End-User License Agreement
This End-User License Agreement ("EULA") constitutes an agreement between ArteQuesta, Inc. ("ArteQuesta," "we," "our," or "us"), as licensor of the software ArteQuesta 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.
. Please read these documents carefully.
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 ArteQuesta 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 ArteQuesta whereby we provide advisory or other services to that person.
3. User credentials
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.
4. Changes to the EULA
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.html
. 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.
5. Changes to the Software
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.
6. License to use the Software
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.
7. Other restrictions
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.
8. Copyrights and other intellectual property
9. Trademarks and third-party trademarks
The following are trademarks of our company: ARTEQUESTA, the ArteQuesta 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.
10. Third-party websites
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.
11. No investment advice; no affirmation of value
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. ArteQuesta may offer an art investment program to qualified persons. Any such program will be subject to the terms of a separate agreement.
12. No warranties
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. ARTEQUESTA, 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, ARTEQUESTA, 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 ARTEQUESTA'S LIABILITY FOR A BREACH OF THOSE STATUTORY IMPLIED TERMS IS LIMITED IN ACCORDANCE WITH AND TO THE GREATEST EXTENT PERMISSIBLE UNDER THAT LEGISLATION.
13. Disclaimer of certain damages
IN NO EVENT WILL ARTEQUESTA, 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 ARTEQUESTA, 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.
14. Limitation of liability and exclusive remedies
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER SECTION 13, ARTEQUESTA'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.
15. Independent remedies
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 Software; (b) any violation by you of the EULA; or (c) your violation of any another party's rights or applicable law.
17. Governing law; jurisdiction; waiver of jury and class action
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 ArteQuesta intend that the provisions of this EULA be enforced to the fullest extent permitted by applicable law. Accordingly, you and ArteQuesta 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 ArteQuesta with respect to your use of the Software. Both you and ArteQuesta warrant to each other that, in entering this EULA, neither you nor ArteQuesta 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 ArteQuesta or ArteQuesta'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:
775 East Blithedale Ave., # 237
Mill Valley, CA 94941
Attn: Legal Notices