Art Frankly, INC – TERMS & CONDITIONS OF USE
WEBSITE: www.artfrankly.com (the “Website”)
Last Updated: June 17, 2016
Welcome and thank you for using ArtFrankly.com, an online interactive platform and database created by and for
professionals in the art industry. These Terms and Conditions of Use (“TCU”) govern the use of the above referenced
Website, owned and operated by AWDB, LLC d/b/a Art Frankly (“Art Frankly,” “we,” “our” and “us”).
When you access and/or use the Website and any of the services offered on, through or by other users through the Website
and our online platform (the “Services”), whether through a mobile device, tablet, laptop or desktop computer
and/or you are a registered Art Frankly user or visitor, you are agreeing to be bound by these Terms and Conditions
which is incorporated by reference into this Agreement.
should immediately stop using the Website and/or Services we offer on and through the site. Please contact us
with any questions regarding this Agreement.
a. This Agreement is an electronic contract that establishes the legally binding terms you must accept to use the
(ii) DMCA Policy and Procedure and (iii) any and all terms disclosed and agreed to by you as the result of your
use or purchase of additional features, products or Services offered through the Website, including but limited
to terms governing upgrades, features, trials, discounts, promotions and offers made through the Website in connection
with the Services provided thereon and/or offered to our registered users.
b. Registered users of Our Services are “Members” and unregistered users are “Visitors”. This Agreement applies
to both and by using the Website and the Services as a Visitor and/or as a Member (by completing the registration
form and clicking “Join Now”, “Join Art Frankly”, “Sign Up” ) You accept this TCU, its express terms and conditions
and consent to have this TCU and all related notices provided to you in electronic form. To withdraw this consent,
you must cease using the Website and the Services we provide on our Website and if applicable, terminate your
Member account. Please print a copy of this Agreement for your records. To receive a non-electronic copy of this
Agreement you may submit a request to [email protected]. As set
forth in detail below, the terms of this TCU may be modified by Art Frankly from time to time. Any such modifications
shall and will be effective upon posting by Art Frankly on the Website by replacing the previous version of this
2. Eligibility for Use of Website. The Website and Services or any parts thereof, are not directed
to persons under the Minimum Age. “Minimum Age” means (a) 18 years old for the People’s Republic of China, (b)
16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and
South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in
order for Art Frankly to lawfully provide the Services to you (including the collection, storage and use of your
information) then the Minimum Age is such older age. The Website and Services are not for use by anyone under
the age of 13. Any use of Services provided by Art Frankly through, and available on, the Website are void where
prohibited. By accessing and using the Services, you represent and warrant that you have the right, authority
and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
If you create an account, you represent and warrant that you have never been convicted of a felony and that you
are not required to register as a sex offender with any government entity. Using the Services may be prohibited
or restricted in certain countries. If you use the Services from outside of the United States, you are responsible
for complying with the laws and regulations of the territory from which you access or use the Services.
3. Creating a Member Account. In order to join Art Frankly community and become a Member and create
a Member account for use in connection with the Website you will be required to complete Art Frankly Member Registration
Form. If you do so, you authorize us to access and use any information that you voluntary provide as expressly
4. Term and Termination. The express provisions of this TCU and each party’s rights and obligations
hereunder will remain in full force and effect at all times you are a Member, are a Visitor of the Website and/or
while you are using any of the Services offered on the Website. You may disable your account at any time, for
any reason, by following the instructions as provided for in the “Settings” Tab which is accessible through your
Member Account or by emailing Art Frankly at [email protected]. Art
Frankly may terminate or suspend your account at any time without notice if Art Frankly believes that you have
breached this TCU, or for any other reason, with or without cause, in its sole discretion. Upon termination or
suspension of your Member account, you will not be entitled to any refund of unused fees for purchases made through
the Website. Art Frankly is not required to disclose, and may be prohibited by law from disclosing, the reason
for the termination or suspension of your account. After your Member account has been terminated (voluntarily
or involuntarily) for any reason, all terms of this TCU survive such termination, and continue in full force
and effect, except for any terms that by their nature expire or are fully satisfied.
5. Non-commercial Use by Users. The Services offered by Art Frankly on the Website and/or
other Members of the Website are for personal use only unless Art Frankly expressly provides otherwise. No Visitors
or Member may use the Services or any content posted/uploaded/available on or through the Website by Company
or any Members, including but not limited to, designs, text, graphics, images, video, information, logos, software,
audio files and computer code in connection with any commercial endeavors, such as (i) advertising or soliciting
any user to buy or sell any products or Services not offered by Art Frankly or (ii) soliciting others to attend
parties or other social functions, or networking, for commercial purposes. Except for as expressly provided for
herein and/or in connection with the specific guidelines and requirements established by Art Frankly, users of
the Services may not use any information obtained from the Services to contact, advertise to, solicit, or sell
to any other user without his or her prior explicit consent and/or Art Frankly’s consent upon the authority given
to it by certain Members through their use of a particular service or offer made by Art Frankly. Organizations,
companies, and/or businesses may not use the Services in any manner except for their intended purpose or with
Art Frankly’s express written consent and which Art Frankly may provide or deny in its sole discretion. Art Frankly
may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Services,
including collecting usernames and/or email addresses of users by electronic or other means for the purpose of
sending unsolicited email and unauthorized framing of or linking to the Services.
6. Classified Ads/Postings. All Classified advertisements posted to the Website by any Member
shall comply with any and all of Art Frankly’s “Advertisement Guidelines and Requirements” as determined by Art
Frankly in their sole discretion and this TCU.
7. Account Security. You are responsible for maintaining the confidentiality of the username
and password you designate during the registration process, and you are solely responsible for all activities
that occur under your Member account with Art Frankly and your username and password. You agree to immediately
notify Art Frankly of any disclosure or unauthorized use of your username or password or any other breach of
security related to your Member account or use of Services at [email protected].
You must ensure that you log out from your Member account at the end of each session.
8. Your Interactions with Other Members, Visitors and/or Users.
(a) YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS, VISITORS AND/OR USERS OF THE WEBSITE. YOU UNDERSTAND THAT ART FRANKLY CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON ITS MEMBERS. ART FRANKLY ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS MEMBERS. ART FRANKLY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR PROSPECTIVE EMPLOYERS. ART FRANKLY RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
(b) Art Frankly is not responsible for the conduct of any user. As noted in and without limiting Sections below,
in no event shall Art Frankly, its affiliates or its partners be liable (directly or indirectly) for any losses
or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental,
arising out of or relating to the conduct of you or anyone else in connection with the use of the Website and/or
Services including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting
from communications or meetings with other users or persons you meet through the Services. You agree to take
all necessary precautions in all interactions with other users, particularly if you decide to communicate outside
of the Website and/or transact any business outside of the Website or if you decide to send money to another
user. You should not provide your financial information (for example, your credit card or bank account information),
or wire or otherwise send money, to other users.
9. Proprietary Rights. Art Frankly owns and retains all proprietary rights in
the Website and Services, and in all content, trademarks, trade names, Services marks and other intellectual
property rights related thereto. The Website contains the copyrighted material, trademarks, and other proprietary
information of Art Frankly and its licensors. You agree not to copy, modify, transmit, create any derivative
works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, Services
marks, or other intellectual property or proprietary information accessible through the Services, without first
obtaining the prior written consent of Art Frankly or, if such property is not owned by Art Frankly, the owner
of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any
proprietary notices appearing on any content, including copyright, trademark and other intellectual property
10. Content Posted by You in the Services.
(a) You are solely responsible for the content and information that you post, upload, publish, link to, transmit,
record, display or otherwise make available (hereinafter, “post“) on the Website, in connection
with your providing Services or use thereof and/or your transmission of the same to other users, including messages,
chats, videos (including streaming videos), photographs, or profile text, whether publicly posted or privately
transmitted (collectively, “Content“). You may not post on the Website and/or as part of any
Services you provide or accept, or information you transmit to Art Frankly or any other user (either on or off
the Services), any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing,
racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including
intellectual property rights, and rights of privacy and publicity). You represent and warrant that (i) all information
that you submit upon creation of your Member account, is accurate and truthful and that you will promptly update
any information provided by you that subsequently becomes inaccurate, incomplete, misleading or false and (ii)
you have the right to post the Content on the Website and grant the licenses set forth below.
(b) You understand and agree that Art Frankly may, but is not obligated to, monitor or review any Content you post on the
Website and/or in connection with the Services. Art Frankly may delete any Content, in whole or in part, that
in the sole judgment of Art Frankly violates this Agreement or may harm the reputation of the Services or Art
(c) By posting Content on the Website and/or in connection with the Services, you automatically grant to Art Frankly,
its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, transferable, sub-licensable,
fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play,
adapt, modify and distribute the Content, (ii) prepare derivative works of the Content or incorporate the Content
into other works, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter
created. You represent and warrant that any posting and use of your Content by Art Frankly will not infringe
or violate the rights of any third party.
(d) In addition to the types of Content described in Section 10(a) above, the following is a partial list of the
kind of Content that you, all Members and/or Visitors of the Website and users of the Services are prohibited
from posting. You may not post, upload, display or otherwise make available Content that:
i. promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
advocates harassment or intimidation of another person;
requests money from other users of the Services without authorization from Art Frankly, or which is intended
to otherwise defraud other users of the Website and Services;
involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming” (or “spimming”,
“phishing”, “trolling” or similar activities);
promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory,
libelous or otherwise objectionable;
promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer
programs or links to them, providing information to circumvent manufacture-installed copy-protect devices,
or providing pirated images, audio or video, or links to pirated images, audio or video files;
contains video, audio photographs, or images of another person without his or her permission (or in the case
of a minor, the minor’s legal guardian);
contains restricted or password only access pages, or hidden pages or images (those not linked to or from another
provides material that exploits people in a sexual, violent or other illegal manner, or solicits personal information
from anyone under the age of 18;
provides instructional information about illegal activities such as making or buying illegal weapons or drugs,
violating someone’s privacy, or providing, disseminating or creating computer viruses;
contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components
impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
provides information or data you do not have a right to make available under law or under contractual or fiduciary
relationships (such as inside information, proprietary and confidential information);
disrupts the normal flow of dialogue, causes a screen to “scroll” faster than other users are able to type,
or otherwise negatively affects other users’ ability to engage in real time exchanges;
solicits passwords or personal identifying information for commercial or unlawful purposes from other users
or disseminates another person’s personal information without his or her permission; and
publicizes or promotes commercial activities and/or sales without our prior written consent such as contests,
sweepstakes, barter, advertising, and pyramid schemes.
(e) Art Frankly reserves the right, in its sole discretion, to investigate and take any legal action against anyone
who violates Paragraph 10(d) of this TCU, including removing the offending communication from the Services and
terminating or suspending the account of such violators.
(f) Your use of the Website and/or Services, including all Content you post thereon or through, must comply with
all applicable laws and regulations. You agree that Art Frankly may access, preserve and disclose your account
information and Content if required to do so by law or in a good faith belief that such access, preservation
or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement;
(iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests
for customer Services or allow you to use the Services in the future; or (v) protect the rights, property or
personal safety of Art Frankly’s Members, Visitors to the Website, its employees or any other person.
(g) You agree that any Content you place on the Website and/or in connection with the Services may be viewed by
other users and may be viewed by any person visiting or participating in the Services.
11 . Prohibited Activities. Art Frankly reserves the right to investigate,
suspend and/or terminate your account if you have misused the Website, the Services being offered thereon and/or
behaved in a way Art Frankly regards as inappropriate or unlawful, including actions or communications that occur
off of the Website and/or offline but involves users/Members/Visitors you have met through the Website. The following
is a partial list of the type of actions that you may not engage in with respect to your use of the Website and/or
the Services offered thereon. You hereby acknowledge and agree that you will not:
impersonate any person or entity;
solicit money from any users;
post any Content that is prohibited by Section 10;
“stalk” or otherwise harass any person;
express or imply that any statements you make are endorsed by Art Frankly without our specific prior written
use the Website or Services in an illegal manner or to commit an illegal act;
access the Website and/or use the Services in a jurisdiction in which it is illegal or unauthorized;
ask or use users to conceal the identity, source, or destination of any illegally gained money or products;
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to
retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation
of the Website and/or its contents;
collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited
email or unauthorized framing of or linking to the Website;
interfere with or disrupt the Website and/or any Services, servers or networks which are connected to the Website;
email or otherwise transmit any material 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
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted
to or through the Services (either directly or indirectly through use of third party software);
“frame” or “mirror” any part of the Website, without Art Frankly’s prior written authorization;
use meta tags or code or other devices containing any reference to Art Frankly or the Services (or any trademark,
trade name, Company’s mark, logo or slogan of Art Frankly) to direct any person to any other website for
modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble
any portion of the Services any software used on or for the Services, or cause others to do so;
post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any
content or information obtained from the Website other than solely in connection with your use of the Services
in accordance with this Agreement.
12. Customer Services. Art Frankly provides assistance and guidance through
its customer care representatives. When communicating with our customer care representatives, you agree to not
be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or to not otherwise
behave inappropriately. If we feel that your behavior towards any of our customer care representatives or other
employees is at any time threatening or offensive, we reserve the right to immediately terminate your Member
account and/or your use of any Services offered through/on the Website.
13. Website Purchases . From time to time, Art Frankly may offer additional products
and Services for purchase through the Website (“Site Purchases”). If you choose to make a Site Purchase, you
will be prompted to enter your credit or debit card and Member Account information and your credit card will
be charged for the Site Purchase in accordance with the terms disclosed to you at the time of purchase as well
as any general terms which may apply to you. Site Purchases may include a free trial period. At the end of the
free trial period, you will be charged the price of the subscription and will continue to be charged until you
cancel your subscription. To avoid any unwanted charges, you must cancel the Services and/or subscription before
the end of the trial period. If you purchase an auto-recurring periodic subscription your credit card on filed
will be billed continuously for the subscription until you cancel the subscription in accordance with the platform
terms. Not all Services offered through the Site are subject to the same terms and conditions, please read all
terms and conditions carefully.
14. Links. The Website may contain advertisements, promotions and/or offers
(except for approved job postings) by third parties and links to other websites, services or resources. You acknowledge
and agree that Art Frankly is not responsible for the availability of such external websites or resources, and
does not endorse and is not responsible or liable for any content, information, statements, advertising, goods
or services, or other materials on or available from such websites or resources. Your correspondence or business
dealings with, or participation in promotions of, third parties found in or through the Website and as a result
of and/or in connection with your use of the Services, including payment and delivery of related goods or service,
and any other terms, conditions, warranties or representations associated with such dealings, are solely between
you and such third party. You further acknowledge and agree that Art Frankly shall not be responsible or liable,
directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use
of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials
provided by third parties.
15. Modifications to Services. Art Frankly reserves the right at any time to
modify or discontinue, temporarily or permanently any of the Services offered on or through the Website (or any
part thereof) with or without notice. You agree that Art Frankly shall not be liable to you or to any third party
for any modification, suspension or discontinuance of any of the Services. To protect the integrity of the Website
and the Services offered on and through the Website, Art Frankly reserves the right at any time in its sole discretion
to block users from certain IP addresses from accessing the Website and/or one or more of the Services.
16. Copyright and Trademark Infringement Policy. Company does not own the Content
uploaded and/or posted to the Website by its Members, including any works of art or other written or visual images
(which are also incorporated in and collectively referred to as the “Content”). All Content which is posted by
any individual, group or company that is a Member or Visitor of the Website and/or user of the Services, has
represented and warranted to Art Frankly that, among other things, neither the Content nor the names, trademarks
and service marks under which Content is promoted (collectively, the “Name”) infringes the copyright, patent,
trademark, trade secret or other proprietary rights, rights of publicity, privacy or moral rights of any other
Any notifications alleging that certain/specific Content posted to the Website infringes upon the copyright (or
trademark) of another must be made through Company’s agent under the Digital Millennium Copyright Act at
[email protected], who is designated to receive notices of copyright
infringement and made in accordance with Company’s Digital Millennium Copyright Act Compliance Policy (“DMCA
Policy”). Any and all claims in connection with the alleged infringement of a trademark must be made to pursuant
to the same policy and procedures as set forth in Company’s DMCA Policy.
A copy of the written notice must also be sent to Company identifying the Content and/or Name being used on the
Website in violation of the party’s rights by sending an email to Company at [email protected].
and as reasonably necessary to address any allegations contained therein, which may include disclosing some or
all of the information to Company’s designated agent, legal counsel and the party who has posted the allegedly
Company will respond to the notice and take action in accordance with its DMCA Policy, which can be found on our
(a) Technical Failures. You acknowledge and agree that Art Frankly and/or
its successors, assigns, subsidiaries, employees, approved contractors, affiliated entities or individuals are
not responsible for and do not have any liability, directly or indirectly, for any loss or damage, including
personal injury or death, as a result of or alleged to be the result of (i) any incorrect or inaccurate Content
posted on the Website, whether caused by its Members and/or Visitors or any of the equipment or programming associated
with or utilized by Art Frankly in connection with its operation of the Website or the Services; (ii) the timeliness,
deletion or removal, incorrect delivery or failure to store any Content, communications or personalization settings
of Members and/or Visitors; (iii) the conduct, whether online or offline, of any Member and/or Visitor; (iv)
any error, omission or defect in, interruption, deletion, alteration, delay in operation or transmission, theft
or destruction of, or unauthorized access to, any Member and/or Visitor of any other Member or Visitor’s communications;
or (v) any problems, failure or technical malfunction of any telephone network or lines, computer online systems,
servers or providers, computer equipment, software, failure of email on account of technical problems or traffic
congestion on the Internet or the Website or combination thereof, including injury or damage to Members or Visitors,
or to any other person’s computer or device related to or resulting from participating or downloading materials
or Content from the Internet, Website and/or in connection with the use of the Services.
(b) No Warranty. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ART FRANKLY PROVIDES THE SERVICES
ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE WITH RESPECT TO THE SERVICES (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING (WITHOUT LIMITATION)
ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
ART FRANKLY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, SECURE OR THAT
ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.
(c) Assumption of Risk . ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE
ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR DEVICE, COMPUTER SYSTEM, INTERNET
ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OR CORRUPTION OF DATA THAT RESULTS OR MAY RESULT FROM THE DOWNLOAD
OF ANY SUCH MATERIAL. IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO DOWNLOAD OR
OBTAIN ANY MATERIAL THROUGH THE SERVICES.
(d) 3 rd Party Content. From time to time, Art Frankly
may make third party opinions, advice, statements, offers, or other third party information or content available
through the Services.
i. All third party content is the responsibility of the respective authors thereof and should not necessarily be
relied upon by you, Members or Visitors. Such third party authors and contributors are solely responsible for
ii. ART FRANKLY DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD PARTY CONTENT PROVIDED
THROUGH THE SERVICES, OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY
OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY THAT APPEARS IN THE SERVICES. UNDER NO CIRCUMSTANCES WILL ART
FRANKLY OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION
OR OTHER CONTENT POSTED IN THE SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
(d) No Professional Advice. In addition to the preceding paragraph and other provisions of this
Agreement, any advice that may be posted in the Services is for informational and entertainment purposes only
and is not intended to replace or substitute for any professional financial, medical, legal, or other advice.
Art Frankly makes no representations or warranties and expressly disclaims any and all liability concerning any
treatment, action by, or effect on any person following the information offered or provided within or posted
on the Website and/or through the Services. If you have specific concerns or a situation arises in which you
require any professional, legal or medical advice, you should consult with an appropriately trained and qualified
18. Limitation on Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
IN NO EVENT WILL ART FRANKLY, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICES PROVIDERS BE LIABLE TO
YOU OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL, DAMAGES FOR LOSS, CORRUPTION OR BREACHES
OF DATA OR PROGRAMS, SERVICES INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICESS, EVEN IF ART FRANKLY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ART
FRANKLY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES
BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ART FRANKLY FOR THE SERVICES WHILE YOU HAVE A MEMBER ACCOUNT.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF
OR RELATED TO YOUR USE OF THE WEBSITE, THE SERVICES OR THE TERMS OF THIS AGREEMENT, MUST BE FILED WITHIN ONE
YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
19. Arbitration and Governing Law.
(a) Binding Arbitration. The exclusive means of resolving any dispute or claim arising out of
or relating to this Agreement (including any alleged breach thereof) or the Services shall be BINDING ARBITRATION administered by the American Arbitration Association in the State of New York. The one exception to the exclusivity
of arbitration is that you have the right to bring an individual claim which does not exceed Five Thousand ($5,000.00)
Dollars against Art Frankly in small-claims court in New York County. But whether you choose arbitration or small-claims
court, you may not under any circumstances commence or maintain against Art Frankly any class action, class arbitration,
or other representative action or proceeding.
(b) For clarity and then avoidance of doubt, by and through your use of the Website and/or Services in any manner,
you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO:
(i) BRING AN ACTION IN AND GO TO COURT to assert or defend any claims between you and Art Frankly
(except for matters which are equal to or less than Five Thousand ($5,000.00) Dollars which must be taken to
and filed in the small-claims court of New York County, New York); and
(ii) PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING AGAISNT ART FRANKLY;
(iii) HAVE YOUR CLAIM(S), OR CLAIMS AGAINST YOU, BE DECIDED BY A JUDGE OR JURY. You are entitled to a fair hearing before a neutral third party arbitrator. The arbitrator can grant any relief
that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than
trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned
by a court only for very limited reasons.
(c) Forum Selection Clause. Any proceeding to enforce this arbitration agreement, including any
proceeding to confirm, modify, or vacate an arbitration award, must be brought in any court located in the State
of New York which has subject matter jurisdiction over the claim and/or dispute. In the event that this arbitration
agreement is for any reason held to be unenforceable, any litigation against Art Frankly (except for small-claims
court actions) may be commenced only in the federal or state courts located in New York County, New York. You
hereby irrevocably consent to the jurisdiction of those courts for such purposes.
(d) Choice of Law. This Agreement, and any dispute between you and Art Frankly, shall be governed
by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration
agreement shall be governed by the Federal Arbitration Act.
20 . Indemnification of Art Frankly. You agree to indemnify and hold Art Frankly,
its subsidiaries, and affiliates, and its and their officers, agents, partners and employees, harmless from any
loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising
out of your breach of or failure to comply with this Agreement (including any breach of your representations
and warranties contained herein), your communications to other Members and/or Visitor; Content you post on the
Website and/or in connection with your use of one or more of the Services, and the violation of any law or regulation
by you. Art Frankly reserves the right to assume the exclusive defense and control of any matter otherwise subject
to indemnification by you, in which event you will fully cooperate with Art Frankly in connection therewith.
21. Notices. Art Frankly may provide you with notices, your receipt of which
shall be deemed acknowledged by virtue of your registration of and by maintaining an active Member Account with
Art Frankly. These Notices include those regarding changes to this Agreement and may be sent by Art Frankly by
using any reasonable means now known or hereafter developed, including by email, regular mail, SMS, MMS, text
message, communal postings on the Website and/or by direct message(s) to your Member Account mail/in box. If
your account is suspended or terminated you consent to receipt of any and all notices through the email account
associated with your Member account.
guidelines or rules that are separately posted for particular Services or offers contain the entire agreement
between you and Art Frankly regarding the use of the Website or Services. If any provision of this Agreement
is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure of Art
Frankly to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such
right or provision. You agree that your online account is non-transferable and all of your rights to your profile
or contents within your account terminate upon your death. No agency, partnership, joint venture or employment
is created as a result of this Agreement and you may not make any representations or bind Art Frankly in any
23. Amendment. This TCU is subject to change by Art Frankly at any time. All
amendments, changes or modifications shall be made in writing and shall be effective as of the date and time
Art Frankly posts the amended TCU on the Website. It is your responsibility to check these Terms and Conditions
periodically for any changes and any such changes shall be made available immediately on the Site after they
are made. Your continued use of the Site or services following the posting of any changes to these Terms constitutes
your acceptance of such changes.
24. Refund Policy. It is Art Frankly’s policy not to refund payment for subscriptions or other
one-time fees paid for use of the Services. However, Art Frankly considers requested for refunds on a case by
case basis if and when the request is made within twenty four (24) hours from the time and date the purchase
or payment, which is the subject matter of the request, was made. All requests for a refund shall me made by
sending an e-mail to the following address: [email protected]. No
the Guidelines and Requirements for any Services.