Terms of Service
By accepting these Terms, you are agreeing to the Arbitration Agreement (unless you follow the opt out procedure) and class action waiver described in Section 17 of these Terms to resolve any disputes with Depict, Inc.
This is a legal document which sets out your rights and obligations, and those of Depict, in relation to the Services or any part thereof, any Depict software or application that you access and any other services offered by us through the Services. You must take the time to read and understand these Terms before using the Services. By registering on the Services, you accept that you are entering into a contract with us under these Terms. People who register for the Services establish an “Account”, and become “Members.” Visitors to or users of the Services who do not become Members (“Visitors”), but who nevertheless use the Services, and/or download our software or applications, affirm that they are bound by these Terms each time they access or use the Services. You should be aware that these Terms may change from time to time in accordance with Section 14 below.
2. Depict Membership Benefits.
We license digital artworks (the “Artwork”) from hand-picked artists (“Artists”) in order to provide a unique, curated digital gallery experience for our Visitors and Members and to provide a forum for Artists to display and promote their Artwork to Members in digital format, for Artists and Members to communicate with each other about such Artwork, and for Members to obtain licenses to display digital images or other digital versions of such Artwork.
Members may obtain (i) a license to use the Depict product software for private use, (ii) personal login credentials and an account on the Services for private use, (iii), access to the Services, which contain low resolution images, videos, and dynamic versions (i.e., non-static, changing, or moving images that are not videos) of Artist content available for license or purchase, and (iv) the opportunity to obtain paid sublicenses to display digital versions or digital versions of Artist content available on the Services.
Although our customer support team will endeavor to provide reasonable technical support, it is the responsibility of Members to have sufficient web and internet usage skills to make full use of the Services. The Services may from time to time have bugs or may be difficult to use, or may otherwise be modified from time to time.
All Artists are individually selected and invited to participate in the Services as Artists by our team of curators to ensure that, through the Services, Depict is able to provide a unique gallery of the highest quality digital artwork. If you are invited to become an Artist with Depcit, you will be required to complete and sign a copy of our Artist Agreement before you are able to participate in the Services, as an Artist.
4. Member Accounts.
You agree that you are responsible for everything you do on or through the Services whether through or in connection with your Account, while logged on to the Site or the App as a Member, or through any email correspondence with Depict, our Artists, our Visitors, our Members, or otherwise. You must ensure that you comply with the laws that apply to you and your use of the Services, including as to Member Content (as defined in Section 6 below). Because anything done through your Account, or by means of an email address, phone number or other communications method associated with that Account, will be considered to have been done by you for purposes of these Terms; you must maintain the security of your Account and Account log-in credentials at all times.
5. Account Cancellation.
You may cancel your Account at any time by contacting us by email at firstname.lastname@example.org or by mail at 360 Ritch Street, Suite 300, San Francisco, CA 94107 and requesting a cancellation. We reserve the right to terminate your Account if you do not log into your Account for a period of 365 days; provided that we will not terminate your account for inactivity if you hold one or more paid One-Time Licenses (as defined below) or if you hold one or more monthly Subscription Licenses (as defined below) and continue to pay the monthly Subscription License fees. Even if your Account is cancelled or terminated for any reason, you remain responsible for your obligations under these Terms, and the rights granted to us under these Terms shall not be terminated as a result. Upon the cancellation or termination of your Account: (i) the user name or Member ID for your Account will be automatically be released to us, and will no longer be associated with or controlled by you; (ii) any licenses or sublicenses to digital Artwork you have acquired through the Services will automatically terminate, effective immediately, and (iii) we will delete your Member profile and/or Artist Profile.
6. Member Content.
Any material posted, contributed, distributed, communicated, transmitted or linked-to by a Member or Artist on, through or in connection with the Services, including your Member or Artist profile (if you establish such profiles) and any information associated with such profiles, is referred to as “Member Content” in these Terms. You are entirely responsible for your Member Content and must ensure that your Member content complies at all times with the following rules and regulations. We reserve the right to remove any images or other content that may conflict with these guidelines. Severe or repeated violations may result in restrictions on or termination of your Account and your access to the Services, including as a Visitor. All determinations of whether Member Content complies with these Terms, including the restrictions set forth below, and the severity of any violation, shall be made solely in the discretion of Depict.
a) Intellectual Property . You must honor the intellectual property rights of others. You must not post or distribute (including to the Services) images or other content to which you do not own the copyright or otherwise have the legal right to post or distribute. You must not post or distribute images or other content that (i) is an unauthorized reproduction or modified version of a copyrighted work, (ii) features the brand, logo, trademark, trade name or trade dress of any other person or entity, (iii) infringes any third party’s rights of privacy or publicity, or (iv) otherwise infringes any third party’s intellectual property rights in any way. If you believe that your Artwork has been copied in a way that constitutes copyright and/or trademark infringement, or if you believe that any Artwork on or available through the Services infringes third party intellectual property rights, please report this to us in accordance with our Copyright Policy, available at depict.com/copyright.html.
b) Illegal Acts . You must not post or distribute (including to the Services) images or other content that would constitute or encourage a criminal offenses, violate the rights of any party, or that would otherwise create liability under or violate any local, state, national or international law, including but not limited to: (i) images or other content that contains hate or racial intolerance or advocates violence or ridicule against any individual, group, or organization; (ii) images or other content that displays illegal drugs or the paraphernalia for using, selling, or trafficking them; (iii) images or other content that features excessive profanity, obscenity, or sexually explicit language, defamatory statements, or remarks that disparage or ridicule other people; (iv) images or other content that is libelous in nature, (v) images or other content that promotes discrimination based on race, ethnicity, sex, religion, national origin, disability, sexual orientation, age or otherwise; (vi) images or other content that is harmful to or exploitative of children; (vii) images or other content that is containing personally identifying information about another Member or Artist, such as their real name, address, phone number, or email address, except with the prior written approval of that Member or Artist; or (viii) images or other content that is inherently otherwise illegal or that encourages illegal conduct.
c) Pornography. We understand that our Artists may wish to provide for display and distribution through the Services art that may include nude figures and affectionate activity. While these are legitimate subjects of artistic portrayal, you may not under any circumstances post or distribute (including to the Services) pornographic images, sexual images involving children, images that depict graphic or deviant sexual acts, or any related or similar activity.
d) Violent Content. Depict does not ban depictions of violence that we deem to be created with artistic purpose or merit and that do not otherwise violate these Terms. However, You may not post or distribute (including to the Services) images that contain graphic or gratuitous violence or images that promote violent crime, violent conduct, or suicide.
e) Misrepresentation . You may not falsely state or otherwise misrepresent your affiliation, or affiliation of your or any other person’s Member Content, with any other person or entity in any way.
f) Commercial and Political Activity. You may not post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, political campaigning, commercial solicitation, mass mailings, “junk mail,” “spam,” “chain letters,” or “pyramid schemes” or other such solicitations.
g) Computer Viruses. You may not post or otherwise distribute (including to or through the Services) any virus, macro virus, Trojan horse, worm, or anything else designed to interfere with, interrupt, or disrupt the normal operating procedures of a computer or mobile device or to surreptitiously intercept, access without authority, or expropriate any system, data or personal information. You may not to use any robot, spider, scraper or other automated means to access the Services for any purpose without our prior express written permission.
The list above is not an exhaustive list of unacceptable content. Depict will determine, in its sole discretion, whether content is in compliance with these Terms. We are not responsible for Member Content. We provide only the technical means for Member Content to be accessed. We do not pre-screen Member Content. Even though Members are prohibited from doing so, some Members may provide information, or otherwise behave, in a way that is unreliable, illegal, or that violates these Terms. To the extent that the law permits, you release Depict, its agents, directors, officers, shareholders, employees, and affiliates from all liability arising out of or in connection with any Member Content.
We may set limits on the volumes of specific types of Member Content that you may send, post, store, or receive through Depict, and reserve the right to delete Member Content that exceeds such limit(s) in our discretion without any liability whatsoever. It is your responsibility to check on the Site, the App, and in these Terms the extent to which such limits may be in effect at any given time.
7. Intellectual Property
Except for Member Content that is artwork subject to an Artist Agreement between us and a Member who is an Artist, by posting, contributing, distributing, communicating or transmitting any Member Content, a Member expressly grants to us a non-exclusive, royalty-free, irrevocable, transferrable license (including the right to grant sub-licenses through multiple tiers) to use, reproduce, adapt and distribute such Member Content worldwide through the Services and any other means or media through which we make the Services available, including in any promotional materials we may elect to distribute). For the avoidance of doubt, the license granted under this Section 7 will survive any termination of these Terms or any cancellation, suspension or termination of the relevant Account. The license granted under this Section 7 shall also expressly permit us to modify any material associated with a Member or an Account in order to conform it to Depict’s formatting requirements (such as by cropping images).
Notwithstanding the preceding paragraph, any Feedback or similar information you provide to Depict, including Feedback provided or on or through the Services, will become the property of Depict, and you hereby assign all rights in such Feedback and similar information to Depict and agree that we may use that information for our business purposes, including, without limitation, continuing to improve the Services. For purposes of these Terms, “Feedback” means: (i) feedback and suggestions regarding the product user experience (ii) feedback and suggestions on the functionality of the technology, (iii) feedback and suggestions on the style and appeal of artistic content available on the Services, and (iv) feedback, suggestions, or comments on features or additional services that you believe Depict should consider adding to the Services.
You acknowledge that all copyright, trademarks, and other intellectual property rights in and relating to the Services (including, without limitation, Member Content associated Members other than you) are owned by, or licensed to, us. You may use and access the Services and that Member Content only to the extent required for the use of the Services in strict compliance with these Terms, and only to the extent that we make them available. You may not copy, distribute, publicly display or create any derivative work from Depict, or any of the material which is found on or through the Services, including any Member Content, unless properly licensed to do so by us or by the holder of any copyright, trademark, or other intellectual property to which we do not own the exclusive rights.
8. Misuse; Suspension of Privileges.
We reserve the right at any time and without notice to (a) suspend or terminate your Account, your access to the Services, (b) to remove from the Services any Member Content associated with you or your Account, (d) to warn Members and other users of the Services against interacting with a particular Member, and/or (e) to take technical, legal, or other action to stop a Member or Members from using the Services if they appear to us to be in breach of any provision of these Terms. Should we do so, you acknowledge and agree that we shall not incur any liability to you or to any other person.
9. Third Parties and Additional Services.
The Site, the App, and the Services may contain links to or advertisements for other sites, mobile applications, services or products (“Third Party Products”). Third Party Products are provided solely as a convenience to you and may contain materials which you find offensive, objectionable, unlawful or inaccurate. Such sites, applications, and services are governed by their own terms of service and privacy policies which may differ from these Terms. The inclusion of links to Third Party Products does not indicate that we endorse them and we are not responsible for examining or evaluating the content of such sites, applications, and services.
We, our affiliates or third parties with which we contract may offer new, updated or additional services through the Services from time to time. Your use of those services will be governed by these Terms but may also be subject to additional terms and conditions (including as to fees or payments), which you must comply with. Provided that you are notified of those terms on or through the Services in an appropriate manner (as determined by us in our reasonable discretion) when you agree to accept or use those services, any failure by you to comply with a material provision of the terms governing those services will amount to a breach of these Terms.
If anyone contacts us in relation to Member Content or a transaction associated with a Member, or any related activity or communication, then the relevant Member agrees: (i) to provide all reasonable information and assistance we may require in connection with responding to that contact; and (ii) to respond promptly and accurately to it, should we forward the message to the Member for a response.
10. Member License.
If you establish an Account, you will be able to obtain paid licenses to display the digital Artwork available on Depict. Depict offers two types of licenses: “One-Time Licenses,” and monthly “Subscription Licenses.”
For any piece of Artwork available on the Services, you may choose to make an up-front, one-time payment, at a price listed on the Services, and receive a sublicense to such piece of Artwork that shall continue for so long as you continue to be a Member (unless otherwise terminated by you or by Depict in accordance with our Terms of Service or any other terms and conditions applicable to such sublicense) (a “One-Time License”).
Artwork is also available on the Services for license on a monthly subscription basis (“Subscription Licenses”). If you choose to obtain a Subscription License for any Artwork, you will be required to make monthly payments to maintain your sublicense to such piece of Artwork, and your sublicense will continue as long as you continue to make the required monthly payments (unless otherwise terminated by you or by Depict in accordance with our Terms of Service or any other terms and conditions applicable to such sublicense).
Each Member is hereby granted a non-exclusive, non-transferable, non-sublicensable, limited, revocable license (a “Member License”) to access and use the Services strictly for the purposes set forth herein, including to display each piece of Artwork that such Member selects from the Services and for which such Member pays the applicable license fee(s) (i) at any time for so long as the Member continues to be a Member (if such Member has obtained a One-Time License for such piece(s) of Artwork), or (ii) at any time during any period for which such Member has a valid Subscription License for such piece(s) of Artwork, on any device owned or controlled by the Member (but only while such device is owned or controlled by the Member).
Subject to your compliance with these Terms, Depict grants to you a limited, non-transferable, non-exclusive, revocable license to download, install and use one copy of the App in object code form only on an interactive wireless device that you own or control.
You should note that unless otherwise separately and explicitly transferred, the Artist who created the Artwork continues to own the copyright in it, and has asserted his/her moral rights with regard to the Artwork. Accordingly, the Artist has the right to be identified as the author of the Artwork. The Member License permits you only the right to access, view, and display the Artwork, rather than the copyright in, the Artwork licensed by you.
A Member License does not permit you to, and you agree not, directly or indirectly, to authorize, permit or be involved in (a) copying, printing or creating any other physical representation of an Artwork, (b) projecting an Artwork so that it is viewable other than directly on the screen of the device displaying the Artwork, (c) distributing or transmitting licensed Artwork, or making it available (including through the internet for display by third parties), (d) exhibiting or otherwise commercially exploiting any licensed Artwork, (e) disassembling, decompiling, reverse engineering or otherwise deriving human readable code from the Depict product software, or (f) licensing, sublicensing, leasing, renting, assigning, transferring, or otherwise distributing the Depict product software.
Licensed Artwork may not be compatible with all devices, operating systems and media. You should ensure that the licensed Artwork is compatible with your devices, operating systems and media before licensing it by consulting our FAQs, available at http://depict.com/faq
We reserve the right to include invisible digital watermarking or other coding in licensed Artwork in order to track potential infringement of our or Artists’ rights.
We reserve the right to terminate, either in whole or in part, your license to display Artwork licensed through the Services if you violate Depict’s policies, rules and regulations, including these Terms of Service.
11. Payment and Billing Terms and Conditions.
All payments to Depict for license fees must be made by one of the following forms of payment: Visa, MasterCard, American Express, JCB, Discover, and Diners Club. Fees for all One-Time Licenses must be paid at the time of purchase. Fees for monthly Subscription Licenses are due in advance on a monthly basis.
If any fee is not paid in a timely manner, or if Depict or its third party payment processors are unable to process your transaction using the credit card information provided, Depict reserves the right to suspend your Account and your access to the Service, including your license to display any Artwork for which you then hold a monthly Subscription License. If you do not bring your Account balance current within ten (10) days after Depict notifies you that your account is past due, Depict reserves the right to terminate your Account and access to the Service permanently. If you elect to obtain a monthly Subscription License for any Artwork, your subscription shall begin from the date you select to initiate such monthly Subscription License and authorize Depict to charge your credit card for the monthly subscription fee. Thereafter Depict will (or will instruct its third party payment processor to) automatically charge your credit card the monthly Subscription License renewal fee for such Artwork each month on the renewal date at the beginning of the your next subscription period, unless and until you cancel your Subscription License for such Artwork. You may look up your subscription period and next Subscription License renewal date by logging into the Site or the App and selecting the “My Subscriptions” option on the “My Account” page of the Site or the App. In the event your subscription period began on a day not contained in a given month or year, your credit card will be automatically billed on the last day of such month or year. For example, if your subscription period began on January 31st, your credit card would be billed on February 28th or 29th. The amount billed each month or year may vary for reasons that include, differing amounts due to promotional offers, changes in the amount of applicable sales tax, or for other reasons, and you authorize Depict to charge your credit card automatically for such varying amounts. Depict may also periodically authorize your credit card in anticipation of account or related charges. Depict reserves the right to change our base monthly Subscription License fees for a particular piece of Artwork, and other charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email. Current prices and fee rates are listed on each piece of art's detail page.
If you need to change your credit card information or other billing information associated with your account, you may edit your payment and billing information by logging into the Site or the App and selecting and updating the desired information through the Account page of the Site or the App. If your credit card expires or becomes invalid for any reason, or if your payment is rejected for insufficient funds or is otherwise invalid, you agree that you will remain responsible for all fees and other amounts associated with your Account. By using the Services you acknowledge that it is your responsibility to keep your contact information and payment information current and updated.
All fees and charges are nonrefundable and there are no refunds or credits for partially used periods, except that, in the event Depict’s license to the Artwork for which you have subscribed terminates such that Depict no longer has the right to sublicense such Artwork to you, (i) if you have selected a monthly Subscription License for such Artwork, Depict will refund a portion of any applicable monthly Subscription License fees paid by you (prorated based on the number of days in such monthly subscription cycle), and (ii) if you have selected a One-Time License for such Artwork and Depict’s license to such Artwork expires less than 180 days following your payment of the license fees for such Artwork, Depict will refund a portion of the license fees paid by you (prorated based on such 180 day period).
Canceling A Subscription License
If you have commenced a monthly Subscription License for one or more pieces of Artwork, Depict will continue to bill you in accordance with your chosen Subscription Licenses and payment and billing information and preferences provided through your Account unless and until you cancel such Subscription Licenses or we terminate them. You must cancel your monthly Subscription License before it renews each month in order to avoid being billed for the next month’s renewal fees.
Except as provided above in the case of a license terminated by Depict due to its loss of the rights to sublicense such Artwork, monthly subscription periods are prepaid and are non-refundable and Depict does not provide refunds or credits for any partial months or years. You may cancel any monthly Subscription License, or cancel your Account in its entirety, at any time, and cancellation will be effective immediately. If you wish to cancel one or more monthly Subscription Licenses, you may do so by logging into the Site or the App and clicking on the “My Subscriptions” button on the “My Account” page of the Site or the App then selecting the Subscription License (s) you wish to cancel and the clicking “Cancel” to confirm that you wish to cancel such Subscription License (s). If you wish to cancel your account in its entirety, you may do so by emailing email@example.com. Should you elect to cancel one or more monthly Subscription Licenses, or your entire Account, please note that you will not be issued a refund for any previously charged fees.
By registering for an Account and providing Depict with your payment and billing information, you agree to the payment, billing, and cancellation terms and conditions set forth in these Terms of Service.
12. Additional Terms Regarding the App.
The terms and conditions in this paragraph apply to you only if you are using mobile software from the Apple, Inc. (“Apple”) App Store, including the App. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to mobile software from the Apple App Store, including the App. Depict and you, the end-user of the Services, including the App, acknowledge that these Terms are entered into by and between Depict and you, and not with Apple. Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third-party beneficiaries of these Terms and that Apple has the right (and is deemed to have accepted the right) to enforce these Terms. Depict, not Apple, is solely responsible for the Services, including the App, and any content contained therein. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services, including the App. You and we acknowledge that in the event of any failure of the Services, including the App, to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, including the App, and will have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. You and we acknowledge that Apple is not responsible for addressing any claims made by you or any third party relating to the Services, including the App, or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and we acknowledge that in the event of any third party claim that the Services, the App, or your possession or use of the App, infringes such third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such claim. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). Capitalized terms used in this paragraph and not otherwise defined herein shall have the meanings set forth in the App Store Terms and Conditions.
In consideration of the licenses granted to you herein and the right afforded you to participate in the Services, you agree to shall hold in confidence and not disclose (or permit to be disclosed by any agent, representative, or affiliate of yours) (a) the code for any software provided by Depict or any information or documentation relating to such software, and (b) any Feedback.
14. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
THE SERVICES (INCLUDING BUT NOT LIMITED TO THE SITE AND THE APP) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DEPICT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, THE SITE, AND THE APP, OR ANY INFORMATION OR CONTENT PROVIDED BY DEPICT THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DEPICT MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR UPLOADING, DOWNLOADING, AND/OR USING FILES, INFORMATION, CONTENT (INCLUDING MEMBER CONTENT) OR OTHER MATERIAL OBTAINED FROM OR THROUGH THE SERVICES OR DEPICT. DEPICT DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF THE PRODUCTS, INFORMATION OR SERVICES PROVIDED THROUGH THE SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DEPICT, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, RIGHTS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE OR DISPLAY OF ANY CONTENT YOU POST OR SUBMIT TO DEPICT; (B) YOUR USE OR INABILITY TO USE THE SERVICES; (C) THE SERVICES GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH DEPICT OR ANY OTHER MEMBER OF DEPICT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DEPICT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. THE MAXIMUM LIABILITY OF DEPICT FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE THE AGGREGATE AMOUNTS PAID BY YOU TO DEPICT FOR PURCHASES OR LICENSES OF ARTWORK THROUGH THE SERVICES, IF ANY, DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE FIRST OCCURRENCE GIVING RISE TO SUCH LIABILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO COMMUNICATION OF ANY KIND BETWEEN YOU AND DEPICT OR A REPRESENTATIVE OF DEPICT CONSTITUTES A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER OR CREATES ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
15. Changes to these Terms.
We reserve the right to amend or terminate the Services and/or these Terms at any time. We will not be required to notify you in advance of terminating, amending or modifying the Services. However, we will post any modifications to these Terms on the Site and the App. Therefore, it is your sole responsibility to check the Site or the App from time to time to view any such changes. If you continue to use the Services, after such modifications are posted, you signify your agreement to our revisions to the Terms. Any changes to these Terms (other than as set forth in this paragraph) or waiver of our rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Depict. No purported waiver or modification of these Terms by Depict via telephonic or email communications shall be valid.
Communications made through the Services (including through the Site’s or App’s e-mail and messaging system and by messages submitted to us at firstname.lastname@example.org) will not constitute legal notice to Depict or any of its officers, employees, agents, representatives, or affiliates in any situation where notice to Depict is required by contract or any law or regulation. Except as explicitly stated otherwise in these Terms, notices to us must be sent by registered or certified mail to: 360 Ritch Street, Suite 300, San Francisco, CA 94107. For contractual purposes, you (a) consent to receive communications from Depict in an electronic form via any email address you may submit to us; and (b) agree that all Terms of Service, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your non-waivable rights. Because we will provide certain notices and other important correspondence to you through your email address, you must ensure that the email address related to your Account is kept current and that you have access to it. You agree that Depict shall have no liability in connection with any failure by you to keep current your email address that is on file with Depict.
17. Governing Law; Venue; Disputes.
This Section 17 includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding. Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described in paragraph 17(c) below.
b) Informal Process First. You agree that in the event of any dispute between you and Depict, you will first contact Depict and make a good faith sustained effort to resolve the dispute before resorting to more formal means or resolution, including without limitation any court action.
c) Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy or claim (collectively, “Claim” relating in any way to your use of the Services or Depict’s communications with you, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Depict. However, this arbitration agreement does not (i) govern any Claim by Depict for infringement of its intellectual property or access to the Services that is unauthorized or that exceeds the rights granted in these Terms, or (ii) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual, you may opt out of this arbitration agreement within thirty (30) days of the date you access or receive the Services by following the procedure described below.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Depict are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Depict at 360 Ritch Street, Suite 300, San Francisco, CA 94107, Attention: Legal. The arbitration shall be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators shall be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. California law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence shall not apply to paragraph 17(d) below.
If you do not want to arbitrate disputes with Depict and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within thirty (30) days of the first of the date you access or receive any Services.
d) Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
e) If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Depict each waive any right to a jury trial.
Last Updated: September, 2014.