Terms of Service
Franklin Westwood Terms of Service
Last Updated Date: May 4, 2020
Certain areas of the Services and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Services or for access to specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. IF YOU WANT TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, YOU MAY DO SO PROVIDED YOU FOLLOW THE PROCEDURES SET FORTH BELOW IN THE SECTION ENTITLED “AGREEMENT TO ARBITRATE”. THE DISPUTE RESOLUTION SECTION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A PROPOSED CLASS. THESE TERMS ALSO INCLUDE A WAIVER OF YOUR RIGHTS TO A TRIAL BY JURY IRRESPECTIVE OF WHETHER YOU AGREE TO ARBITRATE YOUR CLAIMS.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Modifications to these Terms
Franklin Westwood reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Services after we have posted a modification on the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. We encourage you to check back regularly to review these Terms.
Modifications to the Services
We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Services without notice to you. We may modify or remove any Original Works of Art (as defined below), Digital Works (as defined below), Franklin Westwood Content (as defined below) or Member Content (as defined below) from the Services at any time without notice to you, including the removal of any works of art or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Services that contains typographical errors, inaccuracies, or omissions. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information if any such information on the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by applicable local, state, federal or international laws, regulations, or statutes. No specified update or refresh date applied to the Services should be taken to indicate that all information on the Services has been modified or updated.
The Services are intended solely for persons who are 18 or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 or older.
In order to make a purchase through the Services, (other than users who utilize the guest checkout option), you must first create an account (“Account”) by completing our registration process. During the registration process you will be required to provide certain information and you will establish a username and a password. Upon completion of our registration process or by utilizing our guest checkout option you will become an “Account Holder, “purchaser”, or “consumer”. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete, for example if you become VAT registered. Franklin Westwood reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Franklin Westwood of any unauthorized use of your Account.
Consumer Terms and Conditions
Purchases of Original Works of Art
As an Account Holder, you may purchase Original Works of Art that are listed on the Services that have been created by creative artists ("Artist," “Artists”). When you purchase such an Original Work of Art through the Services, you are purchasing the work from artists identified on the listing for such work and not from Franklin Westwood. Prices for Original Works of Art will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges (unless specifically indicated on the Site) or applicable Taxes (defined below) including VAT, if any, for which you are responsible and which will be separately identified on your receipt. Franklin Westwood and/or its third-party service providers will collect your billing and shipping information and process your payment. Certain Original Works of Art (including, but not limited to, oversized works and sculptures) may require additional shipping and handling charges and special arrangements. The Artist identified on the listing of the Original Work of Art will ship the purchased work directly to you. The terms and conditions of Franklin Westwood’s then-current Return Policy apply to any Original Works of Art that you purchase through the Services. When you purchase Original Works of Art via Online Sales (other than via the Services) such purchases will be subject to the terms and conditions of the applicable Online Sales channels which will be presented to you at the time of purchase.
Purchases of Printed Works
As an Account Holder, you may purchase Printed Works that are listed by Artists on the Services. Prices for Printed Works will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges (unless noted otherwise) or applicable Taxes (defined below), including VAT, if any, for which you are responsible and that will be separately identified on your receipt. When you purchase Printed Works through the Services, Franklin Westwood and its third party service providers will collect your billing and shipping information will be collected, your payment will be processed, Printed Works will be shipped directly to you. The terms and conditions of Franklin Westwood’s then-current Return Policy apply to any Printed Works that you purchase through the Services. When you purchase Printed Works via Online Sales (other than via the Services) and Offline Sales such purchases will be subject to the terms and conditions of the applicable Online Sales and Offline Sales channels, which will be presented to you at the time of purchase.
Franklin Westwood reserves the right to cancel any order for an Original Work of Art or Printed Work placed via the Services if we determine, in our reasonable discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed via the Services. If Franklin Westwood cancels an order placed via the Services, we will send you an email confirmation of such cancellation and you will not be charged for your order.
If you are an Artist and have submitted a listing for an Original Work of Art or a Digital Work and have been contacted through the Services by an Account Holder with respect to purchasing either of the foregoing, or a similar work or custom piece related to a listed work of art, Artist shall not sell such Original Work of Art or Digital Work to such Account Holder independent of Franklin Westwood and the Services. Violation of this provision may result in the termination of your account, in addition to any other remedies available to Franklin Westwood including, without limitation, injunctive or other appropriate relief.
If you are a purchaser of Original Works of Art and/or Printed Works, you acknowledge that Taxes including VAT will be added to the amounts charged, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes including VAT. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
You understand and agree that Franklin Westwood uses commercially reasonable efforts to display the colors of Original Works of Art, Digital Works and Printed Works accurately via the Services. However, because individual computer monitors may display colors differently, Franklin Westwood is not responsible for the color accuracy of any Original Works of Art, Digital Works or Printed Works displayed on the Services, and disclaims all liability in this regard.
In addition to submitting listings for Original Works of Art and Digital Works, Franklin Westwood may, in its sole discretion, designate areas of the Services in which Members can post, upload, publish or submit text, graphics, audio, video, images of works of art or other content on or to the Services (individually or collectively, “Artist Content”). “Artist Content” excludes any images of Original Works of Art or Digital Works for which an Artist submits a listing, as described under “Seller Terms and Conditions” above. Franklin Westwood does not claim any ownership rights in any such Artist Content and nothing in these Terms will be deemed to restrict any rights that an Artist may have to use and exploit any such Artist Content. By making available any Artist Content on or through the Services, (i) you grant Franklin Westwood a worldwide, nonexclusive, transferable, royalty-free, commission-free license to crop, resize, publicly display, publicly perform, distribute, broadcast and transmit such Artist Content on or through the Services in any form, medium or technology now known or later developed, for the purpose of promoting Franklin Westwood, the Services, and (ii) you grant directly to account holders the right and license to view your Artist Content on or through the Services only in connection with such account holder’s authorized use of the Services. You reserve all other rights and licenses in and to any Artist Content that you make available on or through the Services.
You acknowledge and agree that you are solely responsible for any Artist Content that you make available on or through the Services. You represent and warrant that: (i) you are the sole and exclusive owner of all Artist Content that you make available on or through the Services or that you have all rights, licenses, consents and releases that are necessary to make available such Artist Content and to grant all rights and licenses in such Artist Content as granted under these Terms; and (ii) neither the Artist Content nor your making available any Artist Content on the Services nor any use of any account holder Content as permitted under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Franklin Westwood Content
Franklin Westwood may also make available through the Services text, graphics, audio, video and images of works Franklin Westwood of art (collectively, “Franklin Westwood Content”), some of which is owned by Franklin Westwood (“Franklin Westwood -owned Content”), and some of which is made available under license by a third party (“Franklin Westwood-licensed Content”). Franklin Westwood authorizes you to download, view and print Franklin Westwood-owned Content solely for your personal use in visiting the Services and, if you are an account holder, in connection with exercising the rights granted to account holders under these Terms. For Franklin Westwood-licensed Content, the scope of your rights thereto will be solely as set forth in the applicable license agreement that governs the use of such content, as identified on the Services where such content appears. Nothing in these Terms is intended to modify, restrict or limit the scope of your rights as to such Franklin Westwood-licensed Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Franklin Westwood or its licensors, except for the licenses and rights expressly granted in these Terms.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) harms minors in any way; or (viii) promotes illegal or harmful activities, products or substances.
- Use, display, mirror or frame the Services, or any individual element within the Services, Franklin Westwood’s name, any Franklin Westwood trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Franklin Westwood’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Franklin Westwood’s computer systems or network, or the technical delivery systems of Franklin Westwood’s providers;
- Attempt to probe, scan or test the vulnerability of any Franklin Westwood system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Franklin Westwood or any of Franklin Westwood’s providers or any other third party (including another user) to protect Services, Franklin Westwood Content or Artist Content;
- Attempt to access or search Services, Franklin Westwood Content or Artist Content or download Franklin Westwood Content or Member Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Franklin Westwood or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Franklin Westwood trademark, logo URL or product name without Franklin Westwood’s express written consent;
- Use Services, Franklin Westwood Content or Artist Content for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use Services, Franklin Westwood Content or Artist Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services, Franklin Westwood Content or Artist Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Franklin Westwood will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Franklin Westwood may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Franklin Westwood has no obligation to monitor your access to or use of the Services or to remove any Artist Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Franklin Westwood reserves the right, at any time and without prior notice, to remove or disable access to any Artist Content, listings for Original Works of Art or Digital Works, Franklin Westwood Content or any other text, graphics, images, software, music, audio, video, information or other content or material that Franklin Westwood, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Services.
ADDITIONAL TERMS AND CONDITIONS
Promotions and Contests
Franklin Westwood may manage sweepstakes, contests, and similar promotions (collectively, “Promotions”) through the Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Services, as they may contain additional important information about Franklin Westwood’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of any Official Rules conflict with these Terms, the terms and conditions of the Official Rules will control.
Franklin Westwood’s Intellectual Property
The Services and Franklin Westwood Content are protected by copyright, trademark and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Franklin Westwood and its licensors exclusively own all right, title and interest in and to the Services and Franklin Westwood Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Franklin Westwood Content.
Franklin Westwood respects copyright law and expects its users to do the same. It is Franklin Westwood’s policy to terminate in appropriate circumstances of Artists or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Franklin Westwood’s Copyright Policy at https://franklinwestwood.com/pages/copyright-notice for further information.
The Services may contain links to third-party websites or resources. You acknowledge and agree that Franklin Westwood is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Franklin Westwood of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Account Cancellation
If you breach any of these Terms, Franklin Westwood will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Franklin Westwood reserves the right to revoke your access to and use of the Services, Franklin Westwood Content and account holder Content at any time, with or without cause. In the event Franklin Westwood terminates these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Account at any time by sending an email to email@example.com.
Mobile Services and Applications
“Mobile Services” means certain software and services that are available via a mobile device, including: (i) the ability to use the Services from a mobile device; and (ii) the ability to access certain features through a Mobile Application downloaded from the Services and installed on a mobile device.
Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Franklin Westwood and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
Mobile Application. Subject to your compliance with these Terms, Franklin Westwood grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the applicable Franklin Westwood Mobile Application on a mobile device that you own or control and to run such copy of the mobile application solely to access the Mobile Services for your own personal non-commercial purposes. Furthermore, with respect to any Mobile Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
App Stores. You acknowledge and agree that the availability of the Mobile Application and the Mobile Services is dependent on the third party from whom you received the Mobile Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that these Terms are between you and Franklin Westwood and not with the App Store. Franklin Westwood, not the App Store, is solely responsible for the Mobile Application and the Mobile Services, the content thereof, maintenance, support services, and warranty thereof, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Application and the Mobile Services. You agree to comply with, and your license to use the Mobile Application and the Mobile Services is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Application and the Mobile Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
Accessing and Downloading the Mobile Application from the Apple App Store. The following applies to any Mobile Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that: (i) these Terms are concluded between you and Franklin Westwood only, and not Apple; and (ii) Franklin Westwood, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Apple App Store terms of service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Franklin Westwood and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Franklin Westwood.
- You and Franklin Westwood acknowledge that, as between Franklin Westwood and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Franklin Westwood acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Franklin Westwood and Apple, Franklin Westwood, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- You and Franklin Westwood acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
We reserve the right, with or without prior notice, to: change descriptions or references to artworks, products, subscriptions, software or services; limit the available quantity of any artworks, products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Services with any products, subscriptions, software or services. We may modify any points, rewards, or the terms that govern their usage, at our sole discretion, and such modifications may make the points or rewards more or less common, valuable, effective, or functional.
THE SERVICES, FRANKLIN WESTWOOD CONTENT, ARTISTS CONTENT AND ACCOUNT HOLDER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FRANKLIN WESTWOOD EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FRANKLIN WESTWOOD MAKES NO WARRANTY THAT THE SITE, SERVICES, FRANKLIN WESTWOOD CONTENT OR ARTIST CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FRANKLIN WESTWOOD MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FRANKLIN WESTWOOD OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO ACTION SHOULD BE TAKEN OR PURCHASE MADE BASED UPON ANY OF THE INFORMATION CONTAINED IN THE SERVICES. YOU SHOULD SEEK INDEPENDENT ADVICE FROM A PROFESSIONAL AND/OR A PERSON WHO IS KNOWLEDGEABLE IN THE APPLICABLE AREA BEFORE ACTING UPON ANY OPINION, ADVICE, OR INFORMATION CONTAINED IN THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, FRANKLIN WESTWOOD DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ACCOUNT HOLDERS OR ARTISTS OR OTHER USERS OF THE SERVICES, NOR DOES FRANKLIN WESTWOOD MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SERVICES. FRANKLIN WESTWOOD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Franklin Westwood, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services, Franklin Westwood Content or Artist Content, or your violation of these Terms.
Limitation of Liability
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Services, Franklin Westwood Content and Artist Content remains with you. Neither Franklin Westwood nor any other party involved in creating, producing, or delivering the Services, Franklin Westwood Content, Account Holders or Artist Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Services, Franklin Westwood Content or Artist Content, or from any communications, interactions or meetings with users of the Services or other persons with whom you communicate or interact as a result of your use of the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Franklin Westwood has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Franklin Westwood’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Services, Franklin Westwood Content or Artist Content exceed: (i) if you are an Artist who has sold Original Works of Art or has licensed Digital Works and has received any Artist Revenue Share from Franklin Westwood from the sale of Printed Works, the total payments made or credited to you by Franklin Westwood for the sale of your Original Works of Art and/or from the sale of Printed Works based on your licensed Digital Works during the three (3) month period preceding the date a claim for liability arises under these Terms; and (ii) if you are an Account Holder who has purchased Original Works of Art or Printed Works, the total payments that you made to Franklin Westwood for the Original Works of Art and/or Printed Works that are the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between you and Franklin Westwood. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Franklin Westwood used herein are trademarks or registered trademarks of Franklin Westwood or its licensors. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
RESOLUTION OF DISPUTES
Governing Law and Jurisdiction
These Terms will be governed by the laws of the State of Nebraska, without regard to conflict of law provisions. You and we expressly agree that any claim or dispute must be resolved exclusively by a state or federal court or arbitration located in Douglas County, Nebraska, except as described in the Agreement to Arbitrate below or as otherwise mutually agreed by the parties.
It is our goal that the Services meet your expectations and provide excellent service. However, there may be instances when you feel that we have made a mistake or left you disappointed in some way. In those instances, we are committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern. Therefore, for any problem or dispute that you may have with us, you acknowledge and agree that you will, as an initial matter, email us at firstname.lastname@example.org to describe to us the nature of your complaint or dissatisfaction. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within thirty (30) days after our receipt of your written description of it, you agree to the further dispute resolution provisions below. To the extent permitted by applicable law, the informal resolution process described in this paragraph is a precondition to pursuing any other process, so please do not forget to contact us first.
Mutual Agreement to Arbitrate
PLEASE READ THIS AGREEMENT TO ARBITRATE CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AND WE AGREE TO ARBITRATE ANY CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT-OUT. YOU AND WE AGREE THAT ALL SUCH CLAIMS WILL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A PROPOSED CLASS ACTION. WHETHER OR NOT YOU OPT-OUT, HOWEVER, YOU ARE GIVING UP A RIGHT TO A TRIAL BY JURY. YOU AND WE UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.
The arbitrator, and not any federal, state, local, or other court or agency, WILL have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of THESE TERMS AND this Agreement to arbitrate, including but not limited to, any claim that all or any part of THESE TERMS OR this Agreement to Arbitrate is void or voidable.
You and we agree that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services and these Terms or to any products or services sold or distributed through the Services, will be final and binding arbitration, except to the extent that either party has, in any manner, infringed upon or violated, or threatened to infringe upon or violate, the rights of either party or any third party’s patent, copyright, trademark, trade secret, privacy or publicity rights or is seeking to vindicate public rights, in which case both sides acknowledge that arbitration is not an adequate remedy and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies) on an individual basis in a court located in Douglas County, Nebraska. You and we acknowledge that this Agreement to Arbitrate affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement to Arbitrate (despite any other choice of law provision). As a limited exception to this mutual Agreement to Arbitrate, you and we agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent.
For users in the United States, the arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at adr.org/consumer or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
For users outside of the United States, any controversy or claim arising out of or relating to these Terms, or the breach thereof, will be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Expedited Procedures (“ICDR Expedited Procedures”). The arbitration will be decided by a sole arbitrator appointed in accordance with the ICDR Expedited Procedures.
Means and Fees
In the interest of efficiency and fairness, you and we agree that the arbitration proceeding will be based solely on written submissions, unless the arbitrator deems an oral hearing strictly necessary. Should the arbitrator deem an oral hearing to be necessary, such hearing will be conducted via telephone or other electronic or technical means, or if that’s not possible, in person in the jurisdiction where you reside or at another mutually agreed upon location. The language of the arbitration will be English or, for users who reside outside of the U.S., the official language of your jurisdiction. The arbitrator’s award will be final and binding, and judgment may be entered upon it by any court having jurisdiction thereof. Each party will have the right to use legal counsel in connection with arbitration at its own expense. We are not responsible for reimbursing you for costs incurred by you for legal counsel, travel or other out-of-pocket costs or expenses. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
Right to Opt-Out
YOU HAVE A RIGHT TO OPT-OUT OF THIS AGREEMENT TO ARBITRATE by sending an email to email@example.com or by mailing us, postage prepaid, to Franklin Westwood, LLC., 15418 Weir Street, Suite 248, Omaha, NE 68137 Attention: Legal Department. Such opt-out must be given within the earlier of thirty (30) days of approving your first purchase of products on the Services or your first upload of artwork to the Services or if we make any changes to this Agreement to Arbitrate which alter your rights, within thirty (30) days after the effective date of such revision to this Agreement to Arbitrate. Any opt-out received after such deadline will be ineffective and this Agreement to Arbitrate will remain in full force and effect, except as expressly provided above. If you opt-out of this Agreement to Arbitrate, we also will not be bound by the terms of this Agreement to Arbitrate.
Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ARBITRATION PROCEEDINGS WILL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable with respect to any particular claim otherwise subject to arbitration, then that claim will not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that occurs, however, this Agreement to Arbitrate and this Class Action Waiver still will be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis.
Waiver of Trial by Judge or Jury
YOU AND WE AGREE AND UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES YOU AND WE ARE GIVING UP ANY RIGHT THAT YOU OR WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THIS AGREEMENT TO ARBITRATE. YOU AND WE FURTHER AGREE THAT ANY CLAIM HEARD IN A COURT OF COMPETENT JURISDICTION WILL BE HEARD BY A JUDGE INSTEAD OF A JURY, EXCEPT WHERE A JURY TRIAL WAIVER IS NOT PERMISSIBLE UNDER APPLICABLE LAW.
Limitation of Actions
You and we agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services, or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Users from Other Jurisdictions
The Services are controlled and operated by Franklin Westwood from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
These Terms constitute the entire and exclusive understanding and agreement between Franklin Westwood and you regarding the Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Franklin Westwood and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Franklin Westwood’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Franklin Westwood may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Franklin Westwood via email (in each case to the address that you provide) or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Franklin Westwood to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Franklin Westwood. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting Franklin Westwood
If you have any questions about these Terms, please contact Franklin Westwood at firstname.lastname@example.org.
If you have a complaint, you may contact us at Franklin Westwood’s legal department:
Franklin Westwood, LLC.
Attn: Legal Department
15418 Weir Street Suite 248
Omaha, NE 68137, USA