Terms of Service

 

Beautify Earth Inc. (“Beautify” or “we” or “us” or “our”) has created a marketplace platform designed to, among other things, enable artists (“Artists”) to collaborate with landlords (“Landlords”) and/or sponsors (“Sponsors”) on wall art projects (the “Platform”). 

 

Please carefully read these terms of service (“Terms”), our copyright and trademark policy (the “Copyright and Trademark Policy) below, and our privacy policy (the “Privacy Policy”). Before you may use the Platform, you must agree to these Terms and policies. By creating an account and/or using the Platform, you agree to all of the terms and conditions in these Terms, the Copyright and Trademark Policy, as well as all other rules, policies and procedures relating to the Platform that we may publish from time to time. 

 

THESE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THE PLATFORM TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. IF YOU WANT TO OPT-OUT OF ARBITRATION, YOU MAY DO SO PROVIDED YOU FOLLOW THE PROCEDURES SET FORTH BELOW IN THE SECTION ENTITLED “AGREEMENT TO ARBITRATE”. THESE TERMS ALSO INCLUDE A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY PRIVATE 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” means you individually, and if you are accepting these Terms on behalf of a company or other legal entity, that legal entity. You represent and warrant that you are at least 16 years of age and, if you are entering into these Terms on behalf of a company or other legal entity, you have the authority to bind that legal entity. IF YOU DO NOT MEET THESE REQUIREMENTS OR DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE PLATFORM.

 

ARTWORK, CONTENT AND THIRD PARTY RIGHTS

 

Artwork and Content License

 

As between you and Beautify, you own all and retain all rights in your uploaded artwork and content you upload to the Platform. You hereby grant us, our international websites, third party affiliates, wholesale partners, and our third party retailers a worldwide, royalty-free, nonexclusive, assignable license, with a right of sublicense, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your artwork in any format or medium now known or later developed for the purpose of promoting your artwork and content and providing the Platform and Platform related services.

 

YOU, AND NOT BEAUTIFY, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR ARTWORK AND CONTENT THAT YOU MAKE AVAILABLE THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION, THAT YOU OWN OR HAVE OBTAINED ALL REQUIRED INTELLECTUAL PROPERTY AND OTHER RIGHTS IN YOUR ARTWORK AND CONTENT, INCLUDING WITHOUT LIMITATION, THE RIGHT TO PUBLISH, DISPLAY, REPRODUCE, DISTRIBUTE AND SELL YOUR ARTWORK. You represent and warrant that:

 

1. you own all intellectual property rights in your artwork and content or that you have obtained all copyrights, trademark rights, rights of publicity and other rights required for you to make your artwork and content available through the Platform, to publish, display, reproduce, distribute and sell products or services that include your artwork and to grant us the rights granted to it in these Terms;

2. your artwork and content and the publishing, distribution, reproduction, display and sale of your artwork does not and will not infringe the intellectual property rights or other rights of any person or entity, including without limitation any copyright, moral rights, trademark, patent, right of publicity or right of privacy;

3. your artwork and content do not contain material that is false, inaccurate, misleading, incomplete, defamatory or libelous obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, abusive, inflammatory or otherwise objectionable;

4. your artwork and content are accurate, not misleading or deceptive and do not offer or disseminate fraudulent or counterfeit goods, products, services, schemes, or promotions.

 

You understand that the Platform contains artwork and content submitted by artists that may be in the form of designs, images, pictures, data, text, photographs, graphics, video, messages, or other materials submitted, posted, published, displayed, performed. We generally do not pre-screen artwork or content, and we are not responsible for examining or evaluating artwork or content, although we reserve the right to do so. You further understand and acknowledge that you may be exposed to artwork or content that you may find to be offensive, indecent or objectionable.

 

Linked Websites

The Platform may contain links to other websites that are not owned or controlled by us. Those links are provided for convenience only and may not remain current or be maintained. We do not screen linked websites and are not responsible for the content, security, operation, or use of any linked websites or the products or services that may be offered or obtained through them. Our links to other websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent we may explicitly stipulate to the contrary on the Platform. Further, we are not responsible for the content or privacy practices associated with linked websites, and it is your responsibility to review those policies before accessing those websites. If you access linked websites, you do so at your own risk.

 

Copyright and Trademark Policy

You agree to abide by our Copyright and Trademark Policy, which is incorporated herein by reference, including the procedures to report infringements of copyrights, trademarks, or other intellectual property rights.

IT IS YOUR RESPONSIBILITY TO MAKE SURE THAT YOU ARE UPHOLDING YOUR LEGAL RESPONSIBILITIES AND NOT VIOLATING ANYONE’S RIGHTS OR BREAKING ANY LAWS BY PUBLISHING, REPRODUCING OR DISSEMINATING ARTWORK THROUGH THE PLATFORM.

It is our policy, in appropriate circumstances and in our sole discretion, to (i) remove individual artworks, tags, titles, or descriptions and; (ii) disable and/or terminate the accounts of Artists who infringe the copyrights, trademarks, or other intellectual property rights of others. In addition to all other remedies available to us, we will not pay you any fees for services provided or artwork uploaded if you are found to be in violation of our Copyright and Trademark Policy.

 

Mural Transactions

In the event an Artist, Beautify and a Landlord and/or Sponsor engage in the creation of a mural on a Landlord’s wall, the terms of such arrangement shall be exclusively governed by the Mural Marketplace Terms of Service provided by Beautify (the “MTOS”), as may be amended and/or updated from time to time by Beautify. The MTOS is hereby incorporated by reference to these Terms and Conditions, and subject to these Terms and Conditions. 

 

YOUR ACCOUNT

Registration and Account Information

In order to use the Platform, you must create an account. When creating an account, you must provide accurate, complete and updated registration and contact information. In addition, you must update your account information to keep it current and complete at all times. We may from time to time require you to provide additional information confirming your identity, including government identification, payment information, and tax identification and/or withholding forms. You may not create more than one (1) account without our prior written approval and only if you have a good reason.

You are solely responsible for all the activity that occurs through your account, including the activities of others and regardless of whether the activities are authorized, and for keeping your account password secure. You agree to notify us immediately of any breach of security or unauthorized use of your account. Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable for our losses or the losses of others due to any unauthorized use. We reserve the right to require you to alter your password if we have reason to believe your password is no longer secure. We may also require you to change your password from time to time.

You may not select a user name that is vulgar, offensive, obscene or attempts to impersonate another person. You may never use another person’s account. We reserve the right to refuse to provide you with an account or cancel your account in our sole discretion, provided that such termination will not terminate our obligation to make any payments to you that may be owed.

 

Disclosure of Account Information

You acknowledge and agree that we may access, retain and disclose your account information, artwork and content if required to do so by law or in a good faith belief that any access, retention or disclosure is reasonably necessary to: (a) enforce these Terms or the policies; (b) respond to your requests for customer service; (c) respond to a legal notice; (d) comply with legal process; or (e) protect the rights, property or personal safety of our company, our users or the public.

 

Termination of Account

We may suspend or terminate your access to the Platform if you are determined to be, in our sole discretion, in violation of these Terms or any of our policies. We may also suspend or terminate your access to all or any part of the Platform or your account at any time, with or without cause, with or without notice, effective immediately. Upon termination of these Terms for any reason, the rights and licenses granted to you hereunder will immediately terminate and the provisions of these Terms that by their nature and context are intended to survive termination will survive. We will have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to the Platform or your account.

 

Upon termination we will suspend your account from the Platform within ninety (90) days. Without limitation of the foregoing, we will have the right to retain copies of your account information and content in our archives for our internal business and legal purposes. Unless your account has been terminated for a breach of these Terms or any of our policies, as determined by us in our reasonable discretion, you will be paid, in the ordinary course, any fees owed to you through the termination of your account

 

If you believe that your account has been erroneously or unfairly suspended or terminated, please contact us so we may further investigate. If you are still unsatisfied or feel that you have not been treated fairly, please see the section below for Resolution of Disputes.

 

GRANT OF RIGHTS AND USER CONDUCT

Grant of Rights

 

As long as you comply with these Terms and our policies, we grant you a limited, non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Platform solely for its intended purpose.

User Conduct

You agree to abide by these Terms and our policies while using the Platform and interacting with other users. Beautify is founded on respect for others, and we take this extremely seriously. You agree that you will not, either directly or indirectly:

1. Transfer your account or account information to another party without our prior written consent;

2. Create deceptive accounts or more than one (1) account without our prior written approval;

3. Post artwork, titles, tags, descriptions, or other content that is pornographic, obscene, offensive, profane, or depicts, promotes, or incites illegal activity, hate, abuse, discrimination, denigration, objectification, or violence, or otherwise violates our community standards, as determined by us in our sole discretion. 

4. Use, reproduce, copy, modify, adapt, create derivative works from, publish, print, transmit, distribute, perform, display, sell, license, rebrand, or otherwise transfer: (a) any portion of the Platform, artwork or content made available through the Platform other than your own artwork or content, without the owner’s express written permission; or (b) any Beautify copyrights or trademarks;

5. Frame, mirror, or otherwise simulate the appearance or function of the Platform or any other user’s artwork or content or forge headers, icons or otherwise manipulate identifiers in order to disguise the origin of any artwork or content transmitted through the Platform;

6. Decompile, disassemble or otherwise reverse engineer the Platform or any portion thereof, or otherwise attempt to derive the source code or other trade secrets embodied in the Platform;

7. Interfere with another user’s artwork or content;

8. Remove any copyright, trademark or other proprietary rights notices contained in or on the Platform or any artwork or content other than your own artwork or content;

9. Upload, post, email, transmit or otherwise make available any artwork or content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or other proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

10. Post artwork, content, titles, tags, or descriptions that infringe on a third party’s copyright, trademark, right of publicity, or other intellectual property rights. Please see our Copyright and Trademark Policy for further details.

11. Post artwork or content with inaccurate, deceptive, inappropriate, or offensive titles, tags, or descriptions;

12. Stalk, harass or harm another person via use of the Platform;

13. Impersonate any person or entity, including, but not limited to, our employees, representatives or users, or falsely state or otherwise misrepresent your affiliation with a person or entity;

14. Harvest or otherwise collect information about other users of the Platform, including email addresses, without their express written consent;

15. Upload, post, email, transmit or otherwise make available through the Platform any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

16. Use any robot, spider, scraper or other automated means to access the Platform for any purpose without our express written permission;

17. Distribute viruses or any other technologies that may harm us or the interests or property of our users, or upload, post, email, transmit or otherwise make available through the Platform any material that contains adware, malware, spyware, software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

18. Interfere or attempt to interfere with the proper working of the Platform or any activities conducted through them;

19. Bypass any measures we may use to prevent or restrict access to the Platform; or

20. Circumvent or manipulate our payment process.

 

RESOLUTION OF DISPUTES

Governing Law and Jurisdiction

These Terms will be 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.

Informal Resolution

It is our goal that the Platform 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, email us through our support portal to 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 Platform and these Terms or to any products or services sold or distributed by us or through the Platform, 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.

 

US Claims

For users in the United States, the arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at adr.org/consumer or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's 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 the International Centre for Dispute Resolution in accordance with its International Expedited Procedures (“ICDR Expedited Procedures”). The arbitration will be decided by a sole arbitrator appointed in accordance with the ICDR Expedited Procedures. The ICDR’s rules are available at https://www.icdr.org.

If you are from the European Union (“EU”) and purchased products, the EU Commission has created an internet platform for the online settlement of disputes. The platform serves as a contact point for out-of-court settlement of disputes concerning contractual obligations arising from online sales contracts. Further information is available at the following link: http://ec.europa.eu/consumers/odr. We are neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board.

 

Means and Fees

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. If you initiate arbitration, we will reimburse you for filing, administration and arbitrator fees for claims totaling less than USD $10,000, unless the arbitrator determines the claims are frivolous. We are not responsible for reimbursing you for costs incurred by you for legal counsel, travel or other out-of-pocket costs or expenses. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

 

Right to Opt-Out

YOU HAVE A RIGHT TO OPT-OUT OF THIS AGREEMENT TO ARBITRATE by sending an email through our support portal. Such opt-out must be given within the earlier of thirty (30) days of approving your first purchase of products or services on the Platform, your first upload of content to the Platform, or your first agreement to provide services or if we make any changes to this Agreement to Arbitrate which alter your rights, within thirty (30) 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 PLATFORM, 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 Platform, or these Terms must be filed within six (6) months after such claim or cause of action arose, or will be forever barred.

 

GENERAL TERMS

Waivers and Disclaimers

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST US WITH RESPECT TO ANY ACTIVITIES, ARTWORK, CONTENT, ACTIONS OR INACTIONS OF ANY THIRD PARTY IN CONNECTION WITH THE PLATFORM, INCLUDING WITHOUT LIMITATION, ANY ILLEGAL, DEFAMATORY, OFFENSIVE, OR UNAUTHORIZED CONDUCT BY ANY USERS.

THE PLATFORM IS PROVIDED “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO OR THAT THE PLATFORM WILL BE ERROR FREE OR THAT ALL TRANSACTIONS WILL BE COMPLETED. THE OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. TO THE EXTENT LEGALLY PERMITTED, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE PLATFORM.

 

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT AND WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF MONEY OR PROFITS, GOODWILL, DATA, ARTWORK, CONTENT OR REPUTATION, OR ANY PROPERTY DAMAGE OR PERSONAL INJURY WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST US ARISING OUT OF YOUR USE OF THE PLATFORM.

REGARDLESS OF THE PREVIOUS PARAGRAPH, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO $100.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE SCOPE AND DURATION OF OUR WARRANTIES AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.

 

Indemnification

You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from and against any and all claims, demands, liabilities, damages, losses, fines, and expenses (including but not limited to, reasonable attorneys’ fees and other professional fees and costs of investigation) arising from or in any way related to: (a) your services, artwork, content or use of the Platform, including without limitation, your sale of any services; (b) your (or anyone using your account’s) breach of these Terms or any of our policies; or (c) your violation of any law or the rights of any third party, including without limitation, any intellectual property rights or privacy rights. You may not settle any claim in any manner that binds us without our express prior written consent. We may withhold any amounts due to you pending the resolution of any claim subject to this indemnity and may apply those amounts to the resolution of that claim.

 

Modifications

We reserve the right to monitor, modify or discontinue the Platform, and to block, modify, publicly comment on, or delete any artwork, content or information submitted to the Platform by any party, at any time without notice in our sole discretion; provided, however, that we have no obligation to update, store, maintain or correct any artwork, content or information on the Platform.

We reserve the right, at any time and in our sole discretion, to change these Terms, the Copyright and Trademark Policy and the Privacy Policy, in whole or in part, by notifying you as described in the Notices provision below. You are responsible for reviewing and complying with these Terms, the Copyright and Trademark Policy and the Privacy Policy, in effect at the time you use the Platform. You acknowledge that you will be bound by the revised Terms, as of their effective date set forth therein, and your continued use of the Platform constitutes acceptance of them.

 

Notices

Except as stated otherwise, all notices required from you under these Terms must be sent through our support portal or to any other address(es) specified by us from time-to-time, in our sole discretion. Legal notices will be served on our registered agent in the State of Delaware. We will provide you with notices about changes to the Platform or these Terms, the Copyright and Trademark Policy, or the Privacy Policy by posting them on the Platform or by sending an email to the email address you provide to us with your account. Legal notices will be provided to you at your email address. Email notices will be deemed given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid.

 

California Residents

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 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

Data Transfer

By accessing or using the Platform, or submitting information, you acknowledge that you accept the practices and policies outlined in these Terms and consent to having your data transferred to and processed in the United States, in accordance with our Privacy Policy and applicable law. If you do not agree to these Terms, please do not use the Platform. We control and operate the Platform from the United States. We do not represent or warrant that the Platform, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Platform do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the availability of the Platform, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.

 

Other Jurisdictions

 

If you live in a country in which we have a local website, the terms and conditions of such local website will govern your use of the Platform and will supersede these Terms even if you are visiting or making purchase on beautifyearth.org.

 

Force Majeure

We will be excused from performance under these Terms, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond our reasonable control. 

 

Miscellaneous

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms. If any provision of these Terms is held to be invalid or unenforceable, that provision will be struck and the remaining provisions will be enforced. You may not assign or transfer your rights or obligations under these Terms. Any purported transfer or assignment in violation of the foregoing will be invalid. We may assign these Terms and our rights and obligations under them upon notice to you in accordance with the Notices provision. Headings are for reference purposes only and do not limit the scope or extent of any provision. Our failure or delay to exercise or enforce any right or provision of these Terms or any rights under applicable law will not constitute a waiver of any of those provisions or rights.

These Terms, set forth the entire understanding and agreement between you and us with respect to the subject matter these Terms.

HOW TO CONTACT US

 

If you have any questions or comments about these Terms or the Services, please contact us through our support portal.

 

LAST REVISED: 8/29/2019

 

Copyright and Trademark Policy

This Copyright and Trademark Policy is incorporated into the Terms of Service (the “Terms”). Capitalized terms not otherwise defined herein will have the meaning ascribed to them in the Terms. In the event of any inconsistency between this Copyright and Trademark Policy and the Terms, this Copyright and Trademark Policy will prevail.

IT IS YOUR RESPONSIBILITY TO MAKE SURE THAT YOU ARE UPHOLDING YOUR LEGAL RESPONSIBILITIES AND NOT VIOLATING ANYONE’S RIGHTS OR BREAKING ANY LAWS BY PUBLISHING, DISPLAYING OR DISSEMINATING ARTWORK FOR SALE THROUGH THE PLATFORM.

 

Your Content

As between you and us, you own all and retain all rights in all artwork and content that you have submitted, posted, published, displayed, or otherwise uploaded through the Platform. You hereby grant Beautify and its affiliates a worldwide, royalty-free, nonexclusive, assignable license, with right of sublicense, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your artwork and content in any format or medium now known or later developed for the purpose of promoting your artwork and content and providing the Platform and Platform related services.

YOU, AND NOT WE, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR ARTWORK AND CONTENT THAT YOU MAKE AVAILABLE THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION, THAT YOU OWN OR HAVE OBTAINED ALL REQUIRED INTELLECTUAL PROPERTY AND OTHER RIGHTS IN YOUR ARTWORK AND CONTENT, INCLUDING WITHOUT LIMITATION, THE RIGHT TO DISTRIBUTE AND SELL PRODUCTS THAT INCLUDE YOUR ARTWORK AND CONTENT.

You represent and warrant that:

1. you own all intellectual property rights in your artwork and content, or that you have obtained all copyrights, trademark rights, rights of publicity and other rights required for you to make your artwork and content available through the Platform, to distribute and sell products that include your artwork and content and to grant us the rights granted to us in the Terms;

2. your artwork and content and the distribution and sale of products that include your artwork and content do not and will not infringe the intellectual property rights or other rights of any person or entity, including without limitation any copyright, moral rights, trademark, patent, right of publicity or right of privacy;

3. you will review and comply with the Terms, the Privacy Policy, all other rules, policies and procedures that we may publish from time to time and all applicable laws, rules and regulations;

4. your artwork and content do not contain material that is false, inaccurate, misleading, incomplete, defamatory or libelous obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, abusive, inflammatory or otherwise objectionable;

5. your artwork and content are accurate, not misleading or deceptive, and do not lead to offering or disseminating fraudulent or counterfeit products.

We reserve the right to prescreen your artwork and content (but have no obligation to do so), to review and remove your artwork and content from the Platform, and to cancel the Platform we provide to you at any time in our sole discretion. If you submit artwork and content that we, in our sole discretion, believe may infringe another party’s intellectual property rights, we may immediately terminate your account, in addition to any other remedies it may have.

 

Procedure for Reporting Infringements

 

We respect the intellectual property rights of others and expect you to do the same. It is our policy, in appropriate circumstances and in our discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights, trademarks or other intellectual property rights of others.

If you believe in good faith that any artwork or content made available through the Platform infringes upon your intellectual property rights, you may submit a notice of claimed infringement to us by providing the following information in writing to our designated agent (listed below) (“Designated Agent”):

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property right that has been allegedly infringed;

2. Identification of the works claimed to have been infringed, or if this is a single notification of a copyright infringement claim covering multiple copyrighted works on the Platform, as permitted under the Digital Millennium Copyright Act, 17 U.S.C. 512 (“DMCA”), a representative list of such works on the Platform;

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

4. Information reasonably sufficient to permit us to contact the complaining party, including address, telephone number and e-mail address;

5. A statement that the complaining party has a good faith belief that the use of the artwork or content is not authorized by the copyright owner or other intellectual property rights owner, its agent, or the law; and

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

 

Beautify Earth, Inc’s Designated Agent can be contacted through our support portal.

You acknowledge that if you fail to comply with all of the above notice requirements of this Copyright and Trademark Policy, your notice may not be valid.

When a complete and proper notice is received by the Designated Agent, it is our policy to expeditiously investigate the claim and take appropriate action, as determined by us in our sole discretion. Such action may include without limitation: (a) removing or disabling access to the artwork or content identified in the notice; (b) notifying the applicable Artist that we have removed or disabled access to such artwork or content; or (c) terminating such Artist’s account.

Only notices of suspected intellectual property rights infringement should be sent to the Designated Agent. For all other requests for technical support, feedback, comments, and other communications, please contact Customer Support.

 

Procedure to Provide a Counter-Notice

 

If you, as the Artist, believe that the artwork or content that was removed or to which access was disabled or for which orders were cancelled are not infringing, or if you believe you have obtained all required rights from their owners, the owners’ agent, or pursuant to the law, you may send a counter-notice containing the following information to the Designated Agent:

1. Your physical or electronic signature;

2. Identification of the artwork or content that has been removed or to which access has been disabled and the location at which the artwork or content appeared before it was removed or access to it was disabled;

3. A statement, under penalty of perjury, that you have a good faith belief that the artwork or content was removed or disabled as a result of mistake or a misidentification of the artwork or content to be removed or disabled; and

4. Your name, address, telephone number, e-mail address and a statement that you consent to the Agreement to Arbitrate in the Terms.

 

If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing the complaining party that we may replace the removed artwork or content, cease disabling it and/or reinstate cancelled orders in ten (10) business days following receipt of the counter-notice unless the complaining party notifies the Designated Agent that it has filed an action seeking a court order to restrain the artist from engaging in infringing activity relating to the artwork or content that was the subject of the notice.