These terms and conditions (this "Agreement") are by and between The Boca Raton Museum of Art - The Artists' Guild d/b/a The Artists' Guild and ("bocaguild.com") a Florida corporation, and you, your heirs, agents, successors and assigns ("You" and "Your(s)"), each side a "Party" and together, "the Parties". This Agreement sets forth the terms and conditions of Your Membership with The Artists' Guild or use of other services offered on The Artists' Guild Website(s), (the "Services") and explains The Artists' Guild' obligations to You and Your obligations to The Artists' Guild concerning the Services.
BY USING THE SERVICES WITH The Artists' Guild, SUBMITTING REGISTRATION INFORMATION, CHECKING THE "I AGREE" CHECKBOX AT THE TIME OF REGISTRATION AND/OR EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (AS AMENDED FROM TIME TO TIME BY The Artists' Guild IN THEIR SOLE AND ABSOLUTE DISCRETION). IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT USE THE The Artists' Guild SERVICES. BY CONTINUING TO USE THE SERVICES OFFERED BY The Artists' Guild FOLLOWING A CHANGE TO THIS AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO THE CHANGE.
WHEREAS, The Artists' Guild provides a service through the The Artists' Guild website (www.bocaguild.com) that displays The Artists' Guild web page that The Artists' Guild owns or controls to users who wish to buy, sell or obtain other services offered on this The Artists' Guild website; and WHEREAS, You wish to obtain one or more of the Services; NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration herewith, the receipt, adequacy and sufficiency of which are hereby acknowledged, The Artists' Guild and You, intending to be legally bound, hereby agree as follows:
TERM OF AGREEMENT; MODIFICATION; TERMINATION
You agree that The Artists' Guild may modify this Agreement and the Services from time to time. You agree to be bound by any changes The Artists' Guild may reasonably make to this Agreement when such changes are made. If You have purchased Services from The Artists' Guild, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Services. You agree that The Artists' Guild shall not be bound by any representations made by third parties who You may use to purchase Services from The Artists' Guild, and that any statement of a general nature, which may be posted on The Artists' Guild.com or contained in The Artists' Guild' promotional materials, will not bind The Artists' Guild. The Artists' Guild may, at times, offer certain promotions with different charges and features. The Artists' Guild may, in our sole discretion, add, delete or change any of the services provided or fees charged by The Artists' Guild.com. These will be binding on the date that they become effective, similar to any other revision that is made to this agreement. You agree that You will be responsible for notifying The Artists' Guild should You desire to terminate Your use of The Artists' Guild' Services. Notification of Your intent to terminate must be provided to The Artists' Guild no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date. You agree that The Artists' Guild may, in its sole discretion, terminate this Agreement, or any commercial activity or other use of the Services provided by The Artists' Guild under this Agreement immediately and without any notice. Without limiting the foregoing, The Artists' Guild.com may terminate this Agreement if The Artists' Guild determines in its sole discretion that you have acted inconsistently with the obligations or the spirit of this Agreement or of other The Artists' Guild policies; or if The Artists' Guild determines in its sole discretion that you have infringed upon or tried to infringe upon the proprietary rights of others; if any information that you have provided The Artists' Guild is found in The Artists' Guild' sole discretion to be false or that The Artists' Guild has been unable to authenticate or verify the veracity of such information.
Only adults who can form legally binding contracts under applicable law can actively participate in the activities conducted through The Artists' Guild. By completing the registration information, by opening an account with The Artists' Guild, or otherwise participating in commercial activity conducted through the The Artists' Guild.com, you certify that you are 18 years of age or older, are competent to assume legally-binding obligations, and have the resources available to honor those obligations that you undertake. The Artists' Guild reserves the right to refuse, limit or restrict its services for any reason at any time and in its sole discretion.
INFORMATION AND PRIVACY
ACCURATE INFORMATION; VERIFICATION
NO UNLAWFUL CONDUCT OR IMPROPER USE
As a condition of Your use of the Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid for the Services if, for any reason, The Artists' Guild takes corrective action with respect to Your improper or illegal use of the Services.
The Artists' Guild reserves the right at all times to disclose any information as The Artists' Guild deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in The Artists' Guild' sole discretion.
If You have purchased Services, The Artists' Guild has no obligation to monitor Your use of the Services. The Artists' Guild reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. The Artists' Guild reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.
The Artists' Guild reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against The Artists' Guild or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. The Artists' Guild may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed The Artists' Guild levels.
Except as set forth below, The Artists' Guild may also cancel Your use of the Services immediately and without notice if You are using the Services, as determined by The Artists' Guild in its sole discretion, in association with spam or morally objectionable or illegal activities. Morally objectionable or illegal activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. You agree You will not be entitled to a refund of any fees paid to The Artists' Guild if, for any reason, The Artists' Guild takes corrective action with respect to Your improper or illegal use of its Services.
You agree that The Artists' Guild or its licensor holds all rights, title and interest in the Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services.
You understand and agree that all content and materials contained in this Agreement, other policies, The Artists' Guild.com, and any affiliated websites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that The Artists' Guild or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of The Artists' Guild or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
If You hold or assert any trademark, copyright, or other intellectual property right in or to a Domain Name, or any portion thereof, that is the subject of this Agreement, You do on your own behalf and not on behalf of any person and You hereby waive and release The Artists' Guild. and its parents, subsidiaries, successors, assigns, attorneys, contractors, agents, employees, officers, directors, shareholders, and affiliates from any and all claims arising from such rights. To the extent that such waiver and release of claims is determined to be invalid in whole or in part for any reason, you agree that your remedy in any dispute with The Artists' Guild shall be nothing as is the subject of this agreement.
REPRESENTATIONS AND WARRANTIES
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge that Your actions in connection with using the Services infringe upon or conflict with the legal rights of a third party or a third party's trademark or trade name.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE ARTISTS' GUILD, ITS SUBSIDIARIES, OR THE BOCA RATON MUSEUM OF ART BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT,INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF THE ARTISTS' GUILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, The Artists' Guild' liability is limited to the full extent permitted by law. You agree that in no event shall The Artists' Guild' maximum aggregate liability exceed the total amount paid by You for the particular Service in dispute purchased from The Artists' Guild.
DISCLAIMER OF WARRANTIES
ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. The Artists' Guild EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. THE ARTISTS" GUILD ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING; THAT THE FUNCTIONS OR SERVICES PROVIDED BY THE ARTISTS' GUILD WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY THE ARTISTS' GUILD WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY THE ARTISTS' GUILD UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM THE ARTISTS' GUILD. YOU ACKNOWLEDGE THAT THE ARTISTS' GUILD CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGE THE LEGAL RIGHTS OF OTHERS.
You at Your own expense will indemnify, defend and hold harmless The Artists' Guild, its subsidiaries, The Boca Raton Museum of Art and any third-party service providers and third-party beneficiaries to this Agreement and their employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against The Artists' Guild or any third-party beneficiary to this Agreement by You or another based on or arising from any claim or alleged claim arising out of: any claim or alleged claim arising from this Agreement; a third party claim that any item(s) infringes any copyright, trade secret or trademark of a third party; or Your use of the services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. You will not enter into a settlement or compromise of any such claim without The Artists' Guild' prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by The Artists' Guild in connection with or arising from any claim, suit, action or proceeding.
No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
CHOICE OF LAW; FORUM
This Agreement shall be interpreted and enforced in accordance with the laws of the State of Florida, without regard to Florida's laws on the choice of law. The Parties agree that any action relating to this Agreement is subject to the exclusive jurisdiction of the federal and state courts of the State of Florida, and further agree to proper venue in those courts. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys' fees, costs and disbursements incurred in connection therewith.
Any notice or other communication required or permitted to be delivered to The Artists' Guild under this Agreement shall be in writing and deemed properly delivered by certified mail, return receipt requested, to The Artists' Guild, 512 East Atlantic Ave., Delray Beach, Florida 33484, attn: The Artists' Guild. Any notice or other communication required or permitted to be delivered to You by The Artists' Guild under this Agreement shall be deemed properly delivered by e-mail to the contact address that You have provided to The Artists' Guild.
ENTIRE AGREEMENT; MERGER; SEVERABILITY
This Agreement, incorporating any other applicable The Artists' Guild policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.