This agreement provides important information to you, including information about your obligations and about your content, and your agreement to resolve any disputes by individual arbitration and to waive the right to participate in a class action.
Please make sure to read this agreement, because your use of TAM is consent to these terms. If you do not agree to any of the updated terms, you should stop using TAM.
California Watercolor will be referred to as “CW”, “we”, or “us”, and THE ART MARKET will be referred to as “TAM”.
1. Seller Agreement
2. Using THE ART MARKET
a) Who can use it. You must be at least the age of majority in the state where you live to use the Site. Use of TAM by anyone under 13 years of age is strictly prohibited!
d) Acceptable Use Policy
. When using TAM, you agree to abide by common standards of etiquette and act in accordance with the law, as described further in our Acceptable Use Policy
e) Prohibited Products Policy
. If you are an artist, or a seller, who is authorized to offer products through TAM, you agree to abide by the Prohibited Products Policy
You can cancel your membership at any time. Please email email@example.com
with your written request for termination and you will be removed from TAM immediately, and your PayPal account will no longer be debited. You can also disable your recurring payment through your PayPal account. However, your artwork will not be saved, so if you decide to join TAM in the future, you will be required to add your artwork again. We may permanently or temporarily suspend your use of TAM at any time for any reason, without any notice or liability to you. We may terminate your account at any time for any or no reason, including if you violate any CW policy (including the Acceptable Use Policy or Prohibited Products Policy).
We welcome your feedback and suggestions about how to improve TAM. Feel free to submit feedback by emailing firstname.lastname@example.org
. By submitting feedback you agree to grant us the right, at our discretion, to use, disclose and otherwise exploit the feedback, in whole or part, without any restriction or compensation to you.
3. Your Content
a) Definition of Your Content. TAM enables you to post material, including without limitation photos, messages, and commentary. All material that you display on the TAM will be referred to collectively as “Your Content.” You acknowledge and agree that, as part of using the TAM, Your Content may be viewed by the general public and will not be treated as private or confidential.
b) License and Permission to Use Your Content. You hereby grant to us and our affiliates, licensees and sublicensees, without compensation to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Your Content, or any portion thereof, throughout the world in any format, media or distribution method (whether now known or hereafter created) for the duration of any copyright or other rights in Your Content. Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Your Content. If you identify yourself by name or provide a picture or audio or video recording of yourself, you further authorize us and our affiliates, licensees and sublicensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now known or hereafter created) your name, voice and likeness throughout the world, and such permission will be perpetual and cannot be revoked for any reason, except as required by the applicable law. You further agree that we may use Your Content in any manner that we deem appropriate or necessary.
c) Ownership. We acknowledge and agree that you, or your licensors, as applicable, retain ownership of any and all copyrights in Your Content, subject to the non-exclusive rights granted to us in the paragraph above, and that no ownership of such copyrights is transferred to us under this agreement. Further, with respect to Your Content in the form of photos, and subject to CW product and user experience considerations: (a) we will use commercially reasonable efforts to maintain the attribution of such photos as submitted by you, and (b) we will not license or sublicense to third parties individual photos or collections of photos, except in each case for CW Business Purposes. “CW Business Purposes” means any use in connection with a CW-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes the TAM, the services or the information it contains, CW, or its affiliates. CW Business Purpose specifically includes the use of Your Content on TAM in connection with features and functions offered by CW to our users that enable them to view and interact with Your Content.
d) Your Responsibilities for Your Content.
By posting Your Content on TAM, you represent and warrant to us that you have the ownership rights, or you have obtained all needed licenses or permissions from any necessary parties, to use Your Content in this manner. This includes obtaining the right to grant us the rights to the use of Your Content in accordance with this agreement. You are in the best position to judge whether Your Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with Your Content. You are responsible for ensuring that your content does not violate CW’s Acceptable Use Policy, Prohibited Products Policy, or Copyright and Trademark Policy
or any applicable law or regulation. You agree to pay all royalties, fees and any other monies owed to any person by reason of Your Content.
e) Intentions. You agree to use TAM in the way it was intended, as a means of displaying, and advertising your artwork to CW's international audience. You will not use TAM to display or write about sexually explicit subject matter, or as a political forum.
f) Limits. We reserve the right to edit, abridge, or remove Your Content, in whole or part, for any reason (which may include a reported violation of our Acceptable Use Policy, Prohibited Products Policy, or Copyright and Trademark Policy. We reserve the right to edit, refuse to post or remove Your Content submitted by you for any reason without notice. We do not guarantee that we will publish all of Your Content.
4. Our Content and Material
a) Definition of Our Content and Materials. All intellectual property in or related to TAM (specifically including, but not limited to our software, the CW logo, and CW buttons, badges, and widgets, but excluding Your Content), is the property of CW, its subsidiaries and affiliates or its licensors (“Our Content and Materials”).
c) No Endorsement or Verification. Please note that TAM enables access to third-party content, products and services, and it offers interactions with third-parties over which we have no control. We assume no responsibility for, nor do we endorse or verify the content, offerings or conduct of third-parties (including but not limited to the products or services offered by third-parties or the descriptions of the products or services offered by third-parties). Participation or availability on TAM does not amount to endorsement or verification by us. We make no warranties or representations with respect to the accuracy, completeness or timeliness of any content posted on TAM by anyone.
d) Restrictions. Except as expressly provided in these terms, you agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit Our Content and Materials without our express written permission. CW’s permission to you for your use of TAM expressly excludes commercial use by you of any information concerning product descriptions or professional listings for the benefit of another merchant. You expressly are prohibited from any use of data mining, robots, or similar data gathering and extraction tools in your use of TAM. You may view and print a reasonable number of copies of web pages located on TAM for your own personal use, provided that you retain all proprietary notices contained in the original materials, including attribution to CW.
e) Ownership. You acknowledge and agree that TAM will remain the property of CW. The content, information and services made available on TAM are protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. You acknowledge that you do not acquire any ownership rights by using TAM.
5. Disclaimers and Limitations of Liability
EACH PROVISION BELOW APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW:
a) WE ARE PROVIDING YOU THE SITE, SERVICES, INFORMATION, PRODUCTS, PRODUCT DESCRIPTIONS, AND THIRD-PARTY CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, CW EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
b) CW MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOR: CONTENT POSTED BY ANY THIRD-PARTY ON THE SITE, THE PRODUCT DESCRIPTIONS OR PRODUCTS, THIRD-PARTY SITES AND ANY THIRD-PARTY PRODUCT OR SERVICE LISTED ON OR ACCESSIBLE TO YOU THROUGH THE SITE, , AND THE QUALITY OR CONDUCT OF ANY THIRD-PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SITE.
c) YOU AGREE THAT UNDER THE MAXIMUM EXTENT PERMITTED BY LAW, CW WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT CW SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF CW HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF AND IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, THE SITE OR PRODUCTS. YOUR USE OF THE SITE, PRODUCTS, INFORMATION, OR SERVICES IS AT YOUR SOLE RISK.
You agree to fully indemnify, defend, and hold CW and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of any part of this agreement, including but not limited to the Acceptable Use Policy, Prohibited Products Policy; (b) any allegation that any materials you submit to us or transmit to TAM infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with TAM or other websites to which TAM is linked; and/or (d) your negligent or willful misconduct.
7. Dispute Resolution
a) Arbitration. You and CW agree that any dispute, claim or controversy arising out of or relating to the this agreement or to your use of TAM (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and CW each are waiving the right to a trial by jury or to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and CW agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims and may not preside over any form class action proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” will survive any termination of the Terms.
b) Arbitration Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org
or by calling the AAA at 1-800-778-7879). The Federal Arbitration act will govern the interpretation of this section.
c) Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
d) Arbitration Location and Procedure. Unless you and CW agree otherwise, the arbitration will be conducted in San Diego, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and CW submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. For claims that exceed $10,000 and involve a hearing, you may elect for the hearing be conducted by telephone.
e) Arbitrator’s Decision. The arbitrator will render an award within the timeframe specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
f) Arbitration Location and Procedure. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be as set forth in the AAA Rules.
a) Notice for California Users. Under California Civil Code Section 1789.3, California users of TAM are entitled to the following specific consumer rights notice: The services are provided by CW 560 C Industrial Way, Fallbrook, CA 92028. If you have a question or complaint regarding the Service, please contact CW at info@CaliforniaWatercolor.com or by writing to our mailing address. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs which may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
b) Supplemental Terms for Certain Services. Certain services offered on TAM may require you to enter into a separate agreement and/or be subject to additional terms. For example: placement of advertisements, featured artwork in newsletters and on CW’s homepage. In the event of any conflict between this agreement and the terms of that separate agreement, the terms of that separate agreement will control.
c) Controlling Law and Jurisdiction. This agreement will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in San Diego, California for any actions for which the arbitration provision, as set forth in the Dispute Resolution provision above, does not apply.
d) Export. TAM is controlled and operated from our United States offices in California. CW software is further subject to United States export controls. No software for CW may be downloaded or otherwise exported or re-exported in violation of any applicable laws or regulations. You represent that you are not (1) located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and (2) listed on any U.S. government list of prohibited or restricted parties.
f) Languages. English is the authoritative text of this agreement and all communications, notices, arbitrations and other actions and proceedings relating to this agreement will be made and conducted in English, even if we choose to provide translations of this agreement into the native languages in certain countries.
g) Assignment. No terms of this agreement, nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with CW's prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. CW may assign, transfer, or delegate this agreement or any right or obligation or remedy hereunder in its sole discretion.
h) Waiver. Our failure to assert a right or provision under this agreement will not constitute a waiver of such right or provision.
i) Headings. Any heading, caption, or section title contained is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
j) Further Assurances. You agree to execute a hard copy of this agreement and any other documents, and take any actions at our expense that we may request to confirm and effect the intent of this agreement and any of your rights or obligations under this agreement.
k) Entire Agreement/ Severability. This agreement supersedes all prior terms, agreements, discussions and writings regarding TAM and constitutes the entire agreement between you and us regarding TAM. If any provision in this agreement is found to be unenforceable, then (except as expressly provided under the Dispute Process above) that provision will not affect the enforceability of the remaining provisions of the agreement, which will remain in full force and effect.
l) Survival. The following provisions will survive expiration or termination of this agreement: Section 3 (Your Content) Section 4(d)(Restrictions) and 4(e)(ownership), Section 5 (Disclaimers and Limitations of Liability), Section 6 (Indemnification), Section 7 (Dispute Resolution) and Section 8 (Miscellaneous).
560 C Industrial Way
Fallbrook, CA 92028
(Last modified October 13, 2016)