Free My Art Foundation, Inc.’s
Last Modified: August 3, 2021
Update Log: N/A
THESE TERMS OF SERVICE are entered into by and between Free My Art Foundation, Inc., a Virginia non-stock corporation (“FMAF,” “we,” or “us”) and the user (“User,” “you,” or “your”) (FMAF and User each a “Party” and collectively, the “Parties”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Service” or “Terms”), govern your rights to (i) access and use www.freemyart.org and its various subpages (the “Website”), (ii) access and use the FMAF mobile application, if any (the “App”), (iii) create and utilize an account and post content on the Website and/or App as a donor (a User who is a donor may be referred to herein as a “Donor User,” and an account created by a donor is a “Donor Account”), (iv) create and utilize an account and post content on the Website and/or App as a creator (a User who is a may be referred to herein as “Creator User,” and an account created by a creator is a “Creator Account”), (v) any other services or features available on or through the same (the foregoing items (i)-(v) collectively defined herein as the “Services”).
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 21 THAT REQUIRES THE USE OF ARBITRATION. PURSUANT TO SECTION 21, YOU WAIVE YOUR RIGHT TO BE A PART A CLASS ACTION LAWSUIT OR HAVE A JURY TRIAL.
OTHER IMPORTANT TERMS INCLUDE DISCLAIMERS (SECTION 2), AND LIMITATIONS OF LIABILITY (SECTION 3). PLEASE READ THESE TERMS, INCLUDING THOSE SECTIONS, CAREFULLY.
1. Requirements for Use of the Services
If you wish to use the Services as a Donor User or Creator User, you will be required to create an account by providing FMAF with certain information, including information about your identity and, in some cases, banking or credit card information; you will need to establish user access credentials, including a password and other multi-factor authentication credentials, to protect your account; and you also authorize us to collect such data and other data, including third-party information and information about you (collectively, “Personal Information”).
If you have not reached the age of majority in the state or territory in which you reside (18) except in Nebraska (19), Alabama (21), Mississippi (21), and Puerto Rico (19), you cannot use the Services without written consent of your parent or legal guardian. Such written consent must be provided at the time you establish an account with Company. By using the Services, you represent and warrant that you are of legal age to form a binding contract with the FMAF and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
2. Disclaimer of Warranties
FMAF makes no representations concerning any content contained on the Website or App, or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained on the Website or App, or accessed through the Services.
THE SERVICES AND CONTENT ON THE WEBSITE AND APP ARE PROVIDED "AS IS," “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE EVEN PLUS SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE EVEN PLUS SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE EVEN PLUS SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE WEBSITE, APP, AND/OR SERVICES IS SOLELY AT YOUR OWN RISK.
3. Limitation of Liability
FMAF is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Services, including, but not limited to:
- Any data breach or other breach of FMAF’s servers;
- Your use of or your inability to use our Services, including, without limitation, your Donor Account or Creator Account;
- Delays or disruptions in our Services;
- Viruses or other malicious software obtained by accessing, or linking to, our Services;
- Glitches, bugs, errors, or inaccuracies of any kind in our Services;
- Damage to your hardware device from the use of the Services;
- The content, actions, or inactions of third parties’ use of the Services;
- A suspension or other action taken with respect to your account; and
- Your reliance on the quality, accuracy, or reliability of profiles, ratings, recommendations, and feedback (including their content, order, and display), or other information on the Services.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL FMAF’S LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS OF SERVICES, OR YOUR USE OF THE SERVICES, EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN EXCHANGE FOR THE SERVICES, IF ANY. IN ADDITION, IN NO EVENT WILL FMAF, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR APP, OR SUCH OTHER WEBSITES, OR ANY SERVICES, ADVICE, OR ITEMS OBTAINED THROUGH THE SERVICES, OR ONLINE PLATFORM OR SUCH OTHER WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, DEATH, DISABILITY, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, WHETHER RELATED TO YOU OR ANY OTHER PARTY, AND EVEN IF FORESEEABLE.
4. Account Registration
To become a User, you must register and create a Donor Account or Creator Account on the Website or App. You must provide a valid email address, a username, and a password. It is a condition of your use of the Website and/or APP that all the information you provide is correct, current, and complete.
To become a Creator User, you must upload a completed W-9 form and a copy of your photo ID to your Creator Account in compliance with the IRS.
Amounts due to you as a Creator User from Donor Users will be paid to Creator User by any third-party payment provider which enables a Donor User to make donations or other payments or a Creator to receive.
You are fully responsible for all activities that occur on your account and you are responsible for keeping your login details confidential and secure. You agree not to disclose these details to any other person or entity and immediately notify FMAF if you believe someone has used or is using your account without your permission or if your account has been subject to any other breach of security. You also agree to ensure that you log out of your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to access, view or record your password or other personal information.
5. User Contributions
The Services may, now or in the future, contain areas where Users may post, without limitation, reviews, comments, videos, photos, and other content, and submit suggestions, ideas, comments, questions, or other information and other interactive features (collectively, “Interactive Services”) that allow Users to post, submit, publish, display, or transmit to other Users or other persons (hereinafter, “Post”) content or materials (collectively, “User Contributions”) on or through the Services. All User Contributions must comply with the Content Standards set out in these Terms of Service.
Any User Contributions you Post to the Services will be considered non-confidential and non-proprietary. By providing any User Contribution on the Services, you grant FMAF and its affiliates and service providers, its licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. You represent, warrant, and covenant that (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to FMAF; (b) all of your User Contributions do and will comply with these Terms of Service; (c) your User Contributions, and any third party or User’s access or use of the same, are authorized by all applicable third parties and applicable government agencies who own or possess any right or interest in or underlying the objects or property described therein; and (d) all User Contributions provided by you are accurate and complete in their requirement to satisfy the foregoing described representations and warranties.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not FMAF, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. FMAF is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other User of the Services.
Monitoring and Enforcement: FMAF reserves the right to (1) remove or refuse to post any User Contributions for any or no reason in its sole discretion, and/or (2) take any action with respect to any User Contribution that FMAF deems necessary or appropriate in its sole discretion.
Without limiting the foregoing, FMAF has the right to fully cooperate with any law enforcement authorities or court order requesting or directing FMAF to disclose the identity or other information of anyone posting any materials on or through the Services. NOTWITHSTANDING ANY OTHER TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU WAIVE, RELEASE, AND SHALL INDEMNIFY AND RELEASE AND HOLD HARMLESS FMAF AND ITS AFFILIATES, LICENSEES, SERVICE PROVIDERS, MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AND AGENTS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
Notwithstanding the foregoing, FMAF does not undertake to review all material or User Contributions before they are Posted on the Services, and cannot ensure prompt removal of objectionable, inaccurate, or incomplete material after it has been Posted. Accordingly, FMAF assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. FMAF has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
6. Content Standards
These content standards apply to any and all User Contributions and use of the Services. You represent, warrant, and covenant that your User Contributions will, in their entirety, comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions shall not:
- Post any User Contribution depicting a person under 18 years old.
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on, without limitation, race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property, or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by FMAF or any other person or entity, if this is not the case.
7. Payment Terms
You acknowledge and agree that FMAF will be paid and retain a [%] fee for all dontations and payments process through use of the Services, and that FMAF or its third-party payment processor may charge your credit card, debit card, or other account or method of payment, as provided by you at the time of purchase or at another time, including any taxes, late fees, and any other charges, costs, or fees associated therewith, that may be accrued or payable by you in connection with the Services. Additionally, by using the Services, you acknowledge and agree that you may send or receive e-mail or SMS text messages on your phone or mobile device to or from other Users, from FMAF and/or its agents and other third-party affiliates if you choose to use services or products that they offer. Receiving these messages may cause you to incur usage charges or other fees or costs in accordance with your wireless or data service plan. Any and all such charges, fees, or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees, or costs may apply.
Where FMAF receives donation or payment from a Donor User, Creator User has no right to receive such donation or payment until FMAF decides, in its sole discretion, that Creator User is in full compliance with these Terms. If FMAF determines Creator User is not in full compliance with these Terms, FMAF may refuse to deliver the donation or payment to Creator User.
8. Representations and Warranties
By using the Services, you represent and warrant:
- all account or registration and profile information is truthful and accurate and that any conent you provide is your own and does not infringe the intellectual property rights or any other proprietary rights of a third-party;
- if you previously had a Donor Account or Creator Account, your old account was not terminated or suspended by for violation of the Terms of Service;
- your account is for your own personal use, and you will not sell, rent or transfer your account to any third-party; and
- you will not use any third-party payment processors to accept payments relating to the Services.
9. Prohibited Use and Covenants
You may use the Services only for lawful purposes and in accordance with these Terms of Service. By using the Services, you agree and covenant that you will not use the Services:
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards (see Content Standards below) set out in these Terms of Service.
- To transmit, or procure the sending of, any advertising or promotional material (without FMAF’s prior written consent), including any “junk mail,” “chain letter,” or “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate FMAF, an employee or representative of FMAF, another User, or any other person or entity (including, without limitation, by using e-mail addresses or User screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or that, as determined by FMAF, may harm FMAF or Users of the Services or expose them to liability.
Additionally, you agree and covenant not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without FMAF’s prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Services.
- Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Use any feature of the Services for sending spam or any solicitation other than as permitted by FMAF.
- Otherwise attempt to interfere with the proper working of the Services.
10. Intellectual Property Rights
The Services and their entire contents, features, and functionality (including, but not limited to, all information, source code, algorithms, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are wholly owned by FMAF, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other applicable jurisdictions’ intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Services in accordance with these Terms of Service only. These Terms of Service do not constitute a sale or convey to you any rights, title, or interest of ownership in or related to the Services or any intellectual property rights owned by FMAF. FMAF, FMAF’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of FMAF or its affiliates or licensors. You must not use such marks without the prior written permission of FMAF. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material from the Services, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
You must not:
- Modify copies of any materials from the Services.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services.
If you print, copy, modify, or otherwise use or provide any other person with access to any part of the Services in breach of these Terms of Service, your right to use the Services will cease immediately and you must, at FMAF’s option and direction, return or destroy any copies of the materials you have made. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
FMAF respects the intellectual property of others and asks that Users of the Services do the same. In connection with the Services, FMAF has adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of the Users is, through the use of the Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to FMAF. Please let FMAF know as soon as possible. Please send the following information to FMAF using the contact information set forth at the end of these Terms of Service:
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on the Services that you claim is infringing and that you request to remove;
- Sufficient information to permit FMAF to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the owner, its agent, or under applicable law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material facts (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorneys’ fees incurred by FMAF in connection with the written notification and the allegation of copyright infringement.
12. Changes to these Terms of Service
FMAF may revise and update these Terms of Service from time to time in FMAF’s sole discretion and timing upon a notification on the Website or the App. All revisions, updates, or changes are effective immediately when FMAF posts them to the Website or the App and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction below will not apply to any disputes for which the Parties have actual notice on or prior to the date the revision, update, or change is posted. Your continued use of the Services following the posting of revised, updated, or changed Terms of Service means and constitutes your acceptance and agreement to the revision(s), update(s), or change(s). You are expected to check, read, and agree to this page when FMAF posts a notification on the Website or App or sends you a notification through email (through your user account or otherwise), prior to continuing to access or utilize the Services so you are aware of any revision, update, or change, as they are binding on you.
13. Services Access
FMAF reserves the right to withdraw or amend the Services, and any product, service, or material FMAF provides on the Services, in FMAF’s sole discretion without notice. From time to time, FMAF may restrict access to some parts of the Services or the entire Services.
14. Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. FMAF does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. FMAF DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE SERVICES, USER OF THE SERVICES, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
The Services may include content provided by third parties, including materials or User Contributions provided by other Users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by FMAF, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of FMAF. FMAF is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties or other Users.
15. Information About You and Your Use of the Services
16. Online Purchases and Other Terms and Conditions
The Services may from time to time include the ability of Users to purchase products or services through the Services. All purchases through the Services or other transactions for the sale of goods or services formed through the Services or as a result of visits made by you are governed by these Terms of Service. Additional terms and conditions may also apply to specific portions, services, or features of the Services from time to time. All such additional terms and conditions, whether now in existence or created in the future, are hereby incorporated by this reference into these Terms of Service.
17. Linking to the Services and Social Media Features
You may link to the Website homepage, provided you do so in a way that is fair and legal and does not damage FMAF’s reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on FMAF’s part without FMAF’s express written consent.
This Services may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on the Services.
- Send short message service (“SMS”) text messegages, e-mails, or other communications to third parties containing certain content, or links to certain content, on the Services.
- Cause limited portions of content on the Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use the Services features solely as they are provided by FMAF and solely with respect to the content they display. Subject to the foregoing, you must not:
- Establish a link to the Services from any website that is not lawfully owned by you.
- Cause the Services or portions of it to be displayed or appear to be displayed by, for example, framing, deep linking, or in-line linking, on any other site.
- Link to any part of the Services other than the Website homepage.
- Otherwise take any action with respect to the materials on the Services that is inconsistent with any other provision of these Terms of Service.
The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Service. You agree to cooperate with FMAF in causing any unauthorized framing or linking immediately to cease. FMAF reserves the right to withdraw linking permission without notice. FMAF may disable all or any social media features and any links at any time without notice in FMAF’s sole discretion.
18. Links from the Services
If the Services contain links to other sites and resources provided by third parties, FMAF provides these links for your convenience only, including links contained in advertisements, including banner advertisements and sponsored links. FMAF has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
19. Relationship of the Parties and Providers
Users are not employees or agents of FMAF or any other User. The relationship between FMAF and a User is that of service provider/user. No brokerage, agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by these Terms of Service, regardless of what User Contributions are provided to the Services.
20. Affiliate Marketing Disclosure
FMAF accepts or may in the future accept forms of cash advertising, sponsorship, paid insertions, or other forms of compensation. Some links found on the Services may be affiliate links that allow you to purchase products or services from other companies through advertisements on the Services (“Affiliate Links”). FMAF may receive compensation for purchases made through these Affiliate Links.
21. Dispute Resolution and Arbitration Agreement
- Pre-Arbitration Dispute Resolution and Notification. If you intend to seek arbitration you must first send written notice to FMAF of your intent to arbitrate ("Notice"). The Notice to FMAF should be sent by electronic mail to email@example.com. The Notice must: (i) describe the nature and basis of the claim or dispute; (ii) set forth the specific relief sought; and (iii) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you. Prior to initiating an arbitration, You and FMAF each agree to attempt to negotiate an informal resolution to it first. If after thirty (30) days of good faith efforts to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
- Agreement to Arbitrate. You and FMAF mutually agree that any dispute, claim, disagreement, or controversy arising out of, relating to, or in any way connected with these Terms or a breach, termination, enforcement, or interpretation thereof, or use of the Services (a “Dispute”) will be settled by binding arbitration. If there is a dispute about whether this arbitration agreement can be enforced or applies to our Dispute, you and FMAF agree that the arbitrator will decide that issue. THIS AGREEMENT TO ARBITRATE IS SPECIFICALLY ENFORCEABLE. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
- Exceptions to Arbitration Agreement. You and FMAF each agree that the following claims are exceptions to the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
- Cost of Arbitration. The Parties will equally split the cost of arbitration.
- Modification of AAA Rules - Attorney’s Fees and Costs. You and FMAF each agree that either party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.
- Modification of AAA Rules – Limitation on Damages. The arbitrator will have no authority to award punitive, consequential, special, or indirect damages.
- Choice of Law. The validity of this Arbitration Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia.
- Venue for Arbitration. The arbitration shall be conducted in Norfolk, Virginia. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.
- Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- JURY TRIAL WAIVER. YOU AND COMPANY ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES.
- No Class Actions or Representative Proceedings. You and FMAF acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class class-wide arbitration, or any other representative proceeding as to all Disputes. Further, unless you and FMAF both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
- Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
- Survival. These Terms and the agreement between FMAF and you hereunder shall survive the termination of your account.
- Geographic Restriction: FMAF provides the Services for use only by persons located in the United States. FMAF makes no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- International Users: The Services are controlled, operated, and administered by FMAF from FMAF’s offices within the United States of America. If you access the Services from a location outside of the United States, you are responsible for compliance with all local laws. You agree that you will not use the Services in any country or in any manner prohibited by any applicable laws, restrictions, or regulations.
- Indemnification: You agree to defend, indemnify, and hold harmless FMAF, its affiliates, licensors, and service providers, and its and their respective officers, managers, members, employees, contractors, agents, representatives, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, and fees (including attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Services, including, but not limited to, your User Contributions, any use of the Services’ content, services, or products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Services.
- Governing Law; Venue: If a court of competent jurisdiction finds the arbitration provisions in Section 21 invalid or inapplicable, you and Company each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the City of Norfolk, Commonwealth of Virginia, United States of America, for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. You also both agree that Company may bring suit in the state of federal courts in the City of Norfolk, Commonwealth of Virginia, United States of America for injunctive relief to enjoin infringement or other misuse of intellectual property rights. In such a case where a court of competent jurisdiction finds the arbitration provisions in Section 21 invalid or inapplicable, the validity of this these Terms, its construction, interpretation, and enforcement, and the rights of the parties hereto shall be determined under, governed by, and construed in accordance with the laws of the Commonwealth of Virginia.
- Waiver of Class Action. If a court of competent jurisdiction finds the arbitration provisions in Section 21 invalid or inapplicable, you and FMAF acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and FMAF both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
- Waiver of Jury Trial: IF A COURT OF COMPETENT JURISDICTION FINDS THE ARBITRATION PROVISIONS IN SECTION 21 INVALID OR INAPPLICABLE, EACH Party hereto acknowledges and agrees that any controversy which may arise under these Terms of Service are likely to involve complicated and difficult issues, and therefore it you and FMAF hereby irrevocably and unconditionally waive any right to have a trial by jyry in respect of any litigation directly or indirectly arising out of or relating to these Terms of Service, or transactions contemplated hereby or therein.
- No Assignment: You may not assign your rights nor delegate your duties under these Terms of Service without FMAF’s prior written consent, and any attempted assignment or delegation will be null and void.
- Limitation on Time to File Claims: ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver: No failure by FMAF to enforce any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of FMAF to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
- Severability: If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
- Notices. FMAF may give notice to you by email or other reasonable means. You shall give notice to FMAF by certified mail (postage pre-paid and return receipt requested) to:
Attn: Sam Welty
Free My Art Foundation, Inc.
QUESTIONS. Please contact FMAF with any questions regarding these Terms of Service by emailing at: firstname.lastname@example.org