AMBUSHARTS.COM TERMS OF USE AGREEMENT
April 8, 2008
Among other things, AmbushArts.com is a social networking service for the arts that allows Members to create unique personal profiles online in order to find and communicate with other artists and art patrons. The services offered by AmbushArts.com ("AmbushArts.com" or "we") include the AmbushArts.com website (the “AmbushArts.com Website”), the AmbushArts.com Internet messaging service, the AmbushArts.com forums, and any other features, content, or applications offered from time to time by AmbushArts.com in connection with the AmbushArts.com Website (collectively, the "AmbushArts.com Services"). The AmbushArts.com Services are hosted in the U.S.
This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the AmbushArts.com Services. By using the AmbushArts.com Services, you agree to be bound by this Agreement, whether you are a "Visitor" (someone who browses the AmbushArts.com Website without registering) or you are a "Member" (someone who has registered with AmbushArts.com). The term "User" refers to a Visitor or a Member. You are only authorized to use the AmbushArts.com Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to this Agreement without modification. Please read this Agreement carefully and save or print it. If you do not agree with it, you should leave the AmbushArts.com Website and discontinue use of the AmbushArts.com Services immediately. If you wish to become a Member, communicate with other Members, and make use of the AmbushArts.com Services, you must read this Agreement and indicate your acceptance during the Registration process.
This Agreement includes AmbushArts.com's policy for acceptable use of the AmbushArts.com Services and Content posted on the AmbushArts.com Website, your rights, obligations, and restrictions regarding your use of the AmbushArts.com Services, AmbushArts.com's Privacy Policy, and AmbushArts.com’s Forum Guidelines. In order to participate in certain AmbushArts.com Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the AmbushArts.com Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement. We encourage you to print this Agreement for your records.
AmbushArts.com is an evolving medium, and, as such, we may modify this Agreement from time to time. Such modification shall be effective upon posting by AmushArts.com on the AmbushArts.com Website. By continuing to use the AmbushArts.com Website after any such modification is posted, you agree to be bound to any changes to this Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
We suggest that you choose carefully the information you post on AmbushArts.com and that you provide to other Users. For your own protection, your AmbushArts.com profile may not include the following items: telephone numbers, street addresses, e-mail addresses, and any photographs containing what AmbushArts.com determines to be non-artistic nudity, or obscene, lewd, excessively violent, harassing, sexually explicit, or otherwise objectionable subject matter. Despite this prohibition, information provided by other AmbushArts.com Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and AmbushArts.com assumes no responsibility or liability for this material. We can’t stress this enough, so we’ll state it again. Though anonymous or fraudulent Members are prohibited, the Members you interact with on the AmbushArts.com Website may not be who they seem to be. AmbushArts.com is not responsible for the conduct of its Users and will not be held liable for any damages, personal or otherwise, that result from your use of the AmbushArts.com Website and Services. If you become aware of misuse of the AmbushArts.com Services by any person, please contact AmbushArts.com at reportabuse@ambusharts.com.
AmbushArts.com reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the AmbushArts.com Services at any time, for any or no reason, with or without prior notice, and without liability. AmbushArts.com expressly reserves the right to remove your profile and/or restrict, suspend, or terminate your access to any part of AmbushArts.com Services if AmbushArts.com determines, in its sole discretion, that you pose a threat to AmbushArts.com and/or its Users.
1. Eligibility. Use of and Membership in the AmbushArts.com Services is void where prohibited. By using the AmbushArts.com Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the AmbushArts.com Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age.
2. Term. This Agreement shall remain in full force and effect while you use the AmbushArts.com Services or are a Member. You may terminate your Membership at any time, for any reason, by clicking the appropriate button on the Member's Account Settings page. AmbushArts.com may terminate your Membership at any time, without warning. Even after Membership is terminated, this Agreement will remain in effect, including sections 5-17.
3. Fees. You acknowledge that AmbushArts.com reserves the right to charge for the AmbushArts.com Services and to change its fees from time to time in its discretion. If AmbushArts.com terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees.
4. Password. When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. Hackers and Internet criminals have become very skilled at what they do. For your own protection, we suggest choosing a password that is a combination of numbers and letters. You agree not to use the account, username, or password of another Member at any time or to disclose your password to any third party. You agree to notify AmbushArts.com immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
5. Non-commercial Use by Members. The AmbushArts.com Services are for the personal use of Members only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by AmbushArts.com. Illegal and/or unauthorized use of the AmbushArts.com Services, including collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the AmbushArts.com Website is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the AmbushArts.com Services.
6. Proprietary Rights in Content on AmbushArts.com.
a. AmbushArts.com does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, "Content") that you post to the AmbushArts.com Services. After posting your Content to the AmbushArts.com Services, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. By displaying or publishing ("posting") any Content on or through the AmbushArts.com Services, you hereby grant to AmbushArts.com a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the AmbushArts.com Services. Please be warned that many editors, publishers, and other markets for artistic work may consider work published on a personal profile page of an online social networking service to be just that: published. However, work that appears in an online workshop, such as the ones available on the AmbushArts.com Website, is widely considered to be “in progress” and therefore does not usually count as a first publication. AmbushArts.com cannot be held responsible for any artistic work that is rejected by other publishers on the basis that it has previously appeared on the AmbushArts.com Website.
Without the license referred to in the paragraph above, AmbushArts.com would be unable to provide the AmbushArts.com Services. For example, without the right to modify Member Content, AmbushArts.com would not be able to digitally compress music files that Members submit or otherwise format Content to satisfy technical requirements, and without the right to publicly perform Member Content, AmbushArts.com could not allow Users to listen to music posted by Members. The license you grant to AmbushArts.com is non-exclusive (meaning you are free to license your Content to anyone else in addition to AmbushArts.com), fully-paid and royalty-free (meaning that AmbushArts.com is not required to pay you for the use on the AmbushArts.com Services of the Content that you post), sublicensable (so that AmbushArts.com is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the AmbushArts.com Services), and worldwide (because the Internet and the AmbushArts.com Services are global in reach). This license will terminate at the time you remove your Content from the AmbushArts.com Services. The license does not grant AmbushArts.com the right to sell your Content, nor does the license grant AmbushArts.com the right to distribute your Content outside of the AmbushArts.com Services.
b. You represent and warrant that: (i) you own the Content posted by you on or through the AmbushArts.com Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of your Content on or through the AmbushArts.com Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by you to or through the AmbushArts.com Services.
c. The AmbushArts.com Services contain Content of AmbushArts.com ("AmbushArts.com Content"). AmbushArts.com Content is protected by copyright, trademark, patent, trade secret and other laws, and AmbushArts.com owns and retains all rights in the AmbushArts.com Content and the AmbushArts.com Services. AmbushArts.com hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the AmbushArts.com Content (excluding any software code) solely for your personal use in connection with viewing the AmbushArts.com Website and using the AmbushArts.com Services.
d. The AmbushArts.com Services contain Content of Users and other AmbushArts.com licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the AmbushArts.com Services.
7. Content Posted.
a. AmbushArts.com may delete any Content that in the sole judgment of AmbushArts.com violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. AmbushArts.com assumes no responsibility for monitoring the AmbushArts.com Services for inappropriate Content or conduct. If at any time AmbushArts.com chooses, in its sole discretion, to monitor the AmbushArts.com Services, AmbushArts.com nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
b. You are solely responsible for the Content that you post on or through any of the AmbushArts.com. Services, and any material or information that you transmit to other Members and for your interactions with other Users. AmbushArts.com does not endorse and has no control over the Content. Content is not necessarily reviewed by AmbushArts.com prior to posting and does not necessarily reflect the opinions or policies of AmbushArts.com. AmbushArts.com makes no warranties, express or implied, as to the Content or to the accuracy and reliability of the Content or any material or information that you transmit to other Members.
8. Content/Activity Prohibited. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the AmbushArts.com Services. AmbushArts.com reserves the right to investigate and take appropriate legal action against anyone who, in AmbushArts.com's sole discretion, violates this provision, including without limitation, removing the offending communication from the AmbushArts.com Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of AmbushArts.com:
a. is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
b. harasses or advocates harassment of another person;
c. exploits people in a sexual or violent manner;
d. contains what AmbushArts.com determines to be non-artistic nudity, violence, or offensive subject matter or contains a link to an adult website;
e. solicits personal information from anyone under 18;
f. provides any telephone numbers, street addresses, or email addresses;
g. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
h. 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 music or links to pirated music files;
i. involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
j. contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
k. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
l. solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
m. involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
n. includes a photograph of another person that you have posted without that person's consent; or
o. for band and filmmaker profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile.
The following is a partial list of the kind of activity that is illegal or prohibited on the AmbushArts.com Website and through your use of the AmbushArts.com Services. AmbushArts.com reserves the right to investigate and take appropriate legal action against anyone who, in AmbushArts.com's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
a. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
b. advertising to, or solicitation of, any Member to buy or sell any products or services through the AmbushArts.com Services. You may not transmit any chain letters or junk email to other Members. It is also a violation of these rules to use any information obtained from the AmbushArts.com Services in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, AmbushArts.com reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which AmbushArts.com deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the AmbushArts.com Services, you acknowledge that you will have caused substantial harm to AmbushArts.com, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay AmbushArts.com $50 for each such unsolicited email or other unsolicited communication you send through the AmbushArts.com Services;
c. any automated use of the system, such as using scripts to add friends or send comments or messages;
d. interfering with, disrupting, or creating an undue burden on the AmbushArts.com Services or the networks or services connected to the AmbushArts.com Services;
e. attempting to impersonate another Member or person;
f. using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
g. selling or otherwise transferring your profile;
h. using any information obtained from the AmbushArts.com Services in order to harass, abuse, or harm another person;
i. displaying an advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the AmbushArts.com Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private messages with a commercial purpose; or
j. using the AmbushArts.com Services in a manner inconsistent with any and all applicable laws and regulations.
9. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of AmbushArts.com to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of proper notification to AmbushArts.com by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the AmbushArts.com Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the AmbushArts.com Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. AmbushArts.com's Copyright Agent, for notice of claims of copyright infringement, can be reached at copyrightagent@ambusharts.com.
10. Member Disputes. You are solely responsible for your interactions with other AmbushArts.com Members. AmbushArts.com reserves the right, but has no obligation, to monitor disputes between you and other Members.
11. Privacy. Use of the AmbushArts.com Services is also governed by our Privacy Policy, which is incorporated into this Agreement by this reference.
12. Copyright and Trademark. The name and mark “AmbushArts.com” is the trademark of Ambush, Inc. and is owned or licensed to Ambush, Inc. All materials, including but not limited to images, audio and video clips, animation, diagrams, photographs, and any and all information of any kind in any form (the “Materials”), incorporated into, published or otherwise exhibited on the AmbushArts.com Website are protected by copyright or other intellectual property rights and are owned and controlled by Ambush, Inc. or third parties who have licensed NMPI the right to include the Materials in the AmbushArts.com Website. Any copying, reproducing, republishing, uploading, posting, modifying, or transmission or distribution of any Materials is strictly prohibited and will be considered a violation of Ambush, Inc.’s intellectual property rights and could result in legal liability and/or criminal sanction.
13. Disclaimers. AmbushArts.com is not responsible for any incorrect or inaccurate Content posted on the AmbushArts.com Website or in connection with the AmbushArts.com Services, whether caused by Users of the AmbushArts.com Services or by any of the equipment or programming associated with or utilized in the AmbushArts.com Services. Profiles created and posted by Members on the AmbushArts.com Website may contain links to other websites. AmbushArts.com.com is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by AmbushArts.com. Inclusion of any linked website on the AmbushArts.com Services does not imply approval or endorsement of the linked website by AmbushArts.com. When you access these third-party sites, you do so at your own risk. AmbushArts.com takes no responsibility for third party advertisements which are posted on this AmbushArts.com Website or through the AmbushArts.com Services, nor does it take any responsibility for the goods or services provided by its advertisers. AmbushArts.com is not responsible for the conduct, whether online or offline, of any User of the AmbushArts.com Services. AmbushArts.com assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. AmbushArts.com is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the AmbushArts.com Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the AmbushArts.com Services. Under no circumstances shall AmbushArts.com be responsible for any loss or damage, including personal injury or death, resulting from use of the AmbushArts.com Services, attendance at a AmbushArts.com event, from any Content posted on or through the AmbushArts.com Services, or from the conduct of any Users of the AmbushArts.com Services, whether online or offline. The AmbushArts.com Services are provided "AS-IS" and as available and AmbushArts.com expressly disclaims any warranty of fitness for a particular purpose or non-infringement. AmbushArts.com cannot guarantee and does not promise any specific results from use of the AmbushArts.com Services.
14. Limitation on Liability. IN NO EVENT SHALL AMBUSHARTS.COM BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF AMBUSHARTS.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AMBUSHARTS.COM'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 AMBUSHARTS.COM FOR THE AMBUSHARTS.COM SERVICES DURING THE TERM OF MEMBERSHIP.
15. U.S. Export Controls. Software available in connection with the AmbushArts.com Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the AmbushArts.com Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
16. Disputes. If there is any dispute about or involving the AmbushArts.com Services, you agree that the dispute shall be governed by the laws of the State of Illinois, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States located in the State of Illinois, City of Chicago. Either AmbushArts.com or you may demand that any dispute between AmbushArts.com and you about or involving the AmbushArts.com Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in Chicago, Illinois, USA, provided that the foregoing shall not prevent AmbushArts.com from seeking injunctive relief in a court of competent jurisdiction.
17. Indemnity. You agree to indemnify and hold AmbushArts.com, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the AmbushArts.com Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any Content that you post on the AmbushArts.com Website or through the AmbushArts.com Services causes AmbushArts.com to be liable to another.
18. Other. This Agreement is accepted upon your use of the AmbushArts.com Website or any of the AmbushArts.com Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and AmbushArts.com regarding the use of the AmbushArts.com Services. The failure of AmbushArts.com to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. AmbushArts.com is a trademark of Ambush, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
