Terms of Use

ARTFACT TERMS OF USE AGREEMENT

This document describes terms and conditions applicable to your use of the services made available by Artfact, LLC ("Artfact" "we," or "us") at the website www.Artfact.com (the "Site").

Section 1. General

1.1          Services. This Terms and Conditions of Use Agreement (hereafter this "Agreement") sets forth the general terms and conditions that apply to the use by you of the Site, including the features and services offered by us from time to time at or through the Site (collectively with the Site, the "Services").  BY USING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN.  This Agreement is a legally binding instrument between you and Artfact, and describes your responsibilities in connection with your use of the Services and, among other things, limits the liability of Artfact.  Before using any of the Services, please read all of this Agreement carefully. By accessing or using any Services, you affirm that you are over 18 years of age and are otherwise capable of forming legally binding contracts, and that you agree to be legally bound and to abide by this Agreement. If you are under 18 years of age, or are otherwise incapable of forming legally binding contracts, or do not agree with any part of this Agreement, YOU MUST NOT ACCESS OR USE THE SERVICES.

1.2          Amendments. We reserve the right, exercisable in our sole discretion, to change, modify, add to, subtract from, or otherwise amend the terms and conditions of this Agreement at any time. Such changes, modifications, or other amendments shall be effective upon notice to you thereof, which may be given by means including, but not limited to, posting on the Site.  Except as may be otherwise expressly stated in any notice given to you by us, all such amendments of this Agreement shall automatically become effective upon the date made. This Agreement may not otherwise be amended. Continued use of the Services by you constitutes your binding acceptance of this Agreement, including any changes or modifications made by us as described above. You agree to review the terms and conditions of this Agreement periodically to become aware of such revisions and to review your compliance with them. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must immediately cease all use of the Services. The right to access and use the Services is personal to you and is not transferable to any other person or entity.

1.3          Additional Agreements. The Services include, among other things, such services as: searching and accessing past and upcoming auction records including, when available, object photos and estimated and realized prices; looking up or searching for artist information including biographies, examples of art work, and other sources of information about the artist; contacting or placing bids with auction houses by email or through a bidding console, registering to receive email alerts about objects offered at upcoming auctions, and emailing an antique object to a friend. Additional terms and conditions of use applicable to your use of the Services available at the Site from time to time are or may be posted in relevant areas within the Site or may be agreed upon by you and Artfact in a separate written agreement (e.g. Subscription Agreement; Privacy Policy; all such additional terms and conditions, "Additional Agreements"). Together with this Agreement, such Additional Agreements will govern your use of those Services or any other services made available by us to you. We reserve the right, exercisable at our discretion, to change or discontinue without prior notice some or all of the Services we provide from time to time at the Site, or change the applicable terms and conditions for your use of such Services as set forth in the Additional Agreements.  Without limiting any of the foregoing, the following policies and agreements are hereby incorporated into this Agreement by reference and provide additional terms and conditions related to specific Services offered on the Site:  Artfact Subscription Agreement (http://www.Artfact.com/agreements/subTerms.cfm) and Artfact Privacy Policy (http://www.artfact.com/agreements/privacy.cfm).

1.4          Your Account. Your Account is identified by your chosen user ID (your “User Name”) and you are the only party authorized to use your User Name. You are responsible for maintaining the confidentiality of your registered account with us and any password(s) you have chosen or we may issue to you in connection with your access and use of the Services. You are responsible for all uses of your account, whether or not actually or expressly authorized by you. If you believe that your account and/or password(s) have been misused or compromised in any manner, please contact us immediately at support@artfact.com.

1.5          Covenant Regarding Your Account. You agree that you will not maintain multiple registered accounts or User Names with us without our express written consent. If you wish to maintain a multiple account, you may submit a request to do so to support@artfact.com, including your primary User Name and your rationale for having multiple accounts.

1.6          Equipment. You shall be solely responsible for obtaining and maintaining all telephone, communications, computer hardware and other equipment needed for access to and use of the Services and all charges of any description arising from or relating thereto.

1.7          Artfact Not Involved in Auctions/Release.   We are not involved in actual transactions between users of the Site or any “External Sites” as defined in section 5.1 below (whether such users are auction houses, appraisers, art or antiques dealers, trade members, curators, educators, antiques professionals, collectors or other third parties affiliated with Artfact).  We have no control over the quality or legality of the items displayed on our Site or the truth or accuracy of the descriptions of such items, upcoming auction events or auction results displayed on our Site.  In the event that you have a dispute with any parties arising out of your use of the Site you hereby release Artfact from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 

Section 2. Information You Provide to Us

2.1               Your Information. The term "Your Information" means collectively the following: (i) any information or materials you provide to us in connection with our registration process, your use of any Services, or in email correspondence with us, (ii) any information or materials you provide to other users of the Site in connection with your use of any Services, or in any public message board or chat room area, (iii) any information or materials you provide to auction houses, appraisers, art or antiques dealers, trade members, curators, educators, antiques professionals, collectors or other third parties affiliated with Artfact in connection with your use of any Services, and (iv) any search terms or other instructions that you transmit to our servers through a web browser. Please note that the information and materials belonging to Your Information may include without limitation textual information, graphic images, photographs, and audio-visual materials. Except as may be otherwise expressly provided to the contrary in this Agreement or the Additional Agreements, you are solely responsible for Your Information, and we act at all times as a passive conduit for your online distribution, communication, and/or publication of Your Information.

2.2               Covenant Regarding Your Information. You agree that Your Information: (i) will not be false, inaccurate, frivolous, or misleading, (ii) will not infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy, (iii) shall not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising), (iv) will not be defamatory, trade libelous, unlawfully threatening , unlawfully harassing, or obscene, (v) will not contain any computer viruses, worms, Trojan horses, time bombs, or other computer programs, scripts, or instructions that are intended to damage or detrimentally interfere with the operation or use of the Services, or to intercept or expropriate any proprietary computer system information or other confidential data or personal information relating to or arising out of the access or use of the Services, (vi) will not create any liability for Artfact or cause Artfact to lose (in whole or in part) the services of its internet service providers or other suppliers and business affiliates, (vii) will not contain any links to or from other information or websites for which you do not have the right to make or reproduce such links, and (vii) will not solicit or involve the purchase or sale of counterfeit, stolen or illegal items, or solicit or commit any fraudulent transaction or other form of criminal activity.

2.3               Updated Information. If you are a registered user of the Site, you agree to promptly update your account registration information in order to keep it current, complete, and accurate.

2.4               Limited License. To enable us to use Your Information, so that we are not violating any rights you might have in Your Information, you hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in Your Information, in any media now known or hereafter existing, with respect to Your Information.

2.5               Privacy Policy. We will only use Your Information in accordance with our Privacy Policy, available at http://www.Artfact.com/agreements/privacy.cfm.  By agreeing to the terms and conditions of this Agreement, you also give your consent to the way we may use your Information pursuant to the Privacy Policy. If you have any questions not addressed in our Privacy Policy Document, you should address them to support@artfact.com.

Section 3. Use of Content

3.1               Copyright. You acknowledge that the Services contain information, text, software, photographs, music, audio and video clips, graphics, links and other material (collectively, the "Content") that are protected by copyright, trademark or other proprietary rights of Artfact or third parties.  All Content used or made available through the Services is copyrighted as a collective work and/or compilation of Artfact pursuant to applicable copyright law. Artfact owns a copyright in the selection, coordination, arrangement and enhancement of such Content, as well as in the content original to Artfact. You agree to comply with any additional copyright notices, information, or restrictions contained in any Content available on or accessed through the Services.  Artfact does not grant permission to users of its Services to reproduce images of original works of art.

3.2               Limited License.  Subject to your compliance with the terms and conditions of this Agreement (including without limitation the restrictive terms and conditions set forth in this Section 3), and except to the extent otherwise expressly provided in an Additional Agreement between you and Artfact, you are granted a limited non-exclusive, non-transferable, non-sub-licensable, and revocable license to access the Services and/or Content only for your own personal non-commercial use.

You acknowledge that all Content included with the Services is provided for your own use.  In no case shall you re-publish the Content in any form without express written permission of Artfact.  You will limit printouts for personal use of the material to a maximum of 35 individual text listings per individual. Reproduction of images is strictly prohibited without the written permission of both Artfact and the originating auction house.  Your right to use this product is limited to a single workstation unless an additional agreement for network access has been signed by both parties.  You acknowledge that you are not permitted to sell or otherwise dispose the software and that no rights granted hereunder may be assigned or sublicensed by Licensee, any assignment or sublicense being void.

You agree to maintain and/or reproduce all copyright and other notices contained in such Services and/or Content. You may not modify, publish, transmit, transfer or sell, resell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit or commercially use any of the Services and/or Content, in whole or in part, except as expressly permitted in this Agreement or in an Additional Agreement between you and Artfact. You acknowledge that you do not acquire any ownership rights by accessing or downloading copyrighted materials. You shall not store electronically any portion of any Services and/or Content.   You may not collect and use e-mail addresses of other users of the Site or other user account information, listings, or perform any form of data extraction or data-mining whatsoever.  Except as expressly permitted by the copyright laws, no copying, storage, redistribution or publication of any of the Services and/or Content is permitted without the express permission of Artfact or the owners of such Services and/or Content or their authorized persons, if other than Artfact.  You are responsible for complying with all applicable laws, rules, and regulations regarding your use of any such downloaded Content.  Artfact reserves all rights in the Content and Services not expressly granted hereunder.

3.3               Trademarks. Artfact and Artfact.com are trademarks and service marks of Artfact, LLC ALL RIGHTS RESERVED. All other trademarks, service marks, product names and company names or logos appearing on the Site are the property of their respective owners. Any use of such trademarks, service marks, product names and company names or logos, including the reproduction, modification, distribution or republication without the prior written permission of the owner of same, is strictly prohibited.

3.4               Uploading or Posting Content. You will not upload, post, or otherwise make available through the Services any Content protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right and the burden of determining that any material is not protected by copyright rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting Content to any public area of the Site, you hereby grant, or warrant that the owner of such Content has expressly granted, Artfact a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly display and distribute such Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such Content. You also permit any other user of the Services to access, view, store, or reproduce such Content for that user's personal use.

3.5               Beneficiaries. The foregoing provisions of this Section 3 are for the benefit of Artfact, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.

Section 4. Site Access; Interference with Services; Monitoring; Compliance with Laws

4.1          Site Access. We do not guarantee continuous, uninterrupted, or secure access to the Services, and operation of the Site may be interfered with by numerous factors outside of our control.  We recommend that you use Artfact with Microsoft Windows Operating Systems and Internet Explorer Version 5.5 or later.   Internet connection speed will determine how rapidly pages with photographs load to your browser.

4.2          No Interference. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior expressed written permission. You agree that you will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or the Services, or any transaction being conducted on or through the Site or Services. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the server infrastructure of the Site.

4.3          Fraudulent Activity. You may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with any Services. You may not make offers to purchase any goods or services under a false name while using the Services. You may not impersonate any other user of the Services, or make use of another user's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported by us to law enforcement authorities, and we will cooperate with such authorities to ensure that violators are prosecuted to the fullest extent of the law.

4.4          Monitoring. You agree that Artfact has the right, but not the obligation, to monitor any form of user activity and/or Content linked to or from or otherwise associated with the Services. We may investigate any reported violation of our Agreement, Additional Agreements or Site policies, and any user or other third party complaints relating thereto. We may take any action that we deem appropriate in connection with any such investigation without notice (including without limitation issuing warnings, suspending or terminating Services, denying Site access and/or removing any materials posted on the Site). We may also investigate, in our sole discretion, the use of any credit card by a user in connection with the Services, and take such action as we deem necessary or appropriate, including without limitation contacting the owner or user of such card or canceling purchase orders placed by such owner or user.

4.5          Compliance with Laws. The Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding use of the Services and any transactions that may be conducted by means of the Services.

Section 5. External Sites; Linking

5.1          External Sites. The Services may contain links to websites on the Internet that are owned and operated by third parties (the "External Sites"). This Agreement does not apply to your use of any External Site to which the Site links, and we are not responsible for the availability of any External Site to which the Site links. We do not endorse or take responsibility for the contents, advertising, products or other materials made available through any External Site, and you acknowledge that Artfact is not responsible for the availability of, or the content, advertising, products, or other materials located on or through, any External Site. Under no circumstances will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods, or services available on any External Sites.   If you decide to access an External Site, you do so at your own risk. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or the content or services located on such External Sites.

5.2          Linking.  Other sites may link to the Site only using the HTML links contained on the “Link to Us” page of the Site.  To access the HTML links you must be registered with Artfact, and sign-in.  After signing in, click on the “Link to Us” link at the bottom of every Artfact.com page (http://www.artfact.com/artfact/linktous.cfm), and follow the instructions to establish the link to Artfact.  Written permission must be granted by us for any type of link to the Site other than those available on the “Link to Us” page. To seek our permission, you must contact support@artfact.com.   Artfact reserves the right in its sole discretion to sever and terminate links to any other web site at any time for any reason.

Section 6. Breach

6.1     Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registered user account and/or refuse to provide the Services to you: (i) if you breach this Agreement or any of the Additional Agreements it incorporates by reference or which you have separately entered into with Artfact; (ii) if we are unable to verify or authenticate any information you provide to us; or (iii) if we believe that your actions may cause legal liability for you, us, our other users, or other third party business affiliates.

Section 7. Indemnity

7.1     You agree to indemnify, defend, and hold Artfact and its affiliates, and their respective officers, directors, owners, agents, information providers, and licensors (collectively, the "Company Parties") harmless from and against any and all claims, liability, losses, costs, and expenses (including attorneys' fees) incurred by any Company Party in connection with any use or alleged use of the Service under your password by any person, whether or not authorized by you. Artfact reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Artfact's defense of such claim.

Section 8. Termination of or Change in the Services

8.1     Artfact shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Services. Artfact reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Services at any time for any reason without prior notice or liability. Artfact may change, suspend or discontinue all or any aspect of the Services at any time, including the availability of any feature, database, or Content without prior notice or liability.

SECTION 9. DISCLAIMER OF WARRANTIES

9.1          NEITHER ARTFACT NOR ANY PROVIDER OF THIRD PARTY CONTENT OR THEIR RESPECTIVE AGENTS WARRANTS THAT THE SITE OR SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DOES ARTFACT, ANY THIRD PARTY CONTENT PROVIDER, OR THEIR RESPECTIVE AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE, SERVICES OR THE CONTENT. THE SERVICES AND THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF ARTFACT, THIRD-PARTY CONTENT PROVIDERS, AND THEIR RESPECTIVE AGENTS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH RESPECT TO THE SITE, SERVICES, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE SERVICES. NEITHER ARTFACT NOR ANY THIRD PARTY CONTENT PROVIDER WARRANTS THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE OR SERVICES WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU.   WITHOUT LIMITING ANY PROVISION HEREIN, ARTFACT MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER SYSTEM CONFIGURATION WILL BE COMPATIBLE WITH THE SITE.   IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR COMPUTER SYSTEM HAS THE RECOMMENDED HARDWARE, OPERATING SOFTWARE, AND INTERNET BROWSER SOFTWARE VERSIONS TO ACHIEVE THE SITE’S FULL FUNCTIONALITY AND CAPABILITIES.  Some states do not allow the disclaimer of implied warranties or limitation on how long an implied warranty lasts, so the above disclaimer or limitation may not apply to you. You may have other rights, which vary from state to state.

9.2          The Site includes an extensive collection of auction records that might be used as tools in the process of estimating values. Artfact Content is only one of several elements that you should consider in estimating value of an antique or other artistic work and depends upon the accuracy and timing of information which Artfact itself receives.  Artfact strongly recommends that its Content only be used in conjunction with other specialists such as Auction Houses, Personal Property Appraisers, Museums, and Dealers.

SECTION 10.  LIMITATION OF LIABILITY

10.1            THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 10 APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT ARTFACT IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

10.2            UNDER NO CIRCUMSTANCES WILL ARTFACT OR ITS AFFILIATES, OR ANY OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH EITHER THE CONTENT OR THE SERVICES, OR ANY LOSS OR DAMAGE CAUSED BY YOU BEING EXPOSED TO INFORMATION CONTAINED ON THE SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING OPINIONS OR ADVICE REGARDING THE IDENTIFICATION, VALUATION OR CARE OF ANTIQUES.

10.3            NEITHER ARTFACT, ANY THIRD-PARTY CONTENT PROVIDER NOR THEIR RESPECTIVE AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you.  In such states, the liability of Artfact, third party content providers and their respective agents shall be limited to the greatest extent permitted by law.

Section 11. Miscellaneous

11.1      Copyright Infringement Policy. Artfact observes the rights of all copyright holders and has adopted and implemented a policy that provides for the termination in appropriate circumstances of users and registered account holders who infringe the rights of copyright holders. If you believe that your work or that of a third party has been copied in a way that constitutes copyright infringement, please provide our Copyright Officer (who may be contacted electronically at support@artfact.com or care of our notice address in Section 11.7 below) with the information required below by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512:

1.       A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

2.       Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

3.       Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

4.       Information reasonably sufficient to permit us to contact the complaining party;

5.       A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

6.       A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

11.2      Governing Law. ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO ITS RULES OF CONFLICT OF LAWS.  Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.

 

11.3          Headings. Section headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

 

11.4          Severability; Construction. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. If any inconsistency exists between the terms of this Agreement and any additional terms and conditions of Additional Agreements (whether such Additional Agreements are posted in electronic format on the Site or are separate written agreements entered into between you and Artfact) such terms shall be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions of the Additional Agreements shall control.

 

11.5          Waiver. Artfact's failure to exercise or forbearance from exercising any rights or remedies, or failure to enforce or forbearance from enforcing, the strict performance of any provision of this Agreement, will not constitute a waiver of Artfact's right to exercise such rights or remedies or enforce such provision or any other provisions of this Agreement in that or any other instance. Any waiver of any provision of this Agreement by Artfact must be made in writing and signed by an authorized representative of Artfact specifically referencing this Agreement and the provision to be waived.

 

11.6          Assignment; Third-Party Beneficiaries. This Agreement will inure to the benefit of Artfact's successors and assigns.  Except as set forth in this Agreement, this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.

 

11.7          Notices.  Except as otherwise provided herein, any notices to be given pursuant to this Agreement may be given by postal mail to Artfact, LLC 2 Newton Place, Newton, MA 02458, Attn: Vice President of Operations (in the case of us) or to the email address you provide to Artfact during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Artfact during the registration process in the event that an address was supplied. In such case, notice shall be deemed given 3 days after the date of mailing.

 

11.8          Survival. Subsections 1.8, 3.1, 3.3, 3.4, 3.5, 3.6, 4.3, 4.4 and 5.1 and Section 7, 8, 9, 10 and 11, shall survive any termination of this Agreement as well as any other provisions which by their terms or sense are intended to survive. 

 

11.9          Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and except for any Additional Agreements that you may have entered into with Artfact, supersedes all previous written or oral agreements between the parties with respect to such subject matter hereof.