Effective October 9, 2017
In these terms, we refer to those raising funds as "Artists" and to their fundraising projects as "projects." We refer to those contributing funds as "fans" and to the funds they contribute as "contributions." Artists, fans and other visitors to the services are referred to collectively as "users."
ArtistShare Is A Venue
ArtistShare is an online fan funding venue for people and entities seeking to raise funds for their own projects and to contribute to the projects of others. Artists can offer gifts or Participant Offers in the form of tangible items or intangible services (collectively, "Participant Offers") to fans. Participant Offers are not offered for sale. ArtistShare makes no representations about the quality, safety, morality or legality of any Project, participant offer or contribution or the truth or accuracy of user content (as defined below) posted on the services. ArtistShare does not represent that Artists will deliver Participant Offers or that contributions will be used as described in the project. Users use the services at their own risk.
Eligibility To Use The Services
Users under 18 years of age are not eligible to use the services without consent. Users between the ages of 13 and 17, can use the services with the consent and supervision of a parent or legal guardian who is at least 18 years old, provided such parent or legal guardian also agrees to be bound by the terms and agrees to be responsible for such use of the services. Users suspended from using the services are not eligible to use the services. ArtistShare reserves the right to refuse use of the services to anyone and to reject, cancel, interrupt, remove or suspend any project, contribution, or the services at any time for any reason without liability.
Artists are not permitted to create a Project to raise funds for illegal activities, to cause harm to people or property, or to scam others. If the Project is claiming to do the impossible or it's just plain phony, don't post it. Users must comply with all applicable laws and regulations in connection with their Projects, including offering Participant Offers and using contributions. Artists shall not make any false or misleading statements in connection with their Projects.
Prohibited Participant Offers
Artists are not permitted to offer or provide any of the following as a participant offer:
- any form of "security" (as such term is defined in the Securities Act of 1933);
- any form of financial incentive or participation in any profit sharing;
- any alcoholic consumer products (vouchers or memberships offering physical delivery of alcoholic consumer products are permitted);
- any controlled substance or drug paraphernalia;
- any weapons, ammunition and related accessories;
- any form of lottery or gambling;
- any form of air transportation; or
- any items promoting hate, discrimination, personal injury, death, damage, or destruction to property; or any items (a) prohibited by applicable law to possess or distribute, (b) that would violate applicable law if distributed, or (c) that would result in infringement or violation of another person's rights if distributed.
ArtistShare is not a place for hatred, abuse, discrimination, disrespect, profanity, meanness, harassment, or spam.
- use the services to promote violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity;
- post images or videos that are sexually explicit or post links to sites that contain sexually explicit material or show people or animals being hurt or degraded;
- spam the comments sections or other Users with offers of goods and services or inappropriate messages;
- engage in any activity that interferes with or disrupts the proper working of the services or any activities conducted on the services; or
- take any action that imposes, in ArtistShare’s sole discretion, an unreasonable load on ArtistShare's infrastructure.
ArtistShare reserves the right to remove Projects and terminate User Accounts for such activities.
ArtistShare reserves the right to cancel any contribution to any project, at any time and for any reasonable cause. We have the right to reject, interrupt, remove, or suspend any project at any time and for any reason. ArtistShare is not liable for any damages as a result of any of these actions, and it is our policy not to comment on the reasons for any such action.
Disputes Between Artists And Fans
Artists are legally bound to perform on any promise and/or commitment to fans (including delivering any Participant Offers). If an Artists is unable to perform on any promise and/or commitment to fans, the Artists will work with the fans to reach a mutually satisfactory resolution, which may include the issuance of a refund of contributions by the Artists. ArtistShare is under no obligation to become involved in disputes between Artists and fans, or Users and any third party. In the event of any dispute, such as an Artists' alleged failure to comply with the terms or alleged failure in fulfillment of a participant offer, we may provide the Artists' contact information to the Fan so that the two parties may resolve their dispute.
All information submitted in connection with a user account on the services (each, a "User Account") must be accurate and truthful. Users agree to notify ArtistShare immediately if their User Account has been used without authorization or there has been any other breach of security of the User Account. Each User also agrees to provide additional information ArtistShare may reasonably request and to answer truthfully and completely any questions ArtistShare might ask you in order to verify such User's identity. ArtistShare can cancel accounts or decline to offer our Services at any time. ArtistShare can change eligibility criteria at any time.
License To Users
ArtistShare grants each user a limited, non-exclusive, non-transferable, revocable license to use the services subject to such User's eligibility and continued compliance with the terms.
Artists are permitted to offer Participant Offers to fans. Artists are legally bound to perform on any promise and/or commitment to fans (including delivering any Participant Offers). Artists will respond promptly and truthfully to all questions posed to them by ArtistShare or any Fan. If any Artists is unable to fulfill any of its commitments to fans (including delivering any Participant Offers), the Artists will work with the fans to reach a mutually satisfactory resolution, which may include refunding their contributions. Artists will comply with all applicable laws and regulations in the use of contributions and delivery of Participant Offers. Artists are responsible for collecting and remitting any taxes on contributions, and any taxes due in connection with Participant Offers. ArtistShare may attempt to verify the identity and other information provided to us by Artists, and we may delay, withhold, reverse or refund any contributions or other amounts without notice or liability in the event we are unable to verify any such information to our satisfaction.
Fans are solely responsible for asking questions and investigating Artists and projects to the extent they feel is necessary before making a contribution. All contributions are made voluntarily and at the sole discretion and risk of the Fan. ArtistShare does not guarantee that contributions will be used as promised, that Artists will deliver Participant Offers, or that the Project will achieve its goals. ArtistShare does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality or legality of any project, participant offer or contribution, or the truth or accuracy of user content posted on the services. Fans are solely responsible for determining how to treat theircontributions and receipt of any Participant Offers for tax purposes. If a contribution is returned to a Fan, the associated Participant Offers, if any, shall be canceled.
Contributions, including the service fees portion thereof, are refundable for up to 30 days after purchase. If an Artists is unable to perform on any promise and/or commitment to fans (including delivering any Participant Offers), the Artists will work with the fans to reach a mutually satisfactory resolution, which may include the issuance of a refund of contributions by the Artists.
Many artists need access to funds prior to completing their projects. For this reason, fans have the option of marking their contribution as "Unconditional Support" either during the checkout process or at a later date in their purchased offers listing. Once a fan has marked a purchase as "Unconditional Support", ArtistShare has the consent of the fan to distribute the funds to the artist at any time. Once a purchase is marked as "Unconditional Support" there will be no possibility of a refund to the fan from ArtistShare, even if the project does not materialize. By choosing "Unconditional Support" the fan fully acknowledges and agrees that they are waiving their option for a refund from ArtistShare for any reason. This is 100% optional for the fan but is the perfect solution for those who want to support the artist unconditionally.
Taxing authorities may classify funds raised on the services as taxable income to the Artists and any beneficiary who will receive funds directly from the applicable project. ArtistShare will ask for the tax identification number (TIN) of Artists and any beneficiaries so that we may report taxable income to the relevant taxing authorities. ArtistShare will provide Artists with a tax document if required by the relevant taxing authorities.
While using the services, Users may post photos, videos, text, graphics, logos artwork and other audio or visual materials (collectively, "User Content"). Users grant ArtistShare a perpetual, non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, publicly display, publicly perform, store, reproduce, modify, create derivative works, and distribute user content of any user on or in connection with the services and our related marketing and promotional activities. As between users and ArtistShare, Users continue to hold all ownership interest in their user content. Each User represents and warrants that its user content and our use of such user content will not infringe any third party's intellectual property rights, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these terms or applicable law.
Artists may not offer any contest, competition, giveaway, sweepstakes or similar activity (each, a "Promotion") on the services without ArtistShare's prior written permission (which may be granted or withheld by ArtistShare in its sole and absolute discretion). Artists may request permission from ArtistShare by sending an email to support@ArtistShare.com. Subject to and upon any such permission, each Artists offering any promotion further acknowledges and agrees that: (a) such Artists shall be solely responsible for all facets of each such promotion; (b) such promotion does not require any contribution or other payment of any amount as the sole method of entry into such promotion; and (c) the official rules for such promotion shall include clear and conspicuous language to the effect that: (i) ArtistShare does not sponsor, endorse or administer the promotion; (ii) each participant or entrant in the promotion releases ArtistShare from any and all liability; and (iii) all questions concerning the promotion must be directed to the Artists and not to ArtistShare.
Third-Party Websites, Advertisers Or Services
If an Artists' project is based in the United States and raises over $100,000 in U.S. dollars through credit card transactions, such an Artists is a "sub-merchant" under our merchant services agreement with Vantiv LLC, and hereby agrees to the terms of Vantiv's merchant services agreement for sub-merchants. Artists that accept PayPal and fans that use PayPal in connection with a project acknowledge and agree to comply with PayPal’s crowdfunding and acceptable use policies. In all cases, standard credit card or other third party processing Fees apply in addition to any Service Fees. We are not responsible for the performance of any third party credit card processing or third party payment services.
Each User agrees to defend, indemnify and hold harmless ArtistShare, its subsidiaries and affiliated companies, and their officers, directors, employees, contractors and agents from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys' fees and costs) and all amounts paid in settlement arising from or relating to use of the services, breach of these terms or violation of any laws. ArtistShare may assume the exclusive defense and control of any matter for which users have agreed to indemnify ArtistShare and each user agrees to assist and cooperate with ArtistShare in the defense or settlement of any such matters.
ArtistShare has no fiduciary duty to any user. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. USE OF THE SERVICES IS AT USER'S OWN RISK.
Waiver And Release
For users in a jurisdiction that requires a specific statement regarding waiver and release then the following applies. For example, New York residents must, as a condition of this agreement, waive the applicability of New York Civil Code Section 1542 for unknown claims which states: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Each User hereby waives this section of the New York Civil Code and any similar provision in law, regulation or code that has the same effect or intent as the foregoing release.
Limitation Of Liability
ArtistShare (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS OR LICENSORS) IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR, IN ANY EVENT, FOR DAMAGES EXCEEDING THE LESSER OF ONE HUNDRED U.S. DOLLARS ($100.00) OR THE FEES PAID TO ArtistShare FOR THE TRANSACTION FROM WHICH THE CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ArtistShare HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
For jurisdictions that do not allow ArtistShare to limit its liability: Notwithstanding any provision of the terms, for users in a jurisdiction that has provisions specific to waiver or liability that conflict with the foregoing, then ArtistShare's liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, ArtistShare does not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation or intentional misconduct; or (c) any liability which it is not lawful to exclude either now or in the future.
The terms, and any rights and licenses granted hereunder, may not be transferred or assigned by any user, but may be assigned by ArtistShare without restriction or consent.
Termination may result in the forfeiture and destruction of all information associated with any user's account. Users may terminate their account by following the instructions on the services, but ArtistShare may retain the user account information after termination in accordance with regulatory, accounting, and legal compliance procedures. All provisions of the terms, that by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Users agree that: (a) the services shall be deemed solely based in New York (the principal place of business and corporate headquarters of ArtistShare); and (b) the services shall be deemed a passive one that does not give rise to personal jurisdiction over ArtistShare, either specific or general, in jurisdictions other than New York. This agreement shall be governed by the laws of the state of New York, without respect to its conflict of laws principles.
Each user agrees that any and all disputes or claims that have arisen or may arise between such user and ArtistShare relating in any way to or arising out of this or previous versions of the terms or your use of or access to the services shall be resolved exclusively through final and binding arbitration, rather than in court, except that such user may assert claims in small claims court, if such user claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of the terms as a court would. To begin an arbitration proceeding, a user must send a letter requesting arbitration and describing the claim to our registered agent, Corporation Service Company, 2710 Gateway Oaks Drive, Suite 150N, New York, New York 95833-3502. 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 www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. ArtistShare will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. A user may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where such user lives or at another mutually agreed location. Users agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, such user waive any right to a jury trial. User and ArtistShare also both agree that either may bring suit in court to enjoin infringement or other misuse of intellectual property rights. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in a court of competent jurisdiction located in the city and county of New York, New York. Subject to the arbitration provisions set forth above, the successful party in any dispute will be entitled to receive from the unsuccessful party all of its reasonable attorneys’ fees, cost, and disbursements.
Artists and other users should be aware that many states impose charitable fund solicitation laws to guide direct or indirect fund solicitation activities in those states. While provisions vary state to state, these state laws typically include registration and reporting requirements. ArtistShare merely provides a technology platform to allow Artists to connect with fans. Users who access or use the services do so at their own volition and are entirely responsible for compliance with applicable law.
ArtistShare makes no representations, warranties or other assertions as to the potential tax deductible status of any contribution by a fan to a charitable cause or to a project whose purported recipient is a recognized 501(c)(3) or other tax -advantaged organization under the Internal Revenue Code. The listing of an organization via the services does not necessarily mean that the organization has been deemed— or remains currently deemed—a charitable or tax-advantaged organization by the Internal Revenue Service.
In the event of a conflict between these the English language version of the terms and any foreign language translation versions thereof, the English language version of the terms shall govern and control. All disputes, claims and causes of action (and related proceedings) will be communicated in English. Unless otherwise explicitly stated, all materials found on the services are solely directed to individuals, companies, or other entities located in the U.S.
Users agree to comply with all laws, restrictions and regulations relating to the export of products and information. For purposes of the U.S. Export Administration Act ("Export Laws"), each user states that such User is: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control ("OFAC") comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving such products and information. Funds may be frozen and/or turned over to the applicable governmental enforcement agency if a Project is deemed to be in violation of Export Laws.
Cooperation With Authorities And Police Enforcement
We will cooperate with law enforcement authorities as required by law. We will cooperate with law enforcement agencies in any investigation of alleged illegal activity regarding the use of the services when requested.
Users agree ArtistShare may provide notifications to such user via email, written or hard copy notice, or through conspicuous posting of such notice on our website. Users may opt out of certain means of notification or to receive certain notifications.
Unsolicited Idea Submissions
Consistent with our culture of open innovation, we are always pleased to hear from our user community and welcome comments or suggestions to improve the services. However, to avoid future misunderstandings when new products, services and features developed internally by ArtistShare might be similar or even identical to a submission received by ArtistShare, the following policy applies to all third party user submissions to ArtistShare of ideas, comments, suggestions, proposals or materials: (a) all submissions shall be considered non-confidential and non-proprietary; (b) ArtistShare will have no obligation concerning the submission, contractual or otherwise (including, without limitation, confidentiality); (c) ArtistShare will not be liable for any use or disclosure of any submission; and (d) ArtistShare shall be entitled to unrestricted use of the submission for any purpose whatsoever, commercial or otherwise, without compensation to the third party submitting User.
These terms are the entire agreement between each user and ArtistShare regarding its subject matter. If any provision of these terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this agreement, which shall remain in full force and effect. ArtistShare's failure to assert any right or provision under this agreement shall not constitute a waiver of such right or provision.
Changes To Terms
ArtistShare may alter the terms at any time, so please review them frequently. If a material change is made, ArtistShare may notify users in the services, by email, by means of a notice on the services, or other places we think appropriate. A "material change" will be determined at ArtistShare's sole discretion, in good faith, and using common sense and reasonable judgment.
If any User believes that its copyrighted work has been copied in a way that constitutes copyright infringement under the Digital Millennium Copyright Act of 1998 (the "DMCA") or that any user content infringes such User's intellectual property rights and is accessible the services, please notify ArtistShare's Legal Department at copyright@ArtistShare.com. "Infringement" means the unauthorized or not permitted use of copyrighted material or other intellectual property rights. For such complaint to be valid, the user (the "Complainant") must provide the following information in writing (the "Notice of Infringement"):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
- 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 ArtistShare to locate the material.
- information reasonably sufficient to permit ArtistShare to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted.
- a statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law.
- a statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted to the ArtistShare DMCA agent ("the DMCA Agent") by mail and email to the following addresses:
ArtistShare, Attention: DMCA agent 12 W 87th st 4C New York,NY 10024 Email: copyright@ArtistShare.com
If any user (the "Respondent") believes that its material has been removed or disabled by mistake or misidentification, such Respondent may file a written counter-notice (the "Counter Notice") with the DMCA Agent, including the following information within five business days from receipt of the Notice of Infringement:
- a physical or electronic signature of the respondent;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement made under penalty of perjury that the respondent has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- the name, address, and telephone number of the respondent, and a statement that the respondent consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the respondent's address is outside of the United States, for any judicial district in which the service provider may be found, and that the respondent will accept service of process from thecomplainant or an agent of the complainant.
Upon receipt of the Counter-Notice by the DMCA Agent, a copy of the Counter-Notice may be sent to the complainant informing the complainant that ArtistShare, at its discretion, may replace the removed material or cease disabling it in not less than ten, nor more than 14, business days following receipt of the Counter-Notice, unless the DMCA Agent receives written notice from the complainant that the complainant has filed an action seeking a court order to restrain the respondent from engaging in infringing activity relating to the unauthorized use of the material on the service.
ArtistShare WILL TAKE NO ACTION UPON ANY FAILURE TO PROVIDE THE INFORMATION OR OTHERWISE FOLLOW THE PROCESS OUTLINED ABOVE.
In accordance with the DMCA and other applicable laws, ArtistShare has adopted a policy of terminating, in appropriate circumstances and at ArtistShare's sole discretion, repeat infringers.
ArtistShare, Inc 12 W 87th st 4C New York, NY 10024 legal@ArtistShare.com Attention: Legal Department