This Artist Terms and Conditions Agreement ("Agreement") contains the terms and conditions that govern your use of the ArtistBe.com website and service ("ArtistBe.com") and is made between you and Overstock Art, LLC, 1401 S. Mosley St., Wichita, KS 67211, a Kansas Limited Liability Company doing business as ArtistBe.com ("ArtistBe.com").
This Agreement describes your rights and responsibilities and what you can expect from ArtistBe.com. Your acknowledgment below and use of ArtistBe.com constitutes your acceptance of this Agreement.
ArtistBe.com reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on http://www.artistbe.com/artist-agreement/.
If any modification is unacceptable to you, your only recourse is to discontinue use of ArtistBe.com. Your continued use of ArtistBe.com following a change or a new Agreement posted on ArtistBe.com will constitute binding acceptance of the changes.The ArtistBe.com Service
ArtistBe.com is an online gallery that allows artists to post and sell their art to the public. Artists can also share information, ideas and thoughts, communicate with others, and discuss views and artistic impressions. ArtistBe.com also provides artists with the ability to offer reproductions of their art for sale and receive a royalty. The reproductions maybe created as a print on paper, print on canvas, hand painted oil painting or by any other means that ArtistBe.com sees fit to use in order to reproduce the art. The reproductions would be offered for sale via ArtistBe.com, as well as overstockArt.com, our catalogs, shared retailer sites on the internet, internet marketplaces and other sales channels used by ArtistBe.com.Use of the Website
ArtistBe.com is only available to parties that can lawfully enter into and form contracts under applicable law. Persons under the age of 18, may use the ArtistBe.com only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement.
You agree to comply with all of the terms and conditions of this Agreement and any other applicable agreements, policies, laws, regulations and rules when you use ArtistBe.com.Your License to Use ArtistBe.com
ArtistBe.com solely and exclusively owns all intellectual property and other rights, title and interest in ArtistBe.com, except as expressly provided for in this Agreement. ArtistBe.com grants you a limited revocable license to access and use ArtistBe.com for its intended purposes, subject to your compliance with this Agreement. This license does not include the right to collect or use information contained on ArtistBe.com; any prohibited or illegal uses; to compete with ArtistBe.com or Overstock Art; to create derivative works based on the content of ArtistBe.com; or download or copy ArtistBe.com (other than page caching). If you use ArtistBe.com in a manner that exceeds the scope of this license or you breach this Agreement, ArtistBe.com may revoke the license granted to you without notice.Third-Party Services
ArtistBe.com offers approved artists a personal URL (web address) where you can upload, display and name your art. Your URL will constitute your Art Gallery in the confines of ArtistBe.com. ArtistBe.com will feature logos and trademarks in the artist gallery identifying the artist is an "Approved Artist". The hosting and creating of your art gallery by us does not constitute any assignment or transfer to you of ownership in any domain names, intellectual property or trademarks owned by ArtistBe.com. You agree and warrant that your uploaded content will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any other person or persons.Gallery Use
You may update the content on your Gallery as you wish, subject to this Agreement. You shall not link your Gallery to any third-party website that violates our policies. You may not conduct raffles or contest using the art on your Gallery. You may not display banners of sponsors or other commercial entities. You may display the art hosted by us in your Gallery in other sites owned by you as long as you have an exclusive link to your Gallery hosted by ArtistBe.com.Delivery of Content
You may upload to ArtistBe.com any content that you want to use in accordance with this Agreement and the Terms and Conditions of Use for ArtistBe.com. ArtistBe.com may, in its sole and exclusive discretion, determine whether any content complies with this Agreement and the ArtistBe.com policies, and is of satisfactory quality to be offered for sell through the ArtistBe.com Service.Licensing Your Content to ArtistBe.com
You will retain ownership of any content that you upload to ArtistBe.com. You hereby grant to ArtistBe.com worldwide, transferable, non-exclusive, right and license to use such content, in all media existing now or created in the future, as ArtistBe.com deems necessary to reproduce and sell reproductions of your content. ArtistBe.com may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing services to ArtistBe.com. Furthermore you grant ArtistBe.com the right to digitally reproduce, publicly display, create derivative works, and otherwise use your content to advertise, promote, and publicize your content and ArtistBe.com. This license shall expire 6 months from the termination of this agreement by either party.Sale of Reproductions
Any content that you elect to upload to ArtistBe.com will be offered for sale as a reproduction. Reproductions may be sold in a variety of formats, including but not limited to: (i) Print on paper; (ii) Print on Canvas; (iii) Hand Painted Oil Painting on Canvas; (iv) tile; or, (v) Other Media.
Royalties You will earn royalties on sales of reproductions of your content as follows:
ArtistBe.com offers a venue for you to sell original content. You hereby acknowledge and understand that you are responsible for (i) collection of payment for any original content sold; (ii) delivery and or shipment of any original content sold, including insurance and any risk of loss; (iii) all appropriate taxes and costs incurred connected to any sale of original content; (iv) resolution of any disputes as a result of the sale of original content; and (v) complying with any applicable laws, regulations or manner of sale or exchange that may pertain to transactions of the original content. Any change in the status or availability must be communicated clearly within 72 hours from any change in status. If ArtistBe.com receives complaints from users that status is not being properly updated you may loose your approval status and may no longer qualify to use ArtistBe.com. All prices must be listed in US Dollars.Monitoring
ArtistBe.com reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through ArtistBe.com. If ArtistBe.com determines, in its sole and absolute discretion, that you or another ArtistBe.com user have breached a term or condition of this Agreement or that such transaction or communication is inappropriate, ArtistBe.com may cancel the transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.Modification of the Service
ArtistBe.com reserves the right to modify the organization, structure or "look and feel" of ArtistBe.com, and may change, suspend, or discontinue any aspect of ArtistBe.com at any time without any liability to you or any third party. ArtistBe.com shall have complete discretion over the features, functions, prices and other terms and conditions on which ArtistBe.com Service is offered.Submissions
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant ArtistBe.com permission to use such Submissions for marketing and other promotional purposes. You agree that ArtistBe.com will have no obligation to keep any Submissions confidential. You will not bring a claim against ArtistBe.com based on "moral rights" or the likes arising from ArtistBe.com's use of a Submission. This Section does not apply to content that you upload to your ArtistBe.com gallery.Your Warranties
You represent and warrant to ArtistBe.com that: (i) you have the full power and authority to enter into and perform under this Agreement; (ii) the execution and performance of obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) this Agreement is a legal, valid and binding obligation enforceable in accordance with its provisions.
You further represent and warrant to ArtistBe.com that: (i) you will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right ArtistBe.com or of any third party; (ii) you will comply with all applicable laws, rules, and regulations in your use of ArtistBe.com; (iii) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your content; (iv) ArtistBe.com will not be required to make any payments to any third party in connection with its use of your content, except for the expenses that ArtistBe.com incurs in providing ArtistBe.com services; (v) the use of any instructions, formulae, recommendations, or the like contained in your content will not cause injury to any third party; (vi) no third party owns any license or other rights with respect to any part of the content that would exclude or impair ArtistBe.com's ability to implement fully the rights granted by you in this Agreement; and, (vii) your content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.WARRANTY AND DISCLAIMER
ArtistBe.com represents and warrants to you: (i) that ArtistBe.com has the full power and authority to enter into and perform under this Agreement; (ii) the execution and performance of obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which ArtistBe.com is bound, and (iii) this Agreement is a legal, valid and binding obligation of ArtistBe.com enforceable in accordance with its provisions.
ARTISTBE.COM IS PROVIDED "AS-IS" AND ON AN "AS-AVAILABLE" BASIS. ARTISTBE.COM DOES NOT WARRANT THAT THE USE OF THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE. ARTISTBE.COM DOES NOT WARRANT THE ACCURACY, INTEGRITY, OR COMPLETENESS OF THE CONTENT PROVIDED ON THE SITE OR THE PRODUCTS OR SERVICES OFFERED FOR SALE ON THE SITE.
ARTISTBE.COM MAKES NO WARRANTIES, OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT OR OTHER POLICIES INCORPORATED BY REFERENCE. ALTHOUGH SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES SUCH AS WARRANTY OF TITLE, AN IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT, OVERSTOCK ART EXCLUDES ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW.LIMITATIONS ON LIABILITY
ARTISTBE.COM SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE ARTISTBE.COM. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY RELIANCE BY YOU ON ANY INFORMATION OBTAINED VIA ARTISTBE.COM, OR THAT MAY RESULT FROM MISTAKES, OMISSION, INTTERUPTION IN SERVICE, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, ACTS OF A THIRD PARTY, OR AS THE RESULT OF NEGLIGENCE BY ARTISTBE.COM.
ARTISTBE.COM IS NOT LIABLE FOR INDIRECT LOSSES RESULTING FROM ANY LOSS OR DAMAGE, WHETHER OR NOT REASONABLY FORESEABLE, INCLUDING, BUT NOT LIMITED TO: (1) LOSS OF INCOME OR REVENUE; (2) LOSS OF BUSINESS; (3) LOSS OF PROFITS OR CONTRACTS; OR, (4) LOSS OF DATA. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS PARAGRAPH SHALL APPLY EVEN IF AN AUTHORIZED AGENT OF ARTISTBE.COM HAS BEEN ADVISED OF, OR HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
LIABILITY FOR DIRECT LOSSES SUFFERED AS A RESULT OF A BREACH OF THESE TERMS BY ARTISTBE.COM IS STRICTLY LIMITED TO NO MORE THAN $100.00.
YOU HEREBY ACKNOWLEDGE THAT THE LIMITATIONS ON LIABILTY SET FORTH IN THESE TERMS SHALL APPLY TO ALL CONTENT, MERCHANDISE AND SERVICES AVAILABLE THROUGH ARTISTBE.COM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.Indemnification
You agree to indemnify and hold harmless ArtistBe.com and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any provision of this Agreement through any act or omission.Termination
ArtistBe.com may, in its sole discretion, with or without notice to you: (i) suspend, limit your access to or terminate your use of ArtistBe.com Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from ArtistBe.com's servers and directories and (iv) prohibit you from using ArtistBe.com.Effect of Termination on Content
If you or ArtistBe.com terminates your use of ArtistBe.com, ArtistBe.com may delete any gallery, content or other materials relating to your use of ArtistBe.com on ArtistBe.com's servers or otherwise in its possession and ArtistBe.com will have no liability to you or any third party for doing so.Electronic Communications
You consent to receive communications from us via e-mail. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically by e-mail or posting to this Site satisfy any legal requirement that such communications be in writing.Notice
ArtistBe.com will use the contact information provided by you through your account to issue any notices required under this Agreement.
All notices will be deemed received as follows: (i) seven business days after dispatch via U.S. Mail, send with return receipt; (ii) the date of confirmed receipt via overnight courier service, or (iii) 24 hours after the notice was sent via email, provided no error or other notice of non-delivery is generated.
Notice to ArtistBe.com, must be sent either via courier to: 1411 S. Mosley Wichita, KS 67211 USA, or via email to ATSA@ArtistBe.com.Dispute Resolution
Any dispute relating in any way to your use of ArtistBe.com shall be submitted to confidential arbitration in Wichita, Kansas, USA, except that, to the extent you have in any manner violated or threatened to violate ArtistBe.com's intellectual property rights. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
With respect to intellectual property rights, ArtistBe.com may seek injunctive or other appropriate relief in any state or federal court in the State of Kansas, USA and you consent to exclusive jurisdiction and venue in such courts.Severability
If any provision of these policies should be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision.Applicable Law
You agree that the laws of the United States of America and the State of Kansas will govern this Agreement. You also agree and consent that any dispute of any sort that might arise between you and ArtistBe.com or its affiliates and subsidiaries shall be subject to the exclusive jurisdiction of the United States District Court, District of Kansas or the courts of the State of Kansas.Miscellaneous
This Agreement is not assignable or transferable by you without the prior written consent of ArtistBe.com. This Agreement (including all of the policies and other Agreements described in this Agreement, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and ArtistBe.com are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.