October 7, 2006
(revised December 2, 2007)
Welcome to MyArtPlot.com (collectively, "MAP", the "Web site"). MAP provides social, professional, and commercial tools (collectively, "Services", "Services") to many types of artists, artisans, art enthusiasts, art buyers, art renters, art merchant buyers, as well as individual and corporate entities. It is an empowerment platform, outfitted with functional tools. MAP is a social arts and crafts market venue, built within and propelled by an artists' and buyers' social network, armed with professional tools. MAP is privately owned and operated by MyArtPlot, LLC (collectively, "We", "Our", "Us", the "Company"), a Delaware Limited Liability Company.
This Agreement is accepted upon your access and use of MAP and its Services and is further affirmed by you becoming a Member, regardless if it is an paid or a free account. This Agreement constitutes the entire agreement between you and MAP regarding the use of the Services. The failure of MAP to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The bolded section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts of the State of Delaware, in the City of Wilmington.
Eligibility. Use of and Membership of MAP and of its Services are void where prohibited. By visiting, accessing and using MAP and its Services, you represent and warrant that (a) you are 18 years of age or older, or are under the permission and supervision of a legal guardian, in addition to having the legal ability or legal representation to enter into this binding Agreement with MAP and that you are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction; (b) all membership registration information you submit is truthful and accurate; (c) you will maintain the accuracy of such information; (d) your use of the MAP Services does not violate any applicable law or regulation.
Term. This Agreement shall remain in full force and effect while you use the Services or are a User. As a Member, you may terminate your Membership at any time, for any reason, by following the instructions, stated in the "help" section of the Web Site. MAP may terminate your Membership at any time, with or without cause, and with or without warning. Even after Membership is terminated, this Agreement will remain in effect.
Availability. MAP and its Services are provided to you on an "AS IS" and "AS AVAILABLE" basis and MAP reserves the right to modify, suspend, limit or discontinue the Services, in its sole discretion, at any time and without notice. You agree that MAP is and will not be liable to you for any modification, suspension, limitation or discontinuance of the Services.
Your Content. The terms "Your Content" or "Content" are defined as any information or materials that you submit, upload, directly or indirectly create, or provide to us, to MAP, to other Users, or make public or private during your access and use of our Services, including in any public or private message areas or through any email feature. You are solely responsible for Your Content, and we act as a passive conduit for your online distribution and publication of Your Content. However, we reserve the right, at our sole discretion, to delete any of Your Content. We make no claim or take any responsibility for Your Content. Our ownership of Your Content is limitedly granted to us by you as outlined in License. Your Content and your activities on MAP shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit, stolen good, or duplicates and prints of any third-party's intellectual properties; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; to upload, post, or otherwise transmit any material that is obscene, offensive, blasphemous, pornographic, unlawful, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, defamatory, libelous, vulgar, illegal or otherwise objectionable; (f) be obscene or contain child pornography or, otherwise adult in nature, pornographic or highly sexual, or harmful to minors in any way, including, but not limited to, uploading, posting, or otherwise transmitting content that violates child pornography laws, child sexual exploitation laws or laws prohibiting the depiction of minors engaged in sexual conduct, or submitting any personally identifiable information about any child under the age of 13; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; (i) to forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through our Services; and (j) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are identical to other items you have for sale but are priced lower; (cc) are concurrently listed for sale on a web site other than MAP's (this does not prevent linking to or advertising a MAP item from another web site); or (dd) you do not have a right to link to or include. Furthermore, you may not submit or upload any information or images on the Web site (or consummate any transaction that was initiated using our Services) that, could cause us to violate any applicable law, statute, ordinance or regulation.
Monitoring Content. MAP does not monitor and does not guarantee its ability to monitor or control, at its discretion, the Content that you may upload, post or otherwise transmit using our Services and MAP does not have any obligation to monitor such Content for any purpose. You acknowledge that you are solely responsible for all Content that you upload, post or otherwise transmit using our Services. However, we reserve our right to monitor and delete, at our sole discretion, whenever we choose to monitor and control existing Content.
Information Control. While we may volunteer to do so at our discretion, it is our policy not to do not control and monitor the information provided by other users that is made available through our system. You may find other users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using the Web site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using MAP and our Services, you agree to accept such risks and The Company is not responsible for the acts or omissions of users on MAP.
Storage Policy. At this time, MAP provides free online storage of Content to registered members of our Services. However, you acknowledge and agree that MAP may, at its option, establish limits concerning your use of our Services, including without limitation the maximum number of days that Your Content will be retained by our Services, the maximum size of any Content files that may be stored on the Service, the maximum disk space that will be allotted to you for the storage of Content on MAP's servers. Furthermore, you acknowledge that MAP reserves the right to terminate or suspend accounts that are inactive, in MAP's sole discretion, for an extended period of time (thus deleting or suspending access to your Content and Information). Specifically to Storage Policy, MAP shall have no responsibility or liability for the deletion or failure to store any Content maintained in our Services and you are solely responsible for creating back-ups of Your Content. You further acknowledge that MAP reserves the right to modify its storage policies from time to time, with or without notice to you.
Access and Interference. MAP may contain robot exclusion headers. Much of the information on MAP is updated on an on-demand basis and is proprietary or is licensed to MAP by our Users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access MAP for any purpose without our official express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Content) from MAP without the prior official expressed written permission of MAP and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of MAP or any activities conducted on MAP; or (iv) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to MAP.
Proprietary Rights in Content on the Web Site. All content on the Web site, including but not limited to design, data, text, graphics, other files, and their selection and arrangement (the "Our Content"), are the proprietary property of The Company or its licensors, including you and other third parties. All rights reserved. With the exception of you modifying Your Content, Our Content may never be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission. You may download or print a copy of any portion of the Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. You may not republish Our Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation. Any other use of the Our Content is strictly prohibited.
Trademarks. All brand, product and service names used in the MAP Services which identify MAP or third parties and their products and services are proprietary marks of the Company and/or the respective third parties. Nothing in this Agreement shall be deemed to confer on any person any license or right on the part of MAP or any third party with respect to any such image, logo or name.
Copyright. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary content or information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. MAP may choose to terminate Membership privileges of any Member who infringes the copyright rights of others upon receipt of prompt notification to MAP by the copyright owner or the copyright owner's legal agent. MAP is, unless otherwise stated, the owner of all copyright and data rights in our Services and Our Contents, as granted by you, our Users, to have limited licensing. You may not reproduce, distribute, publicly display or perform, or prepare derivative works based on any of Our Content without the express, written consent of MAP.
Reporting Copyright Violations. We sincerely respect the intellectual property rights of others. If you believe that your work has been copied in any manner that constitutes copyright infringement or are aware of any infringing material on the Web site, as a first step, to prompt us so that we may open a case folder for you, please contact us via email at firstname.lastname@example.org. Then, as a second step, if possible, within 2 weeks of completing the first step, please provide to our Copyright Division hardcopies of the following information: (i) physical or electronic signature of the person authorized to act on behalf of the owner of the copyrighted interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on MAP (whenever applicable, please provide URL path and username of the offender); (iv) your permanent physical address, telephone number, and email address; (v) a written 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; (vi) a statement by you, made under the penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Please complete step two and mail the material to MyArtPlot, LLC P.O. Box 2483 Providence, RI 02906. You must fully complete step one and two in order for us to investigate your claim.
Third Party Software. As a convenience, we may make third-party software available through our Services. To use the third-party software, you must agree to the terms and conditions imposed by the third party provider and the agreement to use such software will be solely between you and the third party provider. By downloading third party software, you acknowledge and agree that the software is provided on an "AS IS" basis without warranty of any kind. In no event shall the Company be liable for claims or damages of any nature, whether direct or indirect, arising from or related to any third-party software downloaded through the MAP Services.
External Links. MAP may provide links to third-party web sites or resources either as official advertisements or as notices. You acknowledge and agree that the Company is not responsible or liable for: the availability or accuracy of such web sites or resources; or the Content, products, or services on or available from such websites or resources. Links to such web sites or resources do not imply any endorsement by MAP 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.
Fees. Creating an account with MAP to become a Member is free. However, as a Shopper, a Merchant Buyer, a Buyer, or a Visitor, you do not need to create an account in order to browse, to shop, to complete a purchase or to gain limited access to MAP Services. As a Member, if and when you activate your sales portal and if and when your work is purchased, MAP will take a commission earning which is 5% of the original price of that transaction. You choose to price your work based upon MAP's fixed pricing model between $25 and $995 with $5 intervals. All monetary values associated with MAP are United States dollars. There are no other charges incurred by the use of the MAP Services. We do not charge a listing fee. You pay commission only for when your work is sold. You are responsible for paying all fees associated with using our service and the Web Site and all applicable taxes.
Please note that MAP outsources to Google Checkout (r) for the financial transaction process. Google Checkout (r) automatically takes a small fee from your earnings for this service. http://checkout.google.com/buyer/tour.html provides more information. MAP's 5% commission is separate from Google Checkout (r) service fee, and is calculated in reference to the total listing price of the item, before the extraction of transactional fees incurred by Google Checkout (r).
Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the MAP Services and your listing, purchase, solicitation of offers to purchase, and sale of items.
Conduct. You agree that you shall not interfere with or disrupt (or attempt to interfere with or disrupt) our Services or servers or networks connected to our Services, or to disobey any requirements, procedures, policies or regulations of networks connected to these MAP Services; or provide any information to MAP that is false or misleading, that attempts to hide your identity or that you do not have the right to disclose. You agree to defend, indemnify, and hold harmless MAP its founders, officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and expert fees, arising out of or in any way connected with your access to or use of the Services, or your violation of this Agreement. You are responsible for all of Your Content that you upload, download, and otherwise copy, distribute and display using our Services. Your image uploads into your portfolio, into your sales portal, and into market must represent original works created solely by you that are not copyrighted. You must have the legal right to copy, distribute and display all parts of any content that you upload, download and otherwise copy, distribute and display. Content provided to you by others, or made available through web sites, magazines, books and other sources, are protected by copyright and must not be uploaded, downloaded, or otherwise copied, distributed or displayed without the consent of the copyright owner or as otherwise permitted by law.
(i) You are responsible for any activity that occurs under your username.
(ii) You are responsible for keeping your password secure.
(iii) You must not abuse, harass, threaten, or intimidate other MAP users.
(iv) You may not use the MAP service for any illegal or unauthorized purpose. International users agree to comply with all local laws regarding online conduct and acceptable content.
(v) You are solely responsible for your conduct and your Content
(vi) You legally certify that all images uploaded under your username onto MAP fully represent your fully-permissioned, non-copyrighted and original work. This work, created solely by you, must be legal and non-pornographic.
(vii) You must not modify, adapt or hack MAP or modify another website so as to falsely imply that it is associated with MAP.
(viii) You must not create or submit unwanted email or postings to any MAP members ("Spam").
(ix) You must not transmit any worms or viruses or any code of a destructive nature.
(x) You must not, in the use of MAP, violate any laws in your jurisdiction.
(xi) Your account is intended for individual use, you must not share it with others. One person per account, please.
(xii) Your account must factually represent who you are and not a factitious being or entity. When uploading a profile picture, please use a picture which shows your face. Do not impersonate anyone or anything by creating a fake account.
Venue Status. MAP is not a Retailer. We do not own any items or products listed anywhere on MAP. Although we are commonly referred to as an online arts and crafts marketplace, it is important to realize that we are not a traditional "retailer." Instead, MAP acts as a venue to allow anyone to offer, sell, and buy just about anything, at anytime, from anywhere, in a fixed price format. We have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. We cannot ensure that a buyer or seller will actually complete a transaction. Consequently, we do not transfer legal ownership of items from the seller to the buyer.
Release. Because we are a venue, in the event that you have a dispute with one or more users, you release the Company (and our founders, officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Identity Verification. We use many techniques to verify the accuracy of the information that our users provide us when they register as a member. However, because user verification on the Internet is difficult, MAP cannot and does not confirm each user's purported identity. Thus, we have established a user-initiated feedback system to help you evaluate with whom you are dealing. We also encourage you to communicate directly with potential trading partners through the tools available on MAP.
Disclaimers. The Company is not responsible for any incorrect or inaccurate Content posted on MAP or in connection with the MAP Services, whether posted or caused by Users or by any of the equipment or programming associated with or utilized in MAP or the MAP Services. The Company is not responsible for the conduct, whether online or offline, of any User. MAP and the MAP Services may be temporarily unavailable from time to time for maintenance or other reasons. The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any web site or combination thereof, including injury or damage to Users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web site and/or in connection with the MAP Services. Under no circumstances shall The Company be responsible for any loss or damage, including personal injury or death, resulting from use of the MAP Services, attendance at a MAP-sponsored event, from any Content posted on or through the MAP Services, or from the conduct of any Users, whether online or offline.
No Warranty. THE WEB SITE, THE SERVICES AND THE CONTENT ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE WEB SITE AND/OR THE SERVICE.
Limitation on Liability. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, FOUNDERS, OFFICERS, DIRECTORS, CONTRACTORS EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEB SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, FOUNDERS OFFICERS, DIRECTORS, CONTRACTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, EXCLUDING YOUR DONATION TO US, AND (B) $20. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Member Disputes. You are solely responsible for your interactions with other MAP Users. We reserve the right, but have no obligation, to monitor disputes between you and other Members or Visitors.
Disputes. If there is any dispute about or involving the MAP Services, you agree that the dispute shall be governed by the laws of the State of Delaware, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of Delaware, City of Wilmington. Either MAP or you may demand that any dispute between MAP and you about or involving the MAP Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Wilmington, Delaware, USA, provided that the foregoing shall not prevent MAP from seeking injunctive relief in a court of competent jurisdiction.
Beta User Clause. You understand and agree that MAP is in Beta and that errors, misinformation, and all natural and unnatural risk are associated with your access and use of MAP and that you will not hold MAP accountable.
Suspension and Termination of Access and Membership. You agree that MAP may at any time, with or without notice, suspend or terminate any part of our Services, or refuse to fulfill any order, or any part of any order or terminate your membership and delete any Content and Information stored on MAP, in MAP sole discretion, with or without reason.
Breach. Without limiting other remedies, we may limit your activity, immediately remove Your Content, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate specific information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
No Agency. You and MAP are independent entities, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Indemnity. You agree to indemnify and hold the Company, its subsidiaries, and affiliates, and their respective founders, directors, officers, agents, contractors, partners and employees, harmless from any and against all loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the MAP Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the MAP Website or through the Services causes MAP to be liable to another.