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These Terms of Services (“Terms”) set forth a legally binding agreement between you and Curina Inc. (“Company”, “we”, “our”, or “us”), and govern your use of any online service location that posts a link to these Terms, and all features, content, artworks (“Artwork”), and other services that we own, control and make available through such online service location (collectively, the “Service”). You represent and warrant that you are entering into these Terms personally, or as an authorized representative of your company, as applicable.
In some instances, both these Terms and separate terms elsewhere on the Service (e.g., art rental lease, artwork refund, return, customer service, damage policies, etc.) will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control with respect to the specific service unless they expressly state otherwise.
If you do not pay all amounts due on your Billing Account within 30 days of demand, you grant Company the right, without prior notice, to enter the premises where the Artwork is located and take immediate possession of the Artwork without the necessity of any legal or judicial process and you will reimburse Company for all expenses related to any reasonable effort to repossess the Artwork, including reasonable attorneys’ fees.
You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us or our Payment Processor if your Payment Method is canceled or if you become aware of a potential breach of security. Changes to such information can be changed by calling your account manager a call directly at the number listed in their email signature, or calling our general line at 914.996.8120. If you fail to provide any of the foregoing information, you agree that we may continue charging you for any use of Paid Services under your Billing Account unless you have terminated your Paid Services as set forth above.
You may not use the Service unless you are at least eighteen (18) years old. You may not: (i) use the Service or Company Content for any political purpose; (ii) engage in any activity in connection with the Service or Company Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Company; (iii) harvest any information from the Service or Company Content; (iv) reverse engineer or modify the Service or Company Content; (v) interfere with the proper operation of or any security measure used by the Service or Company Content; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Company Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Company Content.
Company may suspend or terminate the availability of the Service and Company Content, in whole or in part, to any individual user or all users, for any reason, in Company’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Company, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Company Content.
Reservation Of Rights
All rights not expressly granted to you are reserved by Company and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Company Content or service for any purpose is prohibited.
If you have any questions or comments, please send an e-mail to us at firstname.lastname@example.org. You acknowledge that the provision of support is at Company’s sole discretion consistent with its customer service policies and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: 5 Union Square West, #1219, New York, NY 10003. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You acknowledge that all you, and not Company, are entirely responsible for all information, reviews, data, text, photographs, graphics, video, messages, tags and/or other materials (collectively, “User Content”) that you upload, post, e-mail, transmit or otherwise make available (“make available”) through the Service.
You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content. In the event that Company pre-screens, refuses or removes any User Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any User Content that violates the Terms or is otherwise objectionable.
You grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display User Content (in whole or in part) for any purpose, commencing on the date you made such User Content available, including promoting and marketing Company and the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in the User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
You shall not (and shall not permit any third party) either (a) take any action or (b) make available any User Content that, in Company’s sole discretion: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Company’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Company; or (vi) requires Company to obtain any license from or make any payments in any amount to any third party throughout the world.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Company’s business.
Communication. You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us herewith the word unsubscribe in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Company’s ongoing business relations.
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You do not have the right to assign any Artwork leased from Company, including subleasing, selling, pledging or alienating in any other way or using as a security the artwork.
You agree to provide reasonable care while any artwork or other products are in your possession during the lease period and immediately after delivery and before pickup. You understand you are responsible for any loss, damage or copyright infringement to any artworks in your possession. In the case of any loss, damage or infringement to the artwork during the lease period, you are responsible to pay Company the full value of the artwork as listed on the Curina website. Company shall not be held liable for any loss or damage to the artwork, nor for any copyright infringement related to you. In any event, you waive any right you may have against Company in relation to loss or damage to the artwork, or in relation to any copyright infringement related to you.
You agree to defend, indemnify and hold harmless the Company parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a third party service; or (vii) any misrepresentation made by you. Company reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Company’s defense of any claim. You will not in any event settle any claim without the prior written consent of Company.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. We may also ask you to affirmatively consent to any material changes in the Terms. All such changes are effective with your continued use of the Service. If you object to any such changes, your sole recourse is to cease using the Service.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
1. We Both Agree To Arbitrate
You and Company agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate Company’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Company may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
2. What Is Arbitration?
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
3. Arbitration Procedures
The federal arbitration act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS streamlined arbitration rules and procedures in front of one arbitrator. If there is a conflict between JAMS rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS rules and instructions for how to initiate an arbitration are available from JAMS http://www.jamsadr.comor 1-800-352-5267. To initiate arbitration, you or Company must do the following things:
(1) Write a demand for arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a demand for arbitration at www.jamsadr.com.
(2) Send three copies of the demand for arbitration, plus the appropriate filing fee to: your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. If traveling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the united states in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
4. Authority Of Arbitrator
The arbitrator will decide the rights and liabilities, if any, of you and Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitration rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
5. No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
6. Waiver Of Jury Trial
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
7. Choice Of Law/Forum Selection
In any circumstances where the agreement to arbitrate disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the state of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
8. Availability of Small Claims Court
Notwithstanding the foregoing, both you and Company may choose to bring an action against the other in New York City Small Claims Court. This is the only court where an action may be commenced in lieu of arbitration as specified above.
No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on service use (except for the limited license), unsolicited submissions, copyright infringement, subscriptions and products, customer support, Third Party Services, service features, agreement to arbitrate disputes and choice of law, disclaimer of representations and warranties, limitations of our liability, indemnification, waiver of injunctive or other equitable relief, updates to Terms, and general provisions, will survive.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Company may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Company controls and operates the Service from the U.S., and Company makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
Company reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Company may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.