TERMS OF USE

Use of the Site

This Web site and its contents (the "Content") are intended for customers of ShinyArt. You may not use this Web site or the Content for any purpose not related to your business with ShinyArt. By example, and not by way of limitation, You are specifically prohibited from: (a) downloading, copying, or re-transmitting any or all of the Web site or the Content without, or in violation of, a written license or agreement with ShinyArt; (b) using any data mining, robots or similar data gathering or extraction methods; (c) manipulating or otherwise displaying the Web site or the Content by using framing or similar navigational technology; (d) registering, subscribing, unsubscribing, or attempting to register, subscribe, or unsubscribe any party for any ShinyArt service if you are not expressly authorized by such party to do so; and (e) using the Web site or the Content other than for its intended purpose.

You may not interfere with the security of, or otherwise abuse this Web site or any system resources, services or networks connected to or accessible through this Web site. You may only use this Web site for lawful purposes.

ShinyArt’s failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right, whether arising in law, equity or otherwise..

Intellectual Property

The Materials on the ShinyArt Web site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like and the trademarks, service marks and logos contained therein, are owned by or licensed to ShinyArt, subject to copyright and other intellectual property rights under the law.

These Materials on the Website are provided to you for your information and personal use only and may only be used and copied provided that the Materials are not modified and that copyright and other intellectual property notices are not deleted. You may not create derivative works from or otherwise exploit the materials on ShinyArt.com in any way.

Your Use of Content on the Site

In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content on the ShinyArt Website.

1. You may access User Submissions for your information and personal use solely as intended through the provided functionality of the ShinyArt Website.
2. User Comments are made available to you for your information and personal use solely as intended through the normal functionality of the ShinyArt Website. User Comments are made available "as is", and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the ShinyArt Website or otherwise as prohibited under this Agreement.
3. You may access ShinyArt Content only as permitted under this Agreement. ShinyArt reserves all rights not expressly granted in and to the ShinyArt Content and the ShinyArt Website.
4. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of content from third parties obtained through the Website for any commercial purposes.
5. You agree not to circumvent, disable or otherwise interfere with security-related features of the ShinyArt Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the ShinyArt Website or the Content therein.
6. You acknowledge and agree to the provisions of the ShinyArt Privacy Policy separately posted on this Web Site.

Currency of Web site

ShinyArt updates the information on this Web site regularly. However, ShinyArt cannot guarantee or accept any responsibility or liability for the accuracy, currency or completeness of the information on this Web site. ShinyArt may revise, supplement or delete information, services and/or the resources contained in the Web site and reserves the right to make such changes without prior notification to past, current or prospective visitors. ShinyArt does not warrant the accuracy, currency, or completeness of any information on its website.

Links

This Web site may provide links to third party Web sites. This inclusion does not imply that ShinyArt monitors or endorses these Web sites. ShinyArt shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or the reliance upon any information, content, goods or services available on or through any third party Web sites or linked resources.

Internet software or computer viruses

Due to technical constraints of the Internet, Internet software or transmission problems could produce incomplete copies of information contained on this Site; computer viruses or other destructive programs may also be inadvertently downloaded.

ShinyArt shall not be responsible or liable for any software, computer viruses or other destructive, harmful or disruptive files or programs that may infect or otherwise impact your use of your computer equipment or other property on account of your access to, use of, or browsing on this Web site or your downloading of any of the Materials from this Web site.

Indemnification

You agree to indemnify and hold ShinyArt harmless against all claims or liability asserted against ShinyArt arising out of or in connection with any breach by you or anyone acting on your behalf of any of these Terms of Use.

Claims of Infringement

ShinyArt respects the copyright of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing ShinyArt with a written communication including the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Web site;
4. your address, telephone number, and email address;
5. a 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;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Please address your letter to Kristy Phillips, CEO, as follows:

ShinyArt
1300 Mills St.(top floor)
Menlo Park, CA
USA 94025

Applicable law

This Web site is controlled, operated and administered by ShinyArt from San Mateo County, California, USA. This Web site can be accessed from other countries around the world. As each of these jurisdictions has laws that may differ from those of the State of California, by accessing this Web site, you acknowledge and agree that all matters relating to access to, or use of this Web site shall be governed by the laws of the State of California and the federal laws of The United States of American applicable therein without reference or resort to conflicts of laws principles that may otherwise apply.

You also agree that any claims or disputes whatsoever arising hereunder shall be submitted to the exclusive jurisdiction and venue of the courts of the State of California and acknowledge that you do so voluntarily.

Contact

If you have concerns relating to this web site or these Terms of Use, please contact ShinyArt at admin@shinyart.com or via phone at (403) 265-3062.

Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF SHINYART AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND SHINYART, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND SHINYART RELATING TO THE SUBJECT OF THIS AGREEMENT

©ShinyArt 2010

ShinyArt Content License Agreement

1. Overview

This Agreement governs the terms by which members and clients of ShinyArt obtain the right to use video and other media content provided by artists through the web site located at www.ShinyArt.com (the "Site"). This Content License Agreement is in addition to the Terms of Use applicable to the Site and to the Membership Agreement that all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement, the Membership Agreement and the Terms of Use (both of which are incorporated into this Agreement by reference), the terms of this Content License Agreement shall govern.

By selecting the correct box at the end of this Agreement and typing "I Agree" or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of the entity that is identified as the member account holder, and agree to be bound by its provisions. If you do not have the full legal authority to bind an entity other than yourself, do not accept the Agreement and do not download the Content.

(b) In this Agreement: (i) "you" means you or, if you are accepting on behalf of your member account entity, then "you" means that employer or entity and affiliates; (ii) "ShinyArt" or "we" means ShinyArt, operator of the Site; and (iii) "Content" means any moving image, Flash file, film or video footage, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from the Site, together with any accompanying material.

2. Grant of License

We hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by ShinyArt or the supplier of the Content.

3. Permitted License Uses

You may not use the Content for resale, license or other distribution purposes, unless (i) the proposed use is allowable under a separate agreement with ShinyArt and the Content Supplier (artist); or (ii) if the original Content has been fundamentally modified or transformed sufficiently by you that it legally constitutes an original work entitling the transforming artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file.

You cannot superficially modify the Content and sell it to others for consumption, reproduction or re-sale. These uses will not be permitted. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.

(b) Only you are permitted to use the Content and to upload Content onto a flat screen panel. No other parties shall have rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time. However, depending on the specific terms of membership, you may transfer Content to more than one flat screen panel throughout the rental period. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location or accessible by more than one person, you must download the Content from the Site for each such use.

(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are "Permitted Uses" of Content:

1. Display and presentation in any public, social,commercial,corporate or government space;
2. Display and presentation in any private dwelling;
3. On–line or electronic publications,
4. Any other uses approved in writing by ShinyArt.

If there is any doubt that a proposed use is a Permitted Use, you should contact ShinyArt for guidance.

4. Your Use of the Site

1. You agree not to distribute in any medium any part of the Site, including but not limited to artist submissions, without ShinyArt's prior written authorization.
2. You agree not to alter or modify any part of the Site.
3. You agree not to access artist submissions or other ShinyArt content through any technology other than what is authorized on the Website itself.
4. You agree not to collect or harvest any personally identifiable information, including account names, from the Site, nor to use the communication systems provided by the Site for any commercial solicitation purposes.
5. In your use of the website, you will otherwise comply with all of the terms and conditions of the Terms of Use, Membership Agreement, and all applicable local, national, and international laws and regulations.
6. ShinyArt reserves the right to discontinue any aspect of the ShinyArt website at any time.

5. License Prohibitions

You may not do anything with the Content that is not expressly permitted in the preceding section. By way of example and not limitation, you may not:

1. use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates and Flash templates
2. use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of products;
3. use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
4. incorporate the Content in any product that results in a re-distribution or re-use of the Content or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
5. use the Content in a fashion that is considered by ShinyArt (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
6. use or display any Content that features a performer in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour;
7. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
8. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
9. install and use the Content in more than one location at a time unless explicitly Permitted to do so through a contractual agreement with ShinyArt and its artist(s);
10. use or display the Content in an electronic format that enables it to be reproduced or distributed via mobile devices;
11. use the Content for editorial purposes without first contacting ShinyArt and including the following credit adjacent to a static photo still of the video work: "©ShinyArt.com/Artist's Name]

6. Term of Agreement

This Agreement is effective until it is terminated through a termination of your subscription, at which time your rental Content will be unusable. You can also terminate this Agreement by destroying the Content along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose.

The Agreement also terminates without notice from ShinyArt, if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to ShinyArt in writing that you have complied with these requirements.

ShinyArt reserves the right to elect at a later date to revoke or amend the license granted by this Agreement, and to replace the Content with an alternative, for any reason. Upon notice of such replacement, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, the license for the replaced Content immediately terminates for any products that already are in your possession, and this license automatically applies to the replacement Content. You agree not to use the replaced Content for future products and to take all reasonable steps to discontinue use of the replaced Content.

Upon notice from ShinyArt, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which ShinyArt may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical). ShinyArt shall provide you with replacement Content free of charge, but subject to the other terms and conditions of this Agreement.

7. ShinyArt Warranties

(a) ShinyArt warrants that: (i) your use of the Content in accordance with this Agreement and in the form delivered by ShinyArt will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary releases for use of the Content in the manner authorized under this Agreement have been obtained (See Artist's Supply Agreement).

(b) While we have made reasonable efforts to correctly categorize and verify keywords related to the Content, ShinyArt does not warrant the accuracy of such information.

(c) THE CONTENT IS PROVIDED "AS IS" WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

SHINYART DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.

8. ShinyArt Indemnification and Limitation of Liability

(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 7 (a) above, ShinyArt shall, subject to the terms of Sections 8(b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 7(a) above. The foregoing states ShinyArt's entire indemnification obligation under this Agreement.

(b) The indemnification set out in Section 8(a) above is conditioned on your prompt notification in writing to ShinyArt of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with ShinyArt in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. ShinyArt shall not be liable for your legal fees and other costs incurred prior to the notice of the claim.

(c) IN NO EVENT SHALL SHINYART OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.

(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, SHINYART SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.

(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF SHINYART UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) US DOLLARS. FOR GREATER CLARITY, SHINYART'S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM SHINYART.

(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASE, SHINYART'S LIMITATION OF LIABILITY SHALL BE THE LESSER OF THAT PERMITTED BY LAW, OR $10,000 USD.

9. Your Indemnification

You agree to indemnify, defend and hold ShinyArt, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.

10. General Provisions

(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.

(b) ShinyArt's decision not to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

(c) This Agreement is personal to you and is not assignable by you without ShinyArt's prior written consent. ShinyArt may assign this Agreement without your consent to any other party, including successors in interest, so long as such assignee party agrees to be bound by its terms.

(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.

(f) This Agreement will be governed under the laws of the State of California and the federal laws of the United States applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.

(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration before a single arbitrator in Menlo Park, California, pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules and Mediation in effect at the time arbitration is demanded. The arbitration award may be enforced in any court of competent jurisdiction and shall be conducted in the English language. Resort to public court process may only be had to enforce the arbitral award.

11. Contact

If you have concerns relating to this Agreement, please contact ShinyArt at admin@shinyart.com or via phone at (415) 200-6521.

12. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF SHINYART AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND SHINYART, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND SHINYART RELATING TO THE SUBJECT OF THIS AGREEMENT.

© ShinyArt 2010