deeperbydesign, inc. ("We", "Us", "Our") through the Internet site otherpeoplespixels.com, offers a service to individual artists and galleries in order to provide an affordable and functional way to maintain a professional looking Internet presence (the "Service"), conditioned upon your acceptance, without modification, of the terms and conditions (the "Agreement") contained herein. We reserve the right to update and change the Agreement from time to time without notification or acceptance from you. Any modifications will be effective upon posting on the otherpeoplespixels.com website. You must accept the terms of this agreement in order to use the service. The Agreement will be applicable as well during your use of the service on a trial basis prior to any payment for the Service.
BY CLICKING ON THE "I AGREE" BUTTON DURING THE SERVICE SIGNUP PROCESS YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN DO NOT CLICK THE "I AGREE" BUTTON AND DO NOT USE THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF ANY MODIFICATION TO THIS AGREEMENT THEN YOU MUST IMMEDIATELY NOTIFY US AND TERMINATE YOUR USE OF THE SERVICE.
We provide you with an individual web site on one of it's Internet servers (a Portfolio Site). The Service allows for you to determine the content of the site (biographical text, news posts, downloadable files and artwork in the form of images, videos, music, sound and text) and to select from various "Skins" to customize the appearance of your Portfolio Site. Your Portfolio Site will display the properly formatted or encoded content you provide as a fully functioning web site using Our proprietary software to visitors using supported web browsers. You do not own and are not purchasing a website from Us, the monthly fees you pay to deeperbydesign, inc. are for licensing your use of the software used to provide the Service, as well as the Internet hosting of your Portfolio Site, only. Any fees paid to Us for conversion or preparation of materials to display on your Portfolio Site are for the time and effort required to convert or prepare the material and do not constitute the purchase of the website or any of the software or other components used to provide you with this Service. Fees for various levels of this Service, as well as one-time fees for additional services, are subject to change at any time and will be available at all times on the otherpeoplespixels.com website.
The features and tools that you may use to manage your Portfolio Site, as well as the amount of storage space and network bandwidth allotted to your Portfolio Site will be determined by the level of service to which you have subscribed. New features and tools may be added to the Service by Us at any time and shall be subject to these same Terms of Service. Certain features or tools may be removed from the Service as a result of changing Internet or computer technologies or in response to lack of demand. Your Portfolio Site is allocated a limited amount of storage space and network bandwidth determined by the level of service to which you have subscribed. The amount of storage and network bandwidth may change at any time and will be available at all times on the otherpeoplespixels.com website.
You agree not to access the Service by any means other than the interfaces provided by Us for use in accessing the Service.
In order to use this Service you must have a valid Account. When you register for the Service with Us, providing your name and contact information as well as a valid PayPal account for billing, you will be issued an Account and a Username to identify your Account. Your Username, combined with a Password of your selection, will be used to restrict access to your Account. You are solely responsible for maintaining the confidentiality of your Username and Password, and are fully responsible for all activities that occur using your Account. You agree to notify Us immediately upon any unauthorized use of your Account, modification to your Portfolio Site or other breach of security. We cannot and will not be liable for any loss or damage arising for your failure to comply with the requirements of this section. You acknowledge and agree that under no circumstances will We be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
In consideration of your use of this Service, you agree to: (a) provide true, accurate, current and complete information about yourself during the registration process, and (b) maintain and update this information to keep it true, accurate, current and complete at all times. We will have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof) if any information that you provide is untrue, inaccurate, not current or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete.
The PayPal account provided while registering for the Service will be billed automatically and immediately after you have registered. In the event that payment is made during a free-trial period, the free-trial will end and the payment schedule will begin immediately. Payment for the Service occurs on a monthly or annual basis, as selected by you and is non-refundable. All fees and other currency references are in US dollars.
You may upgrade or downgrade the level of Service for your Account. For an upgrade, the PayPal account you have provided will be charged the pro-rata amount for the higher Service level and the upgrade will take effect after payment is received. Downgrades take effect at the next billing cycle and as a result there are no refunds for downgrades. If your Portfolio Site exceeds the allotted storage space for a lower level of Service you may not downgrade to that level of Service.
If network traffic for your Portfolio Site exceeds the amount of monthly bandwidth included in your current level of Service, one of the following actions will be taken: (a) access to your Portfolio Site will be suspended until the end of the current month, or (b) a charge for the extra bandwidth will be made to the PayPal account you have provided, (c) your Account will be terminated. The action taken will be at Our sole discretion, though you may indicate which action you prefer for your Account. You will be notified by email if your network bandwidth is predicted to exceed the allotment for your Account. Fees for exceeded bandwidth are subject to change and will be available via the otherpeoplespixels.com website. You agree that We may require you to upgrade to a higher level of Service if you exceed your allotted bandwidth repeatedly.
If you choose to cancel the Service your cancellation will take effect immediately, you will no longer be able to access your Portfolio Site and the information contained within will be deleted by Us. You agree that We are not liable for any loss or damages due to such deleted content or information. In the event that the domain name used by your Portfolio Site was purchased by Us, you are responsible for requesting that it be transfered into your name upon your cancelation of the Service. We are not liable for loss or damages due to the expiration of a domain name for which the corresponding Service has been canceled.
We, in Our sole discretion, may terminate your Account, Service or remove and discard any information or content within the Service, for any reason, including and without limitation, non-payment of fees, lack of use, or if We believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any contracts, written or verbal or assumed, in conjunction with your Portfolio Site will be terminated as well. We may also in Our sole discretion and at any time, discontinue the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that We may immediately deactivate or delete your Portfolio Site, as applicable, and all related information and files. We reserve the right to bar any further access to such files or the Service. You agree that We shall not be liable to you or any third-party for any termination of your access to the Service. Paid accounts that are terminated will not be refunded.
You understand that all information, data, text, music, sound, photographs, graphics, video or other materials contained in your Portfolio Site ("Content") are the sole responsibility of the person from which such Content originated. This means that you, and not Us, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. We do not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
Under no circumstances will We be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that deeperbydesign, inc. does not pre-screen Content, but that We and Our designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, deeperbydesign, inc. and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content. You acknowledge and agree that We may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of deeperbydesign, inc., its users and the public.
Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Our sole discretion as to what action should be taken. You agree that you will not:
(a) upload, post or otherwise transmit any Content that infringes any copyright, rights of privacy or publicity, patent, trademark, trade secret, or other proprietary rights of any party;
(b) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", such as (a) sending mass email to recipients who haven't requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions;
(e) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) intentionally or unintentionally violate any applicable local, state, national or international law;
(h) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) We determine, in its sole discretion, is inappropriate for sale through the Service provided by Us;
(i) use the Service as a forwarding service to another website;
(j) exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples Content.
If you are reported to be in violation with the letter or spirit of these terms, We retain the right to terminate your account at any time without further warning.
You understand that the technical processing and transmission of your Content in the execution of the Service may involve modifications to or transformation of such Content, including but not limited to: (a) compression of data, (b) resizing of images, (c) formatting or reformatting of textual data.
We do not claim ownership of the Content you place on your Portfolio Site using the Service. By submitting Content to Us for inclusion on your Portfolio Site, you grant Us a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt, transfer, perform, distribute, create derivative works from, publish and display the Content solely for the purpose of providing the Service to you. This license exists only for as long as you continue to subscribe to the Service and shall be terminated immediately at the time your Portfolio Site is terminated. You agree that such use of your Content is not an infringement of any of your intellectual property rights.
You acknowledge and agree that the Service and the computer software, data files, graphic design and other information of which it consists are solely the property of Us or their respective owners. Your use of the Service does not constitute a purchase of your Portfolio Site or any of the components used in the delivery of the Service. You agree not to modify, sell, lease, rent, loan, distribute or create derivative works based on the Service.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
We are committed to protecting your privacy. The information that is collected from you will be used lawfully; in accordance with the Data Protection Act of 1998. Information that is collected about you is used by deeperbydesign, inc. to provide the Service to you and to improve the Service.
We will not sell, offer, trade, transfer or submit your details to any other entity except as required by law or court order. The personal information which We hold will always be held securely in accordance with our internal security policy and the law.
You agree to indemnify and hold deeperbydesign, inc., and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of this Agreement, or your violation of any rights of another. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OF OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA, USER-CONFIGURED SETTINGS, OR UPLOADED CONTENT; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations above (particularly within the DISCLAIMER OF WARRANTIES and LIMITATIONS OF LIABILITY) may not apply to you.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by deeperbydesign, inc..
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on the Service.
This Agreement and the relationship between you and Us shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions. You and deeperbydesign, inc. agree to submit to the personal and exclusive jurisdiction of the courts located within Chicago, Illinois.
The failure of deeperbydesign, inc. to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The terms and conditions herein constitute the entire agreement between you and Us and govern your use of the Service, superseding any prior agreements between you and Us (including, but not limited to, any prior versions of the Agreement).
You also may be subject to additional terms and conditions that may apply when you use affiliate or other deeperbydesign, inc. services, third-party content or third-party software. If any provision of this Agreement or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect.