Terms and condition

Terms and Conditions

The website located at http://www.CustomArtDirect.com/ (the “Site”) is a copyrighted work belonging to Custom Art Direct LLC. Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. To the extent such terms, guidelines, and rules conflict with these terms of use, these terms of use shall govern.
These terms of use (“Agreement”) set forth the legally binding terms for your use of the Site and Services (whether as a Customer or as an Artist). By registering for Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. You may not access or use the Site or Services if you are not at least 18 years old. If you do not agree with all of the provisions of this Agreement, you cannot use the Services.
In case you are located in the United States this Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
1. Service
1.1 General.
Custom Art Direct provides an online platform that connects customers who wish to purchase art (“Buyers/Customers”) and Artists who wish to provide such art (“Artists”), including, for example, through Project Creation, Galleries, and Portfolios (each as defined below and collectively, the “Services”). “User” means any user of the Site or Service, and may be a Designer or a Customer. If you are a User, the provisions in this Agreement regarding Users apply to you. If you are also a Customer/Buyer, further the provisions in this Agreement regarding Customers apply to you. If you are also an Artist, further the provisions in this Agreement regarding Artists apply to you. “Sold Art” means the applicable winning Art Project bid, purchased art (and any customized version thereof), or the art sold under any portion of this site. “Sale” means the applicable sale. “IPR” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
1.2 Create a Project.
(A) Customer may create a Project (“Create a Project”) by, following the instructions on the Site. The Project must clearly specify the requirements for the project open for bidding, such that Artists clearly know the rules and criteria on which their Art Concepts and Bids will be judged. There is currently one type of Project Creation: (1) the default “Create a Project” option. Artists invited by Customer (in Customers’ sole discretion) to enter Project Bidding may submit a bid in the format specified by Custom Art Direct by following the instructions on the Site. Art Bids must comply with the Project Request. If no Artist is selected for the project, Custom Art Direct will retain the ability to ban the customer from the site. Customer may not: (a) Create a project if Customer is tendering the creation of the same project through a service other than the Site, (b) allow or request Artist to submit Art Concepts or Bids to Customer via any means other than via the Site; and (c) collude in relation to the awarding of a successful bidder/Artist or awarding a separate account held by Customer as the successful Bidder/Artist in a Project. Customers and Designers must deal on an arm’s length basis. Customer may not cancel any Project for the purpose of contracting separately with an Artist who Customer meets through the Site which results in Customer avoiding paying Custom Art Direct any Customer Payment or any fees and charges of Custom Art Direct. (d) Some jurisdictions provide Customer certain mandatory statutory rights (e.g., right to supplementary performance (e.g., rectification or replacement), right for a refund, right to withdrawal, right to reduce the price and right to damages in case the Art is defective) (collectively, “Mandatory Statutory Rights”) which remain unaffected.
Customers and Artists can work with each other on Art projects by creating a project portal (“Project Portal”) and following the directions on the Site. Custom Art Direct will require a 50% deposit within 72 hours to start a project once a bid price has been accepted by the customer. The artist will work diligently on the project and complete the art work within the suggested completion date. Before shipping the art, the customer must pay remaining balance on the art project within 72 hours of completion deadline. It is the customers and artists responsibility to do due diligence to read reviews and discover any uncertainties with the Artist or customer they are working with. Custom Art Direct does screen all Artists before allowing them to become authorized artists on the site, but it is in the responsibility of the Customer make the final decision on working with an Artist. If the Artist does not complete the project within 60 Days of the projected completion date, the customer may request Custom Art Direct to refund their project deposit. The artist will be responsible to refund payment to the client if Custom Art Direct deems their working timeline of the project completion date unsatisfactory. Once the artist has completed the project AND reached the project deadline the customer has 72 hours to submit the final payment. Once the final payment is submitted the Artist has 14 days for the art to be shipped. If the artist does not receive the final payment, or the customer does not receive the completed art, a claim must be filed with Custom Art Direct. Custom Art Direct is in no way held liable for either party, any payment, or any art. We are simply connecting Artist with Clients. Custom Art Direct reserves the right in its sole discretion to restrict Customers or Artist from creating projects, to remove projects, and ban either party from using Custom Art Direct.com altogether. Custom Art Direct is not involved in managing or providing the art to Customer and is simply providing the ability for Artist to work with, invoice and receive payments from Customers, and for Customers to request services from, view art, provide feedback on projects and pay Artist, using the Project Portal. (b) Some jurisdictions provide Customer certain Mandatory Statutory Rights (defined in Section 1.2(e) above) which remain unaffected.
 
(b) Job Submittal. If you submit a Job to the Job Board you automatically become a Customer. Once you submit a Job to our Job Board, it remains there for 30 days or until all requested Artists have bid on the project, which ever comes sooner, or is removed by Customer Service as set forth below, or an Artist is chosen by the Buyer/Customer.
(i) Required Information. Each Job should consist of (A) a detailed description of the Job and (B) electronic files, if any, required for an Artist to complete the Job (together these are considered User Content). (ii) Representation Regarding Right to Submit. By submitting a Job to the Job Board, a Customer represents that Customer owns the User Content or otherwise has the right to submit User Content to us, and Customer's use of the User Content does not violate any third party intellectual property or other rights.
(c) Job Claim by Artist. Jobs which aren’t bid on by an Artist within a reasonable amount of time, as determined by us in our discretion, will be removed from the Job Board and sent to Customer Service for review. A Customer Service representative will contact the Customer who submitted such a Project to suggest changes which will increase the likelihood that an Artist will bid on the Job.
(i) Inventory. Artists are expected to promptly bid or skip Jobs, so that Jobs can be quickly completed for Customers. (ii) When to Skip a Job. Jobs that are skipped frequently will be removed from the Job Board and reviewed by Customer Service. Generally, an Artist should not skip a Job Bidding request unless (A) such Artist does not have the necessary skills to complete such Job, or (B) the artist is too busy to complete the job in a timly fashion, or (C) the User Content provided does not constitute a Job because (1) not enough information is provided to enable the Artist to complete the Job or the information provided is not sufficiently clear (iii) Inactivity Penalty. The Job Board works only if the engagement by the Artists matches or exceeds the activity by the Customers. If Jobs are not bid on or skipped by Artists promptly, we reserve the right, in our discretion, to penalize the Artists individually, by restricting them from receiving new requests for project bids.
(d) Job Completion. Each Artist agrees to use such Artist's best professional and creative efforts and skills to complete each Job awarded by such Artist.
(i) Time to Complete the Job. After an Artist is awarded a job, such an Artist will have their submitted job completion date to complete it. (ii) Jobs Not Completed on Time. A Job that is not completed within 72 hours after the timeframe specified by the Artist the project and artist will automatically be submitted to Customer Service for review.
(e) Job Customer Delivery. When an Artist completes a job, such Artist will make prompt arrangements for delivery of art in 14 days.
 (f) Customer Job Acceptance. When a Job is accepted, the Customer who submitted it will receive an email from us, as well as a notification on the site. If job down payment is not paid for by the customer within 72 hours after notification of the job completion it is considered a late payment and contact from customer service may be made. Custom Art Direct reserves the right to ban the customer from the site for not making prompt payment of deposit or final payment.

 (g) Project/Job Disputes.
(i) Resolution with Artist. If a Customer is not satisfied with the Job Customer may contact Customer Service. Customer Service will review the Job specifications, the Project/Job and Customer's claims. (A) If Customer Service determines that Artist had failed to follow Job specifications, Customer will be deemed not to have accepted the Bid, and Customer will have another opportunity to submit the Job to the Marketplace at a 20% discount to the Customer. (B) If Customer Service determines that either (1) Customer's demands with respect to The Job are not reasonable given the project specification, (2) Customer is being actively malicious, (3) Customer has not provided enough guidance, direction, or instruction to the Artist resulting in the need for multiple edits, or (4) Customer's Project was too complex or time-consuming to constitute virtual project creation, the Customer will be deemed to have accepted the Bid, and will be charged all fees (or be ineligible for a refund).
2. Payment Terms.
The following terms apply to Customers and Artist’s who have accepted a bid or been awarded a job.
2.1 Payment and Delivery.
After acceptance of a bid (a) Customer will have automatically accepted and taken full responsibility of delivering bid price to the Artist (b)the 50% deposit to the Artist and Custom Art Direct will receive the commission fee of 20% and (c) Artist will promptly establish communication with the Customer/Buyer. (d) upon completion will pay remaining balance and Custom Art Direct with take 20%.

2.2 Refunds.
Refunds will be paid to Customer using the same payment methods Customer used to remit the Customer Payment to Custom Art Direct or via any other method specified by Custom Art Direct from time to time. If a refund is paid to Customer or a credit card charge back occurs, then: (a) Artist must reimburse Custom Art Direct for the refund(the reimbursement will first be paid out of any Custom Art Direct Credits held by Artist and any remaining debt will be payable by Artist to Custom Art Direct on demand); and (b) Customer will initially receive 20% of all monies paid for said project and will receive the total monies paid only once the artist reimburses Custom Art Direct. Custom Art Direct may refund Customers for the following reasons: (i) the Sold Art is Defective; (ii) Custom Art Direct is required by law or considers that it is required by law to do so; (iii) Custom Art Direct determines that issuing a refund to Customer will avoid any dispute or increased costs to Custom Art Direct; (iv) Custom Art Direct issues the refund to Customer in accordance with any refund policy specified by Custom Art Direct from time to time; (v) the order placed (or request made) by Customer is found to be fraudulent; (vi) Customer placed a duplicate order (or request) in error; or (vii) in Custom Art Directs’ sole opinion, Custom Art Direct considers that it is likely that the refund is necessary to avoid a credit card charge back. A Sold Art piece will be deemed to be “Defective” if: (i) Customer and Artist agree it is defective and notify Custom Art Direct of this fact and Custom Art Direct inspects art agrees and deems it unfixable; (ii) the Sold Design is subject to a third party claim that the Sold Design infringes/misappropriates such party’s IPR, that is not frivolous.
2.4 General Payment Terms.
All payment will be in the local currency based on the location of the Site. You agree that you are responsible for the collection and/or payment of all Taxes which you may be liable for in any jurisdiction arising from your sale or purchase of any Sold Art via the Site. Custom Art Direct is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement.

3. Exclusivity and Non-Circumvention.
3.1 Exclusivity.
You acknowledge and agree that a substantial portion of the compensation Custom Art Direct receives for making the Site available to you is collected as fees deducted from Customer Payments which is only deducted when a Customer and Designer pay and receive payment through the Site. Therefore, for 24 months from the time you meet any party through the Site (the "Exclusivity Period"), you must use the Custom Art Direct Services as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the " Custom Art Direct Relationship"). You may opt-out of this obligation only if Customer or prospective Customer pays Custom Art Direct an "Opt-Out Fee" computed to be the greater of the following amounts:
(a) $3,000; or
(b) 30% of the cost to the Customer of the services to be performed in the Custom Art Direct Relationship during the Exclusivity Period, as estimated in good faith by the prospective Customer.
To pay the Opt-Out Fee, you must request instructions by sending an email message to support@CustomArtDirect.com.
4. Non-Circumvention.
You agree not to circumvent the payment methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
(a) Share any personal information on your Profile (excluding personal websites and portfolios) in the way of email, video, phone or any other method of direct contact.
(b) Submit proposals or solicit parties identified through the Site to contact, hire, manage, or pay outside the Site.
(c) Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
(d) Cancel any Project Request for the purpose of contracting separately with an Artist who Customer meets through the Site.
(e) Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Client and Artist.
You agree to notify Custom Art Direct immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a confidential report to us by sending an email message to: support@CustomArtDirect.com.
5. Important Disclaimers and Release
5.1 Disclaimer.
We make no warranties regarding the Creating a Project, the project portal, or any other products or services provided by Artists, Customers, or other Users and each of the foregoing are provided by us “AS IS”. Artists sell and Customers buy all art at their own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any other User. Your interactions with other users are solely between you and such User and Custom Art Direct will not be responsible for any loss or damage incurred as the result of any such interactions (excluding those directly due to Custom Art Directs’ acts or the Services). If there is a dispute between you and any User, we are under no obligation to become involved. Notwithstanding the foregoing, Custom Art Direct will use commercially reasonable efforts to provide the Services described in this Agreement.
5.2
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions of you with, or act or omission of you in relation to other Users, including Customers and Artists and Third Party Sites & Ads (excluding those directly due to Custom Art Directs’ acts or the Services). This Section 5.2 does not apply to customers located in the EEA.
If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
6. Accounts.
In order to use the Service, you must register for an account with Custom Art Direct (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. Without limiting the generality of the foregoing, you agree to provide Custom Art Direct with identification documents (including copies of IDs, passports or drivers licenses) which Custom Art Direct requests from you from time to time for the purposes of verifying your identity. You may delete your Account at any time, for any reason, by calling Customer Support at the contact number in Section 15.5. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Custom Art Direct of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security which is based on your negligence. Custom Art Direct cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. Artists may not have more than one Account, and if discovered will be submitted to customer service for review, banning, site restriction, and fines.
7. User Content.
7.1 Your User Content.
“User Content” means any and all information and content that a User submits to, or uses with, the Site or Services. User Content includes Project creation, project portals, portfolios, profiles, and reviews and/or testimonials (“Reviews”). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Custom Art Direct. Because you alone are responsible for your User Content (and not Custom Art Direct), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Custom Art Direct is not obligated to remove any information or Reviews from the Site unless required by applicable Law. Custom Art Direct is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content if you desire.
7.2 License to User Content.
You hereby grant, and you represent and warrant, that you have the right to grant, to Custom Art Direct an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license for all the duration of the intellectual property rights to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content (this sentence does not apply to customers located in the EEA). For the avoidance of doubt, Designer’s license or assignment of the Sold Art to Customer is set forth in the applicable Art Transfer Agreement.
8. Acceptable Use Policy.
The following sets forth Custom Art Directs’ “Acceptable Use Policy”:
8.1 Privacy.
You agree that you will only use the personal information of other Customers or Artist made available to you only for the purposes of interacting with them in relation to the Services. You must not use their personal information for any other purpose, including for marketing purposes. You represent and warrant that you will comply with applicable privacy laws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) in relation to the storage, use and transfer of personal information.
8.2 User Content.
You agree not to use the Site or Services with any User Content or to provide any products or services that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e. g. , material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is in violation of any Laws, or obligations or restrictions imposed by any third party.
8.3 Use Restrictions.
You agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (h) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (i) display, mirror, or frame the Site.
8.4 Other Guidelines/Policies

(a) Artist Code of Conduct.

1. Respect the Custom Art Direct community
Custom Art Direct is a large, global community that brings together lots of different people. There are bound to be disagreements, but when we disagree, the most important thing is to treat each other with respect.
To help guide your participation in the Custom Art Direct community, we have assembled a simple code of conduct. Failure to respect the community and comply with the code will result in disciplinary action such as account suspension or termination.
2. Respect all community members
Negative, aggressive, or offensive behavior in public or in private directed towards clients or other designers will not be tolerated. If you need to report a community member for inappropriate behavior or breaking the Designer Code of Conduct please do so by contacting support@customartdirect.com
3. Do original work
Copying designs in total or in part from other sources within or outside of the Custom Art Direct community will not be tolerated.
4. Be honest and compete fairly
Do not misrepresent yourself or others in public or in private. Never attempt to influence the client by criticizing other designers or their work, complaining to the client regarding their decisions, offering to do free and additional work outside the scope of a contest, or by propositioning the client to cancel their contest and work directly with you instead.
I will not:
submit Art that I copied in total or in part from someone/somewhere else
publicly or privately criticize or attack designers, clients or Custom Art Direct staff
open multiple accounts
engage in fraud.
I will:
respect the community and the code of conduct
submit only original work
use the proper channels to report inappropriate behavior.
8.5
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
9. Site
9.1 License.
Subject to the terms of this Agreement, Custom Art Direct grants you a non- transferable, non-exclusive, license to use the Site and Services for your internal business purposes. For the avoidance of doubt, Artist’s license or assignment of the Sold Art to Customer is set forth in the applicable Design Transfer Agreement.
9.2 Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, customize, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Custom Art Direct reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Custom Art Direct will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof. You acknowledge and agree that Custom Art Direct will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
9.3 Feedback.
If you provide Custom Art Direct any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign and agree to assign upon our request to Custom Art Direct all rights in the Feedback and agree that Custom Art Direct shall have the right to use such Feedback and related information in any manner it deems appropriate. Custom Art Direct will treat any Feedback you provide to Custom Art Direct as non-confidential and non-proprietary. You agree that you will not submit to Custom Art Direct any information or ideas that you consider to be confidential or proprietary. This Section 9.3 does not apply to customers located in the EEA; customers in the EEA agree to assign Feedback to Custom Art Direct upon our request.
9.4 Ownership.
Each User owns its own User Content. Excluding your User Content, you acknowledge that all the IPR in the Site and Services are owned by Custom Art Direct or Custom Art Directs’ licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such IPR. Custom Art Direct and its suppliers reserve all rights not granted in this Agreement.
10. Indemnity.
You agree to indemnify and hold Custom Art Direct (and its officers, employees, and agents) harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site or Services, (ii) your User Content, (iii) your interaction with any other User, or (iv) your violation of this Agreement or any applicable laws. Custom Art Direct reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Custom Art Direct. Custom Art Direct will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. This Section 10 does not apply to customers located in the EEA.
11. Third Party Sites & Ads.
The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Custom Art Direct and Custom Art Direct is not responsible for any Third Party Sites & Ads. Custom Art Direct provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
12. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for a legitimate purpose, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases. However we reserve the right to continue to use your User Content to the extent permitted under applicable law (this sentence does not apply to customers located in the EEA). Custom Art Direct will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 1.4(b), 4, 5, 7, 8, 9 (excluding Section 9.1), 10, 11, 13, 14, and 15.
13. Disclaimers.
13.1
The Site and Services are provided “AS-IS” and “AS AVAILABLE” and we (and our suppliers) expressly disclaim any warranties and conditions of any kind, whether express or implied, including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We (and our suppliers) make no warranty that the Site or Services: (a) will meet your requirements; (b) will be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
13.2
The following Section applies to users in the EEA and Switzerland: Custom Art Direct is liable for defects in accordance with the applicable statutory provisions. With regard to companies, the warranty period is limited to twelve (12) months. An additional warranty is only provided if this has been expressly agreed.**
14. Limitation on Liability.
14.1
In no event shall we (and our suppliers) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Site or Services, even if we have been advised of the possibility of such damages. Access to, and use of, the Site and Services are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, our (and our suppliers’) liability to you for any damages arising from or related to this Agreement (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty us dollars ($50) or (b) amounts you have paid Custom Art Direct in the prior 12 months (if any). The existence of more than one claim will not enlarge this limit. Some states do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from state to state.**
14.2 The following Section applies to users in Australia:
If the Australian Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of Custom Art Direct is limited, at the option of Custom Art Direct, to: (a) in the case of goods, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and (b) In the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
14.3 The following Section applies to users in the EEA and Switzerland:
Custom Art Direct is liable without limitation for (i) damages caused intentionally or with gross negligence by Custom Art Direct, its legal representatives or executive staff and other assistants in performance; (ii) personal injury, damage to health and death caused intentionally or as a result of gross negligence on the part of Custom Art Direct, its legal representatives or assistants in performance, and (iii) damages caused by the absence of warranted characteristics and for damages relating to product liability. Custom Art Direct is liable for damages resulting from the breach of primary contractual obligations by Custom Art Direct, its legal representatives or other assistants in performance; primary contractual obligations are such basic duties which form the essence of the Agreement which were decisive for the conclusion of the Agreement and its performance. If Custom Art Direct breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by Custom Art Direct at the time the respective service was performed.
15. General.
15.1 Changes to Terms of Use.
This Agreement (including pricing terms) is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
15.2 Disputes
(a) Governing Law.
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Florida, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
(b) United States.
If you located are in the United States, the following applies to you. Please read this carefully. It affects your rights.
(i) Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Custom Art Direct arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Custom Art Direct Site and Service. (ii) You agree that by entering into this agreement, you and Custom Art Direct are each waiving the right to trial by jury or to participate in a class action. You and Custom Art Direct agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted. (iii) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Custom Art Direct must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: San Francisco, CA, Denver, CO, or New York, NY. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco County, California.
(c) EEA and Switzerland.
If you located are in the European Economic Area (EEA) or Switzerland, the parties irrevocably submit to the exclusive jurisdiction of the courts of London, England and their Courts of Appeal.
(d) Australia and Elsewhere.
If you are located in Australia or elsewhere in the world, the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.
15.3 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Custom Art Direct is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Custom Art Directs’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
15.4 Copyright/Trademark Information.
Copyright © 2017, Custom Art Direct. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
15.5 Contact Information:
1 850 374 0442