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.
2. REGISTRATION AND ACCOUNTS
From time to time, in order to use certain features of the Services, you may be required 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, which in some cases may be subject to payment of fees. 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 certain promotional services (the “Services”) and manages a platform as a promotional tool for your creative output (“Artwork”), all according to these Terms. Services shall initially include certain limited marketing assistance on the Site, and collection and allocation of Subscribers’ fees in accordance with these Terms. Services may also include fan and artist messaging services. Access will be granted to subscribers to your Artwork and other content submitted by you (the “Subscribers”) in exchange for a monthly fee payable by such subscribers (the “Subscribers’ Fee”). Some, all or part of the Artwork submitted by you may be available to the public on the site, while some, all or part of the Artwork may only be available to paying Subscribers. Content segmentation to publicly and privately (Subscribers only) available content shall be conducted by BackMyArt at its sole and complete discretion. By using the Site, you agree to display your Artwork in the manner and allocation as shall be decided solely by BacMyArt (whether publicly or to paying Subscribers).
BackMyArt, does not guarantee that Subscribers will subscribe to view/access your content. While BackMyArt does provide a platform for Subscribers to view your content, it provides no guarantee regarding the amount of Subscribers or revenue that you will generate from any subscription fees.
However, to the extent Subscribers’ Fees are collected with respect to your content on the BackMyArt Site, you will receive up to 90% (after deducting transaction costs and management fees as described below) of all such Subscribers’ Fees actually paid by Subscribers via the BackMyArt Site (the “Artist’s Share”), to you. For this purpose you will be requested to provide bank details for transfer of such funds directly from a third party on-line payment service provider. The Artist’s Share is calculated as follows: BackMyArt shall be entitled to 10% of the total Subscribers’ fees, of which 5% shall be BackMyArt’s fee and 5% shall be for transaction costs for the online payment service provider. Thereafter, you shall receive the remaining 90% of the total Subscribers’ fees but with a deduction for the amount of the wire cost involved in withdrawal of the money. For the removal of doubt, you shall bear all wire costs involved in withdrawal of money from the transaction and you shall be entitled to receive the subsequent amount after all such deductions.
You shall be entitled to withdraw amounts payable once Subscription Fees collected in connection with your Artwork have reached such amount so that after deducting management fees and transaction costs, you would receive an Artist’s Share equal to at least US $500. Once this minimum has been collected you shall be entitled to request withdrawal of your Artist’s share the following month. With respect to requests for withdrawal of Artist’s Shares, all wire transfers or payments shall be made directly from a third party on-line payment service provider working with the Site within net+30 days of Subscriber’s payments. Should you wish to close your account at the Site for any reason, you shall be entitled to receive all of the Artist’s Share to which you are entitled provided that you pay all transaction fees and costs related to the transfer of such funds to you.
3.2 SOCIAL MEDIA MARKETING. To the extent that BackMyArt decides (at its discretion) to provide certain social media services, and you provide BackMyArt access to your social media accounts (Twitter, Instagram, Facebook, etc.) for the purpose of advertising, publicizing, and handling fan communications (“Social Media Services”), you hereby fully authorize BackMyArt to manage such social media accounts for the purpose of promoting your Artwork, as it deems fit, and you waive any claims against the BackMyArt in connection with the content of its advertising material and /or posts and/or management of such Social Media Services, provided that all such activities with BackMyArt shall be in accordance with applicable law.
3.3 ADDITIONAL SERVICES. Additional Services may be provided at agreed fees subject to a separate purchase order for each additional Service. All purchase orders shall be subject to these Terms. For further information about additional Services, please contact: firstname.lastname@example.org.
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, (the “Services”), as a promotional tool for your creative output (“Artwork”) and as a platform for managing contributions and support of your Artwork, all according to these Terms. The license shall be granted until the Services are terminated in accordance with these Terms.
3.3 LICENSE TO THE ARTWORK. Without derogating from your ownership and use of the Artwork, by submitting, transmitting and/or allowing anyone on your behalf to submit or transmit any Artwork(s) to the Site and/or through the Services you undertake to ensure that you hold all rights in such Artwork (whether as owner of the copyrights or licensee thereof) prior to the upload of such Artwork to our Site and you grant BackMyArt a nonexclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license, with the right 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 submitted content and/or Artwork in any media formats for the purpose of carrying out the Services.
3.4 NO PROHIBITED USE. Nothing contained herein shall be construed as limiting your use and/or creation of your Artwork, which is fully at your discretion, provided that all Artwork provided to BackMyArt as content for display on BackMyArt’s Site shall comply 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”).
3.5 USER’S MINIMUM CONTENT OBLIGATIONS. User must provide, at a minimum, the following content for upload to the Site: One ID Video, explaining the User’s process of developing the Artwork, and at least 3 pieces of original Artwork. Thereafter BackMyArt recommends that you provide at least 3 pieces of original Artwork at least every 2 months. In the event that you fail to provide a reasonable amount of content, as shall be determined by BackMyArt, BackMyArt may terminate the Services and remove your content from the Site.
3.6 NO OBLIGATIONS TO POST ARTWORK. BackMyArt will not use your Artwork if it falls into any of the above Prohibited Categories, nor will it use your Artwork in any manner outside of the scope of the Services without your permission. You shall have sole responsibility and liability for your submitted Artwork. BackMyArt shall not be liable for any and all parts of the Artwork and shall be entitled, under its sole discretion, to remove any of the submitted Artwork which BackMyArt believes to be inaccurate, inappropriate or otherwise not in compliance with the Terms. NOTHING IN THESE TERMS OBLIGATES BACKMYART TO DISPLAY YOUR SUBMITTED ARTWORK OR TO USE IT AT ALL OR IN A CERTAIN MANNER. THE DISPLAY OF ANY OR ALL OF YOUR ARTWORK AND SUBMITTED CONTENT IS PER THE UNILATERAL DISCRETION OF BACKMYART.
4. WARRANTIES AND REPRESENTATIONS
You represent and warrant to BackMyArt that: (a) you have, and will have at all times, all right, title and interest necessary to grant to BackMyArt any and all licenses hereunder for the purposes contemplated by these Terms; (b) you have all necessary rights, permits and licenses under all applicable laws, rules and regulations to promote your Artwork, and when and if relevant, to offer for sale, sell, and ship all products or merchandise related to your Artwork; (c) you are solely responsible for taxes associated with any Subscriber Fees received by you in connection with your Artwork; (d) your Artwork and any other content that you submit to BackMyArt’s Site will comply with all applicable laws, rules and regulations, the Terms and will not infringe the rights of any third party, including any intellectual property rights.
5. OWNERSHIP OF PROPRIETARY RIGHTS
5.1 “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 and/or your Subscribers may provide to BackMyArt in connection with your Artwork, the Services and/or the Site.
5.2 “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.
5.3 OWNERSHIP OF ARTWORK AND RELATED FEEDBACK. Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of all Intellectual Property Rights that you hold in the Artwork and any other content provided by you. In short, what belongs to you stays yours. Further, all of the Intellectual Property Rights in and to the Feedback provided by Subscribers, when in connection with your Artwork, are your property and you retain all right, title and interest in connection therewith.
5.4 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
5.5 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.
6. LIMITATIONS ON USE
You undertake to use the Site solely for display of your Artwork, to which you have all rights and/or licenses to upload to the Site. 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.
7. MESSAGES AND TRANSMISSIONS
You hereby acknowledge and confirm that you, solely, are responsible to edit any and all messages, before such messages are sent to Subscribers by and/or through the Site (“Your Messages”).
You hereby acknowledge that BackMyArt simply plays a technical role in transmitting or routing Your Messages as a mere conduit, and that you shall have sole responsibility and liability for any of Your Messages, and you shall defend, hold harmless and indemnify BackMyArt and its affiliates from and against any damages which may result from Your Messages, and/or their lack of compliance with any applicable law.
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.
10. 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, SUBCONTRACTS 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 (EXCLUDIGN ANY PORTION OF THE SUBSCRIBERS’ FEES TRANSFERRED TO YOU IN ACCORDANCE WITH THESE TERMS) ACTUALLY RECEIVED BY BACKMYART FROM YOU OR YOUR SUBSCRIBERS 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; (iii) any third party infringement claim or breach of copyright in respect of the Artwork or any other content submitted to BackMyArt and/or your use of the Services.
12. 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: 5, 8, 9, 10, 11, 13, 14 and 15.
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.
BackMyArt may withhold taxes at source if required under applicable law, and shall transfer the balance of the Artist’s Share payable to you after such withholding tax is deducted. All taxes in connection with your receipt of any amounts in connection with the Services and/or Site, pursuant to these Terms, shall be borne solely by you.
(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: http://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 business or 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. Unless stated otherwise in a written agreement between you and BackMyArt, BackMyArt may at its discretion, at any time after expiration or termination of these Terms, charge license fees for the Services (the “Fees“), under any payment conditions as it deems fit. By continuing to use the Site, including without limitation the Services, after being notified of such modifications, you agree to be bound by such modifications. 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