This End-User License Agreement ("EULA") constitutes an agreement between ArtéQuesta, Inc. ("ArtéQuesta," "we," "our," or "us"), as licensor of the software ArtéQuesta Portfolio (the "Software"), and you. This EULA is effective as of the date that you click "I agree" to register to use the Software or the date you first use or access the Software, whichever is earlier.
By clicking "I agree" to register to use the Software or by otherwise using or accessing the Software, you agree to be bound by the EULA and to pay the fees associated with use of the Software. If you do not wish to be bound by this EULA, do not click "I agree" and do not use or access the Software. We reserve the right to change the EULA, including the fees associated with use of the Software, from time to time upon notice to you. See Section 4 for more information.
In order to use the Software, you must be at least 18 years of age. By using the Software, you represent that (i) you have read, understood, and agree to be bound by the EULA and (ii) you are at least 18 years old. If we discover or have reason to suspect that you are not at least 18 years of age, we reserve the right to suspend or terminate your use of the Software immediately and without notice and without refund to you.
By clicking "I agree" to register to use the Software or by otherwise using or accessing the Software, you agree to pay the fees ("Fees") associated with use of the Software. You are required to provide valid credit card information when you register to use the Software, and we will automatically charge your card either (a) U.S. $49.00 per year if you are a client ("Client") of ArtéQuesta or (b) U.S. $99.00 per year if you are not a Client. These charges will occur on a annual basis until you or we terminate the EULA pursuant to Section 18. A Client is a person that has entered a separate Client Agreement with ArtéQuesta whereby we provide advisory or other services to that person.
You will be assigned user credentials such as a username and password when you register to use the Software. Your user credentials are unique to you and may not be shared with any other person. You are solely responsible for all access to the Software and Site that is made by any person using your user credentials. So, please guard them carefully. We may terminate the EULA if we suspect you are permitting another person to use your user credentials.
Please note that we reserve the right to change the EULA, including the Fees, at any time upon notice to you. We will provide notice by sending an email message to the email address you provide when you register to use the Software. It is your obligation under this EULA to keep your contact information, including your email address, up to date. You may update your information at any time in the My Profile area of the Site, http://www.artequesta.com/myprofile. You can review the most current version of the EULA at any time at http://www.artequesta.com/eula. The updated EULA is binding on you on the effective date indicated in the notice and in the updated EULA, which will usually be 30 days after we send notice to you of the change(s) to the EULA. If you do not agree to the updated EULA, including any changes to the Fees, you must follow the instructions in the notice email (and Section 18 of this EULA) to terminate this EULA and your access to the Software before the effective date of the updated EULA. If you do not terminate this EULA before the effective date of the updated EULA or if you use the Software after that effective date, you will be deemed to have agreed to the updated EULA, including any changes to the Fees.
You may use the Software if and when it is available. We do not guarantee availability of the Software or any particular feature. A particular feature may be a pre-release version and may not work correctly or in the way the final version may ultimately work. We may significantly change features or decide not to release them. We reserve the right to change, remove, delete, restrict or block access to, charge for, or stop providing all or any part of the Software at any time without advance notice.
Limited License. Subject to your full compliance with the EULA, we hereby grant you a limited, personal, revocable license to use the Software, including any documentation. This license is non-transferable and is terminable at will and without advance notice by us. The Software is licensed and not sold to you. This is the only license granted by us to you in connection with the Software and any resource available through the Software. There are no implied licenses.
Restrictions. You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of this EULA. You agree that you will not (a) use the Software to reproduce, transmit, display or distribute copyrighted material (unless you are the copyright owner or licensee) in any medium or via any method without our express written permission; (b) copy, store, edit, change, prepare any derivative work of or alter in any way any aspect of the Software; or (c) use the Software in any way that violates the EULA. The Software is owned by us and is protected by United States and international copyright and other intellectual property laws. You may not sublicense, assign, or transfer any right or permission granted to you under these EULA, and you agree any attempt to do so is void.
You agree that you will not: (a) impersonate any person or entity or misrepresent your affiliation with any person or entity; (b) engage in spamming, flooding, harvesting of email addresses or other personal information, spidering, screen scraping, database scraping, or any other activity with the purpose of obtaining lists of users or any other information; (c) send chain letters or pyramid schemes via or in connection with the Software; or (d) attempt to gain unauthorized access to other computer systems through or in connection with the Software. You agree that you will not use the Software in any manner that could damage, disable, overburden, or impair the Software, the Site or any other website or interfere with any other party’s use and enjoyment of the Software or any other website.
The following are trademarks of our company: ARTÉQUESTA, the ArtéQuesta Logo, the trade dress of the Software and the Site, as well as certain other trademarks, service marks, graphics, and logos used in connection with our products and services. The Software may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to our trademarks or the trademarks of any third party.
The Software may contain links to third-party websites. Third-party websites are not under our control, and we are not responsible for third-party websites, including any content contained in a third-party website or any changes or updates to a third-party website. We provide links to you only as a convenience, and the inclusion of any link does not imply our endorsement of any site or any association with its operators.
The Software does not provide or include any information intended to be investment advice or intended to comprise a proposal or recommendation of any kind in relation to any investment. You expressly agree that you will not rely on any information available in or through the Software for the purpose of making any investment, and any such reliance by you is a violation of this EULA. The Software may enable you to track the value of art assets owned by you. You are responsible for identifying and/or establishing the value and other parameters associated with those assets. We make no representation or warranty regarding the value or other parameters associated with any asset. The software applies mathematical formulas to values and parameters set by you. If you assign incorrect values or parameters, the application of mathematical formulas to those values and parameters will likely result in incorrect and possibly misleading information. This risk is entirely your own and is not assumed in any way by us. ArtéQuesta may offer an art investment program to qualified persons. Any such program will be subject to the terms of a separate agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE," AND THE ENTIRE RISK OF USE AND PERFORMANCE REMAINS WITH YOU. ARTéQUeSTA, ITS LICENSORS, AND ITS AFFILIATES MAKE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NONINFRINGEMENT. IN PARTICULAR, ARTéQUeSTA, ITS LICENSORS, AND ITS AFFILIATES MAKE NO WARRANTY THAT: (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (B) THE SOFTWARE WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) ANY INFORMATION OBTAINED THROUGH THE SOFTWARE WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (D) ANY DEFECTS OR ERRORS THEREIN WILL BE CORRECTED. ANY INFORMATION YOU OBTAIN THROUGH OR BY USE OF THE SOFTWARE IS USED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS THAT THIS EULA CANNOT CHANGE. IN PARTICULAR, TO THE EXTENT LOCAL LEGISLATION IMPLIES STATUTORY TERMS WHICH CANNOT BE EXCLUDED, THOSE TERMS ARE DEEMED INCORPORATED INTO THIS DOCUMENT BUT ARTéQUeSTA’S LIABILITY FOR A BREACH OF THOSE STATUTORY IMPLIED TERMS IS LIMITED IN ACCORDANCE WITH AND TO THE GREATEST EXTENT PERMISSIBLE UNDER THAT LEGISLATION.
IN NO EVENT WILL ARTéQUeSTA, ITS LICENSORS, OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, OR USE; LOSS OR CORRUPTION OF DATA, CONFIDENTIAL INFORMATION, OR OTHER INFORMATION; BUSINESS INTERRUPTION; PERSONAL INJURY; PROPERTY DAMAGE; LOSS OF PRIVACY; FAILURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE; NEGLIGENCE; OR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF, BASED ON, RESULTING FROM OR IN ANY WAY RELATED TO THIS EULA OR THE SOFTWARE, EVEN IF ARTéQUeSTA, ITS LICENSORS, OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 13 WILL BE INTERPRETED AS EXCLUDING LIABILITY THAT CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE OR ARE OTHERWISE A BENEFICIARY OF THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 13 MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER SECTION 13, ARTéQUeSTA’S, ITS LICENSORS’, AND ITS AFFILIATES’ MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THIS EULA FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS EULA OR THE SOFTWARE WILL BE TO RECOVER THE ACTUAL DAMAGES YOU INCUR BASED UPON REASONABLE RELIANCE ON THE SOFTWARE, UP TO A MAXIMUM VALUE OF FIVE DOLLARS (U.S. $5.00). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS EULA OR THE SOFTWARE WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF MONEY DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN DAMAGE LIMITATIONS SUCH AS THE LIMITATION OF LOSS OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION 14 WILL BE INTERPRETED AS EXCLUDING LIABILITY THAT CANNOT UNDER APPLICABLE LAW BE EXCLUDED. IF YOU LIVE OR ARE OTHERWISE A BENEFICIARY OF THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE EXCLUSIONS IN THIS SECTION 14 MAY NOT APPLY TO YOU.
The exclusion of damages under Section 13 is independent of your exclusive remedy in Section 14, and it survives even if the exclusive remedy fails of its essential purpose or otherwise is deemed unenforceable. Each of the limitations of liability in Sections 13 and 14 apply without regard to whether loss, liability, or damage arise from (a) breach of contract, (b) breach of warranty, (c) fault or tort, including negligence and misrepresentation, (d) strict liability, or (e) any other cause of action, to the extent the exclusions and limitations are not prohibited by applicable law.
You will indemnify, defend, and hold our company, its directors, officers, employees, affiliates, agents, contractors, and licensors harmless with respect to any suits or claims arising out of (a) your use of the Site; (b) any violation by you of the Terms; or (c) your violation of any another party's rights or applicable law.
The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. This EULA will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction and venue in the state and federal courts sitting in San Francisco, California for any and all disputes, claims and actions arising from or in connection with the Software and this EULA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE HEREBY WAIVE THE RIGHT TO JURY TRAIL OF ANY DISPUTE ARISING OUT OF OR RELATED TO THIS EULA, AND YOU AND WE HEREBY AGREE TO LITIGATE ANY DISPUTES ON AN INDIVIDUAL, NON-REPRESENTATIVE (I.E. NOT CLASS ACTION) BASIS.
The Software and any documentation are "Commercial Items," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All other rights are reserved.
If any provision of this EULA is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. You and ArtéQuesta intend that the provisions of this EULA be enforced to the fullest extent permitted by applicable law. Accordingly, you and ArtéQuesta agree that if any provision is deemed unenforceable, where possible, it will be modified to the extent necessary to make it enforceable, which may include its deletion. Section titles are only for convenience and have no legal or contractual significance. We may assign this EULA, in whole or in part, at any time with or without notice to you. You may not assign this EULA or assign, transfer, or sublicense any of your rights hereunder. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. A waiver will only be binding on us if it is in a written document signed by us. This EULA (including any incorporated terms or other agreements) constitutes the entire agreement between you and ArtéQuesta with respect to your use of the Software. Both you and ArtéQuesta warrant to each other that, in entering this EULA, neither you nor ArtéQuesta has relied on nor will have any right or remedy based upon any statement, representation, warranty, or assurance other than those expressly stated in this EULA. The preceding sentence will not limit or exclude any liability that cannot be limited or excluded under applicable law. All choices (no matter how described) by us under this EULA are to be made in our sole discretion, unless stated otherwise. No one other than you and ArtéQuesta or ArtéQuesta’s successors and permitted assigns, will have any right to enforce any of this EULA.
We may give you all notices (including legal process) that we are required to give by any lawful method, including by sending notice to you by email or to any mailing address that you provide to us. You agree to keep your information current, including your email and mailing address. You agree to send us legal notices (excluding legal process) by mailing them to our Address for Legal Notices, which is:
Attn: Legal Notices
ArtéQuesta provides qualified investors with the opportunity to purchase art as an investment with the goal of increasing the value of the investor's art portfolio over time. The following terms and conditions apply to the ArtéQuesta investment program:
ArtéQuesta only offers to investors artwork which individual artists have made available exclusively through the ArtéQuesta museum. Artwork made available to ArtéQuesta investors is not available for purchase through any other museum, gallery, dealer, broker, website or third-party.
ArtéQuesta is not an art broker. ArtéQuesta will not facilitate the purchase by an investor of any art from any other museum, gallery, dealer, broker, website or third-party, nor will it assist investors in any way in the sale of artwork which has been acquired other than through ArtéQuesta.
In order to maximize the value and security of an investor's ArtéQuesta art portfolio, the investor agrees that any artwork purchased through ArtéQuesta will be resold through ArtéQuesta alone, and will not be made available for sale by the investor through any other museum, gallery, dealer, broker, website or any other third-party.
This disclosure is made by ArtéQuesta regarding the offering of art as an investment. Neither ArtéQuesta nor any of its directors or advisors guarantee the performance of the investment or the value of artwork which will be acquired by the investor. This Statement does not take into account the investment objectives nor financial needs of any person who might acquire fine art as an asset. All investments involve different degrees of risk. You should be aware of your risk tolerance level and financial situations at all times. A person proposing to acquire fine art as an asset should consider the risks of such an investment and seek advice from their accountant, attorney or other professional advisor before acquiring fine art as an investment. You are free at all times to accept or reject all investment recommendations made by ArtéQuesta, its directors and advisors. All artwork sold is subject to market risk, and any losses to the investor are attributed to market forces beyond the control or prediction of ArtéQuesta, its directors and advisors.
The works in the collection of ArtéQuesta are selected from the highest caliber museum and investment-quality art. They constitute singular works selected by international museums, unique to the market and to any other works created by the artists we represent. However, ArtéQuesta does not qualify the entire market or career of every artist represented within our collection. Some among them have enjoyed significant commercial success over the course of prolific careers. The artworks we offer stand apart from their commercially available works, and ArtéQuesta maintains tangible data substantiating the investment value of these unique works of art.
We collect personal information that you affirmatively provide to us, such as when you send it to us or fill in web forms. It is your choice whether to send personal information to us. Some information must be provided in order to view or use certain services, features, programs, or activities; so, the decision not to provide information may limit or eliminate certain functions of the Site or your ability to use the Site. We may enable a function that permits you to comment on blog posts on the Site. If we do, your identity may appear in connection with your comment(s), and we assume no responsibility to take down, correct, or modify any comments you post.
Cookies. We use what are commonly called cookies when you use our Site. We may use these cookies to identify you as a valid user, to ensure that no one else can sign on simultaneously with your account from another computer, and to help us serve you better based on your registration preferences. Information automatically collected may include, but is not limited to: your computer's or device's IP (Internet Protocol) address, operating system and version, browser type, and information about your use of the Site (e.g. date and time of access, length of access, flow regularities, etc.). We may use this collected information for any lawful purpose, including, for example, using your IP address to help diagnose problems with our servers, to operate the Site, to help identify you and to gather usage information. You may choose to decline cookies or other tracking mechanisms if your browser or system permits, but doing so may affect your ability to access or use certain features of the Site.
Vendors. We may share your personal information with companies acting as our authorized agents in providing our services (e.g. credit card processing, customer/support services) to you, all of which agree to use it only for such specified purposes. Each vendor must agree to implement and maintain reasonable security procedures and practices appropriate to the nature of your information in order to protect your personal information from unauthorized access, destruction, use, modification, or disclosure. Because we operate both in and outside the United States, we may transfer your information to countries or jurisdictions that do not provide the same level of data protection as the country in which you are based. If we make such a transfer, we will, or our vendors will, as applicable, provide for the proper safeguards required by applicable law to ensure that your information is protected.
Legally affiliated entities. In the event that ArtéQuesta is merged, or in the event of a transfer of our assets, Site, or operations, ArtéQuesta may disclose or transfer your personal information in connection with such transaction. In the event of such a transfer, ArtéQuesta will notify you via email or by posting a prominent notice on our Site for 30 days.
Legally compelled disclosure. We will also disclose your personal information when required to do so by law, for example, in response to a court order or a subpoena or other legal obligation, in response to a law enforcement agency's request, or in special cases when we have reason to believe that disclosing your personal information is necessary to identify, contact, or bring legal action against someone who may be causing injury to or interference with (whether intentionally or unintentionally) our rights or property.
Bankruptcy. You should also be aware that courts of equity, such as U.S. Bankruptcy Courts, may have the authority under certain circumstances to permit your personal information to be shared or transferred to third parties without your permission.
Consent to processing. By providing any personal information to us, you fully understand and unambiguously consent to the transfer of such personal information to, and the collection and processing of such personal information in, the United States and other countries or territories. Your personal information will be stored and processed on our computers in the United States. The laws on holding personal information in the United States may vary and be less stringent than laws of your state or country. We will use commercially reasonable efforts to hold and transmit your personal information in a safe, confidential, and secure environment. If you object to your personal information being transferred or used in this manner, please do not register with or use the Site.
ArtéQuesta endeavors to protect the security of your personal information and your choices for its intended use. We use SSL (Secure Socket Layer) technology to protect the transmission of sensitive personal information. We store your personal information on a secure server and use procedures designed to protect the personal information we collect from unauthorized access, destruction, use, modification, or disclosure.
Although we will take (and require our third-party providers to take) commercially reasonable security precautions regarding your personal information collected from and stored in connection with the Site, due to the open nature of the Internet, we cannot guarantee that any of your personal information stored on our servers, or transmitted to or from us or a user, will be free from unauthorized access, and we disclaim any liability for any theft or loss of, unauthorized access or damage to, or interception of any data or communications. By using the Site, you acknowledge that you understand and agree to assume these risks.
We may provide tools that enable you to modify or delete your user information or to withdraw your consent to certain data collection. Please be aware, however, that disclosures or copies already made may remain. If this is not acceptable, do not supply the personal information in the first place; for required information, this may mean you will not be able to participate in certain programs. If you have a non-variable legal right to withdraw your consent or particular information and exercise that right, we reserve the right to terminate your account and any contracts or obligations we might have to you, including but not limited to any benefits or services you receive from us, except that you will still be bound by any obligations incurred and consent provided before your withdrawal. These provisions relate to your use of the Site. Our clients and business partners enter separate contracts with us relating to those relationships.
You may access and modify your information by logging into your Site account (if that function is available) or by contacting us at our Address for Legal Notices, which is:
Attn: Legal Notices
We will make good faith efforts to resolve requests to correct inaccurate information except where the request is unreasonable, requires disproportionate technical effort or expense, jeopardizes the privacy of others, or would be impractical. If you have any questions about this statement of privacy practices or other matters that relate to it, you may contact us at our Address for Legal Notices.