READ ALL TERMS AND CONDITIONS CAREFULLY. THIS IS A LEGAL AND BINDING AGREEMENT TO ALL USERS OF THIS WEBSITE
Effective Date: July 25, 2015 Thanks for visiting our website www.artbco.com (the “Site.”)The services, products and information presented in the Site are subject to these general terms
and conditions (“Terms.”)
The Site is owned and operated by Art B Co, LLC (“ArtBCo”) a Florida Limited Liability Company.
ArtBCo, through the Site, provides services for the promotion, advertising, sale, lease and commission of artwork and artists (“Services.”)
The expressions “We,” “Our” or “Us,” and similar expressions, are referred to ArtBCo. The expressions “You,” “Your” or “Yours,” and similar expressions, are referred to the individual accessing the Site, and/or the legal entity obtaining information and/or conducting transactions through the Site. These Terms apply to all visitors, and/ or users of the Site and/or the Services, whether a potential or actual client, and/or consumer, artist, art gallery, art curator or art dealer. If You are an individual accessing the Site on behalf of a legal entity, You represent and warrant that You have the authority to bind that legal entity to these Terms and, in such event, “You,” “Your,” “Yours”, will refer and apply to that legal entity, as well as to the individual accessing the Site. Access to the Site and use of the Services is restricted to persons of legal age.
These Terms contain provisions that govern how You and ArtBCo shall resolve any dispute that may arise as a result of Your use of the Site and/or the Services (see Dispute Resolution Section below.) The Dispute Resolution Section contains an Agreement to Arbitrate, which will, with limited exception, require You to submit claims against Us to binding and final arbitration. In all circumstances, You will only be permitted to pursue claims against Us on an individual basis, and not as a plaintiff or class member in any class or representative action or proceeding, and You will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
You acknowledge and agree that, by accessing or using the Site and/or the Services, or by posting any content on the Site, You are indicating that You have read, understood and agreed to be bound by the Terms in effect at the time of Your visit to the Site and/or at the time of the relevant transaction, whether or not You have registered with the Site. You are charged to read and understand the Terms at the moment of Your visit to the Site and/or use of the Services. Terms relevant to restrictions, prohibitions, and reservation of rights shall survive Your access to the Site and any transaction conducted by virtue of the Site and/or the Services.
The Terms constitute a binding agreement between You and ArtBCo. If You do not agree to these Terms, then You have no right to access and/or use the Site and/or the Services.
The Site, the Services and the content posted by ArtBCo within the Site are proprietary for the benefit of ArtBCo, and subject to Intellectual Property laws. ArtBCo is the sole owner of all rights, title and interest in and to the Site, the Services and content posted by ArtBCo within the Site. You will not copy, transmit, use, reproduce, sell or otherwise exploit any of the contents included on the Site, such as images, text, graphics or logos. We reserve every right over the
Site, its content, Our trademarks and service marks, trade dress (whether registered or not) as well as over any other proprietary information, such as protectable trade secrets. Unless explicitly agreed to in a separate document, You will not have any right to such proprietary information, and You will not be able to use it for any commercial, or any other purposes, without Our prior written consent. Some of the current trademarks owned by ArtBCo are ArtBCo™, Art Business Collection™, ArtBCons™, ArtBSualizer™, and We reserve the right to use and prosecute additional trademarks and copyrights. By using the Site You disclaim any right over the referred trademarks, and any other trademark that in the future We may include and use within the Site. Trademarks and service marks not owned by ArtBCo that appear on the Site are the property of their respective owners, and may not be used without their prior written consent. Special Terms and Conditions Access to certain Services may have different, and/or additional terms and conditions posted, or may require You to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area or for specific Services, the specific terms shall control with respect to those specific Services. Our Privacy and Data Policy Our Privacy and Data Policy may be found at the Site, as it is clearly made available at the Home Page of the Site. The same is incorporated into these Terms. We encourage You to read Our Privacy and Data Policy. Modifications to these Terms and/or to the Services ArtBCo reserves the right, to modify, discontinue or terminate the Site and/or Services or to modify these Terms, and any other terms and conditions and/or policies, at any time and without prior notice. You are charged to read and verify the Terms at the moment of Your visit and/or use of the Services, as the Terms may vary at any time. If You are a registered user within the Site, ArtBCo may, but is not obligated, to provide You with a notification as to such modifications. ArtBCo will update the “Effective Date” information upon modification of these Terms. If the modified Terms are not acceptable to You, You should cease accessing the Site and using the Services. General Nature of the Services Generally, and unless explicitly stated in the specific terms and conditions of one specific Service or transaction, ArtBCo shall be solely a provider of advertising and promotional services. By accessing the Site and using the Services potential and/or actual clients may opt to obtain information as to artwork and artists, as well as to place an order to acquire, take under lease or commission such artwork from artists, art galleries, art curators and art dealers registered as such within the Site. Therefore, unless explicitly otherwise stated, ArtBCo will not be a party on those transactions for the sale, lease, and/or commission of artwork. ArtBCo may participate in specific transactions, but, unless explicitly otherwise stated, solely as facilitator and/or provider of services incidental to the acquisition, lease and/or commission of artwork, such as logistics services, insurance, payment services, as well as serving as a conduit of information between users of the Site. Those incidental services shall not modify ArtBCo’s limited role in the relevant transaction.
Account Registration If You are a potential client seeking to acquire, take under lease and/or commission artwork, You must create an account (“Client Account”) by completing a registration process and subscribing to specific terms and conditions (“Client Agreement.”) Those specific terms and conditions will apply to those transactions where You will acquire, take under lease and/or commission artwork from an artist, art gallery, art curator, and/or art dealer. If You are an art vendor (such as an artist, art gallery, art curator, and/or art dealer) You must create an account ("Dealer Account") by completing a registration process and subscribing to specific terms and conditions (“Dealer Agreement.”) Those specific terms and conditions will apply to those transactions where You will act as artist, art gallery, art curator, and/or art dealer, selling, leasing or accepting a commission from a client. During the registration process (either for a Client Account or for a Dealer Account) You will be required to provide certain information and You will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. You hereby consent to receive communications from Us by e-mail. You agree that all agreements, notices, disclosures and other communications that We provide to You by e-mail satisfy any legal requirement that such communication be in writing. ArtBCo is not under the obligation to maintain any account, or to provide Services, and ArtBCo may, at will, discontinue the Services to any user, with, or without reason. Thus, ArtBCo reserves the right to temporarily suspend, or cancel for indefinite time, Your account, and without prior notice to You. You may also cancel Your account at any time, and the Site will provide instructions to cancel Your Account. In any event of cancellation of Your account You will be bound by these Terms as to any transaction concluded by virtue of the Services, and You will remain liable for any amount due as per those transactions. Restrictive covenants, prohibitions, and reservation of rights shall survive cancellation or suspension of any Account. Also, any provision that, as per its own nature, may survive the cancellation or suspension of Your Account shall so survive such cancellation or suspension. Password and Data Security You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party, and to take sole responsibility for any activities or actions under Your account, whether or not You have authorized such activities or actions. You will immediately notify ArtBCo of any unauthorized use of Your account. WE STRONGLY SUGGEST YOU TO CHOOSE A PASSWORD APPLICABLE ONLY TO YOUR USER ACCOUNT IN CONNECTION TO THE SITE, AND WE STRONGLY DISCOURAGE THE USE OF A PASSWORD (OR A VARIATION), YOU MAY BE USING FOR OTHER WEBSITES, ELECTRONIC MAILS, AND/OR OTHER PURPOSES. While We attempt to use current technology to avoid any undue access to Our Site, and/or to a User Account, We cannot guarantee that such unauthorized access will not occur. Malicious access by the part of third persons intruding into Our Site and or data (Hackers’ attacks) are not always preventable, and You assume all risks associated with creating a User Account, accessing the Site, using the services provided by the Site, providing information to Us via the Site, and the collection of other data by the Site by virtue of Your access to the Site.
purpose of promoting ArtBCo, the Site and the Services; and (ii) grant directly to other persons accessing the Site and/or using the Services, the right and license to view Your User Content. You acknowledge and agree that You are solely responsible for any User Content that You make available on or through the Site. ArtBCo disclaims any responsibility for any User Content, including as to the appropriateness, correctness and legality of the User Content. ArtBCo has no obligation to monitor the User Content, and ArtBCo does not endorse in any way User Content. ArtBCo has not obligation to verify whether User Content conforms to any standard of appropriateness, and that User Content will not offend any user of the site. ArtBCo retains the right not to post, or to remove the User Content, at ArtBCo’s discretion. You represent and warrant that: (i) You are the sole and exclusive owner of all User Content that You make available on the Site, or that You have the necessary rights, licenses, consents and releases that are necessary to make available such User Content and to grant all rights and licenses in such User Content as granted under these Terms; and (ii) neither the User Content nor Your making available any User Content on the Site nor any use of any User Content as permitted under these Terms will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. General Prohibitions as to User Content and Misuse of the Site You agree not to do any of the following: Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party's intellectual property rights, image’s rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) harms any person, and specifically minors in any way; or (viii) promotes illegal or harmful activities or substances. Use, display, mirror or frame the Site, or any individual element within the Site, ArtBCo's name, any ArtBCo trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ArtBCo's express written consent; Access, tamper with, or use non-public areas of the Site, ArtBCo's computer systems, or the technical delivery systems of ArtBCo's providers; Attempt to probe, scan or test the vulnerability of any ArtBCo system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by ArtBCo or any of ArtBCo's providers or any other third party (including another user) to protect the Site, Services, ArtBCo Content or User Content; Attempt to access or search the Site, Services, ArtBCo content or User Content or download ArtBCo content or User Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by ArtBCo or other generally available reputable third party web browsers; Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; Use any meta tags or other hidden text or metadata utilizing an ArtBCo trademark, logo URL or product name without ArtBCo's express written consent; Use the Site, Services, ArtBCo Content or User Content for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these Terms; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, ArtBCo Content or User Content to send altered, deceptive or false source-identifying information; Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, ArtBCo Content or User content; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, spyware, overloading, flooding, spamming, or mail-bombing the Site; Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission; Impersonate or misrepresent Your affiliation with any person or entity; Violate any applicable law or regulation; or Perform any fraudulent or deceiving actions including, but not limited to, insurance fraud. Encourage or enable any other individual to do any of the foregoing. You acknowledge that ArtBCo has no obligation to monitor Your access to or use of the Site or the Services, or to remove any User content, but has the right to do so for the purpose of operating the Site and Services. ArtBCo reserves the right, at any time and without prior notice, to remove or disable access to any User content, ArtBCo content or any other content at ArtBCo’s discretion. Disclaimers The Site and the Services are provided "AS IS" and “AS AVAILABLE”, without any warranty of any kind, either express or implied. Without limiting the foregoing, ArtBCo disclaims any warranties of merchantability, fitness for a particular purpose or non-infringement, and any warranties arising out of course of dealing or usage of trade. ArtBCo makes no warranty that the Site, the Services, and/or the Site content will meet Your requirements, or be available on an uninterrupted, secure, or error-free basis. ArtBCo makes no warranty regarding the quality of any artwork, Services, content or products purchased or obtained through the Site or the Services or the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained through the Site or the Services. ArtBCo does not screen or inquire into the background of users of the Site, including those users that have signed up and are holders of accounts within the Site, either as holder of a Client Account and/or Dealer Account. ArtBCo does make the attempt to verify the statements of any
Users of the Site or Services. ArtBCo makes no representations or warranties as to the conduct of users of the Site or Services. Further, ArtBCo has no obligation to monitor access to the Site or use of the Services by third parties. ArtBCo does not guarantee the ability of sellers (and/or lessors) to sell (and/or lease) artwork, nor the ability of buyers (and/or lessees) to pay for the artwork; or that a party to a transaction will actually complete a transaction, and/or perform under the terms of the same. You assume all risks associated in entering into a transaction with other users of the Site and of the Services. You agree to take reasonable precautions in all communications and interactions with other users of the Site. ArtBCo does not promote users of the Site to communicate directly and/or meet with other users of the Site. The Site provides means to handle electronically all communications needed as a result of any transaction concluded by using the Site and/or the Services. You shall use those means of electronic communication in connection with any of those transactions. Indemnity You agree to defend, indemnify, and hold ArtBCo, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with Your access to or use of the Site, Services, or any violation by You of these Terms. You will not make ArtBCo a party to any litigation or dispute that may arise as a result of interactions and transactions concluded between users of the Site by virtue of the Site and the Services. You disclaim any liability by the part of ArtBCo arising from such transactions. Limitation of Liability You acknowledge and agree that to the maximum extent permitted by law the entire risk arising out of Your access to and use of the Site and/or the Services remains with You. You will not claim Us, and thus, You will not sue ArtBCo on the basis of disputes arising as a result of transactions You may carry on with other users of the Site, regardless that ArtBCo is a provider of the Services, and even services that may be incidental to those transactions. Furthermore, neither ArtBCo nor any other party involved in creating, producing, or delivering the Site and the Services will be liable for any incidental, special, punitive, exemplary or consequential damages, including lost profits, loss of goodwill or reputation, profits, or other intangible losses or any indirect, or consequential damages, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms, or from the use of or inability to use the Site or the Services, whether based on warranty, contract, tort (including negligence), products liability or any other legal theory, and whether or not ArtBCo has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. You waive any claim against ArtBCo for any incidental, special, punitive, exemplary or consequential damages. Without prejudice of the foregoing, in no event ArtBCo’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site or the Services, will exceed: (i) if You are a user who has sold or leased artwork, the total payments made to You as a result of the use of the Site and/or Services, in connection with the transaction that gives rise to the relevant claim for liability; and (ii) if You are a user who has acquired and/or taken under lease and/or commissioned artwork, the total payments that You made in connection with the use of the Site and/or the Services, that are subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between ArtBCo and You. Intellectual Property Compliance ArtBCo respects the intellectual property rights of others and expects users of the Site to do the same. ArtBCo, may, at its discretion, remove any User Content, and/or disable and/or terminate user accounts, upon any claim of Intellectual Property infringement. However, as a provider of advertising and promotional services ArtBCo does not make any representation, and does not assume any responsibility for any Intellectual Property infringement that any person, including a registered user, may carry out by resorting to the Site and/or the Services. However, ArtBCo may, at its discretion, interrupt or suspend Services in connection with artwork subject to an infringement claim. In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), a summary of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, ArtBCo Art will respond expeditiously to claims of copyright infringement committed using the Site that are reported to ArtBCo Designated Copyright Agent, identified below. If You are a copyright owner, or are authorized to act on behalf of a copyright owner, or authorized to act under any exclusive right under copyright, You may report alleged copyright infringements taking place on or through the Site by completing the following “DMCA Notice of Alleged Infringement” form and delivering it to the ArtBCo designated Copyright Agent. Upon receipt of the notice as described below, ArtBCo Art will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site. Thus:
DMCA Notice of Alleged Infringement (“Notice”) 1. Identify the copyrighted work that You claim has been infringed, or - if multiple copyrighted works are covered by this Notice - You may provide a representative list of the copyrighted works that You claim have been infringed. 2. Identify (i) the material that You claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found, and (ii) the reference or link, to the material or activity that You claim to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Us to locate that reference or link, including at a minimum, if applicable, the URL of the link shown on the Site where such reference or link may be found. 3. Provide Your mailing address, telephone number, and, if available, electronic mail address. 4. Include both of the following statements in the body of the Notice: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.” 5. Provide Your full legal name and Your electronic or physical signature. Deliver this Notice, with all items completed, to ArtBCo Designated Copyright Agent to: ArtBCo Copyright Agent 220 NW 27 ST MIAMI, FL 33127 Headings Headings in these Terms are for convenience purposes only. Governing Law These Terms and any action related thereto will be governed by the laws of the State of Florida, without regard to its conflict of laws provisions. Non-Waiver and Severability The failure of ArtBCo to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. If for any reason a court finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. DISPUTE RESOLUTION PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS BETWEEN YOU AND ARTBCO ARE RESOLVED. You and ArtBCo agree that any claim or dispute that may arise between You and ArtBCo relating in any way to Your use of the Site, and/or the Services, and/or these Terms, or any other applicable provision between the parties, will be resolved in accordance with the provisions set forth in this Dispute Resolution Section. Agreement to Arbitrate You and ArtBCo each agree that any and all disputes or claims that may arise between You and ArtBCo relating in any way to, or arising out of these Terms, Your use of the Site and/or the Services, or any other applicable provision between the parties, shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND ARTBCO AGREE THAT EACH OF THOSE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND ARTBCO AGREE OTHERWISE, THE ARBITRATION TRIBUNAL MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATION TRIBUNAL MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S.) ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. 2. Arbitration Procedures The arbitration tribunal should apply these Terms as a court would. All issues are for the arbitrators to decide, including any issues relating to arbitrability, scope or enforceability of this Agreement to Arbitrate. However, any issue relating to the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) shall be for a court of competent jurisdiction to decide. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its applicable rules and procedures. The arbitral tribunal shall be composed of three arbitrators except for any case where the AAA’s rules provide that the arbitration shall be conducted by a single arbitrator. The seat of the arbitration shall be Miami, FL. A party who intends to seek arbitration must send to the other, by certified mail, a notice of dispute (“Notice of Dispute”) as well as a Demand for Arbitration to the AAA (in addition to the applicable AAA’s forms.) The Notice of Dispute to ArtBCo shall be sent to ArtBCo’s main address, as registered before the Department of State of the State of Florida. ArtBCo will send any Notice of Dispute to You to the mailing address We have on file associated with Your user account (whether a Dealer Account or Client Account, as applicable.) It is Your responsibility to keep Your mailing address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the asserted claim and the relief sought. In case there is a settlement offer made by You or ArtBCo, at any phase or stage of the arbitration, it shall not be disclosed to the arbitration tribunal. The arbitration tribunal will decide the substance of all claims in accordance with the laws of the State of Florida, without regard to its conflict of law provisions, and shall not be bound by prior arbitration awards. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 3. Severability With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitration tribunal or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitration tribunal or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Dispute Resolution Section will continue to apply. Jurisdiction In the event that the Agreement to Arbitrate above is found not to apply, either as a result of a decision by the arbitration tribunal or a court order, You agree that the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state or federal courts located in the Miami-Dade County of Florida. Therefore, You and ArtBCo agree to submit to the personal jurisdiction of the courts located within the Miami-Dade County of Florida for the purpose of litigating all such claims or disputes. Jury Trial and Class Action Waiver In any event, and to the extent permitted by applicable law, You and ArtBCo hereby: (a) knowingly, voluntarily, intentionally and irrevocably waive the right to a trial by jury with regards to any litigation based hereon or arising out of these Terms, and/or Your use of the Site and/or the Services, or any other dispute between You and Us; and (b) agree that any litigation will proceed on an individual basis, and will not proceed as part of a class action. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE.