Artist Terms of Service

AVAULTE ARTIST TERMS OF SERVICE 

Updated July 7, 2021

 

Prior to execution of this contract, you (the Artist) have the right to seek counsel from an Independent Attorney of your choice. When you choose not to do so, it is a waiver of this right.

 

  1. DEFINITIONS AND TERMS

Avaulte, LLC (“Avaulte”, “we “ or “our”) provides a service for selling and purchasing original works of art  (the “Services”) through our website, accessible at www.avaulte.com (the “site”) Please read carefully the following terms and conditions (“Terms”) and our Privacy Policy, which may be found at www.avaulte.com/page/privacy-policy and which are incorporated by reference to these Terms. These Terms govern your use and access to the Site and Services, and  a binding legal agreement between you and Avaulte.

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 legal entity.

 

  1. MODIFICATIONS

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.

 

  1. ELIGIBILITY

The Services are intended solely for persons who are 18 or older. Any access to  the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 or older.

 

  1. ARTISTS ACCOUNT PROCESS

In order to have a work listed on the Site or to make a purchase through the Site, you must first apply. During the application process you will be required to provide certain information. You agree to provide accurate, current, and complete information during the application 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 application process or thereafter proves to be inaccurate, not current or incomplete.

 

  1. PRIVACY POLICY

See Avaulte’s Privacy Policy at www.avaulte.com/page/privacy-policy for information and notices regarding Avaulte’s collection and use of your personal information.

 

  1. 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 the Avaulte Website’s then/current listings content guidelines. 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. 

6.3 Commissions will be based on the sale price.

6.4  You always retain the right to remove a listing for Original Work of Art from the Site.  Please see below for instructions.  To remove a listing for Original Work of Art from the Site, you must email hello@avaulte.com 30 days before you wish the listing to be removed. On the 30th day from the date of your request the listing will be removed from the site.

6.5  When you upload works on the Avaulte Site, all works must be available for Immediate Sale and you affirm and warrant that you are the creator of and owner of the Original Work and you own the right to sell the work without any restrictions or encumbrances.

 

  1. 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.

 

  1. 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 seller with the right to sell such Original Works of Art through the Site and Services.  

8.1.1 You hereby grant Avaulte a worldwide, transferable, exclusive (as defined below), 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.

8.1.2. You agree to grant Avaulte an exclusive right to sell and promote your Original Art uploaded to Avaulte for six months as set forth in section 8.3.  

8.1.3. “Exclusive” right means the artist agrees not to upload or allow any other e-commerce site/platform to promote or use the Original Work promoted on Avaulte Sites for six months as set forth in section 8.4.  Artists may promote the Original Work on their own website, social media and Physical Gallery/Website during the time that the Original Work is displayed on the Avaulte site.  The six month term is auto renewable as set forth in section 8.3 and 8.5.

8.2  You acknowledge and agree that the foregoing license rights in section  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% for Option 1 does not include the marketing package) or (55% for Option 2 with marketing package) is based on retail (artist’s) price with proof of established pricing. Emerging artists, Avaulte will calculate the prices of your works using a Linear Multiplier: h + w equals a linear inch. The total of the linear inch is then multiplied by the price per linear inch = $ price per piece.  To change “Option Package” a 30 day written notice is required at hello@avaulte.com. 

8.3.1. Avaulte reserves the right to change the commission rate with the artist’s approval. 

8.3.2.  Six month original term. For any sale on Avaulte within the first 6 months of an Original Work being listed on the site, the artist agrees to the standard commission rate in this document is payable to Avaulte as reflected in this paragraph.

8.3.3 Automatic Renewal. After the initial  6 months term, this agreement shall be deemed renewed automatically each six months for an additional six month period (an Automatic Renewal Term) unless you, the Artist elect not to renew this Agreement in accordance with section 6.3. Should the Artist elect not to renew the Artist is responsible for notifying Avaulte 30 days prior to any changes via email at  hello@avaulte.com.

8.4  Agreements on Placement of Original Artwork.

8.4.1. When any of your Original Artwork is uploaded to Avaulte, those works can not be placed on or shown on any other e-Commerce platforms, until the contract is terminated or the Artist requests to cancel as set forth in paragraph 6.3 or 8.3.

8.4.2 Avaulte produces promotional materials for Artists (i.e. all social media platforms, videos, 3rd party images / photos)  therefore any piece of your Original Artwork promoted that is sold (by Avaulte), the artist agrees the standard commission rate in the Terms and Conditions is payable to Avaulte as reflected in section 8.3.

8.4.4. When an artwork promoted by Avaulte is sold by a Third Party (Art Gallery, in Studio, Artist's Personal Online Platform, Art Fair, Art Walks), 20% of the artist's commission is payable to Avaulte due within 30 days after collections. 

8.5 Penalties for Breach of Contract; Liquidated of Damages.  Should the artist breach this contract and sell or cause to be sold a original artwork in violation of the terms and condition herein, Avaulte is entitled to 50% of the sale price of the artwork from the Artist and the Artist are responsible for any attorney fees and costs incurred by Avaulte in pursuit of the damages. This provision does not limit Avaulte from seeking any other actions available in law or equity.

8.6 Commission Services will be completed through our Commission Service Agreement, which governs the respective rights of Artist and Clients to respect the artwork described herein.

 

  1. BILLING AND SHIPPING

9.1  Avaulte will be responsible for collecting billing and shipping information from the purchaser. Avaulte will also process payments from 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, 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 USPS or Postal Annex, (FedEx & UPS for works over $1000) and drop the purchased Original Work of Art directly to the purchaser.

 9.3   Avaulte Website 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.  Purchasers 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 Avaulte provides packaging. Based on the increase in shipping costs, Artists will pay a minimal freight charge (shipping of your packaging sent to your door) for works over $1,000. The cost (Small $20 Medium $40, Large $60) will be deducted from your final commission payout after sale.  

 9.5  For sales of Original Works of Art via the Online Sales channels, Avaulte will pay out commissions to Artists by PayPal in an amount to be determined in accordance with Avaulte's current standard pricing and commission terms for sales of Original Works of Art via the Site and Services. Avaulte will credit your account within a commercially reasonable time after confirmation of the following: Avaulte has confirmed receipt of delivery to purchaser; Avaulte has received and confirmed payment from purchaser, and then the 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.

 9.6 You agree to comply with the terms and conditions of Avaulte's current Return Policy at https://www.avaulte.com/pages/faqs

 9.7  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)

 

  1. MARKETING & PROMOTIONAL EFFORTS BY AVAULTE

10.1  When Original Work of Art is listed on Avaulte, the Artists use the Avaulte name, and/or any social media within their own personal social media platforms (i.e. social media, videos, 3rd party photos and images).  When a piece of artwork sells due in part  of Avaulte's name, the artist agrees the Standard Commission rate in Avaulte's Contract is payable to Avaulte within 30 days notification of works sold.

10.2 Artists can not alter any of Avaulte’s marketing Materials (videos, images, etc) made for them. Consequences will be removed from Avaulte. 

 

  1. TRANSACTION RESTRICTIONS

As an Avaulte Artist who has uploaded 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 parties (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 agrees the standard commission rate in the Terms and Conditions is payable to Avaulte.

 

  1. TAXES

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 yearly W-9 Tax Form must be filled out for the sale of an Original Work of Art

 

  1. AVAULTE ARTIST CONTENT

13.1  In addition to uploading 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 uploads 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 an 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.

13.3  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 its licensors, except for licenses and rights expressly granted in these Terms.

 

  1. 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 and Services;
  • 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.

 

  1. OWNERSHIP

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

 

  1. 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.

 

  1. LINKS

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

 

  1. TERMINATION AND ACCOUNT CANCELLATION

 If you breach any of these Terms, Avaulte retains the right to suspend, disable, or terminate your Account, at its sole discretion and without prior notice to you. Avaulte reserves the right to revoke your use of and access to 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. When an artist ends their contract (in writing) all fees are due within 30 days of the contract termination date. Unpaid balances past 30 days after the termination date will accrue 15% interest charge per month until paid. You may cancel your Account with a 30 days notice by sending an email to hello@avaulte.com.  Any sale within those 30 days of notification, the artist agrees the standard commission rate in the Terms and Conditions is payable to Avaulte as reflected in paragraph 8.3. 

 

  1. DISCLAIMERS

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.

 

  1. INDEMNITY

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.

 

  1. 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.

 

  1. 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.

 

  1. 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 waive any objection to jurisdiction and venue in such courts.

 

  1. 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.

 

  1. ASSIGNMENT

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.

 

  1. NOTICES

Any notices or other communications permitted to be 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.

 

 

  1. GENERAL

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.