New Terms as of November 9, 2016
1. DESCRIPTION OF SERVICE
ExchangeWorks, LLC (“ExchangeWorks”) provides a service to initiate the informal exchange of art and resources between artists and the public, on a noncommercial basis. Qualified artists may post artwork and other individuals or businesses may post resources available for exchange off the site (“Exchanges”). ExchangeWorks also provides the EW Art + Public service which connects artists (“Hosts”) who have a unique studio practice and knowledge with the public (“Guests”) seeking to visit the artist for a studio visit, class, equipment rental, demonstration or other art experience. Hosts may create “Offers” for guests to book via ExchangeWorks – for free or a fee. ExchangeWorks also provides mechanism for artists to offer for sale via the “Purchase” option items of art posted by artist on the Site (defined below); and for the public to purchase such items of art. ExchangeWorks is not a party to the actual transactions between the buyers and the sellers, has no control over individual transactions, and does not guarantee that a seller will complete any transaction. If a transaction is denied by the artist seller, ExchangeWorks will refund the 20% ExchangeWorks commission to the buyer. Refunds will be issued by ExchangeWorks within 72 hours, to the original payment method.
2. BINDING EFFECT
4. USE LICENSE
Permission is granted to set up an ExchangeWorks account and interact with other ExchangeWorks participants. Your use of the service is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the service. You are solely responsible for any contracts you have made with third parties, unrelated to this service, including, but not limited to, any restriction in a residential or commercial lease. This is the grant of a license, not a transfer of title, and under this license you may not: modify or copy the materials; use the materials for any commercial purpose, or for any public display (commercial or non-commercial); attempt to decompile or reverse engineer any software contained on ExchangeWorks Website; remove any copyright or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server. This license shall automatically terminate if you violate any of these restrictions and may be terminated by ExchangeWorks at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
5. PLATFORM NATURE OF THE SERVICES
ExchangeWorks makes available a platform for Artists and the Public to meet online and arrange for an informal exchange of art and resources (“Exchanges”), or for specific Offers that Guests can book with Hosts through EW Art + Public. ExchangeWorks’ responsibilities are limited to: (i) facilitating the availability of the Services, and (ii) serving as the limited agent of each Host for the purpose of accepting payments from Guests on behalf of the Host for EW Art + Public.
YOU UNDERSTAND AND AGREE THAT EXCHANGEWORKS IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN ARTISTS AND THE PUBLIC OR BETWEEN HOSTS AND GUESTS, NOR IS EXCHANGEWORKS AN AGENT OR INSURER. THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE CONNECTIONS BETWEEN ARTIST AND THE PUBLIC FOR EXCHANGES, AND BETWEEN HOSTS AND GUESTS FOR SPECIFIC OFFERS. EXCHANGEWORKS CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY PROFILES AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY OFFERS. EXCHANGEWORKS HAS NO CONTROL OVER THE CONDUCT OF HOSTS, GUESTS AND OTHER USERS OF THE SERVICES OR ANY OFFERS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD. ACCORDINGLY, THE PLANNING OR PARTAKING OF ANY EXCHANGES OR OFFERS ARE AT THE ARTIST’S, PUBLIC’S, HOST’S AND/OR THE GUEST’S OWN RISK.
6. RIGHTS AND COPYRIGHTS
In posting to ExchangeWorks, the author(s) and / or owners of the image and the author / owner of the artwork or resource depicted affirm that they own said image and / or artwork or resource or they have a license or authorized use to post said image. ExchangeWorks makes no claim to any other rights with respect to the items posted here. In posting an artwork or resource on ExchangeWorks, authors are agreeing only to allow ExchangeWorks a license to use the image on the ExchangeWorks website. In posting an artwork, resource or offer on ExchangeWorks, authors are agreeing to allow ExchangeWorks a license to use the image on the ExchangeWorks website and possibly social media sites where ExchangeWorks posts.
Posting on ExchangeWorks is understood to be an affirmation by the author or authors that they control the relevant rights to their artwork or resource, either by virtue of retaining the copyright, through virtue of their ownership, or through an agreement with whoever currently holds the copyright. By virtue of posting to ExchangeWorks, the author(s) or owners also affirm that they have dealt appropriately with copyright restrictions pertaining to all 3rd party materials included in their post. In light of these authorial affirmations, all responsibility for copyright issues remains with the authors who post here. Authors should, of course, take care in the matter of signing over their implicit copyright to their own work.
7. DISCLAIMER FOR EXCHANGE SERVICE
The ExchangeWorks’ “Exchange” service is NOT a barter system, trading site, trading exchange franchise as ExchangeWorks’ service is to initiate the informal exchange of art and resources on a noncommercial basis. Exchanges between or among ExchangeWorks members are private interactions not related to or involving ExchangeWorks’ services. All ExchangeWorks participants who engage in an Exchange should contact their accountant for tax questions or see the irs.gov website for all such tax questions, including those on “barter income”.
8. ARTIST SELLER OBLIGATIONS
If you are an artist wishing to make your artwork available for sale (the “Artist Seller”) via the “Purchase” option (the “Artwork”), you agree to the following terms and conditions.
a) You will provide truthful and accurate description of the Artwork, including the price you wish to sell the Artwork. If there are any misstatements in the Artwork description, you must notify ExchangeWorks promptly.
b) You may not withdraw your offer to sell the Artwork once a user has purchased the Artwork via the “Purchase” option.
c) It will be your responsibility to determine whether sales or use taxes apply to any sale transactions conducted by you through the Site and to collect, report and remit the correct tax to the appropriate tax authority.
d) You will honor and complete the purchase transaction. You understand that by not fulfilling the obligations, your action or inaction may be legally actionable.
e) You warrant that (i) you have the right to offer the Artwork for sale through the Site, (ii) you have good and unencumbered title to any Artwork offered for sale by you through the Site and good and unencumbered title and right to possession to Artwork and will pass to the Public Buyer of such Artwork at the time of sale; and (iii) if applicable, the Artwork has been lawfully imported into the jurisdiction in which its currently located and that any applicable tariffs and taxes have been properly paid. You further warrant the accuracy of the posted information on all items of the Artwork by you, or by ExchangeWorks on your behalf, for purchase on the Site in accordance to this Agreement. ExchangeWorks reserves the right to terminate any sale of any Artwork which believes in its sole discretion is not authentic or where authenticity is substantially not as described in the listing. ExchangeWorks will have no liability to the Artist Seller or other person or entity in any sale terminated by ExchangeWorks on the Site.
f) You understand that ExchangeWorks charges a 20% Commission to the buyer, which will be 20% of the artwork price. You and the buyer will arrange for the remaining 80% of the artwork price, plus shipping or delivery charge to be paid directly to you, in a form that is acceptable (typically, PayPal, wire transfer, or check) to you. You will need to confirm the purchase and make final payment, shipping or delivery arrangements directly with the buyer.
9. PUBLIC BUYER OBLIGATIONS
If you are a user interested in purchasing an Artwork via the “Purchase” option (the “Public Buyer”), you agree to the following terms and conditions.
a) You are responsible to read and understand, and agree to be bound to, all the terms of sale listed on the Site by the Artist Seller or ExchangeWorks, as well as such other terms as may be requested by the Artist Seller or ExchangeWorks.
b) You are responsible to pay any sales or use taxes that apply to any purchase transactions conducted by you through the Site.
c) Upon choosing the “Purchase” option, to finalize the transaction you will be charged a 20% ExchangeWorks commission as indicated on the Site (the “20% ExchangeWorks commission”). The 20% ExchangeWorks commission is nonrefundable except as otherwise set forth in this Agreement. The Service Fee will be charged to your credit card on file with ExchangeWorks and you hereby authorize ExchangeWorks to charge the credit card upon the completion of the transaction.
d) Unless otherwise stated, the Service Fee shall be paid in U.S. dollars. ExchangeWorks reserves the right to collect on accounts due by various means, including but not limited to, the use of collection agencies, legal counsel, and direct charge to payment methods that are on file. You will be responsible for all costs collection (including reasonable attorneys’ fees) in the event you fail to pay any amounts due to ExchangeWorks hereunder.
e) In the event the Artist Seller is unable or otherwise fails to consummate the sale in which you placed, you should contact ExchangeWorks to obtain a refund with respect to the 20% ExchangeWorks commission paid by you with respect to such sale. As a Public Buyer, you an request a refund of the applicable 20% ExchangeWorks commission in the event that: (1) the Artist Seller did not respond after you attempt to contact them (please allow at least seven days for them to respond); (ii) the Artist Seller failed to complete the transaction and didn’t sell you the item; or (iii) you returned the Artwork to Artist Seller for good cause and were issued a refund by the Artist Seller. Any request for a refund of the 20% ExchangeWorks commission must be made within 60 days of the conclusion of the applicable sale. No refund of 20% ExchangeWorks commission will be permitted in the event that you were the Public Buyer and failed to contact the Artist Seller, pay the Artist Seller, or come to terms with the Artist Seller regarding the shipping or any other item. Determinations of your entitlement to any refund of the 20% ExchangeWorks commission shall be made at the discretion of ExchangeWorks.
10. ARTIST SELLER PUBLIC BUYER DISPUTE RESOLUTION
Because ExchangeWorks is not a party in the actual transaction between an Artist Seller and Public Buyer conducted through the Site and is not the agent of either for any purpose, ExchangeWorks does not have the duty to attempt to resolve or resolve any disputes between participants related to or arising out of any such transaction. ExchangeWorks has no control over and does not guarantee the quality, safety or legality of an item offered for sale through the Site, the truth or accuracy of listings, the authority of Artist Sellers to sell items or pass title, the ability of Public Buyers to pay for items, or that a Public Buyer or Artist Seller will actually complete a transaction. No statement by any Artist Seller regarding condition, kind, value or quality of an Artwork shall be construed to be an expressed or implied warranty, representation or assumption of the liability of ExchangeWorks.
Accordingly, Artist Sellers and Public Buyers should resolve amongst themselves all disputes between them arising rom the use of this Site. ExchangeWorks reserves the right, but has no obligation, to investigate either an Artist Seller’s or a Public Buyer’s complaint with respect to any item of Artwork offered for sale through the Sale. You agree to cooperate with any investigation that ExchangeWorks may conduct in response to a claim, and to provide ExchangeWorks with any documentation in your possession or control.
11. EW ART + PUBLIC HOST OBLIGATIONS
As a Host, you may create a profile and a post that showcases your Offers. Profiles will be made publicly available, and other Members may contact you based upon the information provided in your Profile and Offer. You acknowledge and agree that you are responsible for your Profile and your own acts and omissions and are also responsible for the acts and omissions of any individuals who are present during the Offer at your request or invitation, excluding the Guest.
12. EW ART + PUBLIC PAYMENTS AND FEE
a) Fees for EW Art + Public offers are collected by ExchangeWorks from guests via PayPal and are then remitted to the host via PayPal within 24hrs of the completion of the offer.
b) Users agree to comply with the specific refund policy applicable to each offer.
c) Hosts and guests agree that ExchangeWorks’ responsibility is solely to process payments, and ExchangeWorks is not party to any transaction between any host and/or guest and cannot be held responsible for any issues arising from any such transaction.
d) A full payment is required to register for an EW Art + Public offer on ExchangeWorks, unless otherwise agreed by the host.
e) Fees for offers or any other portion of the Service may be changed at any time without prior notice.
f) Hosts are responsible for all taxes associated with fees earned from their offers. ExchangeWorks will issue 1099-MISC forms to Hosts that earn $600 or more in fees in a calendar year.
g) ExchangeWorks reserves the right, at any time, to change any fees or charges for using any services provided on the Service (or to begin charging fees for any free service), provided that such changes will not apply to fees or charges paid prior to the time of the change.
13. NO WARRANTIES
EXCHANGEWORKS HEREBY DISCLAIMS ALL WARRANTIES. EXCHANGEWORKS IS MAKING THE SITE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING MERCHANDISE OFFERED FOR SALE ON THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY. EXCHANGEWORKS DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, EVEN IF EXCHANGEWORKS’ AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING ABOUT THE POSSIBILITY OF SUCH DAMAGE. EXCHANGEWORKS IS NOT LIABLE FOR ANY ERRORS, OMISSION, GUARANTEES, RESCISSIONS OR OTHER WARRANTIES MADE BY ITS PARTICIPANTS OR OTHER THIRD PARTIES.
14. LIMITED LIABILITY
EXCHANGEWORKS’ LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EXCHANGEWORKS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY EXCHANGEWORKS. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.
BECAUSE EXCHANGEWORKS IS NOT THE ARTIST SELLER NOR PUBLIC BUYER IN TRANSACTIONS BETWEEN PUBLIC BUYERS AND ARTIST SELLERS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, YOU RELEASE EXCHANGEWORKS (AND OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY EXCHANGEWORKS.
17. NOTE TO INTERNATIONAL USERS
ExchangeWorks makes no representation that any Artwork offered for sale on this Site or purchased by you on this Site may be legally exported from the county of location of the Artwork or imported into any other country, including that of Public Buyer. Public Buyer and Artist Seller are responsible for obtaining and completing all necessary import and export forms, permissions, licenses in conformance with the law of the applicable location to effectuate the transactions contemplated by this Agreement.
18. LINKS AND AFFILIATED SITES
ExchangeWorks has not reviewed all of the sites linked to its Internet website and is not responsible for the contents of any such linked site. Because ExchangeWorks has no control over the content and performance of these sites, ExchangeWorks makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and ExchangeWorks assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. The inclusion of any link does not imply endorsement by ExchangeWorks of the site. Use of any such linked website is at the participant’s own risk.
19. NO LICENSE
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
The materials appearing on the ExchangeWorks Website could include technical, typographical, or photographic errors. ExchangeWorks does not warrant that any of the materials on its Website are accurate, complete, or current. ExchangeWorks may make changes to the materials contained on its Website at any time without notice. ExchangeWorks does not, however, make any commitment to update the materials.
21. SEVERABILITY; WAIVER
22. GOVERNING LAW
Any claim relating to ExchangeWorks website shall be governed by the laws of the United States and the State of California without regard to its conflict of law provisions and general Terms and Conditions applicable to Use of a Website. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Los Angeles County, California, USA in all disputes arising out of or related to the use of the Site or Service.
23. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California 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, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at ExchangeWorks, LLC at (212) 729-3899.
Sections that by their nature or context are intended to survive termination shall survive termination of this Agreement.
This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective heirs, executors, beneficiaries, successors and assigns.