Terms & Conditions
ARTSXCHANGE TERMS & CONDITIONS | © 2018
By clicking the “I accept” or similar button and/or using, downloading, or accessing the Service, you are unconditionally consenting to be bound by and are becoming a party to the Agreement either for yourself or, if you are using, downloading or accessing the Service on behalf of your employer or another entity, you are accepting on behalf of your employer or another entity, and you represent and warrant that you have the full legal right, power, and authority to bind your employer or that entity to these terms and conditions. If you do not have that legal authority, or you do not agree with the Agreement, you must press the “I do not accept” or similar button when prompted and you may not use or access the Service and you must remove any ArtsXchange-provided software and content from your computer or other device.
The terms of the Agreement will govern any updates provided to you by ArtsXchange that replace and/or supplement the Desktop, a Web-based Offering, a Tool, or any other portion of the Service, unless that upgrade is accompanied by a separate license or revised agreement, in which case the terms of that license or revised agreement will govern.
PERSONAL, INTERNAL BUSINESS, OR LIMITED COMMERCIAL USE ONLY
Except as otherwise set forth herein, the Service is made available to you for: (a) your personal use; (b) your internal business use; or (c) if you are a Managed Service Provider (“MSP“), or Value Added Reseller (“VAR”), use in connection with the commercial support of your customers, in compliance with all applicable laws, rules, and regulations. If you want to make any other commercial use of the Service, including but not limited to selling, distributing, or providing access to the Service for payment, you must enter into a separate written agreement with ArtsXchange or obtain ArtsXchange’ written permission in advance.
If you are asked to register for the Service, you must provide complete and accurate identification, contact, and other information required as part of the registration process, and accurately and promptly update that information if it changes. ArtsXchange reserves the right, in its sole discretion, to refuse or discontinue participation or access to any or all of the Service to any user or member at any time.
At ArtsXchange, we are constantly innovating to try to provide the best possible experience for our members. As part of this on-going innovation, we may from time-to-time stop (permanently or temporarily) providing the Service or any part thereof, without notice. You may stop using the Service at any time and are under no obligation to inform ArtsXchange when you stop using the Service. You acknowledge and agree that if ArtsXchange disables access to your account, you may be prevented from accessing the Service, your account details, or any files or other content contained in your account.
CHILDREN’S USE OF THE SERVICE
No part of the Service is directed to persons under the age of 18. If you are under 18 years of age, you must not use or access the Service at any time or in any manner. By using the Service, you represent and warrant you are at least 18 years of age.
RESTRICTIONS AND PROHIBITED ACTIONS
You may not change, reorganize, modify, copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, or create derivative works from the Service, any updates, or any part thereof for any purpose, including in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of the Service, (c) remove, change, or replace any trademarks, logos, copyrights, or any other branding elements of ArtsXchange or its licensors, (d) modify, hide, obscure, disable, or otherwise render inoperable any portion of the user interface including, but not limited to, the display of advertisements and promotions within the Service, or (e) copy any ideas, features, functions, or graphics of the Service. If you wish to request ArtsXchange’ written approval to do any of the above, please contact ArtsXchange by sending an email to info@ArtsXchange.org. You may not use the Service to process Prohibited Data.
You may not use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Service by ArtsXchange.
You may not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any ArtsXchange server, or to any of the services offered on or through the Service, by hacking, password “mining,” or any other illegitimate means. You may not harvest or collect user names, email addresses, or any other member identifying information by electronic or other means for the purpose of sending unsolicited email or other communications. Unauthorized commercial advertisements, affiliate links, and other forms of solicitation may be removed from member profiles and/or community postings without notice and may result in termination of member privileges.
You may not probe, scan, or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures of the Service or any network connected to the Service. You may not reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Service, or any other customer of ArtsXchange, including any ArtsXchange account not owned by you, to its source, or exploit the Service or any service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Service.
You will comply with all applicable laws, and with all industry standards or self-regulatory programs to which you are contractually bound, regarding the collection, processing, transfer, safeguarding, security, and other use of all information and content processed by or used in connection with your use of the Service.
You agree not to attempt to do, or assist or permit any third party in doing, any of the acts described above or otherwise prohibited by the Agreement.
If you breach these restrictions, or otherwise exceed the scope of the licenses or other rights granted in the Agreement, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.
ACCOUNT INFORMATION AND SECURITY
Access to and use of portions of the Service may require you to open an account (including setting up a ArtsXchange ID and password). To register, you must provide a valid email address as a ArtsXchange ID. You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify ArtsXchange immediately of any unauthorized use of your account or password, or any other breach of security. However, you will be responsible for losses incurred by ArtsXchange or any other user of the Service due to someone else using your ArtsXchange ID, password, or account.
You, not ArtsXchange, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your data, and ArtsXchange is not responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any of this data. You will not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses, and other harmful code.
You may not use anyone else’s ArtsXchange ID, password, or account at any time without the express permission and consent of the holder of that ArtsXchange ID, password, or account. ArtsXchange cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.
If you chose to complete a ArtsXchange user profile, a project page, or a profile page, you agree to accurately represent yourself, your background and experience, your work history and company affiliation, your certifications and areas of expertise, and any other personal or company information you chose to share. You also agree not to impersonate any person, company, or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person, company, or entity.
We care about the security of our users. While we work diligently to protect the security of your account and related information, ArtsXchange cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account by emailing info@ArtsXchange.org. We also have a Help and Support Center where security bulletins are posted.
INTELLECTUAL PROPERTY OWNERSHIP
You acknowledge that, as between you and ArtsXchange, ArtsXchange owns all right, title, and interest in and to the Service, portions thereof, or software or content provided through or in conjunction with the Service, including without limitation, all Intellectual Property Rights in and to the Service and any protectable suggestions, ideas, enhancements, requests, feedback, and recommendations or other information provided by you or any other party relating to the Service. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions, and restorations thereof, now or hereafter in force and effect worldwide. You agree not to (and agree not to allow third parties to) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Service, or to extract significant portions of Service’s files for use in other applications. You also agree to (and will require third parties to) not remove, obscure, or alter ArtsXchange’ or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service.
You are solely responsible for the photos, profiles, messages, notes, text, information, music, videos, plugins, source code, computer software, and other content that you upload, publish, submit, share, or display (hereinafter, “post“) on or through the Service, or transmit to or share with other members (collectively the “User Content“). You understand and agree that ArtsXchange may, but is not obligated to, review and delete or remove (without notice) any User Content in its sole discretion, including without limitation User Content that in ArtsXchange’ sole judgment violates the Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of members, users, or others.
By posting User Content to any part of the Service, you automatically hereby grant, and you represent and warrant that you have the right to grant, to ArtsXchange an irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), distribute, and otherwise exploit that User Content for any purpose on or in connection with the Service or the promotion thereof, to prepare derivative works of, or incorporate into other works, that User Content, and to grant and authorize sublicenses of the foregoing.
You also hereby grant each member or user a non-exclusive license to access the User Content you post through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform that content as permitted through the functionality of the Service and the Site and under the Agreement.
Notwithstanding the foregoing, to the extent your User Content consists of data inputted by you or your users into the Web-based Offering, the Desktop, or through use of a Tool for the purpose of facilitating your use of the applicable Web-based Offering, the Desktop, or the Tool, the licenses set forth in the preceding two paragraphs are limited to ArtsXchange’ use of that data for your benefit (e.g., to make available or support your use of the Web-based Offering, Desktop, or Tool), in aggregated, anonymized, or de-identified form that does not identify you or your company individually and for other uses required by law.
You may remove your User Content from the Site at any time but you acknowledge that once you have posted any User Content to the Site, other users may have retained a copy of your User Content and may still have access to those copies despite your removal of the User Content from the Site. You acknowledge that this User Content may persist in backup copies, derivative works, or aggregate form for a period of time.
The Service contains content created by us, by third parties, and by our users and members. This content includes, among other things, reports, comments, opinions from other IT professionals, scripts, plugins, wikis, widgets, how-to projects, product reviews, white papers, webinars and software downloads. It also includes information about products and services offered by parties other than ArtsXchange, such as product descriptions, specifications, pricing, availability, and performance. We do not guarantee the accuracy, the integrity, or the quality of the content on the Service, and you may not rely on any of this content. Without limitation, we are not responsible for postings by users in the reports, scripts, plugins, widgets, product rating, product review, user opinion, message board, feedback, or any other sections of the Service. You should not rely on that information in situations where its inaccuracy would cause you to suffer any loss (see Disclaimer of Warranties and Limitation of Liability sections below).
You may not post or transmit any message which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.
Except where expressly permitted, you may not post or transmit charity requests; petitions for signatures; franchise, distributorship, sales representative agency arrangements, or other business opportunities (including offers of employment or contracting arrangements); club memberships; chain letters; or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials or any other solicitation of other users or members to use or buy products, goods or services except in those areas (e.g., a classified bulletin board) that are designated for that purpose and as expressly permitted.
You agree that any employment or other relationship you form or attempt to form with an employer, employee, or contractor whom you contact through the Service or the Site that may be designated for that purpose is between you and that employer, employee, or contractor alone, and not with us.
You may not copy or use personal identifying or business contact information about other users or members without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Service are prohibited.
You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material.
NO IMPLIED RIGHTS
DIGITAL MILLENNIUM COPYRIGHT ACT
ArtsXchange respects the intellectual property rights of others. You are prohibited from posting infringing User Content to the Service. If you post any User Content that you or any third party have any Intellectual Property Rights in, including code, photos, literary works, musical works, and/or sound recordings, you must be the owner of that User Content or have all required rights, licenses, consents, and permissions to use that User Content on the Service. In addition to being grounds for removal of your posting, termination of your user account, termination of your membership, and any other remedy ArtsXchange may have against you, your failure to own or obtain those rights may subject you to civil and/or criminal liability.
If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”). More details regarding that notification may be found here. In addition, click here to find more information about how to file a counter notification if you believe your posting was removed in error.
DESKTOP AND TOOLS TERMS
If you download, install, or access the Desktop or Tools, the following provisions apply to you.
License. The Desktop and Tools are licensed, not sold, to you for use only under the terms of the Agreement. Subject to the terms and conditions of and your ongoing compliance with the Agreement, including without limitation payment of the applicable fees (if any), ArtsXchange hereby grants you a personal, limited, revocable, non-exclusive, non-transferable license to download, install, and use the Desktop or Tools on equipment or compatible devices owned or controlled by you or your Consenting Users, and in each case solely for your personal, non-commercial use, or, if you are an entity rather than an individual, to allow your employees and contractors to use the Desktop for the sole benefit of you and your Consenting Users, if each of those employees or contractors has agreed to and is bound by the Agreement. “Consenting Users” means individuals who have authorized you to use the Desktop or Tools in connection with and install any related components on equipment or compatible devices that they own or control for the purposes of collecting Collected Data and who have agreed to be bound by the terms of the Agreement.
The scope of the license granted under the preceding paragraph does not include the right to use the Desktop or Tools in connection with, in any manner, the following types of information: (a) payment card information or any information governed under the Payment Card Industry Data Security Standard; (b) “nonpublic personal information” as the term is defined in 15 U.S.C. § 6809 or other information subject to any applicable financial privacy law; (c) protected health information, as the term is defined in 45 C.F.R. 160.103; (d) Social Security numbers; or (e) with regard to the processing of personal data subject to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, “sensitive” personal data. The foregoing data constitutes “Prohibited Data.”
Automatic Updates. The Desktop or Tools may communicate with ArtsXchange’ servers to check for available updates to the software, such as bug fixes, patches, enhanced functions, missing plugins and new versions. During this process, the Desktop or Tools may send ArtsXchange a request for the latest version information. By installing the Desktop or Tools, you hereby agree to automatically request and receive updates from ArtsXchange’ servers.
Some personal firewall programs may be configured in such a way as to prevent the Desktop or Tools from receiving these updates. If the computer on which you install the Desktop or Tools is so configured, it may be necessary for you to make an exception entry in the configuration of the personal firewall program to allow the Desktop or Tools to successfully install and receive these updates.
Third Party Software. Parts of the Service include packages of components, including certain third party software provided under separate license terms, which can be found in the related documentation or will be provided to you by ArtsXchange on request. You are permitted to use that third party software in conjunction with the Desktop in a manner consistent with the terms of the Agreement, however, you may have broader rights under the applicable separate license terms and nothing in the Agreement is intended to impose further restrictions on your use of that third party software.
WEB-BASED OFFERING TERMS
If you subscribe to or access a Web-based Offering, the following provisions apply to you.
Grant of Right to Use Web-based Offering. Subject to the terms and conditions of and your ongoing compliance with the Agreement, including without limitation payment of any applicable fees, ArtsXchange hereby grants you a personal, limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the period for which you have paid all applicable fees to permit each user for whom you have purchased a user subscription to access the applicable Web-based Offering solely for your internal business purposes. You must ensure that each of your users has agreed to and is bound by the Agreement.
You represent and warrant that you have all necessary rights to permit ArtsXchange to engage in this processing of data relating to your use of the Service and Tools and that, where appropriate, you have provided notice to all of your Consenting Users and have obtained appropriate and valid consents from all Consenting Users regarding the collection, processing, and use of their data by you and by or on behalf of ArtsXchange.
Additionally, by using the Service, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Service may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.
While ArtsXchange actively adheres to security best practices when handling sensitive data such as Personal Data, our users also need to follow common sense practices when using our Service. As discussed above, users should not post sensitive data in our community or in any part of the Service that can be seen by others.
FEES AND PAYMENTS
Signing up for a ArtsXchange account is free. Access and use of portions of the Site and certain other portions of the Service may be provided at no charge. However, ArtsXchange reserves the right to charge for the Service or any portion thereof, modify the pricing of, add to, or discontinue the Service or any portion thereof without prior notice.
From time to time ArtsXchange makes available certain value-added services for a fee, such as a Web-based Offering. Should you elect to use those services, you agree to pay the required fee as specified in the services registration and purchase pages. If you elect not to pay any fees charged by ArtsXchange, ArtsXchange has the right to cease providing those services to you. ArtsXchange reserves the right to modify the pricing of these services at any time without prior notice.
The Service may include functionality for activating, updating, or canceling recurring payments for periodic charges, such as a portion of the Service that requires a subscription fee. If you activate or update recurring payments through the Service, you authorize ArtsXchange to periodically charge, on a going-forward basis and until cancellation (by us or you) of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. To cancel your access of any portion of the Service that requires a subscription fee or other recurring payment, you must notify us by telephone or email (info@ArtsXchange.org) to Customer Service of your decision to terminate your use of that portion of the Service. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. If payment is made via a purchase order or check, you agree to remit the payment before the date specified on the invoice.
All monetary transactions on the Service take place in U.S. currency unless otherwise indicated.
The Service may use third parties to process payments. Our third-party payment processors accept payments through methods detailed on the applicable payment screen, which may include various credit cards. You agree to pay for all products and services that you purchase through the Service and you agree that we may charge your selected payment method, either directly or through the services of a third-party payment processor, for any of those payments. Only those payment methods accepted by our third-party payment processor can be used to purchase products, goods, or services through the Service.
You are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through or arising as a result of use of the Service. We are not responsible for collecting, reporting, paying, or remitting to you any of those taxes, fees, or service charges, except as may otherwise be required by law.
THIRD-PARTY INTERACTIONS AND LINKS TO OTHER SITES
During use of the Service, you may enter into correspondence with, submit a request for quote (pricing and availability), purchase goods and/or services from, follow a vendor or user, or participate in promotions, sweepstakes, or contests of advertisers or sponsors showing their goods and/or services through the Service. That activity, and any terms, conditions, warranties, or representations associated with that activity, is solely between you and the applicable third party. ArtsXchange and its licensors have no liability, obligation, or responsibility for any correspondence, purchase, request for quote (pricing and availability), promotions, sweepstakes, or contests between you and any third party. ArtsXchange does not endorse any sites on the Internet that are linked through the Service. ArtsXchange provides these links to you only as a matter of convenience, and in no event will ArtsXchange or its licensors be responsible for any content, products, or other materials on or available from those third-party sites. ArtsXchange provides the Service to you pursuant to the terms and conditions of the Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware, or services may require your agreement to additional or different licenses or other terms prior to your use of or access to those software, hardware, or services.
ArtsXchange’ trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without ArtsXchange’ prior written permission.
Some of the Service is supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Service, queries made through the Service or other information. The manner, mode, and extent of advertising by ArtsXchange on the Service are subject to change without notice. In consideration for ArtsXchange granting you access to and use of the Service, you agree that ArtsXchange may place that advertising on the Service.
You will abide by all applicable laws and regulations regarding use of the Service. ArtsXchange and its licensors make no representation that the Service is appropriate or available for use in any location. The Service is controlled and operated from within the United States. ArtsXchange makes no representations that materials contained within the Service are appropriate or available for use in other locations, and access to the Service from locations where that activity is illegal is prohibited. Those who choose to use the Service from other locations do so on their own initiative and are solely responsible for compliance with all applicable laws.
By accessing the Service, you agree that you are responsible for complying with all applicable laws export and trade and economic sanctions regulations, including the U.S. Export Administration Regulations (“EAR”), 15 CFR Parts 730-799, and economic sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls (“OFAC”), 15 CFR Parts 500-599. As such you agree that you will not download or use the Service without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, including those listed on the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons and/or Entity List, for any proscribed end use, including weapons of mass destruction or any proliferation related activity, or in any other manner contrary to these export regulations and sanctions programs. For further information on these restrictions, see and You further certify that you are not a proscribed end-user or the Service for a proscribed end use or other unauthorized end use under the regulations, as described above.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ArtsXchange IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DATA LOSS, OR OTHER DAMAGE RESULTING FROM THOSE PROBLEMS.
DISCLAIMER OF WARRANTIES
ArtsXchange and any third party who makes its software or content available in conjunction with or through ArtsXchange disclaim any responsibility for any harm resulting from your use (or use by your employees, agents or contractors) of the Service and/or any third-party software or content accessed in conjunction with or through the Service.
ArtsXchange DOES NOT PROMISE THAT THE SERVICE OR ANY CONTENT, COMPONENT, OR FEATURE OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. THE SERVICE IS DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON OR VIA THE SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE. ArtsXchange CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. ArtsXchange, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF ACCURACY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ArtsXchange AND ANY THIRD PARTY THAT MAKES ITS SOFTWARE OR CONTENT AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE AND THAT THIRD-PARTY SOFTWARE OR CONTENT. ArtsXchange DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE.
YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST ArtsXchange FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. THIS LIMITATION OF REMEDY IS A PART OF THE BARGAIN BETWEEN THE PARTIES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SERVICE AND ALL THIRD-PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SERVICE AND THAT THIRD-PARTY SOFTWARE AND CONTENT. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL ArtsXchange OR ANY THIRD PARTY WHO MAKES ITS SOFTWARE OR CONTENT AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE BE LIABLE TO YOU OR ANY OTHER USER ON ACCOUNT OF ANY USE OR MISUSE OF THE SERVICE OR THAT THIRD-PARTY SOFTWARE OR CONTENT. NEITHER ArtsXchange NOR ANY THIRD-PARTY SOFTWARE OR CONTENT PROVIDER WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF ArtsXchange AND/OR A THIRD-PARTY SOFTWARE OR CONTENT PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES).
THIS LIMITATION OF LIABILITY WILL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICE AND ALL THIRD-PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, FROM INABILITY TO USE THE SERVICE AND ALL THIRD-PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE AND ALL THIRD-PARTY SOFTWARE AND CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE (INCLUDING THOSE DAMAGES INCURRED BY THIRD PARTIES), OR ANY RELIANCE BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES, THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES.
Without limiting the generality of the foregoing, you agree that ArtsXchange is not responsible for any loss arising out of, or in any way connected with: (a) delay or inability to access or use the Service; (b) reliance on any Content or User Content; (c) the transmission of any computer virus, however occurring; (d) any unauthorized access to, modification of, or alteration of Content or User Content; (e) any Content or User Content sent or received or not sent or received; (f) any transaction entered into through the Service; (g) any infringement of rights, including Intellectual Property Rights; (h) any threatening, defamatory, obscene, offensive, harmful, inappropriate, or illegal Content or User Content or conduct of any party; (i) any User Content sent by any third party using and/or included in the Service; (j) termination of your user account or membership; or (k) any delays, interruptions, inaccuracies, errors, omissions, or cessation of the Service.
For the avoidance of doubt, you acknowledge that ArtsXchange is a provider of an interactive computer service and not a publisher under Section 230 of the Communications Decency Act of 1996, and therefore not responsible for any of the User Content or other third-party postings.
If, notwithstanding the provisions of this section, a court of competent jurisdiction holds ArtsXchange liable in respect of any matters arising under or incidental to the Agreement, ArtsXchange’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, WILL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR USING THE SERVICE DURING THE 12 MONTHS PRECEDING YOUR CLAIM, OR, IF NO AMOUNT WAS PAID, THAT LIABILITY WILL BE LIMITED TO $500.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
GOVERNING LAW; DISPUTES
The Agreement and any dispute that may arise related to the Agreement are governed by Texas law. All claims arising out of or relating to the Agreement must be litigated exclusively in the federal or state courts of Travis County, Texas and you consent to venue and personal jurisdiction there for the purposes of litigating all claims related to the Agreement. If for any reason a court of competent jurisdiction finds any provision or portion of the Agreement to be unenforceable, the remainder of the Agreement will continue in full force and effect.
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding that subject matter. Any waiver of any provision of the Agreement will be effective only if in writing and signed by ArtsXchange.
US GOVERNMENT RIGHTS
Any software provided as part of or in connection with the Service (“Software”) is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if you are entering into this Agreement on behalf of or using the Service on behalf of the U.S. Government or any contractor for the U.S. Government, you will receive only those rights with respect to the Software and related documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.