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TERMS OF SERVICE AGREEMENT


This Beta User Agreement (this “Agreement”) is made and entered into by and between ARTPLUS, INC, a Wyoming corporation (“ARTPLUS”), and the “USER” who has agreed by clicking the “I Accept” button.

This Agreement describes the terms and conditions under which User may access and use certain features, technologies and services related to and including the website at http://artplus.com that are not yet generally commercially available (the “Beta Service”).

ARTPLUS and User are sometimes referred to collectively as the “Parties” and each individually as a “Party.”


1 DEFINITIONS

“Beta Materials” means the Beta test site "ARTPLUS" at artplus.com and software, specifications or other technical documentation related to a specific Beta Service that may be provided to User by ARTPLUS.

“Beta Use” means the testing and evaluation of a specific Beta Service by User and certain other ARTPLUS advisory users or business partners.

“Beta Use Information” means all information relating to User’s use, testing or evaluation of a Beta Service or any related Beta Materials, including all observations or information regarding the performance, features and functionality of an Beta Service or any related Beta Materials and includes UGC.

“Feedback” means all feedback, suggestions, and ideas that User provides to ARTPLUS or its affiliates concerning improvements or enhancements to the Beta Service or any related Beta Materials.

“Confidential Information” means all information disclosed by ARTPLUS, its affiliates, or the agents of any of the foregoing to User, its affiliates, or the agents of any of the foregoing. Confidential Information includes, without limitation

(a) nonpublic information relating to ARTPLUS’ or its affiliates’ technology, Users, business plans, promotional and marketing activities, finances and other business affairs,

(b) third-party information that ARTPLUS or its affiliates is obligated to keep confidential,

(c) Beta Materials, Beta Use Information, Feedback, or any other information about or involving (including the existence of) any of the Beta Uses or Beta Services, and

(d) the nature, content and existence of this Agreement and any discussions or negotiations between the Parties.

“UGC” stands for “User Generated Content” and means any and all works of art in digital format, graphics, text, and all content uploaded by User through the Beta Service.

“Policies” means all policies and guidelines related to any Beta Service, Beta Materials or other web services offered by ARTPLUS or its affiliates and made available to User, including privacy policies, terms of use, acceptable use policies, and any additional terms and conditions for a specific Beta Use.



2 PARTICIPATION IN BETA USE

ARTPLUS grants User a limited, non-exclusive, non- transferable, royalty-free, revocable license to do the following during the term of the applicable Beta Use: (a) access and use the Beta Service solely for internal evaluation purposes; and (b) upload, transfer fictive ownership, copy, and use any related Beta Materials solely as necessary to access and use the Beta Service in the manner permitted by this Agreement and the Policies. After the conclusion of an Beta Use, User will not have any further right to use the applicable Beta Service, and if ARTPLUS releases a generally available version of the Beta Service, User’s use of the generally commercially available version will be subject to separate terms and conditions. However, ARTPLUS does not guarantee that any Beta Service will ever be made generally commercially available, or that any generally commercially available version will contain the same or similar functionality as the version made available by ARTPLUS during the Beta Use.



3 RESTRICTIONS AND LMITATIONS

User will not allow access to any Beta Service or Beta Materials by any third party other than User’s employees and contractors who (i) have a need to use or access the Beta Service or Beta Materials in connection with User’s internal evaluation activities and (ii) have executed written non-disclosure agreements obligating them to protect the confidentiality of the Beta Service and Beta Materials; use any Beta Service or Beta Materials in violation of this Agreement and the Policies; violate any usage limits for a Beta Service that ARTPLUS may communicate to User; export or allow access to any Beta Service or Beta Materials in any manner contrary to the export regulations of the United States; or otherwise access or use any Beta Service, or install, copy or use any Beta Materials, in any manner or for any purpose not expressly permitted by this Agreement or the Policies.

ARTPLUS may modify the permitted use of or suspend User’s access to any Beta Service at any time and for any reason. Beta Services also may be unavailable or their performance may be negatively affected by scheduled maintenance. No service levels or other uptime guarantees apply to the Beta Services.

ARTPLUS will use reasonable efforts to notify User in advance of scheduled maintenance, but ARTPLUS is unable to provide advance notice of unscheduled or emergency maintenance.



4 BETA USE INFORMATION AND FEEDBACK

It is expressly understood, acknowledged and agreed that in consideration of the rights granted in this Agreement, the User shall, regardless of whether or not formally requested to do, provide to ARTPLUS reasonable suggestions, comments and Feedback and Beta Use Information regarding the Beta Services. User grants to ARTPLUS the worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights:

(A) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback and Beta Use Information as part of any ARTPLUS product, technology, service, specification or other documentation (individually and collectively, "ARTPLUS Services");

(B) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback and Beta Use Information and (and derivative works thereof) as part of any ARTPLUS Services;

(C) solely with respect to User’s copyright and trade secret rights, to sub-license to third parties the foregoing rights, including the right to sub-license to further third parties; and

(D) User hereby assigns to ARTPLUS, User’s entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Beta Service which User may propose or make to the Beta Service or which User and Company may jointly make to the Beta Service during the Beta test period. Further, User agrees that the Feedback and Beta Use Information is not subject to any license terms that would purport to require ARTPLUS to comply with any additional obligations with respect to any ARTPLUS Services that incorporate any Feedback or Beta Use Information.



5 TERM AND TERMINATION TERM

The term of each individual Beta Use will be specified by ARTPLUS, but will automatically terminate upon the release of a generally commercially available version of the applicable Beta Service. The term of this Agreement will commence on the date and timestamp the User clicks on the “I agree” button.



6 TERMINATION

Either Party may terminate User’s participation in an individual Beta Use, or this Agreement entirely, at any time for any reason upon notice to the other Party. Upon termination of this Agreement:

(a) all rights and licenses granted to User in this Agreement will immediately terminate;

(b) User will immediately return or, if instructed by ARTPLUS, destroy all Beta Materials or any other confidential or proprietary information of ARTPLUS or its affiliates related to any Beta Service or this Agreement; and

(c) Sections 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 will survive.



7 CONFIDENTIALITY & OWNERSHIP USE AND DISCLOSURE

User may not disclose any Confidential Information during the term of this Agreement or at any time during the three (3) year period following the end of the Term.



8 PUBLICITY

Neither Party will issue any press release or public statement regarding this Agreement or any Beta Use, Beta Sevice or Beta Materials unless the other Party has approved in writing the time, form and content of the information to be disseminated to third parties or the public.



9 OWNERSHIP

User agrees that nothing contained in this Agreement shall be construed as granting any ownership rights to any Confidential Information, or to any invention or any patent, copyright, trademark, or other intellectual property right. User shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information or the Beta Services.

The User will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information or the Beta Services or Beta Materials.

DISCLAIMER OF WARRANTIES. THE ALPHA SERVICES AND ALPHA MATERIALS ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS NOR ARE THE SERVICES OPERATIONAL AND/OR MONITORED BY DELOITTE, NATURAL LE COULTRE S.A., LUXEMBOURG TELECOM, THE LUXEMBOURG FREEPORT OR ANY OF THEIR AFFILIATES, SUBSIDIARIES OR PARTNERS.

ACCORDINGLY, ARTPLUS IS PROVIDING THE ALPHA SERVICES AND BETA MATERIALS TO COMPANY “AS IS.” ARTPLUS MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES OR BETA MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

NOTWITHSTANDING ANY PUBLISHED MATERIALS THAT STATE OTHERWISE, ARTPLUS DOES NOT WARRANT THAT THE BETA SERVICES OR BETA MATERIALS WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.



10 LIMITATION OF LIABILITY.

NEITHER ARTPLUS NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY/USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE AGGREGATE LIABILITY OF ARTPLUS AND ITS AFFILIATES AND LICENSORS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID (IF ANY) BY USER TO ARTPLUS UNDER THIS AGREEMENT.



11 MISCELLANEOUS

Except for those limited rights expressly granted in Section 2.1, ARTPLUS and its licensors retain all right, title and interest in and to the Beta Services and the Beta Materials, including all related intellectual property rights. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.

This Agreement further controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder.

Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except that ARTPLUS may assign and delegate this Agreement pursuant to a transfer of all or substantially all of ARTPLUS’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.

This Agreement shall be governed by the laws of the State of Wyoming, without regard to Wyoming conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Cheyenne, Wyoming, USA.

In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction,

(a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and

(b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

This Agreement and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including any reseller or similar agreements previously executed by the parties. All notices, consents and approvals under this Agreement must be delivered in writing by email to the other party.



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