, ideas, advice or opinions communicated on, through, or in connection with our Services (whether online, offline, orally, in writing or otherwise) by any User and/or third party, whether with respect to accuracy, completeness, truthfulness, reliability or otherwise. You acknowledge that any use of or reliance on any User Content and/or any such statements, ideas, advice or opinions is solely at your own risk.
5.3 You acknowledge that we have no obligation to review or screen any User Content, and that by using our Services, you may be exposed to User Content that is inaccurate, misleading, offensive or otherwise objectionable.
5.4 Some User Content may be marked as “featured” (or marked with other similar language) when it is provided on or through our Services. Such markings are for general informational use only and are not an endorsement, representation or warranty of any kind by us.
5.5 We reserve the right, but have no obligation, to monitor and/or review any and all User Content and/or communications transmitted on or through our Services, to enforce or investigate potential violations of these Terms or our other policies or agreements with Users, to detect, prevent or otherwise address fraud, security or technical issues, or to otherwise administer, improve or operate our Services and/or customer support, without notice or liability, at any time at our sole discretion. We also reserve the right to access, preserve and disclose any information if we believe it is reasonably necessary to: (i) respond to claims against us or comply with any law, regulation, legal process or governmental request; (ii) enforce or administer these Terms or our other policies or agreements with Users; (iii) conduct customer support, or detect, prevent or otherwise address fraud, security or technical issues; or (iv) protect or enforce the rights, property or safety of elmgARTS, you, or others.
5.6 We reserve the right to remove or refuse to display any User Content on our Services, in whole or part, if we believe that such User Content may violate these Terms, the law or any third-party rights, or for any other reason, without notice or liability, at any time at our sole discretion.
5.7 You acknowledge that you are in the best position to know if Your User Content may be used in connection with our Services. You are solely responsible for ensuring that Your User Content does not violate any law or regulation, or any right or intellectual property of any third party, including any copyright, moral right, trademark right, trade secret, patent right, privacy right, publicity right, or contractual right.
5.8 By submitting, posting, publishing or otherwise providing any User Content on or through our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right and license to use, host, store, reproduce, distribute, publish, adapt, modify, translate, create derivative works from, publicly perform, and publicly display Your User Content, in any and all media now known or later developed, for the purposes of operating, distributing, promoting, and improving our Services, and developing new Services. You represent and warrant that: (i) you own or otherwise control all of the rights to Your User Content; and (ii) the use of Your User Content does not violate these Terms and will not violate any right of, or cause injury to, any person or entity.
5.9 Nothing in these Terms will restrict any other rights that we may have or later obtain with respect to Your User Content, such as rights under applicable laws or other licenses.
5.10 We will not be liable or responsible for any User Content, or for any use of Your User Content by us in accordance with these Terms.
6. OPEN ACCESS IMAGES
6.1 Certain images of artwork or other objects displayed on our Services may be available to download and use independently outside our Services ("Open Access Images"). Open Access Images are sourced from third parties (such as certain museums or other organizations) that have made the images available for unrestricted use, or for use under certain conditions (such as attribution requirements or additional licenses).
6.2 In order to notify you which images are Open Access Images, we will provide a button marked “Download Image” (or an equivalently marked image downloading tool) with each Open Access Image on our Services (“Image Downloading Tool”). Where available, the Image Downloading Tool will be provided on the listing page for the artwork or other object depicted in an Open Access Image. Please note that if we do not provide an Image Downloading Tool with an image on our Services, that image is not considered an Open Access Image under these Terms.
6.3 You may download Open Access Images from our Services using the Image Downloading Tool that we provide, and you may use Open Access Images without restriction, subject to any applicable laws, and any applicable third-party rights and conditions. However, please note that this permission applies only to any rights that elmgARTS itself may have with respect to the use of Open Access Images.
6.4 We are not granting any permission or otherwise acting on behalf of any third party in connection with any Open Access Images. We do not represent or warrant that the use of any Open Access Images in any way will not violate the copyrights or other rights of third parties (such as trademark rights, privacy rights or publicity rights).
6.5 When you download or use Open Access Images in any way, you are solely responsible for determining and complying with any applicable third-party rights and conditions.
6.6 To help you determine what conditions may apply to the use of Open Access Images, certain rights information, source-identifying information, and conditions may be posted on our Services (for example, as part of the listing for the artwork or other object depicted in an Open Access Image). However, you agree that we have no obligation to post any such information or conditions on our Services, and that whether or not any such information or conditions are posted on our Services, additional conditions not posted on our Services may still apply, and you are responsible for determining and complying with them.
6.7 You acknowledge and agree that: (i) your use of Open Access Images is at your own risk; and (ii) we will not be liable to you or any third party for any claims, demands, damages or losses of any kind resulting directly or indirectly from your use of or inability to use any Open Access Images in any way.
7.1 Our Services include an online marketplace where Users may browse and purchase artwork. Our Services also include features that enable Users to contact and communicate with us about the artwork listed on our Services or otherwise.
7.2 Minors are not allowed to use our Services as buyers. Any person that uses our Services to buy artwork represents and warrants that she or he is at least eighteen (18) years old and is otherwise able to enter into and form binding contracts under applicable law.
7.4 Our Conditions of Sale contain important information and additional terms and conditions that apply to our marketplace. It is your responsibility to read them carefully before purchasing any artwork on or through our Services. Our Conditions of Sale are incorporated into and considered part of these Terms.
7.5 We reserve the right, at any time at our sole discretion, to de-list, or delay or suspend listing of any artwork on our Services. We will not be liable to any User for doing so.
8. GENERAL RESTRICTIONS
8.1 You agree that you will not (and will not attempt to, or assist or encourage any other person or entity to):
· submit, post, publish or otherwise provide any User Content on or through our Services, or take any other action in connection with our Services (whether online or offline), that: (i) infringes, misappropriates or violates the rights or intellectual property of any third party, including any copyright, moral right, trademark right, trade secret, patent right, privacy right, publicity right, or contractual right: (ii) violates (or encourages any conduct that would violate) any applicable local, state, national, or international law or regulation, including any tax law, consumer protection law, or law governing the export or import of data, goods, services or software; (iii) is deceptive, misleading, fraudulent, defamatory, libelous, abusive, harassing, discriminatory, hateful, malicious, inciting of violence, threatening, sexually explicit, or obscene; or (iv) impersonates or misrepresents your relationship with any person or entity;
· create a false or misleading elmgARTS account or User profile with inaccurate or untrue information;
· use our Services or any Content in connection with posting or distributing spam or other unauthorized or unsolicited advertising, promotional messages, or bulk electronic communications;
· collect information about Users (including email addresses) or send marketing email or other promotional communications to Users without their consent;
· access our Services by any means other than the interface and instructions that we provide;
· access, tamper with, or use non-public areas of our Services, our computer systems, or the technical delivery systems of our service providers;
· breach, disable or circumvent any security or authentication measures on or in connection with our Services;
· interfere with the normal operation of our Services or the access of any User, including transmitting any viruses or harmful code, flooding our Services with excessive requests or traffic, or taking any other action that creates (at our sole discretion) an unreasonable or disproportionately large load on our servers or systems;
· decipher, decompile, disassemble, reverse engineer, or otherwise derive or extract any source code or underlying ideas or algorithms of, any of our Services;
· adapt, modify, create derivative works from, or redistribute any of our Services without our express prior written permission;
· use any robot, scraper, spider, or other automatic or manual process to monitor or extract data from our Services without our express prior written permission (we may also use robot exclusion headers within our Services and you agree to comply with all such headers);
· forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use our Services or any Content to send altered, deceptive, or false source-identifying information;
· mirror, frame or display any part of our Services on any other website or elsewhere without our express prior written permission;
· use any meta-tags or other hidden text or metadata containing any elmgARTS trademark, service mark, product name, or URL without our express prior written permission;
· use any elmgARTS trademark, service mark, product name, logo or URL in any way that incorrectly suggests our affiliation with or endorsement of any person, entity, event, product or service;
· use any trademark, service mark, product name, logo, trade dress, or design that is in any way confusingly similar to any elmgARTS trademark, service mark, product name, or logo, or to the look and feel of any of our Services; or
· remove, conceal, modify or tamper with any copyright, trademark, or other proprietary marking or notice, or any digital watermark or other technical measure used to indicate the source or ownership of any image or other Content.
8.2 Without limiting other rights or remedies, we reserve the right to limit, terminate or suspend any User’s account and/or access to or use of any or all of our Services, at any time at our sole discretion, if we believe that such User is violating the rights of any third party, that such User’s conduct may be exposing us or others to legal or financial liability, or that such User is acting inconsistently with the letter or spirit of these Terms, and we will have no liability to such User for doing so. In any case, we reserve the right to investigate and prosecute violations of these Terms to the fullest extent permitted by applicable law.
9. MOBILE APPLICATIONS
9.1 As part of our Services, we may offer you the use of elmgARTS mobile applications, including applications that may be accessed through the iTunes App Store (“iTunes-Sourced Apps”) and applications that may be accessed by other means.
9.2 Your use of our mobile applications is subject to these Terms and any applicable Service Terms that we may post on our Services or otherwise make available to you in connection with our mobile applications.
9.3 We may update any of our mobile applications without notice, at any time at our sole discretion, and these Terms will apply to any updated versions.
9.4 The following terms and conditions in this section apply to iTunes-Sourced Apps:
You agree to use iTunes-Sourced Apps only on an iPhone/iPad OS product that you own or control, and as permitted by the App Store Terms of Service.
You acknowledge that these Terms are an agreement between you and us, and not with Apple, and elmgARTS, not Apple, is solely responsible for iTunes-Sourced Apps and the content of iTunes-Sourced Apps.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iTunes-source App.
If any iTunes-Sourced App fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for such iTunes-Sourced App to you. To the fullest extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to any iTunes-Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of any iTunes-Sourced App to conform to any warranty will be our sole responsibility. However, please note that we expressly disclaim all warranties to the fullest extent permitted by applicable law (as provided in section 11 of these Terms).
You and we acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to any iTunes-Sourced App or your possession and use of any iTunes-Sourced App, including: (i) product liability claims; (ii) any claim that any iTunes-Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and we acknowledge that, in the event of any claim by any third party that any iTunes-Sourced App or your possession and use of any iTunes-Sourced App infringes that party’s intellectual property rights, as between elmgARTS and Apple, elmgARTS, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of such claim to the extent required by these Terms.
By downloading or using any iTunes-Sourced App, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not on any U.S. Government list of prohibited or restricted parties.
You and we acknowledge that Apple and Apple's subsidiaries are third-party beneficiaries of these Terms as relates to iTunes-Sourced Apps and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms as relates to iTunes-Sourced Apps.
10. OTHER WEBSITES AND SERVICES
10.1 Our Services may include links and features that enable you to access other websites or services, and other websites or services may include links to our Services.
10.2 Such links and features are for convenience only and do not constitute or imply any endorsement, warranty, or assumption of liability of any kind by us with respect to any such websites or services, or any information, materials, goods or services on or available from any such websites or services.
10.3 You are solely responsible for, and assume sole risk arising out of, any use of or reliance on any such websites or services, or any information, materials, goods or services on or available from any such websites or services.
10.4 You acknowledge and agree that the elmgARTS Parties (defined below) are not responsible and will not be liable for: (i) the accuracy or availability of any such websites or services; or (ii) any information, materials, goods or services on or available from any such websites or services.
11. DISCLAIMER OF WARRANTIES
11.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF OUR SERVICES IS AT YOUR OWN RISK, AND THAT OUR SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO OUR SERVICES OR ANY CONTENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ELMGARTS AND OUR OFFICERS, OWNERS, DIRECTORS, CONSULTANTS, AGENTS, AND EMPLOYEES (COLLECTIVELY, THE “ELMGARTS PARTIES”) EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE ELMGARTS PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT OUR SERVICES OR ANY CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, ACCURATE, RELIABLE, COMPLETE, FREE OF ERRORS, SAFE, SECURE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE USE OF OUR SERVICES IN ANY WAY WILL GIVE RISE TO ANY SPECIFIC RESULTS. APPLICABLE LAW MAY NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
11.2 If the use of our Services results in the need for servicing or replacing any equipment or data, the elmgARTS Parties will not be responsible for those costs or losses, and we urge you to backup your data at all times.
11.3 No advice or information (whether oral or written) obtained from the elmgARTS Parties, or through our Services or any Content, will create any warranty by us not expressly stated in these Terms or in a separate written agreement between you and us.
12. GENERAL RELEASE
12.1 We may provide rules for using our Services, but the elmgARTS Parties do not endorse or control and are not responsible for the conduct (whether online or offline) of any User and/or third party on or in connection with our Services.
12.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE THE ELMGARTS PARTIES FROM ALL CLAIMS, DEMANDS, SUITS, DAMAGES (ACTUAL AND CONSEQUENTIAL), LOSSES, LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS' FEES), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN CONNECTION WITH: (i) ANY DISPUTES BETWEEN YOU AND ONE (1) OR MORE OTHER USERS OR OTHER THIRD PARTIES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF OUR SERVICES; (ii) ANY USER CONTENT OR CONDUCT, PERFORMANCE OR NON-PERFORMANCE (WHETHER ONLINE OR OFFLINE) OF ANY OTHER USER OR OTHER THIRD PARTY IN ANY WAY CONNECTED WITH OUR SERVICES, INCLUDING ANY DEFAMATORY, MISLEADING, OFFENSIVE OR UNLAWFUL CONDUCT OR USER CONTENT, OR ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVICES, YOUR ACCOUNT OR YOUR USER CONTENT AND/OR INFORMATION; (iii) ANY ARTWORK OR OTHER PROPERTY EXHIBITED, LISTED, MARKETED, OFFERED FOR SALE, OR SOLD (WHETHER ONLINE OR OFFLINE) BY ANY OTHER USER OR OTHER THIRD PARTY ON, THROUGH, OR IN ANY WAY CONNECTED WITH OUR SERVICES; OR (iv) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS (WHETHER IN PERSON, ONLINE OR OTHERWISE) BETWEEN YOU AND ONE (1) OR MORE OTHER USERS OR OTHER THIRD PARTIES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF OUR SERVICES. YOU EXPRESSLY WAIVE ANY BENEFITS OR PROTECTIONS, WHETHER STATUTORY OR OTHERWISE, THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF ENTERING INTO THIS RELEASE.
13. LIMITATION OF LIABILITY
13.1 UNDER NO CIRCUMSTANCES WILL ANY OF THE ELMGARTS PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, ANY PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, OR ANY LOSS OF PROFITS, REVENUE, BUSINESS, DATA, USE, GOODWILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH: (i) THESE TERMS; (ii) OUR SERVICES; (iii) THE USE OF OR INABILITY TO USE OUR SERVICES; (iv) ANY CONDUCT, PERFORMANCE OR NON-PERFORMANCE (WHETHER ONLINE OR OFFLINE) OF ANY OTHER USER OR OTHER THIRD PARTY ON OR IN CONNECTION WITH OUR SERVICES; OR (v) ANY CONTENT, GOODS OR SERVICES MADE AVAILABLE ON, THROUGH, OR IN ANY WAY CONNECTED WITH OUR SERVICES (WHETHER ONLINE OR OFFLINE) BY US OR ANY OTHER USER OR OTHER THIRD PARTY. UNDER NO CIRCUMSTANCES WILL OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR OUR SERVICES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE TOTAL AMOUNT YOU PAID US (IF ANY) TO USE OUR SERVICES IN THE SIX (6) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY.
13.2 THE EXCLUSIONS AND LIMITATIONS OF LIABILITY PROVIDED ABOVE IN SUBSECTION 13.1 APPLY TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT ANY OF THE ELMGARTS PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, AND EVEN IF A REMEDY SET FORTH IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO SOME OF THE EXCLUSIONS AND LIMITATIONS PROVIDED ABOVE IN SUBSECTION 13.1 MAY NOT APPLY TO YOU, IN WHICH CASE THE LIABILITY OF THE ELMGARTS PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
14.1 You agree to indemnify, defend, and hold harmless elmgARTS and our officers, directors, agents, and employees from and against any and all third-party claims, demands, suits, and proceedings, and all related damages, losses, judgments, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or related to: (i) your breach of any of these Terms (including any term or condition incorporated into these Terms by reference); (ii) Your User Content; (iii) any misrepresentation made by you; or (iv) your violation of any law or the rights of any third party, including any intellectual property right, privacy right, or publicity right.
14.2 We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which case you agree to cooperate as fully as reasonably required by us in conducting such defense. In any case, you agree not to settle any such matter without our prior written consent. Your indemnification and defense obligations provided in these Terms will survive these Terms and your use of our Services.
15. CHOICE OF LAW AND DISPUTE RESOLUTION
15.1 You agree that all claims or disputes you have against us arising out of or related to these Terms or our Services must be resolved exclusively by a state or federal court located in New York County, New York, U.S., whether or not any third parties are involved. You agree to submit to the personal jurisdiction of, and agree that venue is proper in, the courts located in New York County, New York, U.S., for the purpose of litigating all such claims or disputes, and you expressly waive any objection as to inconvenient forum.
15.2 These Terms, the rights and obligations of you and us under these Terms, and all claims or disputes that might arise between you and us, will be governed by and construed in accordance with the laws of the State of New York, and, to the extent applicable, the laws of the United States, excluding any conflict of laws principles, and without regard to your jurisdiction of residence.
15.3 You agree that regardless of any law to the contrary, each claim you might have against us arising out of or related to these Terms or our Services must be filed within the applicable statute of limitations, or, if earlier, one (1) year after such claim arose, or else such claim will be permanently barred.
15.4 The United Nations Convention on Contracts for the International Sale of Goods will not in any way apply to our Services, these Terms, or any other agreement between you and us.
15.5 Nothing in these Terms will prevent us from seeking injunctive or other equitable relief in any jurisdiction.
16. INTERNATIONAL USE
16.1 Our Services are based in the United States and we do not represent or warrant that our Services will be appropriate or available for use outside the United States.
16.2 If you are located outside the United States, you agree to ensure that your access to and use of our Services complies with all applicable local, state, national, and international laws and regulations, including any laws and regulations governing the import or export of data, goods, services or software.
16.3 You must not access or use our Services if any applicable local, state, national, or international law or regulation prohibits you from receiving products or services originating from the United States.
16.4 If you are located in a country embargoed by the United States, or you are on the U.S. Treasury Department’s list of Specially Designated Nationals (or any other U.S. Government list of commercially restricted parties), you must not perform any transaction or engage in any other commercial activity on or in connection with our Services.
17. CHANGES TO OUR SERVICES
17.1 Our Services are updated frequently, and their form and functionality may change without notice. We reserve the right to change, modify, add, remove or discontinue any and all of our Services (and/or the appearance, design, functionality, and all other aspects of any and all of our Services), in whole or part, temporarily or permanently, with or without notice, for any reason or no reason, at any time at our sole discretion.
17.2 We will not be liable to you or any third party for any damages or losses of any kind resulting directly or indirectly from any changes made by us to our Services, including any loss of business or the ability to use any product, service or Content.
18. CHANGES TO THESE TERMS
18.1 Our business changes with time, and these Terms will change also. We reserve the right to change these Terms, including the right to change, modify, add or remove any part of these Terms, without prior notice, at any time at our sole discretion.
18.2 All changes to these Terms will be effective when posted on our Services, or at such later date as may be specified in the updated Terms.
18.3 By continuing to use our Services after any changes to these Terms become effective, you agree to such changes and the updated Terms.
18.4 You agree that we may notify you of any changes to these Terms by posting the updated Terms on our Services, and you agree to review these Terms regularly and inform yourself of all applicable changes.
18.5 If you do not agree to any changes made by us to these Terms, you will no longer be permitted to use our Services.
18.6 Changes to these Terms will not apply to any claim or dispute that arose before such changes became effective, all of which will remain subject to the version of these Terms in effect at the time that such claim or dispute arose.
18.7 We will not be liable to you or any third party for any damages or losses of any kind resulting directly or indirectly from any changes made by us to these Terms, including any loss of business or the ability to use any product, service or Content.
19.1 You may stop using our Services at any time, subject to any other agreements between you and us.
19.2 Regardless of any other statement in these Terms, we reserve the right to terminate these Terms, to terminate your account (if you have an account), and/or to limit, terminate or suspend your access to or use of any or all of our Services, at any time at our sole discretion, without notice or liability, for any reason or no reason, including if you violate the letter or spirit of these Terms.
19.3 After any termination of these Terms and/or any termination of your access to or use of our Services, the following will survive and remain in full force and effect: (i) all outstanding obligations you may have to us under these Terms or otherwise; (ii) all remedies for breach of these Terms; and (iii) the following sections of these Terms: 3 (Ownership), 5 (User Content and Communications), 7 (Marketplace), 10 (Other Websites and Services), 11 (Disclaimer of Warranties), 12 (General Release), 13 (Limitation of Liability), 14 (Indemnification), 15 (Choice of Law and Dispute Resolution), 17 (Changes to our Services), 18 (Changes to these Terms), 19 (Termination), 23 (Miscellaneous).
0. COPYRIGHT POLICY
20.1 We respect the intellectual property rights of others and expect Users to do the same. In accordance with the Digital Millenium Copyright Act (“DMCA”), we will respond to notices of claimed copyright infringement that are properly provided to our designated copyright agent (“Copyright Agent”), whose contact information is listed below.
20.2 We reserve the right to remove or disable access to any Content on our Services claimed to be infringing, at any time at our sole discretion, without notice or liability. In appropriate circumstances, we will also terminate Users and account holders who are repeat infringers.
20.3 If you believe that Content on our Services has been used in a way that constitutes copyright infringement, please provide our Copyright Agent with a written notice containing all of the following information ("DMCA Notice"):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed;
Identification of the Content that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate such Content on our Services;
Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
a statement that you have a good faith belief that use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in your notice is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
20.4 If you are the provider of Content that was removed (or to which access was disabled) and you believe that such Content is not infringing, or that the use of such Content is authorized by the copyright owner, the copyright owner’s agent, or the law, you may provide our Copyright Agent with a written counter-notice containing all of the following information ("Counter-Notice"):
your physical or electronic signature;
identification of the Content that was removed or to which access was disabled, and the location at which such Content appeared on our Services before it was removed or access to it was disabled;
a statement under penalty of perjury that you have a good faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content; and
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 the United States, for any judicial district in which elmgARTS may be found, and that you will accept service of process from the person who provided the notice of claimed infringement or an agent of such person.
20.5 Our Copyright Agent designated to receive DMCA Notices and Counter-Notices may be contacted as follows:
By postal mail: elmgARTS, Attn: Copyright Agent, 1 West Street, Suite 2709, New York, New York
By email: Nicole@elmgarts.com
By phone: (646) 504-0474
20.6 You acknowledge that your DMCA Notice or Counter-Notice may not be valid if it is not addressed to our Copyright Agent or it does not provide substantially all of the information specified above. To help us receive your DMCA Notice or Counter-Notice in a timely manner, please send it by email if possible.
20.7 If you provide us with a DMCA Notice, you agree that we may send a copy of it (including your name and contact information) to the provider of the disputed Content.
20.8 Please note that the procedure described above in this section is intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. § 512(c), but does not constitute legal advice. Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal liability for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees. If you are not sure whether you are (or are authorized to act on behalf of) the owner of an exclusive right in any disputed Content, you may wish to consult an attorney about your rights and obligations under the DMCA and any other applicable laws. While we cannot offer you legal advice, more information about the DMCA is available at the U.S. Copyright Office website.
21. JOB LISTINGS
21.1 We may post information and listings on our Services or on third-party social media services describing careers with elmgARTS, internships, or positions for which we are or may be hiring.
21.2 Please note that such information and listings are for general informational use only, may be changed by us at any time without notice, and are not an offer of employment or any other offer or warranty by us.
22.1 We may offer or conduct promotions, sweepstakes or contests (“Promotions”) on or in connection with our Services from time to time, by ourselves or in conjunction with third parties.
22.2 Your participation in Promotions is subject to these Terms and any official rules that we may post on our Services or otherwise make available to you in connection with Promotions (“Promotion Rules”). If any Promotions have Promotion Rules that conflict with these Terms, those Promotion Rules will control to the extent of the conflict as relates to those Promotions.
23.2 If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, that provision will be enforced to the maximum extent permitted, and these Terms will otherwise remain in full force and effect.
23.3 No delay or failure by us to exercise or enforce any right or provision of these Terms will be considered a waiver. No right or remedy under these Terms will be considered waived by us unless the waiver is in writing and signed by an elmgARTS representative who intends and is duly authorized to agree to the waiver on our behalf. No single or partial exercise by us of any right or remedy under these Terms will prevent us from exercising any other right or remedy.
23.4 These Terms will be binding on your successors and assigns, but you are not allowed to assign, transfer or sublicense these Terms or any right or obligation under these Terms without our prior written consent. These Terms, and all rights granted to or reserved by us under these Terms, will benefit and be enforceable by our successors and assigns.
23.5 There are no third-party beneficiaries to these Terms except as expressly provided in these Terms.
23.6 You and we are independent contractors under these Terms. No agency, partnership, joint venture, employment, sales representative, or franchise relationship is created or implied by these Terms or your use of our Services.
23.7 Nothing in these Terms will prevent us from complying with any applicable law or regulation.
23.8 These Terms were written in English (U.S.). If any translation conflicts with the English version, the English version controls.
23.9 The section titles in these Terms are for convenience only and have no legal or contractual effect.
24. HOW TO CONTACT US
24.1 If you have questions about these Terms or our Services, please email us at: firstname.lastname@example.org
24.2 elmgARTS is located at: 1 West Street, Suite 2709, New York, New York 10004.
25. EFFECTIVE DATE
These Terms are effective as of November 1, 2016.