Terms and Conditions
Last Updated Date: August,14 2020
Certain areas of the Services and your access to certain Services may have different 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 of the Services or for access to specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Modifications to these Terms
Artxit reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Services after we have posted a modification on the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. We encourage you to check back regularly to review these Terms.
Modifications to the Services
We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Services without notice to you. We may modify or remove any Original Works of Art (as defined below), Digital Works (as defined below), Artxit Content (as defined below) or Member Content (as defined below) from the Services at any time without notice to you, including the removal of any works of art or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Services that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by applicable local, state, federal or international laws, regulations, or statutes. No specified update or refresh date applied to the Services should be taken to indicate that all information on the Services has been modified or updated.
The Services are intended solely for persons who are 18 or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 or older.
In order to list a work on the Services or to make a purchase through the Services, (other than users who utilize the guest checkout option), you must first create an account (“Account”) by completing our registration process. During the registration process you will be required to provide certain information and you will establish a username and a password. Upon completion of our registration process or by utilizing our guest checkout option you will become a “Member.” 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, for example if you become VAT registered. Artxit reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. 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 Artxit of any unauthorized use of your Account.
Seller Terms and Conditions
Listing Works on the Services
As a Member, you may submit listings for original works of art (“Original Works of Art”) that you have created and that you desire to sell through the Services. You may not submit listings for Original Works of Art that were created by another artist. As a Member you may also submit listings for digital images of works of art (“Digital Works”) that you have created and that you desire to commercially exploit through the Services. You may not submit listings for Digital Works that were created by another artist. In order for your listings to be accepted, you must provide Artxit with all the information requested by Artxit and you must comply with any other Artxit requirements as identified to you. Without limiting the generality of the foregoing, if you submit listings for sale you may be required to verify your identity by separately providing Artxit with a copy of a government-issued ID, tax identification, VAT ID, or similar documentation and information. Your listings must be accurate and complete and comply with Artxit’s then-current listings content guidelines, which are available at www.artxit.com/guidelines. Artxit reserves the right to edit any listings to ensure that they comply with these guidelines. You acknowledge that your listings may not be immediately searchable by keyword or category for several hours (or up to 24 hours or more in some circumstances). The placement of your listings in search and browse results may be based on factors that include without limitation title, keywords and price.
You acknowledge that Artxit reserves the right to promote and market Original Works of Art and/or Digital Works through the use of sales and/or discounts. The sale or discount amount will apply to the listing price of Original Works of Art and/or Printed Works (defined below) relating to the Digital Works. You always retain the right to remove a listing for an Original Work of Art or Digital Work from the Services - please see below for instructions.
If you want to remove a listing for an Original Work of Art or Digital Work from the Services you must go to your account, click on the image you want to delete and then click on Delete and follow the steps set forth on that page.
Responsibility for Works
You acknowledge and agree that you are solely responsible for all Original Works of Art and Digital Works that you make available through the Services. Accordingly, you represent and warrant that: (i) as to Original Works of Art that you make available through the Services, you are the creator of all such Original Works of Arts and you are the sole and exclusive owner of all such Original Works of Art; (ii) as to Digital Works that you make available through the Services, you are either the sole and exclusive owner of all such Digital Works or you have all rights, licenses, consents and releases that are necessary to grant to Artxit the rights in such Digital Works as contemplated under these Terms; and (iii) neither the Original Works of Art nor Digital Works that you make available through the Services nor Artxit’s use and exploitation thereof as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights, or result in the violation of any applicable law or regulation.
If you submit listings for Original Works of Art, you are selling such Original Works of Art through the Services and on third party websites and sales channels (collectively “Online Sales”) and you hereby grant Artxit a worldwide, transferable, nonexclusive, right and license, with a right to sublicense, to: (i) use, reproduce, distribute, publicly perform and publicly display copies of the Original Work of Art sales via the Sales Channels; and (ii) access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the Original Work of Art in any form, medium or technology now known or later developed for the purpose of promoting Artxit, the Services. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis and that your sole compensation for the grant of such license rights, if any, will be in the form of the Artist Revenue Share (defined below), which is payable only upon the sale of an Original Work of Art via the Online Sales channel.
If you submit listings for Digital Works, you will permit Members and other third parties to purchase fine art reproductions of the Digital Works (collectively, “Printed Works”) through a print-on-demand service, which is described at http://help.artxit.com/customer/portal/articles/1122331-making-prints-for-sale.
If you submit listings for Digital Works, you hereby grant Artxit a worldwide, transferable, nonexclusive, right and license, with a right to sublicense, to: (i) use, modify (as appropriate in connection with the print-on-demand services and shipping of Printed Works), reproduce, distribute, publicly perform and publicly display the Digital Works to Members and other third parties via Online Sales and through other offline channels (“Offline Sales”); and (ii) access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the Digital Works in any form, medium or technology now known or later developed, for the purpose of promoting Artxit and the Services. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis and that your sole compensation for the grant of such license rights, if any, will be in the form of the Artist Revenue Share (defined below), which is payable only upon the sale of a Digital work via Online Sales channels and Offline Sales channels. Artxit may appoint one or more third party subcontractors, who may exercise the license rights above for the purpose of enabling Artxit to process and fulfill orders for Printed Works.
If an Original Work of Art and/or Printed Works are sold via a third party website, the terms and conditions of the third party website will apply to the purchase in question by the applicable purchaser via the third party website. However, as between you and Artxit, these Terms will apply to the sale of such Original Work of Art and/or Printed Work.
Artxit and/or its third party service providers will be responsible for collecting billing and shipping information from the purchaser and for processing payment for such purchases via the Services. For purchases made via third party websites and for Offline Sales, the applicable third party website or Artxit’s Offline Sales partner will be responsible for collecting billing and shipping information, as applicable, from the purchaser and for processing payments, and will remit applicable payments relating to such sales as agreed upon between Artxit and the third party website or Artxit’s Offline Sales partner, as applicable, to Artxit and share related shipping information, including the contact details of the purchaser where necessary, with Artxit.
For Original Works of Art only, Artxit will provide you with the name and address of the purchaser and, unless otherwise instructed in writing by Artxit, you will be responsible for shipping the purchased Original Work of Art directly to the purchaser. Artxit will provide you with information regarding its preferred shippers with which Artxit maintains an account. You agree to ship the purchased Original Work of Art to the purchaser within seven (7) days following the date of purchase (the “Shipping Period”). If you do not ship the purchased Original Work of Art to the purchaser prior to the expiration of the Shipping Period, then the sale may be cancelled. If you ship the purchased Original Work of Art via a Artxit preferred shipper account, Artxit will be responsible for the cost of shipping. You are responsible for providing accurate shipping weight, shipping dimensions and shipping address to Artxit if you are using a Artxit preferred shipper. If actual shipping weight, shipping dimensions and shipping origination information at the time of shipment varies from the information provided by you, Artxit (after providing documentation) reserves the right to deduct the resulting increased shipping costs from your Artist Revenue Share (defined below). If you do not ship the purchased Original Work of Art via a Artxit preferred shipper or if you pay for the cost of shipping yourself, Artxit will reimburse you for the amount you paid for shipping, up to the amount that Artxit or the third party website charged the purchaser for shipping.
For sales of Original Works of Art via the Online Sales channels, Artxit will credit your Account in an amount to be determined in accordance with Artxit’s then-current standard pricing and revenue share terms, which may be found at support.artxit.com/hc/en-us/articles/204629568 (the “Artist Revenue Share”); for sales of Original Works of Art via the Services, subject to Artxit’s receipt of confirmation of delivery to the purchaser, Artxit will credit your Account with the corresponding Artist Revenue Share following the expiration of the return period and for sales of Original Works of Art via third party websites, Artxit will credit your Account with the corresponding Artist Revenue Share within a commercially reasonable time after it has received payment from the third party website and the Original Work of Art has been confirmed to have been successfully delivered to the purchaser, as determined by Artxit, in its sole discretion.
You agree to comply with the terms and conditions of Artxit’s then-current Return Policy at support.artxit.com/hc/en-us/articles/205608487 that are applicable to any Original Works of Art that are sold through the Services.
For sales of Printed Works via Online Sales and Offline Sales, Artxit will credit your Account visible in the Sales Dashboard with the applicable Artist Revenue Share as set forth in Artxit’s then-current standard pricing and revenue share terms, which, as noted above, may be found at support.artxit.com/hc/en-us/articles/204629568.
You will have the right to request Artxit to remit the Artist Revenue Share in your Account in accordance with a Artxit-designated payment schedule. Upon the termination of these Terms or cancellation of your Account, Artxit will remit to you the remaining balance of Artist Revenue Shares in your Account, if any.
If you remove a listing for a Digital Work from the Services, the license rights granted by you to Artxit with respect to such Digital Work will terminate as of the date the listing is removed, except that such license rights will survive and remain in effect for as long as necessary for Artxit and its third-party subcontractors to fulfill any in-progress orders for such Printed Works and for any orders for such Printed Works accepted by Artxit or its third-party subcontractors or its Online Sales partners via third party websites and its Offline Sales partners prior to or as of the effective date of termination. In addition, you acknowledge and agree that the license rights granted by you to Artxit with respect to using such Digital Work to promote Artxit, the Services will remain in full force and effect for only as long as necessary for Artxit to fulfill any current obligations that require using the Digital Work for such promotional purposes.
Purchaser Terms and Conditions
Purchases of Original Works of Art
As a Member, you may purchase Original Works of Art that are listed by other Members on the Services. When you purchase such an Original Work of Art through the Services, you are purchasing the work from the Member identified on the listing for such work and not from Artxit. Prices for Original Works of Art will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges (unless specifically indicated on the Site) or applicable Taxes (defined below) including VAT, if any, for which you are responsible and which will be separately identified on your receipt. Artxit and/or its third party service providers will collect your billing and shipping information and process your payment. Certain Original Works of Art (including, but not limited to, oversized works and sculptures) may require additional shipping and handling charges and special arrangements. The Member identified on the listing of the Original Work of Art will ship the purchased work directly to you. The terms and conditions of Artxit’s then-current Return Policy apply to any Original Works of Art that you purchase through the Services. When you purchase Original Works of Art via Online Sales (other than via the Services) such purchases will be subject to the terms and conditions of the applicable Online Sales channels which will be presented to you at the time of purchase.
Purchases of Printed Works
As a Member, you may purchase Printed Works that are listed by other Members on the Services. Prices for Printed Works will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges or applicable Taxes (defined below), including VAT, if any, for which you are responsible and that will be separately identified on your receipt. When you purchase Printed Works through the Services, Artxit and its third party service providers will collect your billing and shipping information will be collected, your payment will be processed, Printed Works will be shipped directly to you. The terms and conditions of Artxit’s then-current Return Policy apply to any Printed Works that you purchase through the Services. When you purchase Printed Works via Online Sales (other than via the Services) and Offline Sales such purchases will be subject to the terms and conditions of the applicable Online Sales and Offline Sales channels, which will be presented to you at the time of purchase.
Artxit reserves the right to cancel any order for an Original Work of Art or Printed Work placed via the Services if Artxit determines, in its reasonable discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed via the Services. If Artxit cancels an order placed via the Services, Artxit will send you an email confirmation of such cancellation and you will not be charged for your order.
Terms for both Sellers and Purchasers
If you are a Member and have submitted a listing for an Original Work of Art or a Digital Work and have been contacted through the Services by another Member with respect to purchasing either of the foregoing, or a similar work or custom piece related to a listed work of art, you may not sell such Original Work of Art or Digital Work to such Member independent of Artxit and the Services. Similarly, if you are a Member and desire to purchase an Original Work of Art or Digital Work for which another Member has submitted a listing, or a similar work or custom piece related to a listed work of art, you may not purchase such Original Work of Art or Digital Work from such Member independent of the Artxit and the Services. Violation of this provision may result in the termination of your Member account as an artist or buyer, in addition to any other remedies available to Artxit including, without limitation, injunctive or other appropriate relief.
All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Services, are stated in U.S. dollars and do not include any sales, use, value added (“VAT”), goods and services (“GST”) or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, “Taxes”). If you are a seller of Original Works of Art and/or Printed Works, you acknowledge that Artxit will withhold the Taxes required to be withheld from the payments Artxit makes to you. Seller must fill out appropriate Tax forms prior to any amounts being paid, as follows:
For an artist living within the United States, a W9 Tax Form must be filled out for both the sale of an Original Work of Art or Printed Work.
For an artist living outside the United States, a W8BEN Tax Form must be filled out for Original Works of Art and Printed Works.
Additional Tax information can be found by visiting https://support.artxit.com/hc/en-us/sections/200723468-Artist-Payout.
If you are a purchaser of Original Works of Art and/or Printed Works, you acknowledge that Taxes including VAT will be added to the amounts charged, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes including VAT. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
You understand and agree that Artxit uses commercially reasonable efforts to display the colors of Original Works of Art, Digital Works and Printed Works accurately via the Services. However, because individual computer monitors may display colors differently, Artxit is not responsible for the color accuracy of any Original Works of Art, Digital Works or Printed Works displayed on the Services, and disclaims all liability in this regard.
In addition to submitting listings for Original Works of Art and Digital Works, Artxit may, in its sole discretion, designate areas of the Services in which Members can post, upload, publish or submit text, graphics, audio, video, images of works of art or other content on or to the Services (individually or collectively, “Member Content”). “Member Content” excludes any images of Original Works of Art or Digital Works for which a Member submits a listing, as described under “Seller Terms and Conditions” above. Artxit does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that a Member may have to use and exploit any such Member Content. By making available any Member Content on or through the Services, (i) you grant Artxit a worldwide, nonexclusive, transferable, royalty-free, commission-free license to crop, resize, publicly display, publicly perform, distribute, broadcast and transmit such Member Content on or through the Services in any form, medium or technology now known or later developed, for the purpose of promoting Artxit, the Services, and (ii) you grant directly to other Members the right and license to view your Member Content on or through the Services only in connection with such Member’s authorized use of the Services. You reserve all other rights and licenses in and to any Member Content that you make available on or through the Services.
You acknowledge and agree that you are solely responsible for any Member Content that you make available on or through the Services. You represent and warrant that: (i) you are the sole and exclusive owner of all Member Content that you make available on or through the Services or that you have all rights, licenses, consents and releases that are necessary to make available such Member Content and to grant all rights and licenses in such Member Content as granted under these Terms; and (ii) neither the Member Content nor your making available any Member Content on the Services nor any use of any Member Content as permitted under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Artxit may also make available through the Services text, graphics, audio, video and images of works of art (collectively, “Artxit Content”), some of which is owned by Artxit (“Artxit-owned Content”), and some of which is made available under license by a third party (“Artxit-licensed Content”). Artxit authorizes you to download, view and print Artxit-owned Content solely for your personal use in visiting the Services and, if you are a Member, in connection with exercising the rights granted to Members under these Terms. For Artxit-licensed Content, the scope of your rights thereto will be solely as set forth in the applicable license agreement that governs the use of such content, as identified on the Services where such content appears. Nothing in these Terms is intended to modify, restrict or limit the scope of your rights as to such Artxit-licensed Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Artxit or its licensors, except for the licenses and rights expressly granted in these Terms.
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 patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil 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 minors in any way; or (viii) promotes illegal or harmful activities, products or substances.
Use, display, mirror or frame the Services, or any individual element within the Services, Artxit’s name, any Artxit trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Artxit’s express written consent;
Access, tamper with, or use non-public areas of the Services, Artxit’s computer systems or network, or the technical delivery systems of Artxit’s providers;
Attempt to probe, scan or test the vulnerability of any Artxit system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Artxit or any of Artxit’s providers or any other third party (including another user) to protect Services, Artxit Content or Member Content;
Attempt to access or search Services, Artxit Content or Member Content or download Artxit Content or Member Content from the 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 Artxit or other generally available 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 a Artxit trademark, logo URL or product name without Artxit’s express written consent;
Use Services, Artxit Content or Member 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 Services, Artxit Content or Member 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 Services, Artxit Content or Member Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Artxit will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Artxit may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Artxit has no obligation to monitor your access to or use of the Services or to remove any Member Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Artxit reserves the right, at any time and without prior notice, to remove or disable access to any Member Content, listings for Original Works of Art or Digital Works, Artxit Content or any other text, graphics, images, software, music, audio, video, information or other content or material that Artxit, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Services.
RESALE TERMS AND CONDITIONS
On every sold artwork, an option will be displayed next to the artwork that says, “Make an Offer” that allows buyers to submit a bid. If the artist deletes the work from the site, it is no longer eligible for resale offers. You can read our resale FAQ at https://support.artxit.com/hc/en-us/sections/360001168834-Resale.
The resale offer option will be displayed on all sold artworks. If someone makes an offer on an artwork that you have purchased through Artxit, you will be contacted by Artxit via email with the offer price as well as detailed instructions on how to move forward if you agree to sell. If you do not wish to accept the offer presented to you, you’re welcome to decline the offer. Should you decide to accept the offer, a member from our team will work closely with you through every step to the process.
Your earnings: You will earn a portion of the offer amount net the artist’s resale payment (see below).
Shipping and Handling: You are responsible for packaging, labeling, and coordinating pickup or drop-off with a courier. In addition, we allow sellers to arrange a pickup or drop-off with one of Artxit’s couriers. You are required to deliver the artwork in the same condition and materials as described in the artwork description online or as discussed and agreed upon with Artxit’s advisory team.
Certificate of Authenticity: Reseller is required to deliver any certificate of authenticity that accompanied the artwork in the original purchase.
On every sold artwork, you’ll see an option next to the artwork that says, “Make an Offer.” Proceed through the steps to confirm your offer. Once you have made your offer one of our curators will contact you to facilitate this process. If your offer is accepted, we will work with you to handle payment and logistics.
The offer form does not require registration or payment information. It simply collects your offer amount, personal message, and contact information (name, email).
All resale orders are final unless the artwork arrives damaged. In the event of damaged artwork, the order will undergo the same refund process as with any regular order. If the work is determined to be beyond repair or restoration, then you will be eligible for a refund.
In addition to the agreed upon price, additional costs such as shipping, customs/duties, and Taxes including VAT may be applied thereafter. All such costs will be clearly communicated to buyers before collecting payment.
Once you have confirmed you would like to proceed, you will need to provide your payment information before we process your purchase.
If your offer is declined by the owner of the artwork, you agree that a curator may contact you to let you know and to help find similar works or facilitate a commission by the same artist.
You cannot apply any promotional discounts to your offer.
Artists’ Resale Payment
If you are the original artist of the Original Work of Art that you sold on Artxit, you will receive a payment for the resale of your Original Work of Art.
Artists are eligible to receive a resale payment (https://support.artxit.com/hc/en-us/articles/204629568).
Artists will not be notified of the resale transaction until seven (7) days after the artwork has been delivered. This ensures the artwork has arrived and meets the buyer’s satisfaction (e.g., work was not damaged).
Once the resale order has cleared the seven (7) days, the payment will be made available for payout and the artist will be notified via email.
ADDITIONAL TERMS AND CONDITIONS
Sweepstakes and Contests
Artxit may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Services, as they may contain additional important information about Artxit’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of any Official Rules conflict with these Terms, the terms and conditions of the Official Rules will control.
Artxit’s Intellectual Property
The Services and Artxit Content are protected by copyright, trademark and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Artxit and its licensors exclusively own all right, title and interest in and to the Services and Artxit Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Artxit Content.
Artxit respects copyright law and expects its users to do the same. It is Artxit’s policy to terminate in appropriate circumstances of Members or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Artxit’s Copyright Policy at www.artxit.com/copyrightfor further information.
The Services may contain links to third-party websites or resources. You acknowledge and agree that Artxit is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Artxit of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Artxit will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Artxit reserves the right to revoke your access to and use of the Services, Artxit Content and Member Content at any time, with or without cause. In the event Artxit terminates these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Account at any time by sending an email to email@example.com.
Mobile Services and Applications
“Mobile Services” means certain software and services that are available via a mobile device, including: (i) the ability to upload data to the Services via a mobile device; (ii) the ability to use the Services from a mobile device; and (iii) the ability to access certain features through a Mobile Application downloaded from the Services and installed on a mobile device.
Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Artxit and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
Mobile Application. Subject to your compliance with these Terms, Artxit grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the applicable Artxit Mobile Application on a mobile device that you own or control and to run such copy of the mobile application solely to access the Mobile Services for your own personal non-commercial purposes. Furthermore, with respect to any Mobile Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
App Stores. You acknowledge and agree that the availability of the Mobile Application and the Mobile Services is dependent on the third party from whom you received the Mobile Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that these Terms are between you and Artxit and not with the App Store. Artxit, not the App Store, is solely responsible for the Mobile Application and the Mobile Services, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Application and the Mobile Services. You agree to comply with, and your license to use the Mobile Application and the Mobile Services is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Application and the Mobile Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
Accessing and Downloading the Mobile Application from the Apple App Store. The following applies to any Mobile Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that: (i) these Terms are concluded between you and Artxit only, and not Apple; and (ii) Artxit, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Apple App Store terms of service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Artxit and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Artxit.
You and Artxit acknowledge that, as between Artxit and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Artxit acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Artxit and Apple, Artxit, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Artxit acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
Artxit reserves the right at any time to charge fees for access to the Services, or any portion thereof. However, in no event will you be charged for access to the Services unless we obtain your prior agreement to pay such charges. You may cancel your Account at any time. You agree to pay all charges that may be incurred by you or on your behalf through the Services, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any and all Taxes including VAT that may be applicable to your purchase(s), and you agree that such Taxes including VAT, if any, are not our responsibility.
We reserve the right, with or without prior notice, to: change descriptions or references to artworks, products, subscriptions, software or services; limit the available quantity of any artworks, products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Services with any products, subscriptions, software or services. We may modify any points, rewards, or the terms that govern their usage, at our sole discretion, and such modifications may make the points or rewards more or less common, valuable, effective, or functional.
THE SERVICES, Artxit CONTENT AND MEMBER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Artxit EXPLICITLY 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. Artxit MAKES NO WARRANTY THAT THE SITE, SERVICES, Artxit CONTENT OR MEMEBR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Artxit MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Artxit OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO ACTION SHOULD BE TAKEN OR PURCHASE MADE BASED UPON ANY OF THE INFORMATION CONTAINED IN THE SERVICES. YOU SHOULD SEEK INDEPENDENT ADVICE FROM A PROFESSIONAL AND/OR A PERSON WHO IS KNOWLEDGEABLE IN THE APPLICABLE AREA BEFORE ACTING UPON ANY OPINION, ADVICE, OR INFORMATION CONTAINED IN THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, Artxit DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SERVICES, NOR DOES Artxit MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SERVICES. Artxit MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Artxit, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services, Artxit Content or Member Content, or your violation of these Terms.
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 Services, Artxit Content and Member Content remains with you. Neither Artxit nor any other party involved in creating, producing, or delivering the Services, Artxit Content or Member Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, 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 Services, Artxit Content or Member Content, or from any communications, interactions or meetings with other Members or users of the Services or other persons with whom you communicate or interact as a result of your use of the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Artxit 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.
In no event will Artxit’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Services, Artxit Content or Member Content exceed: (i) if you are a Member who has sold Original Works of Art or has licensed Digital Works and has received any Artist Revenue Share from Artxit from the sale of Printed Works, the total payments made or credited to you by Artxit for the sale of your Original Works of Art and/or from the sale of Printed Works based on your licensed Digital Works during the three (3) month period preceding the date a claim for liability arises under these Terms; and (ii) if you are a Member who has purchased Original Works of Art or Printed Works, the total payments that you made to Artxit for the Original Works of Art and/or Printed Works that are the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Artxit and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Artxit used herein are trademarks or registered trademarks of Artxit or its licensors. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
RESOLUTION OF DISPUTES
Governing Law and Jurisdiction
These Terms will be governed by the laws of the State of California, without regard to conflict of law provisions. You and we expressly agree that any claim or dispute must be resolved exclusively by a state or federal court or arbitration located in Los Angeles County, California, except as described in the Agreement to Arbitrate below or as otherwise mutually agreed by the parties.
It is our goal that the Services meet your expectations and provide excellent service. However, there may be instances when you feel that we have made a mistake or left you disappointed in some way. In those instances, we are committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern. Therefore, for any problem or dispute that you may have with us, you acknowledge and agree that you will, as an initial matter, email us at firstname.lastname@example.org to describe to us the nature of your complaint or dissatisfaction. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within thirty (30) days after our receipt of your written description of it, you agree to the further dispute resolution provisions below. To the extent permitted by applicable law, the informal resolution process described in this paragraph is a precondition to pursuing any other process, so please do not forget to contact us first.
Mutual Agreement to Arbitrate
PLEASE READ THIS AGREEMENT TO ARBITRATE CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AND WE AGREE TO ARBITRATE ANY CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT-OUT. YOU AND WE AGREE THAT ALL SUCH CLAIMS WILL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A PROPOSED CLASS ACTION. WHETHER OR NOT YOU OPT-OUT, HOWEVER, YOU ARE GIVING UP A RIGHT TO A TRIAL BY JURY. YOU AND WE UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.
The arbitrator, and not any federal, state, local, or other court or agency, WILL have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of THESE TERMS AND this Agreement to arbitrate, including but not limited to, any claim that all or any part of THESE TERMS OR this Agreement to Arbitrate is void or voidable.
You and we agree that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services and these Terms or to any products or services sold or distributed through the Services, will be final and binding arbitration, except to the extent that either party has, in any manner, infringed upon or violated, or threatened to infringe upon or violate, the rights of either party or any third party’s patent, copyright, trademark, trade secret, privacy or publicity rights or is seeking to vindicate public rights, in which case both sides acknowledge that arbitration is not an adequate remedy and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies) on an individual basis in a court located in Los Angeles County, California. You and we acknowledge that this Agreement to Arbitrate affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement to Arbitrate (despite any other choice of law provision). As a limited exception to this mutual Agreement to Arbitrate, you and we agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent.
For users in the United States, the arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at adr.org/consumer or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
For users outside of the United States, any controversy or claim arising out of or relating to these Terms, or the breach thereof, will be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Expedited Procedures (“ICDR Expedited Procedures”). The arbitration will be decided by a sole arbitrator appointed in accordance with the ICDR Expedited Procedures.
Means and Fees
In the interest of efficiency and fairness, you and we agree that the arbitration proceeding will be based solely on written submissions, unless the arbitrator deems an oral hearing strictly necessary. Should the arbitrator deem an oral hearing to be necessary, such hearing will be conducted via telephone or other electronic or technical means, or if that’s not possible, in person in the jurisdiction where you reside or at another mutually agreed upon location. The language of the arbitration will be English or, for users who reside outside of the U.S., the official language of your jurisdiction. The arbitrator’s award will be final and binding, and judgment may be entered upon it by any court having jurisdiction thereof. Each party will have the right to use legal counsel in connection with arbitration at its own expense. If you initiate arbitration, we will reimburse you for filing, administration and arbitrator fees for claims totaling less than USD $10,000, unless the arbitrator determines the claims are frivolous. We are not responsible for reimbursing you for costs incurred by you for legal counsel, travel or other out-of-pocket costs or expenses. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
Right to Opt-Out
YOU HAVE A RIGHT TO OPT-OUT OF THIS AGREEMENT TO ARBITRATE by sending an email to email@example.com or by mailing us, postage prepaid, to Artxit Online, Inc., 1655 26th Street, Santa Monica, California, 90404, Attention: Legal Department. Such opt-out must be given within the earlier of thirty (30) days of approving your first purchase of products on the Services or your first upload of artwork to the Services or if we make any changes to this Agreement to Arbitrate which alter your rights, within thirty (30) days after the effective date of such revision to this Agreement to Arbitrate. Any opt-out received after such deadline will be ineffective and this Agreement to Arbitrate will remain in full force and effect, except as expressly provided above. If you opt-out of this Agreement to Arbitrate, we also will not be bound by the terms of this Agreement to Arbitrate.
Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ARBITRATION PROCEEDINGS WILL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable with respect to any particular claim otherwise subject to arbitration, then that claim will not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that occurs, however, this Agreement to Arbitrate and this Class Action Waiver still will be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis.
Waiver of Trial by Judge or Jury
YOU AND WE AGREE AND UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES YOU AND WE ARE GIVING UP ANY RIGHT THAT YOU OR WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THIS AGREEMENT TO ARBITRATE. YOU AND WE FURTHER AGREE THAT ANY CLAIM HEARD IN A COURT OF COMPETENT JURISDICTION WILL BE HEARD BY A JUDGE INSTEAD OF A JURY, EXCEPT WHERE A JURY TRIAL WAIVER IS NOT PERMISSIBLE UNDER APPLICABLE LAW.
>Limitation of Actions
You and we agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services, or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Users from Other Jurisdictions
The Services are controlled and operated by Artxit from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
These Terms constitute the entire and exclusive understanding and agreement between Artxit and you regarding the Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Artxit and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Artxit’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Artxit may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Artxit via email (in each case to the address that you provide) or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Artxit to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Artxit. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction 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.
If you have any questions about these Terms, please contact Artxit at firstname.lastname@example.org.
If you have a complaint, you may contact us at Artxit’s legal department:
Artxit Pty Ltd
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