(a) General. This Artist Agreement (this "Agreement") sets forth the terms and conditions under which AK Web Apps, a Texas corporation (together with its affiliated companies, agents and designees, "AK Web Apps" or "us") offers you ("Artist" or "you") access to the FolioSoup program (the "Program") operated at www.FolioSoup.com (the "Website"), through which you may upload, manage, share and display digital images of artwork (the "Artwork").
(b) Changes; Notices. In addition to the provisions of this Agreement, specific pages on the Website may set out additional terms and conditions, all of which are incorporated by reference into this Agreement. Terms and conditions may be changed or updated at any time upon notice to you. You agree to accept delivery of any such notice, or any other notice regarding your account or the Program, via the email account address you have most recently registered with us. It is your responsibility to review any such change notices or check the Website from time to time to be sure you understand the terms and conditions and are in compliance with them. In the case of inconsistencies between this Agreement and any information provided on the Website or in online or off-line materials (e.g., promotional materials and mailers), this Agreement will always control.
(c) Compliance with Terms. By using the Program services, you indicate that you accept the terms and conditions of this Agreement and any subsequent modifications. Your participation in the Program is entirely conditioned on and subject to your compliance with this Agreement. If at any time you do not agree with this Agreement, do not proceed to access any Program services on the Website. You are allowed to have only a single Program account open at any time.
2. The Program
(a) The Program. The Program provides a forum for artists to promote their Artwork, express
their artistic views and communicate with others about their Artwork,
meet other artists and engage in discussions with them. The terms of the membership levels offered through the Program, and
the benefits and costs of each, are set forth on the Membership Levels summary page.
(b) Artist Portfolio and Artist Content. As a Program participant, you will be provided an individual URL (which may be changed by us from time to time) to which you may upload your display name, digital images of Artwork and images or information about yourself and/or your Artwork (together with any other communications or information posted on or distributed through the Website, "Artist Content"). Your URL and the pages designated to you which may be linked to from your URL are referred to as your "Artist Portfolio" and your "Artist Pages," respectively. The Artist Portfolio will contain certain FolioSoup graphics and textual links, which will serve to identify you as a Program participant. You shall not use any trademark of any other person or entity in their display name, and, as between us and you, you gain no trademark rights in your display name. The establishment and hosting by us of an Artist Portfolio for you does not constitute any assignment or transfer to you of ownership in any domain property of ours, intellectual property or Mark (as defined below in Section 7) of ours. You acknowledge that your Artist Content will be publicly available. You are responsible for evaluating and bearing all risks associated with the public availability of your Artist Content. We shall have no obligation or responsibility for registering the copyright in any Artist Content with any copyright office. You will receive a password and account. You are responsible for maintaining the confidentiality of the password and are fully responsible for all activities that occur on your Artist Portfolio, and you should ensure that you exit from your account at the end of each session. You agree to promptly notify us of any unauthorized use of your password or Artist Portfolio. You may not use a false email address, impersonate any person or entity, or otherwise misrepresent the origin of any Artist Content.
(c) Use of Your Artist Portfolio. You may add or remove Artist Content from your Artist Portfolio as you wish subject to the terms of this Agreement. You agree and acknowledge that you shall not use the Website or your Artist Portfolio (i) as storage for remote loading for another website, whether internal or external to the Website; (ii) to link to any website that violates our Content Policy, (iii) to solicit for advertisers or sponsors; (iv) to conduct raffles or contests of any type; or (v) to display a sponsorship banner of any kind, including those that are generated by banner or link exchange services. Notwithstanding the foregoing, you may display on other websites owned or controlled by you Artwork images that are hosted by us if they link solely and directly into your Artist Portfolio.
(d) Content Policy. You acknowledge and agree that all Artist Content appearing on your Artist Pages must comply with our Content Policy. You will be solely responsible for all elements of the Artist Content uploaded or distributed by you or in the name of your account (including but not limited to all Artwork and textual information such as contact details, profile, information, messages and commentary on your Artwork or the artwork of others) and the accuracy and propriety of the same. You agree that we have the right, but not the obligation, to screen all Artist Content for compliance with our Content Policy, to prevent Artist Content from appearing on your Artist Pages or to remove Artist Content that already appears on your Artist Pages, for any reason. You acknowledge that the factors determining whether Artist Content falls within the Content Policy may be subjective, and you agree that we shall determine in our sole discretion whether your Artist Content adheres to the Content Policy. You acknowledge and agree that we may preserve Artist Content or disclose it if required to do so by law or in the good faith belief that such disclosure is reasonably necessary comply with legal process or enforce the terms of this Agreement. Our production of any print, product, advertisement or collateral material featuring your Artist Content does not indicate that we approve of the Artist Content or that you are absolved of any liability or harm arising from our use of the Artist Content. If you believe that your Artist Content has been copied by another person and appears on the Website in a way that constitutes copyright and/or trademark infringement, please report it to us by emailing our legal department. At our discretion, we may allow users to report images that they believe violate our Content Policy. If one of your
images is reported for violating our Content Policy, the image will be immediately removed from the website and then reviewed by us to determine whether such reporting
was justified. We reserve the right to terminate you account for repeat abuses of our Content Policy.
3. Representations, Warranties and Covenants
You hereby represent, warrant and covenant to us as follows:
(a) Binding Agreement. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
(b) Rights. You possess all rights in and to all elements of the Artist Content necessary to grant us the rights granted by you in this Agreement, and you agree to provide us documentation evidencing the same upon request.
(c) No Conflicts. No third party possesses any license or other rights with respect to any element of the Artist Content that would prohibit or impair our ability to exercise fully the rights granted by you in this Agreement, and you may not falsely state or otherwise misrepresent your affiliation with any other person or entity in any way. There is no pending or threatened claim, action, or proceeding related to any element of the Artist Content with respect to copyrights, trademarks or other intellectual property rights, and there is no basis
for any such claim, action, or proceeding.
(d) Compliance with Content Policy; Non-Infringement. All elements of the Artist Content complies with the Content Policy. No element of the Artist Content will: (i) violate any applicable law, rule or regulation (including, but not limited to, laws relating to false or deceptive advertising); (ii) be libelous; or (iii) will violate, misappropriate or infringe upon any intellectual property right or other right of any third party (including, but not limited to, contractual rights, trademark rights, copyrights, trade secrets, moral rights, or rights of privacy or publicity).
(e) Other Restricted Activity. You will not post any Artist Content that is false, inaccurate, misleading, illegal, obscene, threatening, defamatory, invasive of privacy, or otherwise objectionable or injurious to third parties. You will not post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, software viruses, political campaigning, commercial solicitation, mass mailings, "junk mail," "spam," "chain letters," or "pyramid schemes" or other such solicitations. You shall not "stalk" or otherwise harass any other Program participant. You may not collect or store personal data about Program participants except as specifically authorized by them. You will not upload, post or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(f) Compliance with Laws. You acknowledge and agree that you will use the Website and operate your Artist Portfolio at all times in accordance with all applicable United States federal, state and local laws. Recognizing the global scope of the Internet, you further agree to comply with all applicable laws regarding the transmission of electronic data exported from the country in which you reside. You represent and warrant to us that you have all necessary consents and permissions
to send email communications to addresses that you add to your address book.
4. Artist's License Grant
a) License Grant. You retain all copyrights to your Artworks and other Artist Content; provided, however, you grant to us a non-exclusive, transferable, worldwide, royalty-free license to digitally reproduce, publicly display and otherwise utilize your Artworks (and watermarked, cropped or re-sized modifications thereof) and other Artist Content to advertise, market, promote, and publicize your Artwork, the Website and our other offerings in any manner; provided, however, that we shall not be required to so advertise, market, promote or publicize.
(c) Classification. We reserve the right to categorize and re-categorize elements of your
Artist Content submitted to the Website, including the Artist Portfolio,
within our subject classification taxonomy, as may be modified from
time to time by us in our sole discretion.
and Feedback. You grant us a transferable, worldwide, royalty-free license to use, disclose, modify, license and exploit any suggestions,
comments, ideas, improvements or other feedback or materials disclosed
by you to us.
5. Use of Logos and Trademarks; Proprietary Rights
We reserve the right to display any of our trademarks, trade names, designs, logos or trade dress ("Marks") on any part of the Website, including the Artist Portfolio. You shall not make any use of any Marks without our prior express approval. You may not purchase or register domains keywords, AdWords, search terms or other identifying terms that include the words "FolioSoup," "AK Web Apps" or other Marks, or any variations or misspellings thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. At no time during or after the term of this Agreement shall you challenge or assist others to challenge any Mark or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to any Mark. You acknowledge and agree that any content found or distributed on or through the Website may be protected by proprietary rights of ours or our advertisers, partners and member artists. You may not use or distribute any such content without the authorization of the content owner.
You hereby agree to defend, indemnify and hold harmless AK Web Apps and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' and witness fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that any element of your Artist Content infringes on any trademark, trade name, service mark, copyright, license, publicity right, privacy right, goodwill, patent, or other intellectual property or proprietary right of any third party; (ii) any misrepresentation of a representation or warranty or breach of a covenant made by you herein; (iii) any claim related to any element of your Artist Content or the Artist Portfolio;
or (iv) your use or misuse of the Website.
8. Termination of this Agreement
You agree that we, in our sole discretion, may, immediately and without prior notice, terminate your password, account (or any part thereof) or use of the Website, and remove and discard any Artist Content you may have contributed to the Website, at any time for any reason or no reason. We may also in our sole discretion and at any time discontinue providing the Website, or any part thereof, with or without notice. We shall have no obligation to preserve or return to you any images, files or other Artist Content related to your account. If you have paid for a "free membership " or "Premium membership" account and your account is not being terminated due to your material violation of this Artist Agreement, then upon termination of the account we will refund to you a pro rata portion of your annual account fee based on any unused portion of your fee. Other than as set forth in the preceding sentence, we shall not be liable to you or any third-party for any termination of your access to the Website. Should you object to any terms and conditions of the Agreement or become dissatisfied with the Website in any way, your only recourse is to immediately discontinue your use of the Website and/or terminate your account.
WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE ARTIST PORTFOLIO OR THE WEBSITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. THE WEBSITE AND THE PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
WE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH THE WEBSITE OR THE PROGRAM INCLUDING BUT NOT LIMITED TO LOSS OF DATA, NONDELIVERIES OR MISDELIVERIES OF CONTENT OR EMAIL, ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, SERVICE INTERRUPTIONS CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF A USER OF THE WEBSITE, OR PROBLEMS ARISING AS A RESULT OF DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THE WEBSITE.
WE DO NOT CONTROL THE ARTIST CONTENT POSTED OR DISTRIBUTED BY PROGRAM PARTICIPANTS ON OR THROUGH THE WEBSITE. WE ASSUME NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY CONTENT OR ARTWORKS DISTRIBUTED OR MADE AVAILABLE BY PROGRAM PARTICIPANTS THROUGH THE WEBSITE.
10. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL AK WEB APPS OR ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) YOUR USE OR INABILITY TO USE THE WEBSITE; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ARTIST PORTFOLIO, DATA OR TRANSMISSIONS; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (D) ANY OTHER MATTER RELATING TO THIS AGREEMENT, THE PROGRAM OR YOUR ARTIST PORTFOLIO. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED, AT ANY TIME, THE TOTAL AMOUNTS PAID TO YOU UNDER THIS AGREEMENT DURING THE PREVIOUS 12-MONTH PERIOD.
11. Disclosure for Legal Purposes
You hereby authorize us to disclose information pursuant to judicial and administrative proceedings, and in connection with law enforcement activities and as otherwise may be permitted by law, to law enforcement or government agencies if we believe the disclosure is necessary or appropriate. You also authorize us to disclose information if we believe the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with the Artist Portfolio specifically or the Website in general, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put us at risk for liability.
All dollar figures in this Agreement refer to United States dollars. You and AK Web Apps are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and AK Web Apps. This Agreement will be governed by the laws of the United States and the State of Texas, without reference to rules governing choice of laws. Any dispute with regard to this Agreement shall be submitted to arbitration by a single arbitrator in Austin, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The award rendered by the arbitrator shall be binding as between the parties and judgment on such award shall be entered in any court having jurisdiction thereof. The Arbitrator may award attorney's fees and costs to the prevailing party. If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement. Except as otherwise specifically provided herein, this Agreement constitutes the entire agreement between you and AK Web Apps relating to this subject matter, and all prior negotiations and understandings, whether oral or written, are superseded. The provisions of Sections 3, 4, 6 and 9 through 11 hereof shall survive termination of this Agreement.
Updated as of: December 10, 2012