Terms of Use
The following are the Terms of Use of the AlwaysArt Platform (as defined below). By accessing the Platform, you agree to these terms and any specific terms that apply to you in whatever capacity you use the Services (as defined below), and the associated privacy policy in its entirety.
Definitions
Representations and Warranties by You
Your Use of the Services
AlwaysArt has created the Services in order to create a reliable, trustworthy set of services to benefit the art community. To do that, we require certain behavior from you do not engage in certain behavior. You agree not to:
In the case where we have concluded that you failed to comply with any of these regulations, we reserve the right to:
Certificates Of Authenticity
AlwaysArt provides a platform through which the art world can generate Certificates Of Authenticity, and look up the details and history of transactions around pieces of art that have been recorded through the Services. The Services also provide Artists, Collectors, and Galleries the ability to track their portfolios of works of art that they have entered into the Platform.
The Services use a blockchain to record the transactions and the appropriate level of detail of a transaction is made available to a User depending on that User’s role and connection to the transaction.
The Services provide Users the ability to generate a COA. You are not required to register for an account in order to generate a COA, but you will be required to provide certain personal information which will become part of the permanent record of the history (or “provenance”) of the work of art for which you generate the COA.
The Services also provide a ranking of the likely reliability (“confidence”) that a COA is true and correct based on certain criteria – however, any ranking or confidence level provided by AlwaysArt shall not constitute a guarantee, warranty, or any other legally binding representation about any COA.
We currently offer free digital versions of COAs, as well as printed versions for a fee.
Portfolio Management
The Platform also allows you to enter information about a work of art that is in various stages of progress until it is finalized, at which point a permanent Record ID is published.
Once a permanent Record ID is generated for a work of art, it cannot be modified. The Record ID will be associated with the artist.
What we do not provide.
The Services are not a legal, regulatory, or other formal certification entity. We provide a platform that allows our Users to engage in recording transactions in the art world.
Based on User roles, we allow Users to see certain information related to art transactions which would reasonably be expected to be disclosed.
We do not guarantee or warrant the accuracy of information in the Services that was User-generated.
We do not guarantee or warrant the truth or accuracy of any COA created or recorded through the Services.
Except as expressly provided in these terms, we make no representations or warranties as to the types of Services that will be available, whether any Service will exist for any specific time frame or meet your particular needs.
Use by Artists
Artists may create COAs on the Platform for their original artwork. Except for Mini-Prints, AlwaysArt does not claim any rights in your works, other than those necessary to provide the Services.
When you create a COA for a work of art, you represent and warrant that the work of art is an original work created by you, and that you have all the necessary rights to use the applicable Service for that work of art.
Mini-Prints
We accept Mini-Prints from artists in order to promote the Platform as well as the artists. By providing us with a Mini-Print, you grant us a non-exclusive, royalty free, perpetual, world-wide license to reproduce, store, distribute, display, and use, and make commercially available for sale Mini-Print. We may, but are not obligated to, sell your Mini-Print as part of a commercial offering, either bundled with a COA, standalone, or otherwise. You agree that you will not be owed any fee or compensation based on the sales of any Mini-Print you provide.
Use by Galleries
If you are an art gallery, you may generate a COA on the Platform for a work of art that you are authorized to represent if a) a COA for that work of art has not been previously created on the platform and b) which you currently have in your physical possession or which you have physically inspected.
If an off-platform COA already exists, the user can upload the document but it does not change the confidence level of the Always A rt issued certificates.
You represent and warrant that you have the authority to act on behalf of any artist or collector whose work or art you are representing in your use of these Services. You represent and warrant that you will comply with the directives provided to you by any such artist or collector as to the handling and representation of works of art on the Platform, provided that those directives are legal and comply with these Terms of Service.
Use by Collectors
If you are a collector, you may generate a COA on the Platform for a work of art that you own or have the right to possess if a) a COA for that work of art has not been previously created on the platform, b) which you currently have in your physical possession and c) you own the work.
Licenses to AlwaysArt Platform and AlwaysArt Marks
Subject to the terms and conditions of this Agreement, if you subscribe to use the AlwaysArt Platform, AlwaysArt hereby grants to you a non-exclusive, non-sublicensable (except as expressly permitted under this Agreement), non-transferable (except as expressly permitted under this Agreement) revocable license, during the subscription period you selected, to access and use the AlwaysArt Platform for the purposes described in the Services, and to use the AlwaysArt Marks solely as authorized by AlwaysArt in connection with the Services.
License to Your Content
Subject to the terms and conditions of this Agreement, you hereby grant AlwaysArt an irrevocable, perpetual, non-exclusive, royalty-free, non-transferable (except as expressly permitted under this Agreement), non-sublicensable (except as expressly permitted under this Agreement), worldwide license to reproduce, store, distribute, display, and use any of your Content (including without limitation any trademarks, logos, header data or metadata included in your Content) and the name of any creator(s) associated with your Content:
(a) to provide the Services to you;
(b) for other commercial purposes such as promoting, marketing, developing and improving AlwaysArt’s products and services, testing and troubleshooting; and
(c) to conduct sales and marketing to you.
AlwaysArt will have the right to permit its subcontractors to exercise the foregoing rights, provided that AlwaysArt will be responsible for any breach of this Agreement caused by any such subcontractors.
AlwaysArt will also have the right to permit third-party sublicensees to exercise the rights granted in subsection (b), provided that such data is aggregated with data of other AlwaysArt customers and does not identify you as the owner of such data.
Fees
You shall pay AlwaysArt the fees applicable to the Services you select. In the event of early termination of this Agreement, you will pay any Fees then accrued and payable for Services performed through the effective date of termination. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable. Except as otherwise provided, all amounts billed to you shall be payable United States dollars. You shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). AlwaysArt may, at its option, apply money received from you against any money then due to you. You and AlwaysArt agree to use good faith efforts to resolve any disputed Fees.
Taxes
You shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with the Fees paid hereunder. AlwaysArt shall separately state on each Order, and you shall pay, any Taxes; provided, however, that you shall not be responsible for taxes on AlwaysArt’s net income, profits, business assets, or ad valorem personal property.
Remedies for Non-Payment
In addition to any other remedies available to AlwaysArt, in the event that you fail to pay any Fees when due: (a) AlwaysArt will have the right to immediately suspend or block your access to the Services until full payment of such amounts is received; and (b) you shall pay a late charge equal to the lesser of 1.5% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due.
Limitation of Liability
In no event shall AlwaysArt and/or its respective suppliers be liable for any special, punitive, or indirect or consequential damages, or any damages whatsoever resulting from loss of use, data, or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of the Platform, documents, provision of or failure to provide the Services, or information available from the Services.
AlwaysArt’s total liability arising out of or relating to these terms is limited to the greater of (a) $100 or (b) the fees paid to use the applicable Services in the 12 months prior to the dispute.
Warranty Disclaimer
TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE PROVIDE OUR SERVICES “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FOR EXAMPLE, WE DO NOT MAKE ANY WARRANTIES ABOUT THE CONTENT OR FEATURES OF THE SERVICES, INCLUDING THEIR ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS.
AlwaysArt Indemnification
AlwaysArt, at its own expense, will indemnify, defend and hold harmless you and your authorized representatives and agents (collectively, the “Your Indemnitees”) from and against any claim, demand, action, class action, investigation or other proceeding (“Claims”), including but not limited to all damages, losses, liabilities, penalties, fines, judgments, costs and expenses arising therefrom (“Losses”), brought by any third party against any of your Indemnitees to the extent that such Claim is based on, or arises out of: (a) any third-party allegation that the Services (excluding any third-party services and any of your Content hosted therein), when used by you in accordance with this Agreement, violate applicable law or infringe or violate the intellectual property rights of any third party; or (b) the fraud, gross negligence or willful misconduct of AlwaysArt or its employees or subcontractors.
In addition to the indemnification obligations of AlwaysArt set forth above, in the event the use of any Service is, or AlwaysArt believes is likely to be, alleged or held to infringe any Intellectual Property Right, AlwaysArt may at its sole option and expense: (a) replace or modify the Service so it is non-infringing (provided, that the replaced or modified Service); or (b) terminate the applicable Service and refund pro-rata amount of any unused fees prepaid by you for the provision of that Service.
YOU AGREE, AS A MATERIAL TERM OF THE AGREEMENT, THAT THE ABOVE REMEDIES IN THIS INDEMNIFICATION SECTION SET FORTH YOUR EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY ANY PORTION OF THE ALWAYSART PROPERTY AND THAT ALWAYSART SHALL HAVE NO INFRINGEMENT LIABILITY TO YOU EXCEPT AS PROVIDED IN THIS SECTION.
Your Indemnification
You, at your own expense, will indemnify, defend and hold harmless AlwaysArt, its Affiliates and their respective directors, officers, employees, representatives and agents (collectively, the “AlwaysArt Indemnitees”) from and against any Claim, including but not limited to any Losses arising therefrom, brought by any third party against any AlwaysArt Indemnitee to the extent that such Claim is based on, or arises out of: (a) the conduct of your business, including any dispute with any creator of your Content or any of your customers; (b) your Content; (c) any Feedback that you provide; (d) any breach or purported breach of your obligations, representations and/or warranties under this Agreement or any contract with any provider of Third-Party Services under which you are bound; or (e) the fraud, gross negligence or willful misconduct of you, Authorized Users or your employees or subcontractors.
Indemnification Procedures
The obligations of each party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the other party and their respective directors, officers, employees, representatives and agents (each, an “Indemnitee”) shall be subject to the following:
(a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby;
(b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and
(c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor.
Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
Unsolicited Ideas and Materials
In your communications with us, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs, software or otherwise. We may act on any feedback you provide without creating any obligation to you. In addition, AlwaysArt retains all of the rights held by members of the general public with regard to your unsolicited ideas and materials.
Digital Millennium Copyright Act
a. General. In the event that a third party provides AlwaysArt with a notification of any alleged intellectual property infringement, AlwaysArt may, in AlwaysArt’s sole and absolute discretion, immediately remove such content, ban users from publishing on the site and cancel the User’s registration, the only liability for any of which will be AlwaysArt’s refund of any remaining, pro-rated balance of any subscription fee paid by a banned user. In addition, in the event of an alleged copyright infringement, AlwaysArt shall act expeditiously in accordance with the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. § 512) and will take steps to have the allegedly infringing material removed or access to such material blocked.
b. Procedure for Submitting Notification of Alleged Copyright Infringement. It is our policy to respond to notices of alleged copyright infringement that comply with the DMCA. With respect to copyright infringement, the DMCA requires AlwaysArt to have a designated agent to receive notices of alleged copyright infringement. For any content that you believe infringes your copyright, please send a written notice of alleged copyright infringement to AlwaysArt’s designated agent at the following email address: [email protected]. Your written notification of alleged copyright infringement should include all of the following information:
i. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are to be covered by a single notification, a representative list of such works and accompanying URL(s) where such work can be found on the Service;
ii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit AlwaysArt to locate the material on its server;
iii. Information reasonably sufficient to permit AlwaysArt to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
iv. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by you, your agent, or the law;
v. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
vi. Your physical or electronic signature.
c. Procedure for Submitting Notification of Alleged Intellectual Property Infringement (other than copyright infringement). If you believe that any content posted using this Service infringes the intellectual property that you own or are licensed to enforce (other than your copyright), please send a written notification here. Include in the communication the following information:
i. Identification of the allegedly infringing material with particularity to permit AlwaysArt to locate the material on AlwaysArt’s server;
ii. Information reasonably sufficient to permit AlwaysArt to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
iii. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by you, your agent, or the law; and
iv. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Dispute Resolution
California law will govern all disputes arising out of or relating to these terms, service-specific additional terms, or any related services, regardless of conflict of laws rules. These disputes will be resolved exclusively in the federal or state courts of Santa Clara County, California, USA, and you and AlwaysArt consent to personal jurisdiction in those courts.
Modification of the Terms of Use
We reserve the right to make updates to the terms of use at any time, and such modifications can be communicated in any number of ways including by email to the original address entered when opening your account. Any use of your account following notification will be considered an acceptance of the modifications. Illegality or unenforceability of any portion of the agreement shall not affect the legality and enforceability of the entire agreement.
Termination by You
If you have not registered for an account on the Platform, you may terminate your use of the Platform at any time, without notice, by simply ceasing to use the Platform. If you have registered for an account on the Platform, you may terminate your account by notifying us in writing or through account dashboard available to you on the Platform.
Termination by Us
We may terminate your use of the Platform, or any part of the Platform, at any time, without notice, and for any reason, including, without limitation, if you breach any of these Terms of Use. Upon termination, you will no longer have access to the Platform or any of its content.
