TERMS AND CONDITIONS
EFFECTIVE DATE: These Terms and Conditions of Service and Privacy Policy (these “Terms”) were last updated on June 15, 2021.
IN GENERAL
The US Company, Inc., a California corporation (“we,” “us” or “our”), provides a service for viewing, selling and purchasing works of art and commercially exploiting digital images of works of art (each, a “Work”) through our website, accessible at www.kimberlyovitz.com (the “Site”) or mobile application (the “Mobile Application”) together with any services, software, tools, features or functionality made available by us (each, a “Service” and collectively, the “Services”). Please read these Terms carefully, including the Privacy Policy included herein (“Privacy Policy”). These Terms and any other policies linked to herein govern your access to and use of the Services, and constitute a binding legal agreement between you and us.
Certain areas of the Services 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 Services or for access to specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. IF YOU WANT TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, YOU MAY DO SO PROVIDED YOU FOLLOW THE PROCEDURES SET FORTH BELOW IN THE SECTION ENTITLED “AGREEMENT TO ARBITRATE.” THE DISPUTE RESOLUTION SECTION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A PROPOSED CLASS. THESE TERMS ALSO INCLUDE A WAIVER OF YOUR RIGHTS TO A TRIAL BY JURY IRRESPECTIVE OF WHETHER YOU AGREE TO ARBITRATE YOUR CLAIMS.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES OR BY SELLING OR PURCHASING A WORK ON OR THROUGH THE SERVICES OR BY POSTING ANY CONTENT ON THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND THE PRIVACY POLICY, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE 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.
MODIFICATIONS TO THESE TERMS
We reserve the right, at our sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “Last Updated Date.” By continuing to access or use the Services after we have posted a modification on the Services 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 Services. We encourage you to check back regularly to review these Terms.
MODIFICATIONS TO THE SERVICES
We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Services without notice to you. We may modify or remove any Works from the Services at any time without notice to you, including the removal of any Works or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.
Occasionally, there may be information on the Services that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by applicable local, state, federal or international laws, regulations or statutes. No specified update or refresh date applied to the Services should be taken to indicate that all information on the Services has been modified or updated.
ELIGIBILITY
The Services are intended solely for persons who are 18 or older. Any access to or use of 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.
ACCOUNT REGISTRATION
In order to make a purchase through the Services, (other than users who utilize the guest checkout option), you must first create an account (“Account”) by completing our registration process. During the registration process you will be required to provide certain information and you will establish a username and a password. Upon completion of our registration process or by utilizing our guest checkout option you will become a “Member.” You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete, for example if you become VAT registered. we reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account.
TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms, we will have the right to suspend or disable your Account or terminate these Terms, at our sole discretion and without prior notice to you. We reserve the right to revoke your access to and use of the Services at any time, with or without cause. In the event we terminate these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Account at any time by sending an e-mail to info@kimberlyovitz.com.
SELLER TERMS AND CONDITIONS
Listing Works on the Services
As a Member, you may submit listings for Works that you have created and that you desire to sell through the Services. You may not submit listings for Works that were created by another artist. In order for your listings to be accepted, you must provide us with all the information requested by us, you must comply with any other requirements as identified to you and your listing must be accepted and approved by us, which acceptance and approval shall be within our sole discretion. Without limiting the generality of the foregoing, if you submit listings for sale you may be required to verify your identity by separately providing us with a copy of a government-issued ID, tax identification, VAT ID or similar documentation and information. Your listings must be accurate and complete and comply with our then-current listings content guidelines. We reserve the right to edit any listings to ensure that they comply with these guidelines. You acknowledge that your listings may not be immediately searchable by keyword or category. The placement of your listings in search and browse results may be based on factors that include without limitation title, keywords and price.
You acknowledge that we reserve the right to promote and market Works through the use of sales and/or discounts. The sale or discount amount will apply to the listing price of Works. You always retain the right to remove a listing for a Work from the Services.
No agency, partnership, joint venture or employment relationship is established as a result of these Terms between you and us.
Responsibility for Works
You acknowledge and agree that you are solely responsible for all Works that you make available through the Services. Accordingly, you represent and warrant that: (i) as to Works that you make available through the Services, you are the sole creator of all such Works and you are the sole and exclusive owner of all such Works; and (ii) the Works that you make available through the Services nor our 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, intellectual property rights or other third party rights, or result in the violation of any applicable law or regulation.
Online Sales
If you submit listings for Works, you are selling such Works through the Services and on third party websites and sales channels (collectively “Online Sales”) and you hereby grant us a worldwide, transferable, nonexclusive right and license, with a right to sublicense, to: (i) use, reproduce, distribute, publicly perform and publicly display copies of the Work sales via the Sales Channels; and (ii) access, view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the Work in any form, medium or technology now known or later developed for the purpose of promoting us and/or the Services. You acknowledge and agree that the foregoing license rights 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 Revenue Share (defined below), which is payable only upon the sale of a Work via the Online Sales channel.
If a Work is sold via a third party website, the terms and conditions of the third party website will apply to the purchase in question by the applicable purchaser via the third party website. However, as between you and us, these Terms will apply to the sale of such Work.
We and/or our third party service providers will be responsible for collecting billing and shipping information from the purchaser and for processing payment for such purchases via the Services. For purchases made via third party websites and for Offline Sales, the applicable third party website or our Offline Sales partner will be responsible for collecting billing and shipping information, as applicable, from the purchaser and for processing payments, and will remit applicable payments relating to such sales as agreed upon between us and the third party website or our Offline Sales partner, as applicable, to us and share related shipping information, including the contact details of the purchaser where necessary, with us.
For Works, we will provide you with the name and address of the purchaser and you will be responsible for shipping the purchased Work directly to the purchaser. You agree to ship the purchased Work to the purchaser within seven (7) calendar days following the date of purchase (the “Shipping Period”). If you do not ship the purchased Work to the purchaser prior to the expiration of the Shipping Period, then the sale may be cancelled. We will reimburse you for the amount you paid for shipping, up to the amount that we or the third party website actually collected from the purchaser for shipping.
For sales of Works via the Online Sales channels, we will credit your Account in an amount to be determined in accordance with our then-current standard pricing and revenue share terms (the “Artist Revenue Share”); for sales of Works via the Services, subject to our receipt of confirmation of delivery to the purchaser, we will credit your Account with the corresponding Artist Revenue Share following the expiration of the return period and for sales of Works via third party websites, we will credit your Account with the corresponding Artist Revenue Share within a commercially reasonable time after we have received payment from the third party website and the Work has been confirmed to have been successfully delivered to the purchaser, as determined by us, in our sole discretion.
You agree to comply with the terms and conditions of our then-current Return Policy that are applicable to any Works that are sold through the Services.
You will have the right to request us to remit the Artist Revenue Share in your Account in accordance with a our designated payment schedule. Upon the termination of these Terms or cancellation of your Account, we will remit to you the remaining balance of Artist Revenue Shares in your Account, if any.
If you remove a listing for a Work from the Services, the license rights granted by you to us with respect to such Work will terminate as of the date the listing is removed, except that such license rights will survive and remain in effect for as long as necessary for us and our third-party subcontractors to fulfill any in-progress orders for such Works and for any orders for such Works accepted by us or our third-party subcontractors or its Online Sales partners via third party websites and its Offline Sales partners prior to or as of the effective date of termination. In addition, you acknowledge and agree that the license rights granted by you to us with respect to using such Work to promote us and/or the Services will remain in full force and effect for only as long as necessary for us to fulfill any current obligations that require using the Work for such promotional purposes.
PURCHASER TERMS AND CONDITIONS
Purchases of Works
As a Member, you may purchase Works that are listed by us or other Members on the Services. When you purchase such a Work through the Services, you are purchasing the work from the seller identified on the listing for such work. Prices for Works will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges (unless specifically indicated on the Site) or applicable Taxes (defined below) including VAT, if any, for which you are responsible and which will be separately identified on your receipt. We and/or our third party service providers will collect your billing and shipping information and process your payment. Certain Works (including, but not limited to, oversized works and sculptures) may require additional shipping and handling charges and special arrangements. The seller identified on the listing of the Work will ship the purchased work directly to you. The terms and conditions of our then-current Return Policy apply to any Works that you purchase through the Services. When you purchase Works via Online Sales (other than via the Services) such purchases will be subject to the terms and conditions of the applicable Online Sales channels which will be presented to you at the time of purchase.
Disclaimer Regarding Accuracy of Information on Works from Third Party Sellers
Specifications about and other information regarding Works for sale on the Service provided by third-party (Member) sellers is not verified by us. While we make every effort to ensure that the information on the Service is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on the Services from Member and/or others.
We make no warranties or representations whatsoever with regard to any Work provided or offered by any third party seller, and you acknowledge that any reliance on representations and warranties provided by any third party seller shall be at your own risk.
Payments
If you wish to purchase a Work or any other product or service via the Services, you may be asked by us or our designee to supply certain information relevant to your purchase, including, without limitation, credit card number, expiration date, billing address, VAT ID, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED BY YOU OR THROUGH YOUR ACCOUNT FOR ANY SUCH PURCHASE. You acknowledge that any such information will be treated by us in accordance with our Privacy Policy. You grant us the right to provide such information to third parties in order to facilitate the completion of transactions initiated by you or on your behalf through the Services. Verification of information may be required prior to acceptance of any order through the Services.
When you make a purchase through the Services, you shall immediately pay the total amount due. You may pay by wire transfer, credit card or ACH only. Credit card and ACH purchases are limited to a total purchase price of $6,000.00. By making a credit card purchase, you irrevocably waive any charge-back rights you may otherwise have under your cardholder agreement or otherwise. If a credit card or ACH payment is not approved, you will remain personally liable for the total amount otherwise due. In all cases, payment will not be deemed made until we collect the total amount due in good cleared funds. Title to the Work will pass to you when physical possession of the Work is transferred to you or your agent or common carrier. Any claims regarding purchases must be made directly to us. You agree that we may pay commissions to third parties who introduce us to clients or otherwise provide services in connection with the sale.
If you fail to comply with any applicable term or condition of these Terms, you will be in default, and we will be entitled in our absolute discretion to exercise any or all of the following rights and remedies (in addition to any other rights or remedies available to us at law): (i) to hold you liable for the total amount due, and for interest, commissions on the sale at our regular rates, and any and all legal fees and incidental damages; (ii) to cancel the sale or any other sale to you, retaining as liquidated damages any amounts already paid by you; and/or (iii) to resell the Work publicly or privately as permitted by applicable law, holding you liable for any deficiency between the total amount originally due and the price realized on resale, as well as any costs, expenses, damages and legal fees associated with both sales. By failing to make any payment, you will be deemed to have granted and assigned to us a continuing first priority security interest in any money or other property of or owing to you in our possession, and we shall be entitled to retain and apply such money or other property as collateral security for your obligations to us. We will have all rights of a secured party under the California Uniform Commercial Code.
Packing and Shipping.
We are not responsible for any act or omission of any packer, shipper or common carrier in the packing or shipping of the Work.
Order Cancellations
We reserve the right to cancel any order for a Work placed via the Services if we determine, in our reasonable discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed via the Services. If we cancel an order placed via the Services, we will send you an e-mail confirmation of such cancellation and you will not be charged for your order.
Returns
We are dedicated to providing our collectors with accurate descriptions and visuals of the artwork featured on our site. However, if you are displeased with your acquisition please e-mail us at info@kimberlyovitz.com. You have the right to return products purchased through the Services by notifying us in writing within ten (10) calendar days from the day you receive the Work. Once you have exercised your right of return in accordance with the procedures set forth below, the Works to be returned must be handed over to the courier in one single shipment within ten (10) calendar days of from the day you receive the Works.
We only accepts returns of Works within the time frames set forth above, and will reimburse the purchase price of the Works (minus shipping fees, as applicable) only if all of the following conditions have been met: (i) the Works are in the same conditions in which they were received; (ii) the identification tag (with the disposable seal) and labels, if any, are still attached to the Works; (iii) the Works are returned in their original packaging; and (iv) the Works are not damaged.
TERMS FOR BOTH SELLERS AND PURCHASERS
Transaction Restrictions
If you are a Member and have submitted a listing for a Work and have been contacted through the Services by another Member with respect to purchasing it or a similar work or custom piece related to a listed Work, you may not sell such Work to such Member independent of us and the Services. Similarly, if you are a Member and desire to purchase a Work for which another Member has submitted a listing, or a similar work or custom piece related to a listed Work, you may not purchase such Work from such Member independent of us and the Services. Violation of this provision may result in the termination of your Member account as an artist or purchaser, in addition to any other remedies available to us including, without limitation, injunctive or other appropriate relief.
Taxes
All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Services, 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 Works, you acknowledge that we will withhold the Taxes required to be withheld from the payments we make to you. If you are a purchaser of Works, you acknowledge that Taxes including VAT will be added to the amounts charged, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes including VAT. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations. Each seller and purchaser of Works shall indemnify, defend and hold us harmless (including reasonable attorneys’ fees) from all costs associated with their failure to pay all Taxes. We are required to collect sales tax for any Work delivered in the same State that the Work is currently located in.
MOBILE SERVICES
“Mobile Services” means certain software and services that are available via a mobile device, including: (i) the ability to upload data to the Services via a mobile device; (ii) the ability to use the Services from a mobile device; and (iii) the ability to access certain features through a Mobile Application downloaded from the Services and installed on a mobile device.
Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Works and our services by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
CHANGES
We reserve the right, with or without prior notice, to: change descriptions or references to Works, products, subscriptions, software or services; limit the available quantity of any Works, products, subscriptions, software, or services; honor, or refuse to honor, any coupon, coupon code, promotional code or other similar promotions; and/or refuse to provide any user of the Services with any products, subscriptions, software or services. We may modify any points, rewards, or the terms that govern their usage, at our sole discretion, and such modifications may make the points or rewards more or less common, valuable, effective, or functional.
DISCLAIMERS
THE SERVICES AND WORKS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM 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. WE MAKE NO WARRANTY THAT THE SITE, SERVICES OR WORKS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO ACTION SHOULD BE TAKEN OR PURCHASE MADE BASED UPON ANY OF THE INFORMATION CONTAINED IN THE SERVICES. YOU SHOULD SEEK INDEPENDENT ADVICE FROM A PROFESSIONAL AND/OR A PERSON WHO IS KNOWLEDGEABLE IN THE APPLICABLE AREA BEFORE ACTING UPON ANY OPINION, ADVICE OR INFORMATION CONTAINED IN THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE DO NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SERVICES, NOR DO WE MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
INDEMNITY
You agree to indemnify, defend and hold us and our officers, directors, managers, members, equity holders, employees and agents 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 Services or your violation of these Terms. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to assist and cooperate with us in asserting any available defenses. This indemnification and defense obligation will survive the termination of these Terms.
LIMITATION OF LIABILITY
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 Services remains with you. Neither we nor any other party involved in creating, producing or delivering the Services or the Works 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 the use of or inability to use the Services, or from any communications, interactions or meetings with other Members or users of the Services or other persons with whom you communicate or interact as a result of your use of the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have 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 our aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Services exceed: (i) if you are a Member who has sold or licensed Works, the total payments made or credited to you by us for the sale of your Works 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 a Work, the total payments that you made to us for the Work that is the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between us 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.
PROPRIETARY RIGHTS NOTICES
All trademarks, logos, trade names, domain names and other distinctive signs used in connection with the Site or the Works sold on the Services are registered trademarks of ours or their respective owners. We and all other registered trademark owners have exclusive rights to use their respective trademarks. You are not granted any rights in or to the trademarks used on the Services, and you agree not to use such trademarks without the prior written authorization from us or the applicable trademark owners.
RESOLUTION OF DISPUTES
Governing Law and Jurisdiction
These Terms are governed by the laws of the State of California, without regard to conflict of law provisions. You and we expressly agree that any claim or dispute must be resolved exclusively by a state or federal court or arbitration located in Los Angeles County, California, except as described in the Agreement to Arbitrate below or as otherwise mutually agreed by the parties, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
Informal Resolution
It is our goal that the Services meet your expectations and provide excellent service. However, there may be instances when you feel that we have made a mistake or left you disappointed in some way. In those instances, we are committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern. Therefore, for any problem or dispute that you may have with us, you acknowledge and agree that you will, as an initial matter, e-mail us at info@kimberlyovitz.com and describe to us the nature of your complaint or dissatisfaction. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within thirty (30) days after our receipt of your written description of it, you agree to the further dispute resolution provisions below. To the extent permitted by applicable law, the informal resolution process described in this paragraph is a precondition to pursuing any other process, so please do not forget to contact us first.
Mutual Agreement to Arbitrate
PLEASE READ THIS AGREEMENT TO ARBITRATE CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AND WE AGREE TO ARBITRATE ANY CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS YOU OPT-OUT. YOU AND WE AGREE THAT ALL SUCH CLAIMS WILL BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT AS A PROPOSED CLASS ACTION. WHETHER OR NOT YOU OPT-OUT, HOWEVER, YOU ARE GIVING UP A RIGHT TO A TRIAL BY JURY. YOU AND WE UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.
The arbitrator, and not any federal, state, local, or other court or agency, WILL have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of THESE TERMS AND this Agreement to arbitrate, including but not limited to, any claim that all or any part of THESE TERMS OR this Agreement to Arbitrate is void or voidable.
You and we agree that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services and these Terms or to any products or services sold or distributed through the Services, will be final and binding arbitration, except to the extent that either party has, in any manner, infringed upon or violated, or threatened to infringe upon or violate, the rights of either party or any third party’s patent, copyright, trademark, trade secret, privacy or publicity rights or is seeking to vindicate public rights, in which case both sides acknowledge that arbitration is not an adequate remedy and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies) on an individual basis in a court located in Los Angeles County, California. You and we acknowledge that this Agreement to Arbitrate affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under this Agreement to Arbitrate (despite any other choice of law provision). As a limited exception to this mutual Agreement to Arbitrate, you and we agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent.
US Claims
For users in the United States, the arbitration will be conducted by the Judicial Arbitration & Mediation Services, Inc. (“JAMS”) under its Comprehensive Arbitration Rules and Procedures then in effect. The JAMS’ rules are available at www.jamsadr.com. Payment of all filing, administration and arbitrator fees will be governed by the JAMS’ rules.
Non-US Claims
For users outside of the United States, any controversy or claim arising out of or relating to these Terms, or the breach thereof, will be determined by arbitration administered by JAMS International Arbitration Rules then in effect. The arbitration will be decided by a sole arbitrator appointed in accordance with such rules.
Means
In the interest of efficiency and fairness, you and we agree that the arbitration proceeding will be based solely on written submissions, unless the arbitrator deems an oral hearing strictly necessary. Should the arbitrator deem an oral hearing to be necessary, such hearing will be conducted via telephone or other electronic or technical means, or if that’s not possible, in person in the jurisdiction where you reside or at another mutually agreed upon location. The language of the arbitration will be English or, for users who reside outside of the U.S., the official language of your jurisdiction. The arbitrator’s award will be final and binding, and judgment may be entered upon it by any court having jurisdiction thereof. Each party will have the right to use legal counsel in connection with arbitration at its own expense.
Right to Opt-Out
YOU HAVE A RIGHT TO OPT-OUT OF THIS AGREEMENT TO ARBITRATE by sending an e-mail to info@kimberlyovitz.com or by mailing us, postage prepaid, to The Us Company, Inc., 9200 Sunset Boulevard, Suite 600
Los Angeles, California 90069. Such opt-out must be given within the earlier of thirty (30) calendar days of approving your first purchase of any Works on the Services or your first upload to, or listing of Work on, the Services or if we make any changes to this Agreement to Arbitrate which alter your rights, within thirty (30) calendar days after the effective date of such revision to this Agreement to Arbitrate. Any opt-out received after such deadline will be ineffective and this Agreement to Arbitrate will remain in full force and effect, except as expressly provided above. If you opt-out of this Agreement to Arbitrate, we also will not be bound by the terms of this Agreement to Arbitrate.
Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ARBITRATION PROCEEDINGS WILL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable with respect to any particular claim otherwise subject to arbitration, then that claim will not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that occurs, however, this Agreement to Arbitrate and this Class Action Waiver still will be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis.
Waiver of Trial by Judge or Jury
YOU AND WE AGREE AND UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES YOU AND WE ARE GIVING UP ANY RIGHT THAT YOU OR WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THIS AGREEMENT TO ARBITRATE. YOU AND WE FURTHER AGREE THAT ANY CLAIM HEARD IN A COURT OF COMPETENT JURISDICTION WILL BE HEARD BY A JUDGE INSTEAD OF A JURY, EXCEPT WHERE A JURY TRIAL WAIVER IS NOT PERMISSIBLE UNDER APPLICABLE LAW.
Limitation of Actions
You and we agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services, or these Terms must be filed within twelve (12) months after such claim or cause of action arose, or will be forever barred.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Users from Other Jurisdictions
The Services are controlled and operated by us from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
ENTIRE AGREEMENT
These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding the Services.
ASSIGNMENT
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. We may assign or transfer these Terms, at our sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
NOTICES
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by us via e-mail (in each case to the address that you provide) or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
GENERAL
Our failure 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 our duly authorized representative. 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. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
CONTACTING US
If you have any questions about these Terms, please contact us at:
The Us Company, Inc.
9200 Sunset Boulevard, Suite 600
Los Angeles, California 90069
info@kimberlyovitz.com