WEBSITE TERMS OF USE
Thank you for your interest in the Art Marble 21 website located at
www.artmarblebarseattle.com
(the “Site”) provided to you by Art Marble 21 (“Sponsor”),
as well as all related web sites, networks, downloadable software, and
other software, products and services provided by us and on which a link
to these Terms of Use is displayed (collectively, our “Service”).
This Terms of Use, along with the Art Marble 21 Privacy Policy and any
other applicable policies, as may be updated from time to time, govern
your use of the Service. This Terms of Use is a legally binding contract
between you and Sponsor regarding your use of the Service. You may
request a copy of this Terms of Use by submitting a form here:
.
Certain aspects of the Service may be provided by one or more third
parties. Such third parties may have their own policies and end user
license agreements (collectively, “Third Party Policies and EULAs”) that
apply to your use of the Service. Nothing in this Terms of Use is
intended to modify or limit such Third Party Policies and EULAs. This
Terms of Use only applies to the Service to Sponsor.
PLEASE READ THE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE
SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE
BOUND BY THE TERMS OF USE. IF YOU DO NOT AGREE, YOU MAY NOT USE THE
SERVICE.
You acknowledge and agree that, as provided in greater detail in the
Terms of Use:
-
your use of the Service may be subject to separate third party terms
of use/service and fees; -
you consent to the collection and use of your personally identifiable
information and information about your location in accordance with the
Art Marble 21 Privacy Policy and the privacy policies of third
parties; -
the Service is provided “as is” without warranties of any kind and
Sponsor’s liability to you is limited; -
disputes arising hereunder will be resolved by binding arbitration,
AND BY ACCEPTING THIS TERMS OF USE, YOU AND SPONSOR ARE
EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS
ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or
defend your rights under this contract (except for matters that may be
taken to small claims court). Your rights will be determined by a
NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be
brought as a class action. Please review the Arbitration Agreement
below for the details regarding your agreement to arbitrate any
disputes with Sponsor; -
access to certain features of the Service may require access to
information about the location of your device, such as GPS
coordinates. -
by creating an account on our service or otherwise accessing,
contributing or activating content on the Service, you agree to
subscribe to newsletters, marketing, promotional or sponsored
materials and other information we may send which may take a variety
of forms and methods inclusive of, but not limited to, electronic
communications such as email and SMS/text messaging. Receipt of such
sponsored material may create additional fees and charges with your
mobile or data provider. You are responsible for all such costs.
However, you may opt-out of receiving any, or all, of these
communications from us by following the unsubscribe link or
instructions provided in any email or text message we may send.
1.1 User Content Generally. Certain features of the
Service may permit users to post content, including messages,
reviews, photos, video, images, folders, data, text, and other types
of works (collectively, “User Content”) and to publish User
Content on the Service.
1.2 Limited License Grant. By posting or publishing
User Content, you grant Sponsor a perpetual, worldwide,
non-exclusive, royalty-free right and license (with the right to
sublicense) to host, store, transfer, display, perform, reproduce,
modify, and distribute your User Content, in whole or in part, in
any media formats and through any media channels (now known or
hereafter developed). Any such use of your User Content by Sponsor
may be without any compensation paid to you.
1.3 Limited License Grant to Other Users. By
posting and sharing User Content with another user of the Service,
you hereby grant that user a non-exclusive license to access and use
such User Content as permitted by this Terms of Use and the
functionality of the Service.
1.4 User Content Representations and Warranties.
You are solely responsible for your User Content and the
consequences of posting or publishing User Content. By posting and
publishing User Content, you affirm, represent, and warrant that:
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you are the creator and owner of, or have the necessary licenses,
rights, consents, and permissions to use and to authorize Sponsor
and users of the Service to use and distribute your User Content
as necessary to exercise the licenses granted by you in this
Section 1 and in the manner contemplated by Sponsor and this Terms
of Use; and -
your User Content, and use of your User Content as contemplated by
this Terms of Use, does not and will not: (i)infringe, violate, or
misappropriate any third party right, including any copyright,
trademark, patent, trade secret, moral right, privacy right, right
of publicity, or any other intellectual property or proprietary
right; or (ii)slander, defame, libel, or invade the right of
privacy, publicity or other property rights of any other person. -
By creating an account with us, you guarantee you are 18 years of
age or older and all personal information you provide is accurate
1.5 User Content Disclaimer. Sponsor is under no
obligation to edit or control User Content that you or other users
post or publish, and Sponsor will not be in any way responsible or
liable for User Content. Sponsor may, however, at any time and
without prior notice, screen, remove, edit, or block any User
Content that in Sponsor’s sole judgment violates this Terms of Use
or is otherwise objectionable. You understand that when using the
Service you will be exposed to User Content from a variety of
sources and acknowledge that User Content may be inaccurate,
offensive, indecent or objectionable. You agree to waive, and hereby
do waive, any legal or equitable rights or remedies you have or may
have against Sponsor with respect to User Content. Sponsor expressly
disclaims any and all liability in connection with User Content. If
notified by a user or content owner that User Content allegedly does
not conform to this Terms of Use, Sponsor may investigate the
allegation and determine in its sole discretion whether to remove
the User Content, which Sponsor reserves the right to do at any time
and without notice.
2.1 Sponsor may provide tools through the Service that enable you to
export information, including User Content, to third party services,
including through features that allow you to link your account on
Sponsor with an account on the third party service, such as Twitter
or Facebook, or through our implementation of third party buttons
(such as “like” or “share” buttons). By using these tools, you agree
that Sponsor may transfer such information to the applicable third
party service. Such third party services are not under Sponsor’s
control, and Sponsor is not responsible for their use of your
exported information. The Service may also contain links to third
party websites. Such linked websites are not under Sponsor’s
control, and Sponsor is not responsible for their content.
Termination of Use; Discontinuation and Modification of the
Service. If you violate any provision of this Terms of Use, your permission to
use the Service will terminate automatically. Additionally, Sponsor, in
its sole discretion, may terminate your user account on the Service or
suspend or terminate your access to the Service at any time, with or
without notice. Sponsor also reserves the right to modify or discontinue
the Service at any time (including, without limitation, by limiting or
discontinuing certain features of the Service) without notice to you.
Sponsor will have no liability whatsoever on account of any change to
the Service or any suspension or termination of your access to or use of
the Service.
regarding the Service (“Feedback”), you acknowledge that the
Feedback is not confidential and you authorize Sponsor to use that
Feedback without restriction and without payment to you. Accordingly,
you hereby grant to Sponsor a nonexclusive, royalty-free, fully-paid,
perpetual, irrevocable, transferable, and fully sub-licensable right to
use the Feedback in any manner and for any purpose. Sponsor provides no
assurances that any reported problems will be resolved by Sponsor even
if Sponsor elects to provide a response or information with the goal of
addressing a problem.
5.1 Privacy Policy. Please read the Art Marble 21
Privacy Policy (follow the link at the bottom of
www.artmarblebarseattle.com) carefully for information relating to Sponsor’s collection, use,
storage and disclosure of your personal information. The Art Marble
21 Privacy Policy is hereby incorporated by reference into, and made
a part of, this Terms of Use.
5.2 Additional Terms. Your use of the Service is
subject to any and all additional terms, policies, rules, or
guidelines applicable to the Service or certain features of the
Service that Sponsor may post on or link to on the Service (the “Additional Terms”), such as end user license agreements for any downloadable
applications that Sponsor may offer, or rules applicable to
particular features or content on the Service, subject to Section6
below. All such Additional Terms are hereby incorporated by
reference into, and made a part of, this Terms of Use.
the right, at its discretion, to change this Terms of Use on a
going-forward basis at any time. Please check this Terms of Use
periodically for changes. If a change to this Terms of Use materially
modifies your rights or obligations, you will be required to accept such
modified terms in order to continue to use the Service. Material
modifications are effective upon your acceptance of such modified Terms
of Use. Immaterial modifications are effective upon publication. For the
avoidance of doubt, disputes arising under this Terms of Use will be
resolved in accordance with this Terms of Use in effect that the time
the dispute arose.
and operated by Sponsor. The visual interfaces, graphics, design,
compilation, information, data, computer code (including source code or
object code), products, Software, services, and all other elements of
the Service (the “Materials”) provided by Sponsor are protected by all
relevant intellectual property and proprietary rights and applicable
laws. All Materials contained in the Service are the property of Sponsor
or our third party licensors. Except as expressly authorized by Sponsor,
you may not make use of the Materials. Sponsor reserves all rights to
the Materials not granted expressly in this Terms of Use.
for your use of the Service, and you agree to defend, indemnify, and
hold harmless Sponsor and each of their officers, directors, employees,
consultants, affiliates, subsidiaries, agents, and distributors
(collectively, the “Sponsor Entities”) from and against any and all
claims, liabilities, damages, losses, and expenses, including reasonable
attorneys’ fees and costs, arising out of or in any way connected with
(i)your access to, use of, or alleged use of the Service; (ii)your
violation of this Terms of Use or any representation, warranty, or
agreements referenced in this Terms of Use, or any applicable law or
regulation; (iii)your violation of any third party right, including
without limitation any intellectual property right, publicity,
confidentiality, property or privacy right; or (iv) any disputes or
issues between you and any third party. Sponsor reserves the right, at
its own expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification by you (and without limiting
your indemnification obligations with respect to such matter), and in
such case, you agree to cooperate with our defense of such claim.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE
SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT
WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE
SPONSOR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE
SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE,
INCLUDING BUT NOT LIMITED TO (i)ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET
ENJOYMENT, OR NON-INFRINGEMENT; AND (ii)ANY WARRANTIES ARISING OUT
OF COURSE OF DEALING, USAGE, OR TRADE. SPONSOR ENTITIES DO NOT
WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY
MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE
UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL
COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE
CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH
THE SERVICE WILL CREATE ANY WARRANTY REGARDING THE SPONSOR ENTITIES
OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS TERMS OF USE.
YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF
OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS,
AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU
UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS,
DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE
SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION
AND RISK, AND AS BETWEEN YOU AND THE SPONSOR ENTITIES, YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY
(INCLUDING YOUR PERSONAL PROPERTY USED IN CONNECTION WITH THE
SERVICE) OR LOSS OF DATA OR ANY OTHER LOSS THAT RESULTS FROM THE USE
OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU
MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT WILL THE SPONSOR ENTITIES BE LIABLE TO YOU FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS,
GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR
RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR
USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER
BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR
ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SPONSOR ENTITIES HAVE
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SPONSOR ENTITIES TO
YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF
OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR
CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THIS TERMS
OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE
GREATER OF (i)THE AMOUNTS YOU HAVE PAID TO SPONSOR FOR ACCESS TO AND
USE OF THE SERVICE IN THE TWELVE MONTHS PRIOR TO THE CLAIM OR
(ii)$100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE
ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION
OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS
TO ALLOCATE THE RISKS UNDER THIS TERMS OF USE BETWEEN THE PARTIES.
THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN
BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE
LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.
laws of the State of WA without regard to conflict of law principles. To
the extent that any lawsuit or court proceeding is permitted hereunder,
you and Sponsor agree to submit to the personal and exclusive
jurisdiction of the state courts and federal courts located within the
state of WA for the purpose of litigating all such disputes. Sponsor
operates the Service from its offices in WA and it makes no
representation that Materials included in the Service are appropriate or
available for use in other locations.
Privacy Policy and any other agreements expressly incorporated by
reference, constitute the entire and exclusive understanding and
agreement between you and Sponsor regarding your use of and access to
the Service, and except as expressly permitted above may be amended only
by a written agreement signed by authorized representatives of all
parties to this Terms of Use. You may not assign or transfer this Terms
of Use or your rights hereunder, in whole or in part, by operation of
law or otherwise, without our prior written consent. Sponsor may assign
this Terms of Use at any time without notice. The failure to require
performance of any provision will not affect Sponsor’s right to require
performance at any time thereafter, nor will a waiver of any breach or
default of this Terms of Use or any provision of this Terms of Use
constitute a waiver of any subsequent breach or default or a waiver of
the provision itself. Use of section headers in this Terms of Use is for
convenience only and will not have any impact on the interpretation of
particular provisions. If any part of this Terms of Use is held to be
invalid or unenforceable, the unenforceable part will be given effect to
the greatest extent possible and the remaining parts will remain in full
force and effect. Upon termination of this Terms of Use, any provision
that by its nature or express terms should survive will survive such
termination or expiration.
13.1 Generally. In the interest of resolving
disputes between you and Sponsor in the most expedient and cost
effective manner, you and Sponsor agree that any and all disputes
arising in connection with this Terms of Use and your use of, and
access to, the Service will be resolved by binding arbitration.
Arbitration is more informal than a lawsuit in court. Arbitration
uses a neutral arbitrator instead of a judge or jury, may allow for
more limited discovery than in court, and can be subject to very
limited review by courts. Arbitrators can award the same damages and
relief that a court can award. Our agreement to arbitrate disputes
includes, but is not limited to all claims arising out of or
relating to any aspect of this Terms of Use, whether based in
contract, tort, statute, fraud, misrepresentation or any other legal
theory, and regardless of whether the claims arise during or after
the termination of this Terms of Use. YOU UNDERSTAND AND AGREE THAT,
BY ENTERING INTO THIS TERMS OF USE, YOU AND SPONSOR ARE EACH WAIVING
THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.2 Exceptions. Notwithstanding Section13.1, we
both agree that nothing in this Terms of Use will be deemed to
waive, preclude, or otherwise limit either of our right to: (i)bring
an individual action in small claims court; (ii)pursue enforcement
actions through applicable federal, state, or local agencies where
such actions are available; (iii)seek injunctive relief in a court
of law; or (iv)to file suit in a court of law to address
intellectual property infringement claims.
13.3 Arbitrator. Any arbitration between you and
Sponsor will be governed by the Commercial Dispute Resolution
Procedures and the Supplementary Procedures for Consumer Related
Disputes (collectively, “AAA Rules”) of the American
Arbitration Association (“AAA”), as modified by this Terms of
Use, and will be administered by the AAA. The AAA Rules and filing
forms are available online at www.adr.org, by calling the AAA at
1-800-778-7879, or by contacting Sponsor.
13.4 Notice; Process. A party who intends to seek
arbitration must first send a written notice of the dispute to the
other, by certified mail or Federal Express (signature required), or
if we do not have a physical address on file for you, by submitting
a form here: . The Notice must: (i)describe the nature and basis of the claim or
dispute; and (ii)set forth the specific relief sought
(“Demand”). We agree to use good faith efforts to resolve the
claim directly, but if we do not reach an agreement to do so within
thirty (30) days after the Notice is received, you or Sponsor may
commence an arbitration proceeding. During the arbitration, the
amount of any settlement offer made by you or Sponsor must not be
disclosed to the arbitrator until after the arbitrator makes a final
decision and award, if any. If our dispute is finally resolved
through arbitration in your favor, Sponsor will pay you: (a)the
amount awarded by the arbitrator, if any; (b)the last written
settlement amount offered by Sponsor in settlement of the dispute
prior to the arbitrator’s award; or (c)$1,000, whichever is greater.
13.5 Fees. If you commence arbitration in
accordance with this Terms of Use, Sponsor will reimburse you for
your payment of the filing fee, unless your claim is for greater
than $10,000, in which case the payment of any fees will be decided
by the AAA Rules. Any arbitration hearings will take place at a
location to be agreed upon in WA, provided that if the claim is for
$10,000 or less, you may choose whether the arbitration will be
conducted: (i)solely on the basis of documents submitted to the
arbitrator; (ii)through a non-appearance based telephonic hearing;
or (iii)by an in-person hearing as established by the AAA Rules in
the county (or parish) of your billing address. If the arbitrator
finds that either the substance of your claim or the relief sought
in the Demand is frivolous or brought for an improper purpose (as
measured by the standards set forth in Federal Rule of Civil
Procedure 11(b)), then the payment of all fees will be governed by
the AAA Rules. In such case, you agree to reimburse Sponsor for all
monies previously disbursed by it that are otherwise your obligation
to pay under the AAA Rules. Regardless of the manner in which the
arbitration is conducted, the arbitrator will issue a reasoned
written decision sufficient to explain the essential findings and
conclusions on which the decision and award, if any, are based. The
arbitrator may make rulings and resolve disputes as to the payment
and reimbursement of fees or expenses at any time during the
proceeding and upon request from either party made within fourteen
(14) days of the arbitrator’s ruling on the merits. In the event of
a dispute, and unless otherwise prohibited by law or expressly noted
herein, each party will bear their own attorney’s fees and other
costs.
13.6 No Class Actions. YOU AND SPONSOR AGREE THAT
EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both
you and Sponsor agree otherwise, the arbitrator may not consolidate
more than one person’s claims, and may not otherwise preside over
any form of a representative or class proceeding.
13.7 Modifications. If Sponsor makes any future
change to this arbitration provision (other than a change to
Sponsor’s address for Notice), you may reject any such change by
sending us written notice within thirty (30) days of the change to
Sponsor’s address for Notice, in which case your account with
Sponsor will immediately be terminated and this arbitration
provision, as in effect immediately prior to the amendments you
reject will survive.
13.8 Enforceability. If Section13.6 is found to be
unenforceable or if the entirety of this Section13 is found to be
unenforceable, then the entirety of this Section13 will be null and
void and, in that case, the parties agree that the exclusive
jurisdiction and venue described in Section11 will govern any action
arising out of or related to this Terms of Use.
Service, you consent to receiving certain electronic communications from
us as further described in our Privacy Policy. Please read our Privacy
Policy to learn more about your choices regarding our electronic
communications practices. You agree that any notices, agreements,
disclosures, or other communications that Sponsor sends to you
electronically will satisfy any legal communication requirements,
including that such communications be in writing.
offered by Sponsor. You may contact us by submitting a form here:
.