- EART AND TECHNOLOGY FZCO, a company registered in Dubai Silicon Oasis, Dubai, United Arab Emirates and its affiliates (“ArtSmiley”, “we,” “us,” “our”) operates the website www.artsmiley.com (“Website”), mobile applications and any other linked and related pages, content, features, products, dashboard, software, video player and tools offered by ArtSmiley (the “Services”).
- We have no liability to you in relation to the order for your Artwork, except as expressly set out in these terms or as required by applicable law.
- ArtSmiley reserves the right, in its sole discretion, to modify these terms at any time without notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by you following such modification constitutes your acceptance of the terms and conditions of the Agreement as modified.
- This Agreement is void where prohibited by law, and the right to access and use the Services is revoked in such jurisdictions.
- By accessing the Services, you represent and warrant to ArtSmiley that: (i) you are an individual (i.e., not a corporation) at least 18 years old; (ii) you are of legal age to form a binding contract or have your parent’s permission to do so; (ii) all registration information you submit is accurate and truthful and you will maintain the accuracy of such information; (iv) you are legally permitted to use and access the Services and take full responsibility for your access, selection and use of the Services.
- You are responsible for all of your activity in connection with the Services. You shall be responsible for (i) obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, software, and long distance or local telephone service; (ii) ensuring that such equipment or ancillary services are compatible with the Services; (iii) taking all precautions necessary and/or reasonable to protect yourself, your computer systems and other property from viruses, worms, Trojan horses, and other harmful content and code.
- You are solely responsible for withholding, filing, and reporting all taxes duties and other governmental assessments associated with your activity in connection with the use of the Services.
- You may be required to register and select a password and username (“ArtSmiley User ID”) to use certain services. You may not (i) select or use as a ArtSmiley User ID a name of another person with the intent to impersonate that person; or (ii) use as a ArtSmiley User ID a name subject to any rights of a person other than you without appropriate authorization. You shall provide ArtSmiley with accurate, complete, and updated registration information.
- You shall be responsible for maintaining the confidentiality of your password. Any failure to comply with this provision may result in immediate termination of your account.
- ArtSmiley reserves the right to refuse registration of, or cancel a ArtSmiley User ID in its discretion. If you are accessing the Services through a third party site or service (such as “Facebook Connect”), ArtSmiley may require that your ArtSmiley User ID be the same as your user name for such third party site or service.
- In the course of using the Services, you and other users may provide information which may be used by ArtSmiley and which may be visible to certain other users. By posting information, images, text, blogs, or other content on the Services (collectively, “User Content”) or otherwise providing User Content to ArtSmiley or in connection with the Services, you hereby grant to (i) ArtSmiley a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sublicenseable, transferable right to fully exploit (including without limitation, reformatting, cropping, resizing, displaying, modifying, creating derivative works of, and translating) (including where applicable the right to reprint and crate multiple copies) such User Content (including all related intellectual property rights) in connection with ArtSmiley’s (and its successors’, licensees’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Services (or any derivative works thereof) in any media formats and through any media channels, and to allow others to do so; and (ii) each user of the Services a non-exclusive license to access your User Content through the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display, and perform such User Content as permitted through the functionality of the Services and under this Agreement.
- The foregoing license grant to ArtSmiley does not affect your ownership of or right to grant additional non-exclusive licensees to the material in your User Content, unless otherwise agreed in writing. You, not ArtSmiley, remain solely responsible for all User Content that you upload, post, email, transmit, or otherwise disseminate including, or in connection with the Services, and you warrant that you possess all rights necessary to provide such content to ArtSmiley and to grant ArtSmiley the rights to use such information in connection with the Services and as otherwise provided herein and that use of by ArtSmiley of such content will not infringe any third-party rights or applicable laws.
- You acknowledge and agree that all information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such content originated and that ArtSmiley will not be liable for any errors or omissions in any such content.
- You understand that ArtSmiley cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, ArtSmiley cannot guarantee the authenticity of any data which users may provide about themselves.
- You acknowledge that all User Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
- You understand and agree that ArtSmiley uses commercially reasonable efforts to display the colors of original works of art accurately via the Services. However, because individual computer monitors may display colors differently, ArtSmiley is not responsible for the color accuracy of any works displayed on the Services, and disclaims all liability in this regard.
- Without limiting the other terms and conditions in this Agreement, you acknowledge and agree to the following guidelines for posting and/or viewing User Content and other Content on or through the Services:
- Any comment made using your identity or screen name will be deemed to have been posted by you;
- You shall not post obscene, threatening, harassing, defamatory, libelous, offensive or pornographic material;
- You shall not post or otherwise make public any personal details or personally identifiable information about any person including name, contact details, address, image or known associates;
- You shall not make false or misleading statements;
- You shall not post material that infringes the intellectual property rights or other proprietary rights, or rights of publicity or privacy, of any third party;
- You shall not post information that is confidential or sensitive;
- You shall not post any content that objectionable or illegal (as described below), or could create a risk of harm, loss or damage of any kind;
- You are solely responsible for the content that you post on or through the Services, any material or information that you transmit to other users and for any interactions with other users.
- You agree that you will not use the Services to:
- Send or post content of any kind or nature that is unlawful, harassing, libelous, defamatory, abusive, harassing, threatening, harmful, vulgar, obscene, profane (unless such use is warranted within the topic area of a particular message board, as determined by ArtSmiley in its sole discretion), racially offensive, insulting to any religion or culture, inaccurate, or contrary to the laws, in any applicable jurisdiction, or otherwise objectionable material or that encourages conduct that could constitute a criminal offence, or infringement of any rights to privacy, give rise to civil liability or otherwise violate any applicable local, state, federal or international law or regulation. You agree not to use the Services to distribute or send any illegal content of any kind. Posting illegal content or participating in any form of discussion with the intention to commit any illegal activity is strictly prohibited.
- 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 ArtSmiley trademark, logo URL or product name without ArtSmiley’s express written consent;
- ArtSmiley has no obligation and assumes no responsibility for monitoring the Services or User Content for inappropriate content or conduct of its users. However, ArtSmiley reserves the right to monitor, block or remove User Content (including disabling access to User Content that you have downloaded through the Services) for any or no reason without notice to you. If ArtSmiley chooses, in its sole discretion, to monitor the Services, ArtSmiley assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content and no responsibility for the conduct of the user submitting any such User Content.
- ArtSmiley reserves the right to remove any User Content from the Services at any time, for any reason or no reason in its sole discretion.
- If you link to the Services, ArtSmiley may revoke your right to so link at any time, at ArtSmiley’s sole discretion. ArtSmiley reserves the right to require prior written consent before linking to the Services.
- All materials displayed or performed on the on the Services, or which may be made available for your download (including, but not limited to text, blogs, graphics, articles, photographs, images, illustrations, video and User Content (also known as the “Content”), are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Website, and you shall not use, copy reproduce, modify translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
- The Services are protected by copyright, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws applicable in the jurisdiction from which you access the Services at any time.
- You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You must report any infringement of your rights to ArtSmiley immediately.
- The technology and the software underlying our Services is the exclusive property of ArtSmiley and its licensors. Subject to your compliance with this Agreement, ArtSmiley grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and make personal and commercial use of the Services, and any software underlying our Services solely to use the Services, as provided by ArtSmiley in accordance with this Agreement. This license does not include any resale or commercial use of the Services or any Content.
- You shall not copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in, or otherwise transfer any right to the technology or software underlying our Services. You agree not to use modified versions of any software underlying our Service, including without limitation, for the purpose of obtaining unauthorized access to our sites or applications.
- You may not use any of our Services for any illegal purpose. All rights in the product names, company names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of ArtSmiley, its licensors, affiliates, or third-party products or services, whether or not appearing with a trademark symbol, belong exclusively to ArtSmiley or their respective owners, and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws.
- The use or misuse of these trademarks or any materials containing the trademarks, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Services confers on you any license or right under any patent or trademark of ArtSmiley, its licensors, affiliates, or any third party.
YOUR REPRESENTATIONS AND WARRANTIES
- You warrant, represent and covenant that you will not use the Services or contribute any User Content (including, without limitation, anything in connection with your blog(s)) in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, or rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, rule, ordinance or regulation; (iii) violates any other agreement you have with, or any obligations to, any third party; (iv) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, contrary to the laws of any applicable jurisdiction or any other applicable jurisdiction, or otherwise objectionable; (v) misrepresents the source or identity of any content; (vi) involves commercial activities and/or sales without ArtSmiley’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vii) uploads, installs, constitutes, or embeds malware, virus, worms, Trojan horses, or other harmful content or code; or (viii) impersonates, or falsely indicates an affiliation with, any person or entity, including, without limitation, any employee or representative of ArtSmiley.
- You hereby warrant and represent that:
- you have all rights and permissions required in order to sell or rent the Artwork that you upload on the Services and to grant the right to us to copy and reproduce the Artwork;
- where you have agreed to make Artwork available via the Services on an exclusive basis you shall not at any time be made available for sale or rent on any other gallery or platform, whether online or otherwise. Artwork may be available on other websites for non-commercial and/or informative purposes only (for example, as part of an Artist’s portfolio);
- you are the creator and sole owner of the Artwork;
- the Artwork is an original piece of work and does not infringe any third party rights including intellectual property rights;
- the Artwork is a photograph, sculpture, drawing or a painting; a picture made with paint, pencil, pens, crayons, or any other instrument classified under “Medium”]; and
- should the Artwork be a reproduction of your original work, you will state that it is a reproduction. Artwork will be considered a reproduction where it is a facsimile of an original piece of Artwork, even if the two have material differences.
- You will notify ArtSmiley, via the Services, as soon as reasonably practicable of any restrictions on your availability to deliver Artwork, including any vacation time that you plan.
- You are not allowed to make available via the Services: reproductions of any original works of third parties.
- You will determine the price of your Artwork by providing accurate information regarding the Artwork (including in relation to the size of the Artwork), and establish your listing price within the price band corresponding to your sales level as shown in your account.
- You warrant that any User Content relating to the Artwork uploaded by you will at all times be true and up-to-date and all specifications relating to Artwork size, size of packaged Artwork, materials, origin, and subject-matter will at all times be accurate.
- Prior to making any item of Artwork available via the Services, you must advise ArtSmiley whether the applicable item is available for sale, rent and/or for reprint.You will be notified of each sales order via the Services and of any order placed by a customer and any applicable price to be paid to you in return for delivery of the applicable Artwork (and, if applicable, the rental period for the Artwork). Upon such notification, you will make the applicable Artwork available for collection by ArtSmiley and its representatives.
- ArtSmiley may cancel any order at any time.
- You must specify exact packaged dimensions and packaged weight when you list your Artwork on the Services, based on which shipping costs are established.
- You shall at all times supply fully accurate information with regard to origin of shipping location, packaging dimensions and packaged weight. If any such information at the time of delivery is different from the information provided, ArtSmiley shall be entitled to deduct any additional costs from your account.
- When you receive confirmation of an order you will also receive a courier’s airway bill that must be attached securely in order to correctly effect the dispatch of the Artwork to the customer.
- You must dispatch your order within 5 days of you receiving notification of the order via the Services.
- You will be responsible for the appropriate packaging and any documentation (including any applicable certificates of authentication) relating to the Artwork.
- You are responsible for the integrity of any packages sent pursuant to an order placed via the Services and shall not under any circumstances place or permit to be placed any items that are not strictly required by the terms of the order, and nothing that may be in breach or any applicable laws or regulations.
- You warrant that you will comply with all local and international shipping and customs regulations and all applicable laws.
- ArtSmiley shall use its reasonable endeavors to pursue any insurance claim for loss or damage to the Artwork from the time at which the shipping company takes possession of the Artwork and if relevant, until the applicable Artwork has been returned to you. You shall provide all required assistance in the pursuit of any insurance claim.
- Where the customer chooses to return the Artwork for reasons including because you have sent the wrong Artwork, failed to affix the correct airway bill to packaging, or the Artwork is damaged on delivery due to your act or omission, ArtSmiley will organize the return of the Artwork to you and deduct the resulting shipping cost from any funds in your ArtSmiley account.
- You shall not be entitled to cancel any sale of Artwork.
- ArtSmiley will notify you via the Services of any returns within 14 days of delivery of the Artwork to the customer. In the event such notification is made, ArtSmiley shall have no liability to you, including for any payment.
- Where a customer acquires Artwork, the funds payable to you will be held on standby until the customer agrees to forego the return policy entitlement by entering a review or until the 14-days return policy expires. On the occurrence of either, you can claim your funds through the payout method you chose.
- You are responsible for all applicable payment transfer fees and taxes relating to the payment of the applicable sum from us to you.
- All sales or monetary transactions initiated on the Services must be completed via the ArtSmiley Where ArtSmiley believes that a sale or money transaction initiated on the Services has occurred outside of the ArtSmiley platform, ArtSmiley has the right to withhold from your account the applicable sum that would have been payable to ArtSmiley had the sale been through the Services.
- If ArtSmiley makes any overpayment to you for any reason, you will pay to ArtSmiley such overpaid amounts upon demand from ArtSmiley. In the absence of such payment by you, ArtSmiley will be entitled to deduct any overpaid amounts from future payments due to you.
- ArtSmiley reserves the right to require payment of fees for certain services on the Services. You shall pay all applicable fees, as described on the Services in connection with such services selected by you. ArtSmiley reserves the right to change its price list and to institute new charges at any time, without notice. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges. To the fullest extent allowed by applicable law, all fees paid hereunder are non-refundable unless otherwise permitted by this Agreement.
- All fees are stated in US$ and all payments to and from ArtSmiley will be made in United States Dollars (“US$”) or United Arab Emirates Dirhams (“AED”). ArtSmiley may, in its sole discretion, round up or round down amounts that are payable from or to artists and/or gallery owners to the nearest whole functional base unit to the nearest US$ or AED as applicable; for example, ArtSmiley will round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00. ArtSmiley assumes no responsibility or liability for any currency fluctuation or inaccuracy of currency rates.
- All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Services, are stated in US$ or AED 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.
- Seller must fill out appropriate Tax forms prior to any commissions being paid. For an Artist living within the United States, a W9 Tax Form must be filled out.
- For an Artist living outside the United States, a W8BEN Tax Form must be filled out.
- You may request the deletion of your account via the Services. Subject to any pending orders, ArtSmiley shall use its reasonable endeavors to remove your account from the Services within 7 days.
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL ARTSMILEY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU OR TO YOU; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) THE USE OR INABILITY TO USE THE SERVICES; (V) UNATUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA BY ANY PARTY; (VI) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (VII) YOUR USER CONTENT OR (IV) ANY MATTER RELATING TO THE SERVICES.
- You hereby release ArtSmiley, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of (i) having acquired or not acquired any Content through the Services.
- ArtSmiley reserves the right to modify, discontinue, terminate or suspend the Services without prior notice. This Agreement shall remain in full force and effect while you use any part of the Services. You may terminate your use of the Services or your membership at any time by following the instructions on the Services. ArtSmiley may terminate or suspend your access to the Services (and/or any feature thereof) or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Upon termination of your account, your right to access and use the Services and any Content will immediately cease.
- The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. ArtSmiley shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond ArtSmiley’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- You and ArtSmiley agree that this Agreement (including any terms or policies expressly incorporated herein) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
- This Agreement is not assignable, transferable or sublicensable by you except with ArtSmiley’s prior written consent. ArtSmiley may transfer, assign or delegate this Agreement and its rights and obligations without consent. Headings for each section have been included for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind ArtSmiley in any respect whatsoever.
- All provisions of this Agreement that by their nature are intended to survive performance hereof by you or ArtSmiley, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability, shall survive the completion of the performance, cancellation or termination of this Agreement.
- These terms and any dispute or claim arising out of or in connection with them or their subject-matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Emirate of Dubai.
- You irrevocably agree to submit to the non-exclusive jurisdiction of the courts of the Dubai International Financial Centre in relation to all matters arising out of or in connection with these terms, or their subject matter or formation (including non-contractual disputes or claims