ContestedArt.com

Terms of Use

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF CONTESTEDART.COM.

1. Acceptance. This is a legal agreement between you and CONTESTEDART.COM (“Company”), and any other entity affiliated with Company stating the terms that govern your use of the web site, Service (defined below) and store located at www.ContestedArt.com (the “Agreement”). Your access and use of the services located at ContestedArt.com signifies your acceptance and agreement to be bound by this Agreement.  Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time and without notice. Please check this Agreement periodically for changes. Continued use of the Service following the posting of changes to this Agreement shall mean you have read and accept such changes. You separately acknowledge, agree, represent and warrant that any information provided by you to Company is true, accurate, correct, complete and is an essential and material provision of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” AND DO NOT USE THE SERVICE.

2.         Age Requirement. To register for use of the Service on your own behalf, you must be at least 18 years of age. If you are at least 13 years of age, but under 18 years of age, you must present this Agreement to your parent or legal guardian, and he or she must click “AGREE” to enter into this Agreement on your behalf. Children under 13 years of age may not register for the service, nor may parents or legal guardians register on their behalf. If you are a parent or legal guardian entering this Agreement for the benefit of your child or a child in your legal care, be aware that you are fully responsible for the child’s use of the Service, including all financial charges and legal liability that he or she may incur.

3.         Description of the Service. ContestedArt.com provides users with access to a collection of web-based resources, including without limitation various communications tools, forums, shopping services, search services, personalized content, user-generated content including but not limited to your uploaded images (collectively, “Content”) and branded programming which may be accessed through any various medium or device now known or hereafter developed (the “Services”). You acknowledge and agree that the Services may include advertisements and that these advertisements are necessary for Company to provide the Services. You acknowledge and agree that the Services may include certain communications from Company, such as service announcements, administrative messages, and that these communications are considered part of your membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Services, shall be subject to the Agreement. You are responsible for obtaining access to the Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Services.

4.         Member Accounts, Passwords & Security. Visitors may browse the contents of ContestedArt.com and purchase artwork. Registered Users will receive a password and account designation upon completing the Service’s registration process. Registered Users may submit graphics, drawings, illustrations, photos or other images (“Works”) for display and sale, vote on the Works of others, give and receive feedback, and create profiles. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Company shall not be liable for any loss or damage arising from your failure to comply with this Section 4.

5.         License. You hereby grant to Company, during the effective period of this Agreement or any extension thereof, a revocable, assignable, sub-licenseable, non-exclusive right and license throughout the Universe to do the following: (a) electronically display and distribute via the Service or third party affiliated web sites, without any limitation not specifically set forth herein or hereinafter, all Works submitted to the Service by you; (b) modify the Works (e.g. creating “thumbnail” images, resizing for display on the Service, etc.) for display on the Service, for promotional purposes and the non-exclusive right to use Works in promotional activities; and (c) transform the Works into tangible, three-dimensional reproductions (prints or framed art) that may be offered for sale through the Service (“Reproductions”).

You shall at all times retain title to the Works, subject to the license granted to Company herein. You acknowledge and agree that although you may revoke the license granted to Company, such revocation shall not become effective unless and until Company has sold all remaining Reproductions in existence provided, however, that once Company receives Your notice of revocation, Company shall not be permitted to create any new Reproductions.

6.         Term, Termination & Removal of Content.

6.1 This Agreement is effective the earlier of (i) the first date materials are accessed by You, or (ii) you click “Accept” (the “Effective Date”) and shall continue in effect until terminated by either party. You may terminate this Agreement at any time by destroying all materials obtained from the Service and all related documentation and all copies and installations thereof, whether made under this Agreement or otherwise. This Agreement shall terminate immediately without notice from Company if in Company’s sole discretion You fail to comply with any term or provision of this Agreement. Upon termination, Your right to access and use the Service shall be terminated and You shall destroy all materials obtained from the Service and all copies thereof, whether made under the terms of this Agreement or otherwise.

6.2 Company may, at its sole discretion and at any time, discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of Your access to the Service under any provision of this Agreement may be effected without prior notice. Further, You agree that Company shall not be liable to You or to any third party for any termination of Your access to the Service.

6.3 Content may be removed by Company from the Service without prior notice upon the occurrence of any of the following: (a) Company receives notice from a copyright claimant that certain Content has been uploaded illegally or without authorization (a “Copyright Dispute”), (b) Company determines in its sole and absolute discretion that Content is inappropriate or objectionable, or (c) Company determines in its sole and absolute discretion that Content is or may inhibit, obstruct or detrimentally affect the operation of the Service.

6.4 Content uploaded to the Site shall remain on the Service unless removed by Company in accordance herewith, and/or requested to be removed by you, in writing. If you request that the Content be removed from the Service, you shall state the reason for the removal request. Company shall use its best efforts to remove the Content from the Web Site, within thirty (30) calendar days of the date of Your notice. You agrees that it may take longer than thirty (30) calendar days to remove the Content.

6.5 Technical Errors Not a Breach. You acknowledge and agree that the Internet is sometimes unreliable, slow or inactive and that Company shall not be responsible for any delays and/or errors in fulfilling orders caused by Company’s Internet connection, equipment (including server) failure, distributors and/or delivery services and/or by Acts of God, and/or any other cause beyond the control of Company, nor shall Company be responsible for any failure to list the submitted Content due to transmission errors and/or any other cause beyond the control of Company.

6.6 Inadvertent/Minor Errors Not a Material Breach & Audits. It is hereby acknowledged and agreed to by the parties that, although Company uses its best efforts to accurately account, there may be minor, inadvertent accounting errors due to the number of transactions processed by Company, coupled with the fractional dollar amount of many of these transactions. Any objection relating to any accounting statement, or lawsuit arising therefrom, must be made (and lawsuit commenced) no later than one (1) year after the date of the payment in question and you hereby waive any longer statute of limitations that may be permitted by law.

7.         Relationship of the Parties. For all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venture, or agent of the other and shall not bind nor attempt to bind the other to any contract. You are an independent contractor and solely responsible for all taxes, withholdings, and other statutory or contractual obligations arising from the sale of Your Works of any sort.

8.         Representations & Warranties.

8.1 You hereby represent and warrant that: (a) no part of this Agreement is or will be inconsistent with any obligation You may have to others; (b) You has the full right and authority to allow it to provide the assignments and rights provided for herein; (c) You have the full legal authority of the to upload the Content on ContestedArt.com, and (d) that the Work(s) will not infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of, or libel, slander, defame or disparage, any third party (“Third Party Claims”).

8.2 Content is Unencumbered. You represent and warrants that there are no liens, encumbrances or obligations upon or in connection with any Work or Content underlying any Work submitted that are not specifically set forth herein.

8.3 Company hereby represents and warrants that with respect to the Services provided pursuant to this Agreement: (i) that none of the Services nor any part of this Agreement is or will be inconsistent with any obligation Company may have to others; (ii) Company will not engage in any conduct which will create risk of liability for You with respect to any Third Party Claims or cause You to become a party to any action or proceeding involving Third Party Claims.

9.         No Warranties. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES RELATING TO THE PERFORMANCE OF THIS AGREEMENT, AND/OR ARISING HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, REPRESENTATIONS OR AFFIRMATIONS OF FACT, OR STATEMENTS REGARDING SUITABILITY FOR USE OR PERFORMANCE OF THE WEB SITE, SERVICE OR ANY OTHER TECHNOLOGY), WHETHER MADE BY COMPANY’S REPRESENTATIVE, EMPLOYEE OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY COMPANY FOR ANY PURPOSE, AND/OR GIVE RISE TO ANY LIABILITY OF COMPANY. THE TOTAL AGGREGATE LIABILITY OF Company TO YOU FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED ALL FEES AND COMMISSIONS COLLECTED AND DUE TO YOU HEREUNDER.

10.       Limitation of Liability. You acknowledge and agree that whatever users do with the Content after purchase is not under the control of Company and that You shall not hold Company liable for anything a user does to the Content. Company shall not be responsible for any losses incurred due to technical or non-technical errors. You acknowledge and agree that the Internet and computers are prone to breakages, machine failures, viruses, hackers’ attacks and other malfunctions. Company shall use commercially reasonable efforts to store, backup and secure all Content and information. Company shall use commercially reasonable efforts to restore Content in the event of such a malfunction. However, in no event shall Company have any laibility or repsonsibility for loss of Content arising out of such malfunctions.

11.       Indemnification. You shall indemnify, defend and hold Company (and its owners, officers, directors, employees, contractors, agents and representatives or affiliates) harmless from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defense costs and reasonable attorneys’ fees arising from or related in any way to: (i) any claim which, if proved, would breach any of Your warranties or representations; (ii) Your breach of any term or condition of this Agreement, (iii) any claim arising from the Work(s) You submit to Company for sale, display, download, and/or use, (iv) any claim on account of any illegal, unsafe, scandalous, obscene, libelous or morally deviant and/or otherwise inappropriate material contained in or suggested by Your Content, and (v) any and all Third Party Claims arising out of any Content submitted by You or transmitted through this Web Site by You.

12.       Restrictions. Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that are part of any Company Web Site are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Company. No material from any Company Web Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except with express written consent of Company.

12.1 General Restrictions. You shall not commit any of the following acts through your use of the Service:

(a)        transmit any content that is invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

(b)        use foul language or post links to adult-oriented Web sites;

(c)        transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of unrequested solicitation;

(d)        post advertising messages or solicitations, URLs containing a referral code or referral address, or links to businesses or pages with advertising, including “blind” or “hidden” referral links; or

(e)        collect, store, use or disseminate personal data or information about other Users in any manner whatsoever, including but not limited to, solicitation of products or services by mail, telephone or e-mail (e.g. e-mail addresses).

12.2 You agree to not upload harmful or malicious Content which may cause damage to the functioning of the Service or may render the Service unavailable for use. You agree to upload Content only in the format required. You also agree to not masquerade any other Content as that required for Company’s operations. You agree to upload virus-free Content that will not knowingly cause malfunction in devices and machines of Company and its customers, the Service or users. You agree that the Content can be rated or commented upon by any third party consuming the Content. Company may also employ algorithms to display your Content on the pages of the Service along with and in relation to other Content. Consumer ratings, comments and the display algorithms may or may not, in combination with or without each other, affect the display position of and the sales of Content.

12.3 You, and not Company, shall remain at all times exclusively responsible for any and all costs or claims arising out of, or related in any way to, any act or omission committed in response to, or suggested by Your Content, including, but not limited to, suggestions or inducements to engage in any illegal, unsafe, scandalous, obscene, libelous or morally deviant or otherwise inappropriate behavior. You agree that You shall immediately notify Company in writing of any claim of infringement, obscenity, incitement, or any other legal action is brought against You in connection with any Content, including, without limitation, any claim pursuant to this Section 12. You acknowledge and agree that Company shall not be held responsible for comments or remarks posted by users of the Service.

12.4 Company shall not be responsible for editing any Content and You shall have some editorial control over the Content after its submission. However, Company retains the right, in its sole discretion, to delete and/or decline to use any Content that in Company’s opinion is illegal, unsafe, scandalous, obscene, libelous, morally deviant and/or otherwise of an inappropriate nature.

13.       Copyrights and Copyright Agents. If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, please provide Company’s Copyright Agent the following information:

(a)        an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(b)        a description of the copyrighted work or other intellectual property that you claim has been infringed;

(c)        a description of where the material that you claim is infringing is located on the site;

(d)        your address, telephone number, and email address;

(e)        a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f)        a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Company’s Agent for Notice of claims of copyright or other intellectual property infringement:

Copyright Agent

Co. Address

Address

By phone:

By email: copyright@ContestedArt.com

14.       Miscellaneous.

14.1 Cookies and Other Personal Information. You acknowledge and agree Company shall have the right to compile and use statistics related to the sale of Your Content and Your purchases to better understand the You and Your preferences. Company hereby expressly reserves the right to collect information about its users, including, without limitation, information about You, via cookies and recorded data from Company’s servers and/or partners. It is expressly agreed to by the parties to this Agreement that it is permissible for Company to provide and/or sell any or all of the collected information to Company’s business partners, in Company’s sole discretion and judgment, without the necessity of notice to, approval by, and/or compensation to You; provided, however, except as otherwise provide on the Service, that in accordance with Company’s Privacy Policy, as set forth elsewhere on the Service, Company shall take reasonable steps to avoid knowingly disclosing Your name, address, telephone number, email address, or banking information without first notifying You in advance in sufficient time to allow You to object and to legally prevent Company from disclosing said information.

14.2 No Expectation of Privacy. By using the Service, You acknowledge and agree that Internet transmissions are never completely private or secure. You acknowledge and agree that any message or information sent to Company may be read or intercepted by others, even if there is a special notice that a particular transaction or transmission (for example, credit card information) is encrypted.

14.3 Taxes, Interest and/or IRS Penalties. You acknowledge and agree that You shall be exclusively responsible for any and all taxes, interest and penalties arising from receipt by You of any payment (or other income) from Company. In addition to the general indemnification granted elsewhere by You to Company, You hereby agrees to indemnify, defend and hold Company, its officers, directors, shareholders, predecessors, successors-in-interest, employees, contractors, agents, subsidiaries and affiliates, harmless from and against any demands, loss, liability claims or expenses (including attorneys’ fees), made against Company by any third party due to or arising out of or in connection with Your use of the Service.

14.4 Governing Law and Venue. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Illinois, without regard to the conflicts of laws principals thereof.  The parties agree to submit to jurisdiction and venue in the State or U.S. District Courts in the State of Illinois.  The parties hereby irrevocably consent to service of process in connection with any controversy by the mailing thereof by registered mail or certified mail, postage prepaid to the respective parties at their respective addresses set forth in or designated pursuant to this Agreement.  Any award made by a Court in conjunction with litigation between the parties regarding this Agreement shall include an award of all reasonable attorneys’ fees and legal costs incurred by the party in whose favor the final decision is rendered.

14.5 Assignment. You shall not transfer or assign your rights or obligations under this Agreement without the prior written consent of Company.

14.6 No Waiver. No waiver of any term or condition of this Agreement shall be valid or binding on a party unless the same shall have been set forth in a written document, specifically referring to this Agreement and duly signed by the waiving party.  The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the other parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.

14.7 Severability. If any provision in this Agreement shall be found or be held by a court of competent jurisdiction to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any party.  In such event, the parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly effects the parties’ intent in entering into this Agreement.

14.8 Force Majeure. Company shall not be liable for failure to fulfill its obligations under this Agreement due to any causes beyond its reasonable control.

14.9 Notice. Any notice required or permitted to be given under this Agreement shall be delivered by hand, by registered or certified mail, postage prepaid, return receipt requested to the address of the other party first set forth during registration on Company’s Web site, or to such other address as a party may designate by written notice in accordance with this Section 14.9 or by overnight courier. Notice so given shall be deemed effective when received, or if not received by fault of addressee, when delivered. You acknowledge that You are responsible for immediately notifying Company, in writing, of any address and/or notice changes where You are to receive payment and/or notice. You assume all responsibility with respect to advising Company of any change in information affecting the payment. In the event a payment does not reach You due to a failure to provide updated mailing address information or such required by the remittance method, You hereby absolves Company from any liability in connection with such failure.

14.10 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements relating thereto, written or oral, between the parties. Amendments to this Agreement must be in writing, signed by the duly authorized officers of the parties.

14.11 No Third-Party Beneficiaries.  Except as expressly provided herein, this Agreement is made and entered into for the sole protection and benefit of the parties hereto. Nothing herein express or implied, is intended to or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than the parties and their Affiliates any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.