AVAULTE ARTISTS TERMS AND CONDITIONS
updated September 6, 2018
1. DEFINITIONS AND TERMS
Certain areas of the Site and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Site or for specific Services, the specific terms and conditions shall take precedence with respect to your use of or access to that area of the Site or Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY SELLING OR PURCHASING A WORK ON OR THROUGH THE SITE OR SERVICES OR BY POSTING ANY CONTENT ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Avaulte reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 18 or older.
4. ARTISTS SUBMISSION PROCESS
In order to have a work listed on the Site or to make a purchase through the Site, you must first submit your work by completing our submission process. During the submission process you will be required to provide certain information. You agree to provide accurate, current and complete information during the submission process and to update such information to keep it accurate, current and complete. Avaulte reserves the right to suspend or terminate your Account if any information provided during the submission process or thereafter proves to be inaccurate, not current or incomplete.
Additional information on the submission process can be found at https://www.avaulte.com/artist-submission-process-video/.
6. REQUIREMENTS FOR HAVING YOUR WORK LISTED ON THE SITE
6.1 As an Avaulte Artist, you may submit listings for original works of art (“Original Works of Art”) that you have created and that you desire to sell through the Site and Services. You may not submit listings for Original Works of Art that were created by another artist. In order for your listing to be accepted, you must provide Avaulte with all the information requested on the applicable page of our Site and you must comply with any other Avaulte Website/App requirements as identified on such page. Without limiting the generality of the foregoing, if you submit listings for sale you may be required to verify your identity by separately providing Avaulte with a copy of a government-issued ID or similar documentation. Your listings must be accurate and complete and comply with Avaulte Website/App’s then-current listings content guidelines which are available at https://www.avaulte.com/artist-questions/ Avaulte reserves the right to edit any listings to ensure that they comply with these guidelines.
6.2 You acknowledge that Avaulte reserves the right to promote and market Original Works of Art through the use of sales and/or discounts. The sale or discount amount will apply to the listing price of Original Works of Art. Commissions will be based on the sale price. (minus the placement fee, see 8.3).
6.3 You always retain the right to remove a listing for Original Work of Art from the Site. Please see below for instructions.
When you want to remove a listing for Original Work of Art from the Site you will email email@example.com the listing you would like to be deleted from your inventory. The listing will typically be removed within three business days.
7. RESPONSIBILITY FOR WORKS
You acknowledge and agree that you are solely responsible for all Original Works of Art that you make available through the Site and Services. Accordingly, you represent and warrant that: (i) as to the Original Works of Art that you make available through the Site and Services, you are the creator of all such Original Works of Art and you are the sole and exclusive owner of all such Original Works of Art; and (ii) Original Work of Art that you make available through the Site and Services for Avaulte’s use and exploitation thereof as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8. ONLINE SALES
8.1 When you are accepted to Avaulte and listings for Original Works of Art are submitted, you hereby appoint Avaulte as an independent non-exclusive re-seller with the right to resell such Original Works of Art through the Site and Services. You hereby grant Avaulte a worldwide, transferable, non-exclusive, right and license, with a right to sub-license to (i) use, reproduce, distribute, publicly perform and publicly display copies of the Original Work of Art Sales via Online Sales channels; and (ii) access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the Original Work of Art in any form, medium or Technology now known or later developed for the purpose of promoting Avaulte, the Site and Services.
8.2 You acknowledge and agree that the foregoing license rights in paragraph 8.1 are granted on a royalty-free basis and that your sole compensation for the grant of such license rights, if any will be in the form of the Artist Commission (defined below), which is payable only upon the collection of the proceeds from the sale of an Original Work of Art via the Online Sales channel. You will not be allowed to give personal promotions to buyers.
8.3 Standard Commission (60% to Artist and 40% to Avaulte) is based on retail (artists) price with proof of established pricing (and for emerging artists an algorithm will be used to calculate prices of works). *A placement fee ($25 any work over $300 and $50 any work over $500) is added to the List Retail price (artists will not receive commission on this placement fee). Avaulte reserves the right to change the commission rate with the artists approval. The standard commission rate is currently in effect unless specifically negotiated by the individual artist is located at https://www.avaulte.com/artist-questions/
8.4 If artists use any promotional materials created by Avaulte (i.e. all social media platforms, videos, 3rd party images / photos) and a piece of artwork sells due in part to Avaulte’s promotional efforts, the artist agrees the standard commission rate in the Terms and Conditions is payable to Avaulte as reflected in paragraph 8.3.
9. BILLING AND SHIPPING
9.1 Avaulte will be responsible for collecting billing and shipping information from the purchaser. Avaulte will also process payments fro such purchases via the Site and Services.
9.2 For Original Works of Art, Avaulte will provide you with the name and address of the purchaser (prepaid shipping label) and, unless otherwise instructed in writing by Avaulte Website/App, you will be responsible for packaging the artwork in the packaging that is provided by Avaulte to you. You will then be responsible for taking the package to either the United States Post Office or to Postal Annex and drop the purchased Original Work of Art directly to the purchaser.
9.3 Avaulte Website/App will provide you with the box and shipping material from an Avaulte approved shipping company. You agree to ship the purchased Original Work of Art to the purchaser using the packaging and prepared label provided by Avaulte within seven days following the date of purchase (the “Shipping Period”). If you do not ship the purchased Original Work of Art to the purchaser prior to the expiration of the Shipping Period, then the sale may be cancelled. Purchaser will be responsible for the cost of shipping through Avaulte contracted/preferred shipping provider/account. You are responsible for providing accurate weight and dimensions. If actual shipping weight, shipping dimensions and shipping origination information at the time of shipment varies from the information provided by you, Avaulte (after providing documentation) reserves the right to deduct the resulting increased shipping costs from your Artist Commission. All Avaulte sales must be shipped through the approved shipping company with the prepaid label provided by Avaulte. If any other shipping method is used, Avaulte will not be responsible for any loss in shipping or damage caused in shipping, you will be responsible for all losses.
9.4 For sales of Original Works of Art via the Online Sales channels, Avaulte will credit your Account in an amount to be determined in accordance with Avaulte's then-current standard pricing and commission terms, which may be found at https://www.avaulte.com/artist-questions/ for sales of Original Works of Art via the Site and Services. Avaulte will credit your account within a commercially reasonably time after confirmation of the following: Avaulte has confirmed receipt of delivery to purchaser; Avaulte has recieved and confirmed payment from purchaser, and then return period applicable to the sale has expired. Once these items are confirmed Avaulte will credit your Account with the corresponding Artist Commission within 30 days after the expiration of the return period.
9.5 You agree to comply with the terms and conditions of Avaulte's current Return Policy at https://avaulte.com/artist-questions/
9.6 You will have the right to request Avaulte remit the Artist Commission in your Account in accordance with an Avaulte designated payment schedule. (Avaulte pays Artist Commission as set forth in paragraph 9.4)
10. MARKETING & PROMOTIONAL EFFORTS BY AVAULTE
10.1 If artists use the Avaulte name, and/or any social media and any of your own personal social media platforms (i.e. social media, videos, 3rd party photos and images) and any piece of artwork sells due to in part to the use of Avaulte's name, the artist agrees the Standard Commission rate in Avaulte's Terms and Conditions is payable to Avaulte.
11. TRANSACTION RESTRICTIONS
As an Avaulte Artist, who has, submitted a listing for an Original Work of Art and has been contacted through the Site and Services by a potential buyer with the intent to purchase, you may not sell such Original Work of Art to such interested party (Buyer) independent of the Site and Services. Any repeat buyer that was an original Avaulte sale, and any subsequent transaction through Avaulte from that buyer remains an Avaulte sale, the artist agree the standard commission rate in the Terms and Conditions is payable to Avaulte.
12.1 All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Site, are stated in U.S. dollars and do not include any sales, use, value added (“VAT”), goods and services (“GST”) or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (“collectively “Taxes”). If you are a seller of Original Works of Art, you acknowledge that Avaulte will withhold the Taxes required to be withheld from the payments Avaulte makes to you. Seller must fill out appropriate Tax forms prior to any commissions being paid. Commissions will be paid as follows:
For an Artist living within the United States, a W-9 Tax Form must be filled out for the sale of an Original Work of Art
For an Artist living outside of the United States, a W-8BEN Tax Form must be filled out for Original Works of Art.
Additional Tax information can be found by on Artist FAQ's.
13. AVAULTE ARTIST CONTENT
13.1 In addition to submitting listings for Original Works of Art, Avaulte may, in it sole discretion, designate areas of the Site in which Members can post, upload, publish or submit text, graphics, audio, video, images of works of art or other content on or to the Site (individually or collectively, “Avaulte Artist Content”). “Avaulte Artist Content” excludes any images of Original Works of Art for which an Avaulte Artist submits a listing, as described under “Seller Terms and Conditions” above. Avaulte does not claim any ownership rights in any such Avaulte Artist Content and nothing in these terms will be deemed to restrict any rights that a Avaulte Artist may have to use and exploit any such Avaulte Artist Content. By making available any Avaulte Artist Content on or through the Site and Services, (i) you grant Avaulte a worldwide, non-exclusive, transferable, royalty-free, commission-free license to crop, resize, publicly display, publicly perform, distribute, broadcast and transmit such Member Content on or through the Site and Services in any form, medium or technology now known or later developed, for the purpose of promoting Avaulte, the Site and Services. You reserve all other rights and licenses in and to any Avaulte Artist Content that you make available on or through the Site and Services.
13.2 You acknowledge and agree that you are solely responsible for any Avaulte Artist Content that you make available on or through the Site. You represent and warrant that: (i) you are the sole and exclusive owner of all Avaulte Artist Content that you make available on the Site or that you have all rights, licenses, consents and releases that are necessary to make available such Avaulte Artist Content and to grant all rights and licenses in such Avaulte Artist Content as granted under these terms; (ii) neither the Avaulte Artist Content nor you making available any Avaulte Artist Content on the Site nor any use of Avaulte Artist Content as permitted under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Avaulte may also make available through the Site and Services text, graphics, audio, video and images of works of art (collectively, “Avaulte Art Content”), some of which is owned by Avaulte (“Avaulte-owned Content”). Avaulte authorizes you to download, view and print Avaulte Art solely for your personal use in visiting the Site and, if you are an Avaulte Artist, in connection with exercising the rights granted to Avaulte Artist under these Terms. No Licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Avaulte or it licensors, except for licenses and rights expressly granted in these Terms.
14. GENERAL PROHIBITIONS
14.1 You agree not to do any of the following:
Attempt to access or search the Site, Services, from the Site or the App, through the use of any engine, software, tool agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Avaulte.
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Avaulte, or any of Avaulte’s providers or any other third party (including another user) to protect the Site and Services.
Post, upload, publish, submit, or transmit, any text, graphics, images, software, music, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) harms minors in anyway; or (viii) promotes illegal or harmful activities or substances;
Access, tamper with, or use non-public areas of the Site, Avaulte’s computer systems, or the technical delivery systems of Avaulte providers;
Use, display, mirror or frame the Site, or any individual element within the Site, Avaulte’s name, any Avaulte trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Avaulte’s express written consent;
Attempt to probe, scan, or test the vulnerability of any Avaulte system or network or breach any security or authentication measures;
Use any meta tags or other hidden text or metadata utilizing an Avaulte trademark, logo, URL or product name without Avaulte’s express consent;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use the Site and/or Services, for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by the Terms
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site andServices;
Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services from other users of the Site or Services without their express permission;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
Violate any applicable law or regulation;
Encourage or enable any other individual to do any of the foregoing.
14.2 Avaulte will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Avaulte may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Avaulte has no obligation to monitor your access to or use of the Site or Services, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Avaulte reserves the right, any time and without prior notice, to remove or disable access to any listings for Original Works of Art, or any other text, graphics, images, software, music audio, video, information or other content or material that Avaulte, at it sole discretion, considers to be objectionable, in violations of these Terms or otherwise harmful to the Site or Services.
The Site and Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Avaulte and its licensors exclusively own all right, title, and interest in and to the Site, Services and Avaulte Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Service or Avaulte Content
16. COPYRIGHT POLICY
Avaulte respects copyright law and expects its users to do the same. It is Avaulte’s policy to terminate in appropriate circumstances of Member or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Avaulte is not responsible or liable for (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Avaulte of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources
18. TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms, Avaulte will have the right to suspend or disable your Account or terminate your Account, at its sole discretion and without prior notice to you. Avaulte reserves the right to revoke your access to and use of the Site, Services, and Buyer content at any time, without cause. In the event Avaulte terminates these Terms for your breach, you will remain liable for any amounts due. You may cancel your Account at any time by sending an email to firstname.lastname@example.org.
19.1 THE SITE AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSLY OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AVAULTE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. AVAULTE MAKES NO WARRANTY THAT THE SITE AND SERVICES, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. AVAULTE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AVAULTE OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, AVAULTE DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SITE OR SERVICES, NOR DOES AVAULTE MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES, NOR DOES AVAULTE MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES. AVAULTE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET IN PERSON.
You agree to defend, indemnify, and hold Avaulte, its officers, directors, employees and agent harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with your access to or use of the Site and Services or your violation of these Terms.
21. LIMITATION OF LIABILITY
21.1 You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site and Services remains with you. Neither Avaulte, nor any other party involved in creating, producing, or delivering the Site and Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from use of or inability to use the Site or Services or from any communications, interactions or meetings with other Members or users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Avaulte has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Avaulte’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site and Services, or Member Content exceed: (i) If you are a Member who has sold Original Works of Art, the total payments made or credited to you by Avaulte for the sale of your Original Works of Art during the three (3) month period preceding the date a claim for liability arises under these Terms; and (ii) if you are a Member who has purchased Original Works of Art, the total payment that you made to Avaulte for the Original Works of Art are subject of claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Avaulte and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
22. PROPRIETARY RIGHTS NOTICES
All trademarks, services marks, logos, trade names and any other proprietary designations of Avaulte used herein are trademarks or registered trademarks of Avaulte. Any other trademarks, services marks, logos, trade names, and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
23. CONTROLLING LAW AND JURISDICTION
These Terms and any action related to thereto will be governed by the laws of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to subject matter of these Terms will be the state and federal courts located in the Southern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
24. ENTIRE AGREEMENT
These Terms constitute the entire and exclusive understanding and agreement between Avaulte and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings of agreements between Avaulte and you regarding the Site and Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Avaulte’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Avaulte may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Avaulte via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Avaulte to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Avaulte. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.