Last Updated Date: March 15, 2014
InSitu Works (“ISW”) provides a service for selling and purchasing original works of art and commercially exploiting digital images of works of art (the “Services”) through our website, accessible at www.insituworks.com (the “Site”). Please read carefully the following terms and conditions (“Terms”) and all exhibits, which are incorporated by reference into these Terms. These Terms govern your access to and use of the Site and Services, and constitute a binding legal agreement between you and ISW.
Certain areas of the Site 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 Site or for specific Services, then the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site or Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY SELLING OR PURCHASING A WORK ON OR THROUGH THE SITE OR SERVICES OR BY POSTING ANY CONTENT ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, then 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.
ISW reserves the right, at its sole discretion, to modify, discontinue, or terminate the Site or Services or to modify these Terms at any time and without prior notice. If we modify these Terms, then we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date.” By continuing to access or use the Site or Services after we have posted a modification on the Site 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, then your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 18 or older.
In order to list a work on the Site or to make a purchase through the Site, 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 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. ISW 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 ISW of any unauthorized use of your Account.
All shipping costs and applicable taxes and customs duties will be added to your order upon checkout. These fees are dependent on your shipping address. Within the United States, sales tax will be added to orders shipping to New York only, per American online sales tax rules. For a shipping address outside of the United States, taxes will be charged in adherence to the country’s current rates. To estimate duties and taxes on your order, add the item to your shopping cart and enter your shipping destination on your cart page.
You understand and agree that ISW uses commercially reasonable efforts to display the colors of Original Works of Art, Digital Works, and Printed Works accurately via the Site and Services. However, because individual computer monitors may display colors differently, ISW is not responsible for the color accuracy of any Original Works of Art, Digital Works, or Printed Works displayed on the Site and Services, and disclaims all liability in this regard.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of ISW and you hereby irrevocably assign to ISW and agree to irrevocably assign to ISW all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein.
ISW may also make available through the Site and Services text, graphics, audio, video, and images of works of art (collectively, “ISW Content”), some of which is owned by ISW (“ISW-Owned Content”), and some of which is made available under license by a third party (“ISW-Licensed Content”). ISW authorizes you to download, view, and print ISW-owned Content solely for your personal use in visiting the Site and, if you are a Member, in connection with exercising the rights granted to Members under these Terms. For ISW-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 page of the Site where such content appears. Nothing in these Terms is intended to modify, restrict, or limit the scope of your rights as to such ISW-Licensed Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ISW 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; (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 or substances.
Use, display, mirror, or frame the Site, or any individual element within the Site, ISW’s name, any ISW trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without ISW’s express written consent;
Access, tamper with, or use non-public areas of the Site, ISW’s computer systems, or the technical delivery systems of ISW’s providers;
Attempt to probe, scan, or test the vulnerability of any ISW system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by ISW or any of ISW’s providers or any other third party (including another user) to protect the Site, Services, ISW Content, or Member Content;
Attempt to access or search the Site, Services, ISW Content, or Member Content or download ISW Content or Member Content from the Site or 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 ISW 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 ISW trademark, logo URL, or product name without ISW’s express written consent;
Use the Site, Services, ISW 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 the Site, Services, ISW 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 Site, Services, ISW 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 Site;
Collect or store any personally identifiable information from the Site or Services from other users of the Site or 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.
ISW will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. ISW may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that ISW has no obligation to monitor your access to or use of the Site or Services or to remove any Member Content, but has the right to do so for the purpose of operating the Site and 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. ISW 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, ISW Content, or any other text, graphics, images, software, music, audio, video, information, or other content or material that ISW, at its sole discretion, considers to be objectionable, in violation of these Terms, or otherwise harmful to the Site or Services.
Sweepstakes and Contests
ISW may operate sweepstakes, contests, and similar promotions (collectively, “Promotions”) through the Site and Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Site and Services, as they may contain additional important information about ISW’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.
The Site, Services, and ISW Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, ISW and its licensors exclusively own all right, title, and interest in and to the Site, Services, and ISW Content and Printed Works, 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 Site, Services, or ISW Content.
ISW respects copyright law and expects its users to do the same. It is ISW’s policy to terminate, in appropriate circumstances, Members or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see ISW’s Copyright Policy below at Exhibit G: Copyright Policy for further information.
The Site may contain links to third-party websites or resources. You acknowledge and agree that ISW 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 ISW 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, then ISW will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. ISW reserves the right to revoke your access to and use of the Site, Services, ISW Content, and Member Content at any time, with or without cause. In the event ISW 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.
THE SITE, SERVICES, ISW CONTENT, AND MEMBER CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ISW 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. ISW MAKES NO WARRANTY THAT THE SITE, SERVICES, ISW CONTENT, OR MEMBER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ISW MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT, OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SITE OR 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 ISW OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, ISW DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SITE OR SERVICES, NOR DOES ISW MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES. ISW MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold ISW and 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 Site, Services, ISW 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 Site, Services, ISW Content, and Member Content remains with you. Neither ISW nor any other party involved in creating, producing, or delivering the Site, Services, ISW Content, or Member Content will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data, 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 Site, Services, ISW Content, or Member Content, or from any communications, interactions, or meetings with other Members or users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not ISW 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 ISW’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, ISW 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 Seller Revenue Share from ISW from the sale of Printed Works, the total payments made or credited to you by ISW 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 ISW 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 ISW 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 ISW used herein are trademarks or registered trademarks of ISW. Any other trademarks, service marks, logos, trade names, and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in the State of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between ISW and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between ISW and you regarding the Site and Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without ISW’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. ISW 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 by ISW (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made via e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of ISW 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 ISW. 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, then 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 ISW at firstname.lastname@example.org.