Terms of Service

Effective June 17, 2013

Acceptance of Terms

This document outlines the terms of service for FineArtBy.Me. By using any function or service of the FineArtBy.Me website ("Website") or logging in to an account, you as the Artist known as (“Member”) agree to be bound by this Terms of Service Agreement ("Agreement") and conditions outlined herein.  If you wish to become a Member, communicate with other Members, or make use of the FineArtBy.Me services (the "Service"), please read this Agreement and indicate your acceptance by following the instructions during the registration process.

This Agreement sets out the legally binding terms for your use of the Website and your Membership in the Service. FineArtBy.Me may modify this Agreement from time to time and such modification shall be effective upon posting to the Website by FineArtBy.Me.  This Agreement includes FineArtBy.Me's policy for acceptable use and content posted on the Website, your rights, obligations, and restrictions regarding your use of the Website and the Service.

All users must agree to, and comply absolutely with the terms and conditions set forth by this document. Use of the site constitutes agreement to comply with these terms of service.

Members

After opening a member account on FineArtBy.Me, members are able to create detailed on-line profiles of themselves, including: artist name, biography, sample artwork, areas of expertise, contact information, and much more.  All of this information is fully disclosed on the FineArtBy.Me website.  Any site visitor that visits FineArtBy.Me and navigates to a member's  "profile page" will be able to view all of the profile information that has been entered by that member.  The visitor is not required to login in order to view this information.  The member's information will be open to any and all visitors.

Service

Access to an account and functions requires a current and up to date member subscription. By your use of the site you agree that FineArtBy.Me is not liable to you or any third party for the termination of your account, or restriction from website usage. FineArtBy.Me retains the right to refuse service to any member and suspend any users account at its sole discretion.  FineArtBy.Me accepts no responsibility, nor shall be held liable for the transactions that occur as a result of usage of the website.

Eligibility

To access and utilize the resources on this site you must be a registered user and comply with the following restrictions: FineArtBy.Me's services are only available to users who are 18 years of age or older and can legally create a binding contract. Users who are not 18 years of age can participate if they are supervised at all times by a parent or legal guardian over the age of 18. In this case, the parent or legal guardian assumes responsibility of all activities carried out by the user. The user or parent/legal guardian agrees that FineArtBy.Me shall not be held responsible for any damages incurred by non-commitment to this policy.

Membership in the Service is void where prohibited.  By using the Website and the Service, you represent and warrant that all registration information you submit is truthful and accurate and that you agree to maintain the accuracy of such information.  You further represent and warrant that you are 18 years of age or older and that your use of FineArtBy.Me shall not violate any applicable law or regulation.  You are solely responsible for all Content published or displayed through your account, including any email messages, and for your interactions with other Members or 3rd parties.

Further, you as a member, agree to comply with the TOS of FineArtBy.Me and the decisions of FineArtBy.Me staff, and shall not act in a manner that hinders or prohibits FineArtBy.Me from conducting business or damages the integrity of the business. Members hereby agree to act accordingly with local, national and international laws regarding acceptable content, commerce and conduct.

Term & Fees

This Agreement shall remain in full force and effect while you use the Website, the Service, and/or are a Member.  You may terminate your membership at any time, for any reason by logging in to your PayPal account and canceling your recurring payment.  FineArtBy.Me may terminate your Membership at it's sole discretion, effective upon sending notice to you at the email address you provide in your Membership application.  If FineArtBy.Me terminates your Membership in the Service because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of subscription fees (if applicable).  Even after membership is terminated, this Agreement will remain in effect.  FineArtBy.Me's Terms of Service and/or subscription fees that were provided to you at registration may change from time to time.  By using the Service and by becoming a Member, you acknowledge that FineArtBy.Me reserves the right to charge for the Service and has the right to terminate a Member's Membership should Member breach this Agreement or fail to pay for the Service, as required by this Agreement.

In addition, FineArtBy.Me reserves the right to charge monthly/yearly membership fees for Members.  The membership fee is automatically charged to members once per month/year on  their sign-up dates.

A notification of any fee change will be e-mailed to all affected Members at least 14 days in advance of the change.  Any Member that wishes to cancel his/her account may do so at any time by logging in to his / her PayPal account and cancelling the recurring payment.   Upon cancelation, members will not be entitled to a refund of any previously charged membership fees (unless the cancelation occurs within 10 days of the member's sign-up date then the unused portion may be refunded).

Cancellation of Artist Accounts & Refund Policy

Due to the nature of our membership service, all fees and charges are nonrefundable and there are no refunds or credits for partially used periods. From time to time, we may provide a free time period or other service of value in the form of a credit. The amount and form of such credits, and the decision to award them, are at our sole discretion. The creation or award of credits in certain situations does not entitle a user or other users to any credits in the future for similar instances, nor does it obligate FineArtBy.Me to award credits in the future.

We may change the fees and charges in effect, or add new fees and charges from time to time at our sole discretion, but we will give you advance notice of these changes by posting the notice on our FineArtBy.Me blog and by email.

Your membership will continue in effect unless and until you cancel your membership or we terminate it.

An Artist may cancel his / her account at any time by logging in to his / her PayPal account and cancel the recurring payment.  After cancelling the recurring payment, FineArtBy.Me will immediately close the account and remove the associated profile page from the site.

Proprietary Rights in Content on FineArtBy.Me

FineArtBy.Me owns and retains all proprietary rights in the Website and the Service.  The Website contains copyrighted material, trademarks, and other proprietary information of FineArtBy.Me and its licensors.  Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

Content Posted on the Site

  1. You understand and agree that FineArtBy.Me may review and delete any content, message, photo or profile (collectively, "Content") that in the sole judgment of FineArtBy.Me violate this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any Member.
  2. You are solely responsible for the Content that you publish or display (hereinafter, "post") on the Service or any material or information that you transmit to other Members or 3rd parties.
  3. By posting any Content to the public areas of the Website, you hereby grant to FineArtBy.Me the non-exclusive, fully paid, worldwide license to use, publicly perform and display such Content on the public areas of the Website.  This license will terminate at the time you remove such Content from the Website.  You represent and warrant that: (i) you own the Content posted by you on the Website or otherwise have the right to grant the license set forth in this section, and (ii) your Content does not violate the privacy rights, publicity rights, copyright rights, or other intellectual property rights of any person.  You agree to pay for all royalties and fees owing any person by reason of any Content you post on the Website.
  4. The following is a partial list of the kind of Content that is illegal or prohibited on the Website.  FineArtBy.Me reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Service and terminating the membership of such violators.  Prohibited Content includes Content that: i. is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; ii. harasses or advocates harassment of another person; iii. involves the transmission of "junk mail", "chain letters," or unsolicited mass mailing or "spamming"; iv. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; v. promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; vi. contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); vii. provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; viii. solicits passwords or personal identifying information for commercial or unlawful purposes from other users; or ix. is irrelevant to the art industry and the stated purpose of this website.
  5. You must use the Service in a manner consistent with any and all applicable laws and regulations.

More Prohibited Artwork

Copyright Policy

You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights.  It is the policy of FineArtBy.Me to terminate membership privileges of any member who repeatedly infringes copyright upon prompt notification to FineArtBy.Me by the copyright owner or the copyright owner's legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Website; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Infringement of Policy

All users of FineArtBy.Me must agree to comply with all applicable laws of commerce (local, national, and international) and shall be held solely liable for infringement of these laws. FineArtBy.Me will cooperate fully with any appropriate request from a law enforcement agency for information regarding the violation of any law by a user. The user is responsible for any and all conduct and activity that pertains to the use of FineArtBy.Me. This includes images, copy, text, data, graphics, usernames, email addresses, photographs, profiles, avatars, logos, videos, items, products, audio, and links that are on FineArtBy.Me.

While FineArtBy.Me takes precautionary measures to ensure the identity and validity of users who sign up electronically to use the site service, we cannot and do not confirm the identity of all parties who use the FineArtBy.Me service. We suggest all users employ common sense, and encourage users to contact FineArtBy.Me to report any and all suspicious behavior or misappropriation of the site service.

FineArtBy.Me does not control the content posted by members. If you find content presented by members that you deem offensive, harmful, or derogatory, you may contact us via our Contact Us form.  FineArtBy.Me provides an open community and embraces the free speech of users on the site within the limitations set forth in this TOS and decisions made by FineArtBy.Me staff.

Intellectual Properties

All domains, graphics, images, photography, copy, text, video, and audio, including buttons, headers, links, footers and site themes created by FineArtBy.Me,  FineArtBy.Me staff, or contractors of FineArtBy.Me are considered the trade dress of FineArtBy.Me. Any and all data aforementioned is copyrighted and may not be used without the express written permission of FineArtBy.Me or its officers, manager's agents and/or staff.

Any and all content uploaded to the site including text, descriptions, images, reviews, posts, and articles retains the original copyright of the owner/creator. By accessing the site and uploading content the creator agrees to grant worldwide non-exclusive right to republish said content for the purposes of promoting or providing benefit to the web community and properties of FineArtBy.Me.

This license extends to the reasonable lifetime of any promotional tool. FineArtBy.Me does not seek to engage in resale or to deprive the artist of income from potential licensing agreements with third parties. In order to facilitate this please send any requests for specific action along with proof of copyright ownership to our legal agent:

Wilcox Technologies, LLC
Attn: Legal Division
719 Sunny Pine Way Suite H1
Greenacres, Florida 33415-8979
Email: Legal@Wilcox-Tech.com

All end users recognize that FineArtBy.Me has no control over any third party who may harvest or use content from a public website. Additionally, FineArtBy.Me software allows users to post, publish and store content and information without pre-approval.  FineArtBy.Me does not charge any commission or fee based on the sale of any item. The totality of revenue for this site is derived from memberships. As such, FineArtBy.Me meets the required safe harbor test listed in [512(c)(1)(B)], [512(d)(2)] of the DMCA.

As an OSP, FineArtBy.Me fully complies with the DMCA and will facilitate, in a neutral conduit role, the claims of any parties. FineArtBy.Me takes all claims of copyright/trademark infringement seriously. Claims of infringement are to be made by the actual legal holder of the copyright/trademark or by the duly appointed legal agent of said person, party, estate, entity or corporation, and must include the following to be deemed complete and valid:

  1. An electronic or physical signature of the complaining party [512(c)(3)(A)(i)]
  2. Identification of the copyrighted work or works claimed to be infringed. [512(c)(3)(A)(ii)]
  3. Identification of the claimed infringing materials and information that is reasonably sufficient to locate the infringing material [512(c)(3)(A)(iii)].
  4. A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  5. A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Only the actual copyright/trademark owner or legally authorized agent may make a claim. Unaffiliated third party claims are not acceptable challenge to member(s) artwork. Please note that falsely or incorrectly requesting takedown under the DMCA may make the requestor liable for damages. By submitting a DMCA takedown request you are certifying that you have researched the appropriate rulings and laws regarding takedown requests and you accept the liability for false or damaging takedown requests.

Requesting a DMCA takedown incorrectly or falsely may make the requestor liable for substantial damages. Some of the rulings regarding improper takedown requests can be found here:

http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold http://lightbucket.wordpress.com/2009/08/07/dmca-takedown-misuse-two-cautionary-tales http://www.tabberone.com/Trademarks/Articles/DMCA/EricGoldmanBlog/articleDMCA20050916.shtml http://www.webtvwire.com/fair-use-on-youtube-judge-backs-stephanie-lenz-in-overzealous-takedown-notice-case/

If all documents are received in proper order, the members' artwork will be taken down pending a response from the member. The takedown will occur in a prompt and reasonable amount of time from receipt of the notice inclusive of processing time, scheduling and coordination of resources for removal, and in some cases after consultation with legal counsel.

FineArtBy.Me can make no decision as to the validity of takedown requests and does not act as an arbitrator, mediator, or judge in such circumstances. FineArtBy.Me will communicate to the affected members after a takedown is executed. Members whose artwork are taken down have 14 business days to respond to the claim with a counter claim. As FineArtBy.Me will forward this response (counter claim) to the claimant, the response should be directed to the claimant and FineArtBy.Me should be copied on that response.

If a subscriber (member) provides a proper "counter-notice" claiming that the material does not infringe copyrights, FineArtBy.Me will notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, FineArtBy.Me will restore the material to its location on the site. [512(g)(2)(C)]

The Member's response should include:

  1. The subscriber's (Member's) name, address, phone number and physical or electronic signature [512(g)(3)(A)]
  2. Identification of the material and its location before removal [512(g)(3)(B)]
  3. A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
  4. Subscriber (Member) consent to local federal court jurisdiction, or if _________, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

If no counter claim is made within 14 business days, the takedown will stand. Re-adding artwork containing the intellectual property that has been previously taken down but not counter claimed; items in violation of a court order; settlement agreement; or successful claim of infringement constitutes a violation of the FineArtBy.Me TOS and may result in cancellation of the account. Repeated violations of intellectual property or being subject of similar or repeated takedown requests may also constitute grounds for account termination. Harassing, frivolous or other damaging takedown notices that impede the ability of FineArtBy.Me to engage in business or substantially impact our resources may also create liability for abusive requestors.

In an effort to ensure clear communication of the concerns of intellectual property rights holders, FineArtBy.Me may at its sole discretion publish any legal communication, takedown request, cease and desist order, email, letter, fax, or other correspondence as it sees fit to fully communicate the position, stance and tone/tenor of the claimant or counter claimant. In submitting any communication to FineArtBy.Me or our representatives or agents regarding any legal or intellectual property right claim, the claimant, legal agent, representative or author of such correspondence (and all of their successors, assigns or subsidiaries) grant worldwide perpetual non-exclusive copyright to FineArtBy.Me of such correspondence and waives any and all claims to privacy, confidentiality, proprietary information or trade secret status of any and all communication regardless of format or channel.

Claims of fair use, homage, artistic use, or other defenses of copyright infringement are the purview of the courts and not sufficient to counter a bona-fide claim of infringement for the application of FineArtBy.Me policy. Failure to provide a response within 14 business days will be assumed to be an agreement to remove the artwork in question and desist from re-adding artwork containing the specific intellectual property identified in the bona-fide complaint.

FineArtBy.Me may at its discretion forward the counter-claim and materials to the party making the claim of infringement. Artwork may or may not be inactivated pending legal resolution solely at the discretion of FineArtBy.Me

If no counter claim is made, FineArtBy.Me will require and enforce the removal of the artwork in question. Re-adding artwork containing the intellectual property in violation of court order or successful claim of infringement constitutes a violation of the FineArtBy.Me TOS and may result in cancellation of the account.

Please send all correspondence regarding claims of infringement or counterclaim to:

Wilcox Technologies, LLC
Attn: Legal Division
719 Sunny Pine Way Suite H1
Greenacres, Florida 33415-8979
Email: Legal@Wilcox-Tech.com

FineArtBy.Me strongly encourages all parties involved in intellectual property disputes to secure the services of legal professionals. FineArtBy.Me cannot offer legal advice, interpretation or analysis of the legitimacy of any takedown request, counter claim or other legal communication. There are many web- based resources to learn about the DMCA and intellectual property laws. FineArtBy.Me encourages all members to learn about and understand the laws regarding these issues.

A summary of the Digital Millennium Copyright Act can be found at: http://www.copyright.gov/legislation/dmca.pdf The text of the Digital Millennium Copyright Act can be found here: http://www.copyright.gov/legislation/hr2281.pdf The U.S. federal copyright code can be found here: http://www.copyright.gov/title17/92chap5.html The full text of the Lanham act can be found here: http://www.bitlaw.com/source/15usc/ More government-provided information on copyrights can be found here: http://www.copyright.gov Many universities maintain useful public information regarding copyrights, including: http://www.law.cornell.edu/wex/index.php/Copyright http://fairuse.stanford.edu/ Further Trademark, DMCA and copyright articles, information and resources http://www.tabberone.com/Trademarks/trademarks.html

Severability

If any portion of this agreement shall be held invalid by court of competent jurisdiction the remaining portions of the agreement shall remain in effect. Where modification to reflect intent or provide clarification to the service terms is allowed for any invalidated portion, such remedy shall be made first before any clause is held null and void.

Venue

These terms and any dispute arising there from shall be governed by the laws of the State of Florida.

Dispute Resolution

For disputes between members and FineArtBy.Me, please contact FineArtBy.Me directly through one of the contacts available to all members. Our concierges are standing by to assist.

In the event that a dispute arises between one or more members of the FineArtBy.Me site or a 3rd party, FineArtBy.Me will be considered free of any and all claims, damages or demands created by the dispute. While we try and maintain a safe environment, FineArtBy.Me has no obligation to mitigate or resolve disputes between members and other parties.

You are solely responsible for your interactions with other FineArtBy.Me Members.  FineArtBy.Me reserves the right, but has no obligation, to monitor disputes between you and other Members.

Privacy

Use of the Website and/or the Service is also governed by our Privacy Policy.

Hold Harmless

By executing any transaction or viewing or using any portion of this site you agree to hold harmless FineArtBy.Me, its parent companies, subsidiaries, employees, agents and assigns including all officers, directors or partners from any claim resulting from violation of this agreement, accessing this site or engaging in any transaction or interaction stemming from the access of this site.

Disclaimer of Warranties

By registering as a FineArtBy.Me member or accessing the site you hereby agree that:

Limitation of liability and Compensation

In no event shall FineArtBy.Me be liable to you or any 3rd party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from your use of the web site or the service, even if FineArtBy.Me has been advised of the possibility of such damages.  Notwithstanding anything to the contrary contained herein, FineArtBy.Me's liability to you for any cause whatsoever and regardless of the form of the action, for any dispute or claim shall be limited to the total dollar amount paid by the end user to FineArtBy.Me for the service during the term of membership not exceeding $25 USD.

Indemnity

You agree to indemnify and hold FineArtBy.Me, its parent companies, subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.

Usernames, Account names, Usage, Squatting and FineArtBy.Me Reserved Rights

All domains, URLs, sub-domains, account names, usernames and other functional or identifying elements of the site are the property of FineArtBy.Me. FineArtBy.Me reserves the right to change, alter, reformat or edit such elements as appropriate for the course of business or needs of the community determine. Accounts that are activated but remain empty with no items or information may be returned to an inactive pool or reassigned to other members. Reselling of usernames or sub-domains, squatting or speculating in such elements or on such pages is strictly prohibited and may result in termination of all related accounts.

Disputes

If there is any dispute about or involving the Website and/or the Service, by using the Website, you agree that any dispute shall be governed by the laws of the State of Florida without regard to conflict of law provisions and you agree to personal jurisdiction by and venue in the state and federal courts of the State of Florida.

Other

This Agreement is accepted upon your use of the Website and is further affirmed by you becoming a Member of the Service.  This Agreement constitutes the entire agreement between you and FineArtBy.Me regarding the use of the Website and/or the Service. The failure of FineArtBy.Me to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.  The section titles in this Agreement are for convenience only and have no legal or contractual effect.  Please contact us with any questions regarding this Agreement.

Notice of Copyright Infringement under the Digital Millennium Copyright Act (DMCA)

In order to submit a claim that material on this website infringes a right arising under copyright law, please send written notice to:

Wilcox Technologies, LLC
Attn: Legal Division
719 Sunny Pine Way Suite H1
Greenacres, Florida 33415-8979
Email: Legal@Wilcox-Tech.com

All notices must include the following information:

The law provides that anyone who knowingly materially misrepresents that material or activity is infringing under 17 U.S.C. 512(f) of the Digital Millennium Copyright Act (DMCA) may be liable for any damages, including costs and attorneys' fees incurred.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.