Terms

These terms of service (“Terms of Service”) constitute a legal agreement between you (“You” or “Seller”) and factory.is (“Factory”). These Terms of Service specify the terms under which You may access and use the Platform. Please read these Terms of Service carefully before accessing and using the Platform, because by accessing and using the Platform, clicking “I Agree”, “Create my Account” or otherwise manifesting your assent to these Terms of Service, You agree to be bound by the terms herein. If You do not agree to (or cannot comply with) all of the terms of these Terms of Service, do not access or use the Platform.

The definitions for some of the defined terms used in these Terms of Service are set forth in Section 17. The definitions for other defined terms are set forth elsewhere in these Terms of Service.

Grant Of Rights.

Subject to the terms and conditions of these Terms of Service, factory.is grants You a limited, non-exclusive, non-transferable (except as permitted under Section 15 below) license, without the right to grant sublicensees, to access and use the Platform during the Term to list and sell artworks online.

Maintenance, Support, And Updates.

During the Term, as long as You have paid all Commissions due to factory.is and complied with these Terms of Service, factory.is shall provide You with the following support and maintenance services and Updates at no additional cost.

  1. Maintenance and Support.

    factory.is shall provide e-mail or similar support solely to You (but not to any Registered Users) relating to any failure of the Platform to operate substantially in accordance with its intended functionality (an “Error”), provided that (i) You promptly inform factory.is of any suspected Error, and (ii) You furnish factory.is any written documentation with respect to any such Error reasonably requested by factory.is. factory.is’s obligation hereunder is limited to correction of the defective portion of the Platform.

  2. Updates.

    factory.is shall make available to You all Updates, in each case when such Update is generally made available to its other customers.

Process Of Creating And Managing The Seller Profile.

The process by which You create a seller profile and list artworks is as follows:

  1. You visit factory.is’s website at factory.is (the “Site”) and apply to become an authorized user of the Platform. factory.is may accept or reject applications in its sole and absolute discretion. If You are approved, You create an account with factory.is in accordance with Section 4 hereunder.

  2. You create your profile and list artworks details and any licensed media content, set artwork price-points.

  3. Artwork listings are published to the public with unique links.

  4. You test and approve the listing, and authorize factory.is to upload the listing details to the Platform.

  5. During the Term, You shall have the ability to modify the listing through the Platform by (i) changing previously-selected details, and/or (ii) changing texts, ticket price-poins and media content.

Accounts, Passwords, And Security.

  1. In order to create an account with factory.is, You will be prompted to provide a unique sign-in email address (“Sign-In Name”), password (“Password”), your full name, and perhaps certain additional information that will assist in authenticating Your identity when You log into the Platform in the future (“Unique Identifiers”).

  2. When creating the account, You must provide true, accurate, current, and complete information. If You provide any information that is materially untrue or inaccurate or if factory.is has reasonable grounds to suspect that such information is materially untrue or inaccurate, factory.is may suspend or terminate Your account.

  3. Your Sign-In Name and corresponding Password can be used by only You or Your employees. You are solely responsible for the confidentiality and use of Your Sign-In Name, Password, and Unique Identifiers, as well as for any use or misuse using one or more of them, except to the extent caused by the negligence or intentional misconduct of factory.is.

  4. You will promptly inform factory.is of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. factory.is will not be liable for any loss or damage caused by any unauthorized use of Your account, except to the extent caused by the negligence or intentional misconduct of factory.is.

Data & Privacy.

  1. Collection, Use, and Ownership of Analytical Data.

    All Analytical Data shall be owned exclusively by factory.is. factory.is is hereby permitted to collect, aggregate, store, and use all Analytical Data and is hereby permitted to copy, distribute, sell, market, license, rent, assign, or otherwise transfer such Analytical Data in its sole and absolute discretion without any obligation to You; provided such activity complies with all applicable laws, rules, and regulations (collectively, “Laws”).

  2. Collection, Use, and Ownership of User Data.

    All User Data shall be owned exclusively by You, subject to the license set forth in this Section. You hereby grant to factory.is during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 15 below) license, without the right to grant sublicensees, to collect, aggregate, store, and use all User Data in order to provide You access to the Platform and to operate, maintain, and improve the Platform.

  3. Creation and Maintenance of a Privacy Policy.

    You shall publish and maintain on the Seller Profile factory.is default link that prominently and clearly disclose the nature and scope of the collection, use, and disclosure of Analytical Data and User Data through the Seller Profile as set forth in this Section 5. At all times during the Term, You shall ensure that Your relationship with factory.is, as described herein, is in compliance with such Privacy Policy.

Guidelines For Seller Profile; Restrictions On Use.

  1. You shall ensure that the Seller Profile and artwork listings shall not:

    1. Contain Content or Third-Party-Content that infringes the trademarks, copyrights, right of publicity, right of privacy, or other rights of any third party;

    2. Contain Content or Third-Party-Content that is threatening, harassing, tortious, defamatory, obscene, libelous, or invasive of another’s privacy or otherwise violates the rights of any third party;

    3. Contain sexually explicit Content or Third-Party-Content unless categorized as such;

    4. Contain Content or Third-Party-Content that promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

    5. Promote illegal activities or otherwise violate any applicable Laws, including those targeting spyware, adware, or SPAM;

    6. Contain advertising for third-party products or services relating to ticket selling; or

    7. Enable the purchase of any products or services other than artworks, fashion, and design objects or anything related to your artist activity.

  2. You hereby agrees that in using the Platform You shall not:

    1. Decompile, reverse engineer, or disassemble the Site, the Platform, or the Templates;

    2. Interfere or attempt to interrupt the proper operation of the Site or the Platform, including through the use of any virus, device, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site or the Platform through hacking, password mining; or any other means; or

    3. Enable the checkout or payment for products and services purchased by Registered Users on any website or system other than the Platform or attempt, in any way, to circumvent Your payment obligations set forth in these Terms of Service.

Ownership.

As between You and factory.is, all right, title, and interest in and to the Site, the Platform, the Templates, factory.is’s trademarks, the Analytical Data collected by factory.is through the Platform, and all patents, copyrights, trademarks, trade dress, trade secrets, and other proprietary rights embodied therein (collectively, the “factory.is Intellectual Property”) are the exclusive property of factory.is. You shall have no right to use the factory.is Intellectual Property for any purpose other than as expressly set forth herein. As between You and factory.is, You shall retain all right, title, and interest in and to the Content, the Third-Party Content, the User Data, Your trademarks, and all patents, copyrights, trademarks, trade dress, trade secrets, and other proprietary rights embodied therein (collectively, the “Seller Intellectual Property”). factory.is shall have no right to use the Seller Intellectual Property for any purpose other than as expressly set forth herein.

Publicity.

  1. License.

    Subject to the terms and conditions of these Terms of Service, You hereby grant to factory.is during the Term a non-exclusive, worldwide, royalty-free license to use the Content, the Third-Party Content, Your and/or Your company name, image, and logo, and the names and images of Your products and designers to promote the Platform and factory.is.

  2. Credit.

    The Seller Profile shall include the phrase “Running on factory.is,” or some other equivalent phrase as mutually agreed to by the parties.

Commission And Payments.

As consideration for the licenses granted by factory.is in accordance with these Terms of Service, You agree to pay to factory.is the Commission. Such Commission payments shall be paid in U.S. dollars on a monthly basis. In the event you process any returns of your merchandise for which You have already paid factory.is a Commission, factory.is shall refund the applicable Commission for such returned item; provided: (i) You provide factory.is written documentation substantiating such return; and (ii) You make the request for any such Commission refund within thirty (30) days after the applicable Commission payment was initially made to factory.is. You are solely responsible to pay any sales or use tax imposed at any time in connection with the artworks sold, excluding only those taxes related to factory.is’s income.

Representations And Warranties.

  1. Mutual Representations and Warranties.

    Each party represents and warrants that it has the full right, power, and authority to enter into these Terms of Service, to discharge its obligations hereunder, and to grant the licenses granted hereunder.

  2. Warranty Disclaimer.

    EXCEPT AS SET FORTH HEREIN, THE SITE AND THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” OTHER THAN THE WARRANTIES SET FORTH IN SECTION 10.1, factory.is MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS, ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, THE PLATFORM, OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, OR (iii) THAT ACCESS TO THE SITE AND/OR PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.

Responsability

When publishing, artwork listings with factory.is you expressly agree to the following:

Indemnification.

You shall defend, indemnify, and hold harmless factory.is and its officers, directors, and employees from and against any and all damages, costs, and expenses, including reasonable outside attorneys’ fees (collectively, “Losses”), to the extent such Losses arise from: (i) Your breach of these Terms of Service; (ii) Your breach of the Privacy Policy; (iii) any materials provided by You, including, without limitation, the Content and the Third-Party Content; and (iv) Your gross negligence or willful misconduct.

Limitation Of Liability.

EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF WHETHER THE PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (B) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THESE TERMS OF SERVICE WILL NOT EXCEED THE FEES ACTUALLY PAID BY SELLER TO factory.is UNDER THESE TERMS OF SERVICE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO DAMAGES ARISING FROM CLAIMS: (i) FOR WHICH YOU ARE OBLIGATED TO INDEMNIFY factory.is; (ii) OF BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; (iii) OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (iv) OF SELLER’S BREACH OF SECTION 6.

Confidentiality.

Any non-public information that one party (the “Receiving Party”) receives from the other party (the “Disclosing Party”) in connection with these Terms of Service is proprietary and confidential information (“Confidential Information”), including, without limitation, any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party. The Receiving Party agrees that it will not disclose the Disclosing Party’s Confidential Information to any third party, nor use the Confidential Information for any purpose other than in the performance of its obligations or the exercise of its rights hereunder. The Receiving Party further agrees to use commercially reasonable measures to maintain the confidence of the Disclosing Party’s Confidential Information. The obligations set forth in this paragraph shall not apply to information that the Receiving Party can document is generally available to the public (other than through its breach of these Terms of Service), was independently developed by the Receiving Party without reference to the Disclosing Party’s information, or was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party.

Term And Termination.

  1. Term and Termination.

    The term of these Terms of Service will begin on Your acceptance of these Terms of Service or use of the Platform, whichever comes first, and continue in force unless and until terminated in accordance with Section 14.2 (the “Term”).

  2. Termination.

    Either party may terminate these Terms of Service:

    1. For convenience upon ten (10) business days written notice to the other party.

    2. If the other party breaches a material provision hereunder and fails to cure the breach within five (5) business days following the date the breaching party has received the non-breaching party’s notice of the breach and demand for cure.

    3. Immediately without notice by a party if the other party: (i) voluntarily institutes insolvency, receivership or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.

  3. Effect of Termination.

    Upon any termination of these Terms of Service: (i) each party shall promptly return to the other party, or, if requested by the other party, destroy all copies of the other party’s Confidential Information in its possession or control; (ii) all licenses granted hereunder shall automatically and immediately terminate; (iii) You shall immediately cease using the Platform; (iv) factory.is shall stop providing functionality for and shall turn off all access to the Seller Profile; and (v) You shall pay factory.is all Commissions then due and owing. Sections 5.1, 7, 10-13, 14.3, and 15-17 shall survive any termination of these Terms of Service.

Assignment.

These Terms of Service may not be assigned or transferred by either party without the prior, written consent of the other party; provided, however, that such consent shall not be required in connection with an assignment by either party (i) to any of its Affiliates or (ii) in connection with a change of control transaction, whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise. Any attempted assignment that does not comply with the terms of this Section shall be null and void.

Miscellaneous.

The relationship of the parties is one of independent contractors. These Terms of Service set forth the entire agreement of the parties as to their subject matter and superede all prior agreements, negotiations, representations, and promises between the parties with respect to their subject matter. These Terms of Service are binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. A waiver of rights under these Terms of Service will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. factory.is may make changes to these Terms of Service from time to time. When these changes are made, factory.is will make a new copy available on the Site. You understand and agree that if you use the Platform after the date on which these Terms of Service have changed, factory.is will treat Your use as acceptance of the updated Terms of Service. These Terms of Service, and any and all disputes directly or indirectly arising out of or relating to these Terms of Service, will be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law rules thereof. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in New York, New York for any such disputes, and waives any objections to the laying of venue in such courts.

Definitions.

  1. “Affiliate”

    means, with respect to any party, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the specified party. For the purposes of this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that entity, whether through ownership of voting securities or otherwise.

  2. “Analytical Data”

    means any non-personally identifying information, data, or other material that is automatically collected from Registered Users through the Seller Profile. For purposes of clarity, Analytical Data does not include any User Data.

  3. “Commission”

    means cero percent (0%) of the gross revenue actually received by You from purchases made on the Seller Profile, excluding, in each case, (i) amounts collected for sales, use, and excise taxes or duties, and (ii) shipping charges. Commissions may change in the future and will be notified by the factory.is. Commissions changes will not be applied retroactively to artworks already sold.

  4. “Personally Identifiable Information” or “PII”

    means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.

  5. “Platform”

    means factory.is’s software, tools, know-how, and Intellectual Property used to create the Seller Profile.

  6. “Privacy Policy”

    means the privacy policy maintained by You with respect to the Seller Profile that shall comply with the terms set forth in Section 5.3.

  7. “Registered User”

    means an end user of the Seller Profile.

  8. Seller Profile

    means the online profile configured by You and integrated with the Content and/or the Third Party Content, as described in Section 3.

  9. “Content”

    means all Content, including dynamic data, artwork listings used in the Seller Profile.

  10. “Template”

    means a standardized series of functionalities and features to be used as a pre-selected foundation on which to base the Seller Profile.

  11. “Third-Party Content”

    means all content, including dynamic data, used in the Seller Profile that emanates from a third party.

  12. “Updates”

    means any modifications, revisions, corrections, updates, additions, and extensions to the Platform that (i) are required for the Seller Profile to properly function; and (ii) factory.is generally makes available to its other customers at no cost.

  13. “User Data”

    means: (i) any information, data, or other material that Registered Users voluntarily provide through their use of the Seller Profile, including, without limitation, PII, and (ii) any geolocational data collected from or about the Registered User.

ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.

Effective: 3/11/2017
Last Updated Date: 3/11/2017