Art Smart, Terms & Conditions

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THESE TERMS AND CONDITIONS OF USE (these "Terms and Conditions") constitute a legally binding agreement with respect to this website, the original artwork displayed on this website (the "Artwork") and any images of the Artwork (whether or not separately licensed) (collectively, with the Artwork, the "Images"), and related informational materials displayed on this website, in each case, between you ("User") and ArtSmart Ink ("ArtSmart Ink") as representative of the applicable artist ("Artist") as of the date of acceptance of these Terms and Conditions by User, which acceptance is indicated by User's (i) acceptance of the Images in any medium or (ii) failure to immediately return the Images to ArtSmart Ink.

User shall have the right to use the Images only for examination and preview purposes or pursuant to a valid license of the Images. Except for such limited rights ArtSmart Ink reserves all rights to (i) the Images, (ii) any copyrights to the Images and (iii) and any publication right which may arise from the Images, each of which shall remain the property of Artist. User does not acquire any rights in or to any Images except as expressly specified herein or pursuant to a valid license of the Images.

Until such time that User agrees to enter into a license arrangement of the type set forth in the next section, ArtSmart Ink provides the Images to User solely for the purposes of examination and preview. Any use of the Images by User for examination and preview purposes shall be limited to the rights granted in the preceding sentence and these Terms and Conditions.

The Images may not be used for any purpose other than as set forth in the preceding section without the express written permission of ArtSmart Ink as evidenced by a written invoice (the "Invoice") and payment of such Invoice. Subject to User obtaining all necessary third-party releases and permissions, ArtSmart Ink shall grant to User, a limited, non-exclusive right to use, and to otherwise display, originals or copies of the Images solely for the purposes set forth in the Invoice and these Terms and Conditions. Notwithstanding any term or condition herein to the contrary, any such license of the Images shall be subject to the following terms and conditions:

(i) User is solely responsible for determining whether User's use of any Images requires the consent of any third party or the license of any additional rights, and User should not rely solely on the information provided by ArtSmart Ink. In particular, other than as specified in the applicable Invoice, ArtSmart Ink makes no representation or warranty regarding whether appropriate private property releases, location releases or copyright and trademark releases have been obtained and/or retained. If User is unsure whether additional third-party rights are needed for User's use, User is responsible for consulting with competent rights management professionals or legal counsel.

(ii) As a convenience, our site may link to other sites that may be of interest to User but are not under ArtSmart Ink's control. These links do not imply endorsement by ArtSmart Ink and we are not responsible for the availability of or the content contained in any linked site.

(iii) Images may contain listed restrictions, including, without limitation, restrictions as to time, manner, industry and territory of use. User's ability to access an Image does not in itself entitle User to use that Image. Use of any Image contrary to a listed restriction is prohibited. If User does not understand or is unsure as to any restriction, User must contact ArtSmart Ink prior to use of any Image.

(iv) Without limitation, Images may not be used as a trademark or service mark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person's right of privacy or publicity, or to infringe upon any copyright, trade name, trademark or service mark of any person/entity. Unauthorized use of the Images constitutes copyright infringement and shall entitle ArtSmart Ink to exercise all rights and remedies under applicable copyright law, including an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Images. The foregoing is not a limiting statement of ArtSmart Ink's rights or remedies in connection with any unauthorized use.

(v) Any license granted by ArtSmart Ink shall not constitute a representation that any Image is compatible for use with any other material. User is solely responsible for the use of any Image in combination with any other materials, and User agrees not to use Image with sensitive topics without ArtSmart Ink's separate written agreement. Sensitive topics include, without limitation, topics that may depict the subject matter of Image in a negative or unfavorable light or subject persons to ridicule, and topics regarding all sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or serious physical or mental ailments, or the disparagement of a person or product. Certain Images may be available for use with sensitive subjects. User must contact ArtSmart Ink for additional information prior to any use of an Image with any sensitive topic.

(vi) Images designated as "model released" means that the person depicted in the Images has signed a release permitting reproduction of the Images depicting such person, subject to the restrictions contained in these Terms and Conditions, including, without limitation, sensitive subject uses. If ArtSmart Ink erroneously advises User that an Image is model-released when it is not, ArtSmart Ink's liability shall be limited to the amount User paid ArtSmart Ink for use of the Image. If the Image depicts a person and is used in a manner that implies the use or endorsement of a product or service by that mode, User must indicate that the person depicted is a model and used only for illustrative purposes. Any license granted by ArtSmart Ink is conditional upon User's obtaining all necessary third-party rights, releases and permissions. User agrees to provide ArtSmart Ink with proof of such releases and permissions upon request.

(vii) Except for any liability which cannot by law be excluded or limited, neither ArtSmart Ink nor any ArtSmart Ink affiliate shall be liable to User or any other third party claiming through it for direct, indirect, incidental, special or consequential damages arising out of, or relating to the use of the Images, whether named as a breach of warranty of merchantability or fitness for a particular purpose or non-infringement, upon any legal theory, in tort, contact, failure of essential purpose, or otherwise. In no event shall ArtSmart Ink's or its affiliates' liability for User's use of any Image provided hereunder exceed the greater of (a) the amount invoiced and paid by User for the use of that Image or (b) $500.

(viii ArtSmart Ink may terminate the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on ArtSmart Ink site, send ArtSmart Ink a notice containing (a) a physical or electronic signature of the copyright owner or person authorized to act on behalf of the copyright owner, (b) a description of the copyrighted work or works that you claim have been infringed and identification of what material in such work(s) is claimed to be infringing, (c) a description of where the material that you claim is infringing is located on the ArtSmart Ink site, (d) information sufficient to permit ArtSmart Ink to contact you, such as your physical address, telephone number, and email address, (e) a statement that you have a good faith belief that the use of the material you identified is not authorized by the copyright owner, its agent, or the law and (f) a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf. ArtSmart Ink's copyright agent for notice of claims of copyright infringement can be reached at the e-mail address listed on ArtSmart Ink's website.

User agrees to defend, indemnify and hold ArtSmart Ink and Artist and each of their respective shareholders, members, directors, officers, employees, agents and affiliates harmless from and against any and all claims, liabilities, judgments, penalties and all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection therewith, which any of them may now incur or to which any of them may be subjected, arising out of or relating to the breach of any representation, warranty or covenant set forth herein. Without limiting ArtSmart Ink's rights with respect to the Images, all of which are specifically reserved, unauthorized use of the Images constitutes copyright infringement and shall entitle ArtSmart Ink to exercise all rights and remedies under applicable copyright law, including an injunction preventing further use and monetary damages. The foregoing is not a limiting statement of ArtSmart Ink's rights or remedies in connection with any unauthorized use.

Limitation on Liability. ArtSmart Ink provides User with its online system on an "as is" basis. ArtSmart Ink makes no representations or warranties (i) of any kind about its online system, including, but not limited to, warranties of merchantability and fitness for a particular purpose, (ii) with respect to the subject matter of any Images or underlying rights to proprietary material depicted within any Images, (iii) as to the accuracy of any information provided with the Images. Functions embodied on, or in the materials of, this website are not warranted to be uninterrupted or without error. User, not ArtSmart Ink, assume the entire cost of all necessary servicing, repair or correction due to User's use of this website. Except as specifically stated in these Terms and Conditions of Use, or elsewhere on this website, or as otherwise required by applicable Canadian law, none of ArtSmart Ink, Artist or any of their respective directors, employees, licensors, content providers, affiliates or other representatives will be liable for damages of any kind (including, without limitation, lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental, or punitive damages), whether framed as a breach of warranty, in tort, contract, failure of essential purpose, or otherwise, arising out of User's use of, User's inability to use, or the performance of this website or the Images whether or not we have been advised of the possibility of such damages.

These Terms and Conditions shall be binding upon User and User's heirs, successors, and personal representatives. These Terms and Conditions constitute the entire understanding between the parties. These Terms and Conditions can only be modified in writing signed by ArtSmart Ink. These Terms and Conditions shall be governed by and construed in accordance with the laws of Canada. User submits to the jurisdiction of the courts of Canada, and User agrees to accept service of process by any notice method and hereby waive any jurisdictional or venue defenses otherwise available to User. No waiver by ArtSmart Ink of any default shall be deemed a waiver of a prior or subsequent default of the same or other provision of these Terms and Conditions.