1. ACCEPTANCE OF TERMS
By accessing and using the Site and using the Services, you represent and warrant that you are over 18 years of age.
Please be are aware that the Services have been launched in the framework of a pilot project which is expected to run for a period of 6 months, after completion of the pilot, the Site may decide to: (i) continue to provide the Services under these Terms; or (ii) discontinue the Services. In the event that the Site elects to discontinue the Services after the pilot, the Site will clearly place a notification on the Site and you will not be charged (if you subscribed to any subscription Services) for any additional Services after termination of the pilot.
2. REGISTRATION AND ACCOUNTS
From time to time, in order to use certain features of the Services, you may be required to register for an account with us (“Account”) and provide certain information about yourself as prompted. You represent and warrant that all required registration information you submit is truthful and accurate, and that you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. We cannot and will not be liable for any loss or damage arising from unauthorized access to your Account or your failure to comply with the above requirements. Users may also connect, through the Services, to social media accounts such as Facebook, Twitter, and Instagram. In doing so, you are subject to the terms and policies of these third party services, in addition to these Terms.
3. LIMITED LICENSE TO ACCESS THE SITE AND SERVICES
3.1 THE SERVICES. BackMyArt provides a platform for and services to assist artists to display their artwork and other related content (the “Artwork”) aimed at enabling you and other supporters of the artists to have access to certain artists’ content not otherwise available to the public, all according to these Terms (the “Services”). Services available for users shall include subscription access to certain artists’ Artwork, in exchange for a monthly fee payable by such users (the “Subscribers’ Fee”), and access to free content, as may be publicly displayed by the Site. Services may also include fan and artist messaging services.
As mentioned above, BackMyArt, among other things, provides a platform for Subscribers to view artists’ Artwork, that is not otherwise publicly available. For this purpose you will be requested to make payment via a third party on-line payment service provider in order to have access to certain non-public content. You shall be entitled to choose to which artists you want to subscribe. For each subscription to an artist’s work (each a “Subscription Channel”), you will be required to pay at least US $5 per artist’s Subscription Channel. You may elect to pay more than US $5 per Subscription Channel, should you wish to provide additional financial support to any chosen artist, since your funds will be used to support the artist’s work, as detailed below, with approximately 90% of all Subscriber’s Fees going to the artist.
In order to subscribe to a Subscription Channel, you will be requested to provide payment information to a third party on-line payment service provider for charging and processing your monthly payments. Subscribers’ Fees are nonrefundable and may only be cancelled by Subscriber for the subsequent month.
BackMyArt will transfer [up to] 90% (after deducting transaction costs and management fees as described below) of all such Subscribers’ Fees actually received by BackMyArt (the “Artist’s Share”), to the applicable artist. [BackMyArt shall be entitled to management fees (including payment transaction fees) equal to 10% of the total Subscribers’ Fees.]
[Please be informed that the Artist’s Share is calculated as follows: If the transaction costs (credit card fees and bank transfer fees) are equal to 5% or more of the Subscribers’ Fees BackMyArt shall be entitled to management fees equal to 5% of the Subscribers’ Fee. However if the transaction costs are less than 5% of the Subscribers’ Fees, BackMyArt shall be entitled to such percentage so that the management fees plus the transaction costs equal 10% of the total Subscribers’ fees. Such amounts shall be calculated on a monthly basis, so that BackMyArt receives a minimum of at least 5% of the amounts collected for artists each month.]
3.2 LICENSE TO THE SERVICES. Subject to the terms and conditions set forth herein, BackMyArt hereby grants to you, and you accept, a personal, nonexclusive, non-transferable, non-sublicensable, revocable, limited license to access and make use of the BackMyArt proprietary Services according to these Terms.
3.3 LICENSE TO THE ARTWORK. The Artwork presented in any way through the Site or through the Services provided by BackMyArt, including through any Subscription Channel, shall remain under the sole ownership of the applicable artists. Nothing in the use of the BackMyArt Site and/or Services by you shall be interpreted to grant you with any rights to any artist’s content or Artwork or any license or rights thereto. For removal of doubt, you are not permitted to sub license, to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, and otherwise use and commercially exploit any BackMyArt Site content and/or artist’s Artwork in any media formats, unless you have been separately and explicitly granted in writing all the rights to use such content and/or Artwork by the owner thereof, in accordance with all applicable copyright laws.
3.4 NO PROHIBITED USE. You use shall only use the Site and Services in compliance with all applicable laws, shall not include pornography, nor any material that could reasonably be deemed to be slanderous, overly violent, or discriminatory (the “Prohibited Categories”). You are strictly prohibited from sending, uploading, or messaging any material constituting any of the Prohibited Categories via the BackMyArt Site, platform or any messaging service provided by the Site.
4. OWNERSHIP OF PROPRIETARY RIGHTS
4.1 “Feedback” means any opinions, product or service ratings or reviews, articles, written expressions, in any form or media, and/or any works of authorship that you may provide to BackMyArt in connection with the Artwork, the Services and/or the Site.
4.2 “Intellectual Property Rights” means worldwide (a) rights associated with works of authorship, designs and photography including copyrights; (b) trademarks, service marks, logos, trade names, trade dress and goodwill rights whether or not registered; (c) patents, patent applications and industrial designs; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
4.3 OWNERSHIP OF ARTWORK AND RELATED FEEDBACK. Some of our Services allow the artist to upload, submit, store, send or receive content. The artist retains ownership of all Intellectual Property Rights that they hold in the Artwork and any other content provided by them. In short, what belongs to the artist stays theirs. Further, all of the Intellectual Property Rights in and to the Feeback provided by you, when in connection with the artist’s Artwork, are that artist’s property and they retain all right, title and interest in connection therewith.
4.4 OWNERSHP OF SITE AND SERVICES RELATED FEEDBACK. All the Intellectual Property Rights in and to the Feedback of Subscribers, when in connection with the Site and/or the Services, are the property of BackMyArt and we retain all right, title and interest in connection therewith.
4.5 BACKMYART IP. All the Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Site, including without limitation the Services, including without derogation any underlying software, platforms, algorithms, technology, Site design, any information, services, texts, files, BackMyArt applications, advertising campaigns, organization, structure, specifications, navigation, features and related content that may be created in connection with the use of or registration to the Site and/or other proprietary materials (“Materials”) are the property of BackMyArt which retains all right, title and interest in connection therewith.
No transfer or grant of any rights is made or is to be implied by any provision of these Terms or by any other provision contained in the Site with respect to the Materials or otherwise.
5. LIMITATIONS ON USE
You undertake to use the Site solely for viewing Artwork, messaging artists (when and if permitted in a positive and contributory manner), and accessing Subscription Channels subject to the payment of applicable Subscribers’ Fees. Except as specifically permitted herein, you agree not to (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share any of your rights under these Terms with/to anyone else; (ii) transfer, distribute, copy all or any part of the Site and/or the Materials; (iii) refer to the Site by use of framing and/or deep-linking; (iv) make use of the Site or distribute any part thereof in any jurisdiction where same are illegal or which would subject BackMyArt or its affiliates to any registration requirement within such jurisdiction or country; (v) use, or encourage, promote, facilitate or instruct others to use, the Site for any illegal, harmful or offensive use; (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law, or that may be perceived as unlawful, inflammatory, offensive, or otherwise inconsistent with the spirit of BackMyArt and/or its affiliates’ services; (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files; (viii) visit the Site through unauthorized means, including without limitation any data mining, robots, or similar data gathering and extraction tools to extract for re-utilization of any parts of this Site; (ix) distribute, publish, send, or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements; (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes Intellectual Property Rights of third parties or their right for privacy; (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Services and/or any other software available on the Site or create derivative works thereof; (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Site; (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Services; (xiv) use the Site and/or Services in a manner that may subject any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge.
6. MESSAGES AND TRANSMISSIONS
The artists are solely responsible for any and all messages that are sent to Subscribers by and/or through the Site (“Messages”). BackMyArt simply plays a technical role in transmitting or routing the Messages as a mere conduit, and the artist shall have sole responsibility and liability for any of the Messages. You shall be solely liable for the content of any Messages you send and BackMyArt can terminate any messaging service as it deems fit at any time should you use the Services and/or Site improperly.
THE SITE, INCLUDING WITHOUT LIMITATION MATERIALS, SERVICES (INCLUDING WITHOUT LIMITATION INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES) AND CONTENT ARE PROVIDED “AS IS” AND EXCEPT AS EXPLICITLY SET FORTH HEREIN, WITHOUT ADDITIONAL WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BACKMYART DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
BACKMYART DOES NOT WARRANT THAT THE MATERIALS, SERVICES AND CONTENT AVAILABLE IN THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THIS SITE OR THE SERVER(S) THAT MAKES THIS SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL BACKMYART AND ITS AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS AND SUPPLIERS BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE FOR ANY DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL INCLUDING BUT NOT DEROGATING ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERUPTION, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE SITE, OR RELIANCE ON ANY OF THE SITE OR SERVICES. WITHOUT DEROGATING FROM THE FOREGOING, IN THE EVENT THAT BACKMYART WILL BE FOUND LIABLE OR RESPONSIBLE FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH THESE TERMS AND OR THE SERVICES, BACKMYART’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE AMOUNT OF THE FEES ACTUALLY RECEIVED BY BACKMYART FROM THE SUBSCRIBER DURING THE TWELVE (12) MONTHS PERIOD THAT PRECEDED THE EVENT THAT GAVE RISE TO SUCH LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE MATERIAL BARGAINED FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY YOU TO ENTER INTO THESE TERMS.
You agree to defend, indemnify and hold BackMyArt and anyone on its behalf, including but not limited to, all of its owners, managers, officers, affiliates and employees, harmless against any losses, expenses, costs, claims, damages (including reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to: (i) your breach of the terms of these Terms; (ii) any misrepresentation made by you to any third party.
11. THIRD PARTY’S CONTENT
Some of the content and materials available through the Site (e.g. reviews) may be provided by third parties. No reference made in this Site to any specific commercial product, process, or service (or provider of such product, process or service) other than such products, processes, or services of BackMyArt, constitute or imply an endorsement, recommendation or favoring by BackMyArt.
Any opinions, advice, statements, content, services, offers or other information expressed or made available by such third parties, are those of the respective author(s) or distributor(s) and do not necessarily state or reflect those of BackMyArt and BackMyArt does not endorse, promote, solicit or recommend them in any way. BackMyArt makes no warranties or representations as to, and shall have no liability for, any third party content.
We may terminate these Terms and/or suspend your right to access or use any portion or all of the Site and/or Services immediately upon written notice, in the event that BackMyArt has reasonable basis to suspect that you violated or intends to violate any term of these Terms. You may terminate these Terms upon thirty (30) days prior written notice, in the event that BackMyArt violates these Terms and fails to cure such breach within the notice period. Upon termination, all licenses granted to you shall automatically expire, you shall immediately cease using the Site, pay BackMyArt any and all applicable fees and payments due as of termination. The following Sections shall survive termination or expiration of the Terms: 4, 7, 8, 9, 10, 12 and 13.
Without derogating from any other right and remedy provided under law and/or these Terms, BackMyArt reserves the right to limit or revoke your license and access to and/or use of this Site and/or the Services, at any time, in the event of violation of these Terms by you. If your license to use the Services expires or is terminated BackMyArt may, without notice, delete or deny you access to the Site.
(i) These Terms shall be governed by and construed in accordance with the laws of the State of Israel without regard to the principles of conflict of law therein. The parties consent to the exclusive jurisdiction of the competent courts in Tel Aviv, Israel. The application of the United Nations Convention of Contracts for the International Sale of Goods or other international laws is expressly excluded; (ii) if any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of these Terms and shall not cause the invalidity or unenforceability of the remainder of these Terms; (iii) You acknowledge and agree that BackMyArt has the right, at any time and for any reason, to redesign or modify the Site or Services or any part thereof; (iv) this is the entire agreement between you and BackMyArt regarding the subject matter herein and these Terms shall not be modified except by a written instrument executed by both parties. In the event of a material change in regulation or legislation, we may unilaterally change or add to the terms of these Terms at any time. In the event of such change, We shall notify you via email or by means of a prominent notice on our Site. You should check our Site periodically at the following URL: https://backmyart.com/ to review such changes in the Terms. If BackMyArt will unilaterally change a material provision of these Terms in a manner that has a detrimental effect on your use of the Services you will be entitled to decide to stop using the Services and terminate these Terms by written notice to BackMyArt within seven (7) days of BackMyArt’s written notice of such change, your license shall be automatically terminated with immediate effect and you will be entitled to a pro-rated refund of any Fees paid in advance for the post termination term. If you are not comfortable with all of the provisions of these Terms, please do not use the Site or Services. You are not entitled to assign or otherwise transfer the Terms, or any of your rights or obligations hereunder, to any third party without the prior written consent of BackMyArt. Any unauthorized assignment by you will be void and of no force or effect; (vi) the failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches; (vii) all waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion; (ix) YOU AND BACKMYART AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Last updated: February 2019