Last Modified: April 25, 2013
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE.
This Agreement is a legally binding contract between you and Collectrium LLC. Collectrium provides the Service (as defined below) to you subject to and conditioned upon your acceptance of this Agreement.
BY CLICKING “I ACCEPT” ON THE SIGNUP PAGE, OR BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE OR THIS SITE AND EXIT NOW. Collectrium may update and change any part or all of this Agreement, including but not limited to the fees and charges associated with the use of the Service. If we update or change this Agreement, we will post the updated version at http://collectrium.com/terms_of_service. The updated Agreement will become effective and binding on the fifth business day after it is posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically. For the purposes of these Terms of Service, "Customer" means you or the entity on whose behalf you are agreeing to these Terms of Service, as identified in the applicable billing statement or subscription form.
“Agreement” means these Terms of Service and all materials referred or linked to in these Terms of Service.
“Billing Period” means the period of time for which Customer has agreed to prepay fees for the Service, from time to time and will be the same as or shorter than the Contract Term. For example, if Customer subscribes to the Service for one year, with monthly credit card payments, the Billing Period will be one month.
"Contract Term" means the Initial Contract Term and any Renewal Contract Term(s), as defined in Section 5, below.
"Customer Data" means all information submitted by Customer to, or collected by Customer via, the Service, including without limitation, information about Customer and about Customer’s art, and all materials that Customer provides or posts, uploads, inputs or submits for public or private display through the Service.
"Customer" means the person or entity agreeing to these terms and identified in the applicable billing statement or subscription form.
"Collectrium" means Collectrium LLC and any entity which directly or indirectly controls, is controlled by, or is under common control with Collectrium LLC.
"Collectrium Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Service by Collectrium or provided by Collectrium for use in connection with the Service.
"Service" means the specific edition and elements of Collectrium's web-based art inventory management applications, tools and platform selected by Customer, and developed, operated, and maintained by Collectrium, accessible via collectrium.com or another designated URL, and any ancillary online or offline products and services, including website hosting, provided to Customer by Collectrium, to which Customer is being granted access under this Agreement. The Service includes the Collectrium Content, and does not include Third-Party Products or other software (such as mobile applications) or products provided by Collectrium.
"Third-Party Products" means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Service, and are identified as being provided by third parties.
"Third-Party Sites" means third-party websites linked to from within the Service, including without limitation Communications Services.
"User(s)" means Customer's employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Service and who have been supplied user identifications and passwords by Customer (or by Collectrium at Customer’s request)
During the Contract Term and as provided in this Agreement, Collectrium will provide Customer access to the Service.The Service shall be as selected by Customer during the subscription process, as modified from time to time pursuant to this Agreement. Limits may apply to use of the Service, as detailed in Collectrium’s pricing and subscription terms, available at http://www.collectrium.com. Customer’s access to and use of the Service is governed by the terms of this Agreement.
Collectrium adds features to and modifies the Service from time to time, in order to improve its customers’ experience. Nothing in this Agreement shall prohibit Collectrium from making such changes to the Service, provided that no such change to the Services shall materially reduce the functionality of the Services provided to Customer during the Contract Term, and the Service as so changed shall be the Service as that term is used in this Agreement. Collectrium reserves the right to provide some or all elements of the Service through use of third party providers.
Customer can subscribe to additional elements of the Service from time to time, as agreed to between the parties, and such added elements of the Service shall, starting with the date on which the parties agree to their addition, be included in the Service provided and fees payable under this Agreement.
If so indicated in the Order Form, Collectrium will provide a “skinned” or “White Labeled” version of the Service, which will appear to visitors as if it were natively provided by Customer, including the use of Customer’s logos and other webpage design elements as agreed to on the Order Form (the “White Label Service”). Except for the appearance changes, and notwithstanding anything else provided herein, the White Label Service shall be identical to the Service, and all provisions of this Agreement that apply to the Service shall apply equally to the White Label Service. The White Label Service shall be hosted on Collectrium’s servers.
Customer grants Collectrium the right and license to use and display Customer’s name, trademarks and logos solely in connection with Collectrium’s provision of the White Label Service and for no other purpose, and Customer retains all other rights to its name, trademarks and logos.
For the sake of clarity, the parties agree specifically that: (a) Collectrium retains ownership of all rights to the White Label Service equally as to the Service, (b) Collectrium shall not be liable for any actions of Customer in connection with Customer’s use of the White Label Service, and (c) Customer’s indemnification obligations hereunder with respect to its use of the Service shall apply equally to its use of the White Label Service.
Phone and email support for the Service is available 10AM to 6PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. Contact information is at collectrium.com/about/contact/. Collectrium uses commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
The initial Fee is valid for the initial Billing Period. All fees are payable in advance throughout the Contract Term.
Payment by credit card - Customer will provide Collectrium with valid and updated credit card information or bank account information. Customer authorizes Collectrium to charge Customer’s credit card or bank account for all fees payable at the beginning of the Initial Contract Term and all subsequent Billing Periods
Payment against invoice - Collectrium will invoice Customer at beginning of the Initial Contract Term and approximately one month in advance of the start of each subsequent Billing Period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Invoicing, payment terms, and payment instructions shall be as set out on Collectrium’s invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.
Payment Information - Customer shall ensure that all details provided regarding Customer's contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable.
All quoted prices and fees are exclusive of sales, value added and similar taxes, which Collectrium will charge or invoice as applicable, and Customer agrees to pay any such taxes applicable to its use of the Service.
The “Initial Contract Term” shall begin on the effective date of Customer’s subscription and expire at the end of the period selected during the subscription process, unless earlier terminated in accordance with this Agreement.
Unless either party gives the other notice that it does not intend to renew this Agreement at least 30 days in advance of the end of the Initial Contract Term or a Renewal Contract Term, this Agreement will be automatically renewed for a “Renewal Contract Term”, which shall be: (i) on the terms and conditions of this Agreement then in effect, (ii) subject to the pricing structure and applicable levels provided for renewal terms in this Agreement or, if not so specified, as then posted by Collectrium at collectrium.com/pricing, and (iii) for a term equal to one year.
Each Contract Term, unless renewed, shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Contract Term cannot be canceled before its expiration. Fees for each Contract Term are non-cancelable, and therefore no refunds of fees paid in advance will be made, except as specifically provided for in this Agreement.
This is an Agreement for access to the Service, and Customer is not granted a license to any software by this Agreement. The Service is based upon proprietary Collectrium technology and includes the Collectrium Content. The Service is protected by applicable intellectual property and other laws, including patent, trademark, and copyright laws. The Service, including all intellectual property rights in the Service, belongs to and is the property of Collectrium or its licensors (if any). Collectrium owns and retains all copyrights in the Collectrium Content. The Collectrium Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Collectrium Content or the Service, in whole or in part, by any means, except as expressly authorized in writing by Collectrium. Collectrium, the Collectrium logos, and other marks used by Collectrium from time to time are trademarks and the property of Collectrium. The appearance, layout, color scheme, and design of the collectrium.com site are protected trade dress. Customer does not receive any right or license to use the foregoing.
Collectrium may use and incorporate into the Service any suggestions or other feedback relating to the Service provided by Customer personnel, without payment or condition.
As between the parties, Customer shall own and retain all rights to Customer Data, and this Agreement does not grant Collectrium any rights to such materials. Customer grants permission to Collectrium and its licensors to use Customer Data only as necessary to provide the Service to Customer, and not for any other purpose.
Definition of Confidential Information. As used herein, "Confidential Information" means all Customer Data that Customer has not made publicly available on the Service or elsewhere. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Customer, (ii) was known to Collectrium prior to its disclosure by Customer without breach of any obligation owed to Customer, (iii) is received from a third party without breach of any obligation owed to Customer, (iv) was independently developed by Collectrium, or (v) that Customer has agreed in writing to permit Collectrium to disclose to others.
Protection of Confidential Information. Collectrium shall: (i) protect the confidentiality of the Confidential Information of Customer using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of Customer for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of Customer to any third party, and (iv) limit access to Confidential Information of Customer to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Collectrium containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
Compelled Disclosure. Collectrium may disclose Confidential Information of Customer if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
Collectrium may monitor use of the Service by all of its customers in order to improve the Service and add features useful to its customers. Collectrium may collect and use data related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service. Customer agrees that Collectrium may use and publish such aggregate and anonymous information, provided that such information does not incorporate any Customer Data and/or identify Customer.
Collectrium will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Customer consents to the processing of Customer Data in the United States.
Customer’s access to the Service is conditioned upon its representations and warranties that it will not:
Any unauthorized use of any Collectrium Content or the Service may violate patent, copyright, trademark, and other laws. Customer agrees to cooperate with Collectrium to prevent any unauthorized copying of the Service or Collectrium Content.
Customer shall promptly notify Collectrium of any unauthorized use of its Users’ identifications and passwords or its account by following the instructions at success.Collectrium.com/log-a-support-request.
Customer agrees to use the third-party Communication Services only in compliance with these Terms of Service. Collectrium reserves the right to terminate any User’s access to any or all of the Service for repeated violations of this Section and will provide reasonably contemporaneous telephonic or electronic notice to Customer. Customer agrees that when using the Service, Customer will not:
Third-Party Sites and Products are not under Collectrium’s control, and Collectrium is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Collectrium is not responsible for webcasting or any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Collectrium of the Third-Party Site or Product or any association of Collectrium with it.
Customer will indemnify, defend and hold Collectrium harmless, at its expense, against any third-party action brought against Collectrium (and its officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such claim is based upon or arises out of (a) Customer’s use of the Service; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using Customer’s User information. Customer will indemnify Collectrium for the amount of a final judgment entered by a court of competent jurisdiction or a settlement, plus reasonable attorneys’ fees, that result from such a claim as provided in this subsection, provided that Collectrium shall: notify Customer in writing within thirty (30) days of Collectrium’s becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Collectrium of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim.
COLLECTRIUM AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR THE COLLECTRIUM CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. COLLECTRIUM AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE AND THE COLLECTRIUM CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COLLECTRIUM IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COLLECTRIUM AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICE, OR FOR ANY COLLECTRIUM CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF COLLECTRIUM OR ANY OF COLLECTRIUM’S SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, COLLECTRIUM IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF COLLECTRIUM AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIFTY DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
COLLECTRIUM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. COLLECTRIUM’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND COLLECTRIUM’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION.
CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, COLLECTRIUM WOULD NOT PROVIDE THE SERVICE TO CUSTOMER.
Customer grants Collectrium the right to add Customer’s name and/or company logo, as applicable (collectively, ’Name’), to its customer list and web site, and to use its Name in Collectrium’s marketing and promotional activities. Customer will not use Collectrium’s name or logo publicly without Collectrium’s prior written consent.