Terms of Use

Please read these terms of use carefully before using the services offered by Artace Inc. (“Magnus”, “we” or “us”).  These terms of use set forth the legally binding terms and conditions for your use of the website at http://www.magnus.net (the “Site”) and the services, features, content, applications or widgets offered by Magnus (collectively with the Site, the “Service”).

Last Updated: New York, 30th March 2016

THIS TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.  UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

1.                  Acceptance of Terms

By registering for and/or using the Service in any manner, including but not limited to visiting or browsing the Site, you agree to all of the terms and conditions contained herein (“Terms of Use”), and all other operating rules, policies and procedures that may be published from time to time on the Site by Magnus, each of which is incorporated by reference and each of which may be updated by Magnus from time to time without notice to you in accordance with the terms set out under the “Modification of Terms of Use” section below. In addition, some services offered through the Service may be subject to additional terms and conditions specified by Magnus from time to time; your use of such services is subject to those additional terms and conditions, including, without limitation, the Privacy Policy located at http://www.magnus.net/privacy/ and the Copyright Policy located at http://www.magnus.net/copyright/, each of which are incorporated into these Terms of Use by this reference. These Terms of Use apply to all users of the Service, including, without limitation, users who are contributors of content, information, and other materials or services on the Site, individual users of the Service, venues that access the Service, and users that have a page on the Service

2.                  Access

Subject to these Terms of Use, Magnus may offer to provide the Services, as described more fully on the Site, and which are selected by you, solely for your own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services Magnus performs for you, any applications or widgets offered by Magnus that you download from the Site or, subject to the terms set out under the “Third Party Sites and Services” section below, from third party application stores (e.g., iTunes® store, Blackberry App World™, or Google Apps Marketplace) authorized by Magnus, as well as the offering of any materials displayed or performed on or through the Services (including Content (as defined below)).  Magnus reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Magnus will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

The Service includes certain services that are available via a mobile device, including (i) the ability to upload Content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Magnus and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.

3.                  Registration and Eligibility

You may browse the Site and view Content without registering, but as a condition to using certain aspects of the Service, you are required to register with Magnus and represent, warrant and covenant that you provide Magnus with accurate, truthful, and complete registration information (including, but not limited to your name (“User Name”), e-mail address and a password you will use to access the Service) and to keep your registration information accurate and up-to-date.

You shall not:

Magnus reserves the right to refuse registration of, or cancel a User Name in its sole discretion. You are solely responsible and liable for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Magnus password. You shall never use another user’s account without such other user’s prior express permission. You will immediately notify Magnus in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

You represent and warrant that if you are an individual, you are of legal age to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, these Terms of Use and register for the Service (in which case references to “you” herein refer to you and such entity). Magnus may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Use are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Use or use of the Service is prohibited and, in such circumstances, you agree not to use or access the Site or Services in any way.

4.                  Notifications and Service Messages

You agree that we may provide notices to you via banners on the Service, or an email sent to an address you provided, or through other means. You agree to keep your contact information up to date. If the contact information you provide isn’t up to date, you may miss out on these notices. Please review your settings regularly to control and limit what kind of messages you receive from us.

5.                  Content

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. Magnus cannot guarantee the authenticity of any Content or data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. For purposes of these Terms of Use, the term “Content” includes, without limitation, prices, any location information, art spottings, videos, comments, likes, ratings, information and data generated, provided, or otherwise made accessible by Magnus on or through the Service. Content added, created, uploaded, submitted, distributed, shared or posted to the Service by users is collectively referred to as, “User Submissions.” The average price displayed for an artwork is based on prices submitted by Magnus users and, if available, prices from online sources. Such information is not intended to replace professional advice, and Magnus disclaims all representations, warranties or guarantees in relation to such information.  The average price is only an estimate. For official prices please refer to the price displayed by each source if available.

6.                  Magnus Content

The Service contains Content specifically provided by Magnus or its partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, as applicable. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Service.

Subject to these Terms of Use, Magnus grants each user of the Site and/or Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use, modify and reproduce the Content, solely for personal, educational, non-commercial use. Use, reproduction, modification, distribution or storage of any Content for other than personal, educational, non-commercial use is expressly prohibited without prior written permission from Magnus, or from the copyright holder identified in such Content’s copyright notice, as applicable. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial (whether or not for profit) use or in any way that violates any third party right.

7.                  User Submissions

By submitting User Submissions on the Site or otherwise through the Service, you hereby grant Magnus a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, copy, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Site, the Service and Magnus’ (and its successors and assigns’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites and feeds). You also hereby grant each user of the Site and/or the Service a non-exclusive license to access your User Submissions through the Site and the Service. For clarity, the foregoing license grant to Magnus does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing with Magnus.

You represent and warrant that you have all rights to grant such license to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.

You understand that all information or other Content publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such Content originated; that Magnus will not be liable for any errors or omissions in any Content; and that Magnus cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.

When you delete your User Submissions, they will be removed from the Service. However, you understand that any removed User Submissions may persist in backup copies for a reasonable period of time (but following removal will not be shared with others) or may remain with users who have previously accessed or downloaded your User Submissions.

8.                  Rules and Conduct

As a condition of use, you agree not to use the Service for any purpose that is prohibited by these Terms of Use. You are responsible for all of your activity in connection with the Service.

By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a)take any action or (b)upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Submission, that:

You furthermore agree that, with respect to Content that you do not create, you will not (and shall not permit any third party):

Magnus has a zero-tolerance policy against child pornography, and will terminate and report to the appropriate authorities any user who publishes or distributes child pornography.

You shall not: (i) take any action that imposes or may impose (as determined by Magnus in its sole discretion) an unreasonable or disproportionately large load on Magnus’ (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Magnus may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run any form of auto-responder or “spam” on the Service; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Service; or (vii) otherwise take any action in violation of Magnus’ guidelines and policies.  If you are blocked by Magnus from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).

The technology and software underlying the Service or distributed in connection therewith personal information are the property of Magnus, our affiliates and our partners.  You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.  Any rights not expressly granted herein are reserved by Magnus.

Magnus does not guarantee that any Content or User Submissions (as defined above) will be made available on the Site or through the Service. Magnus has no obligation to monitor the Site, Service, Content, or User Submissions. However, Magnus reserves the right to (i) remove, suspend, edit or modify any Content in its sole discretion, including without limitation any User Submissions at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Magnus is concerned that you may have violated these Terms of Use), or for no reason at all and (ii) to remove, suspend or block any User Submissions from the Service. Magnus also reserves the right to access, read, preserve, and disclose any information or other Content as Magnus reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Use, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Magnus , its users and the public.

Under no circumstances will Magnus be liable in any way for any Content of any third parties (including users), 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 such Content.  You acknowledge that Magnus does not pre-screen Content, but that Magnus and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

9.                  Third Party Sites and Services

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Magnus has no control over such sites and resources and Magnus is not responsible for and does not endorse such sites and resources.  You further acknowledge and agree that Magnus will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource.  Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Magnus is not liable for any loss or claim that you may have against any such third party.

You may enable or log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Magnus’ use, storage and disclosure of information related to you and your use of such services within Magnus (including your friend lists and the like), please see our Privacy Policy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Magnus shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Magnus is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Magnus is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Magnus enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

10.              Termination

Magnus may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, Magnus’ license rights, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

11.              Warranty Disclaimer

Save to the extent required by law, Magnus has no special relationship with or fiduciary duty to you. You acknowledge that Magnus has no control over, and no duty to take any action regarding: which users gains access to the Service; what Content you access via the Service; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content.

You release Magnus from all liability for you having acquired or not acquired Content through the Service. The Service may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.  Magnus makes no representations concerning any Content contained in or accessed through the Service, and Magnus will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.

THE SITE, SERVICE, CONTENT AND ADD-TO LINK ARE PROVIDED “AS IS”, “AS AVAILABLE” AND ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, SAVE TO THE EXTENT REQUIRED BY LAW.

MAGNUS, AND ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE WEBSITE, SERVICE, CONTENT AND ADD-TO LINK IS SOLELY AT YOUR OWN RISK. SOME STATES / COUNTRIES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Electronic Communications Privacy Act Notice (18 USC 2701-2711): Magnus makes no guaranty of confidentiality or privacy of any communication or information transmitted on the Service or any website linked to the Service. Magnus will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Magnus’ equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.

12.              Indemnification

You shall defend, indemnify, and hold harmless Magnus, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all losses, costs, actions, claims, damages, expenses (including reasonable legal costs) or liabilities, that arise from or relate to your use or misuse of, or access to, the Site, Services or Content or otherwise from your User Submissions, violation of these Terms of Use, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Magnus reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Magnus in asserting any available defenses.

13.              Limitation of Liability

ALL LIABILITY OF MAGNUS, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HOWSOEVER ARISING FOR ANY LOSS SUFFERED AS A RESULT OF YOUR USE THE SITE, SERVICE, CONTENT, USER SUBMISSIONS OR ADD-TO LINK IS EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, SAVE THAT, IF A COURT OF COMPETENT JURISDICTION DETERMINES THAT LIABILITY OF MAGNUS, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS (AS APPLICABLE) HAS ARISEN, THE TOTAL OF SUCH LIABILITY SHALL BE LIMITED IN AGGREGATE TO ONE HUNDRED US DOLLARS ($100).

IN NO EVENT SHALL MAGNUS, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY OR OTHERWISE (AND WHETHER OR NOT MAGNUS, ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS HAD PRIOR KNOWLEDGE OF THE CIRCUMSTANCES GIVING RISE TO SUCH LOSS OR DAMAGE) WITH RESPECT TO THE SITE, SERVICE, CONTENT, USER SUBMISSIONS OR ADD-TO LINK FOR:

NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT YOUR LIABILITY IN RESPECT OF ANY INDEMNITY GIVEN BY YOU UNDER THESE TERMS OF USE.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WITHOUT LIMITING THE FOREGOING, SOLELY IN RESPECT OF USERS LOCATED IN EUROPEAN ECONOMIC AREA (EEA) AND/OR AUSTRALIA, NOTHING IN THESE TERMS OF USE SHALL BE DEEMED TO EXCLUDE OR LIMIT OUR OR YOUR LIABILITY (AS APPLICABLE) IN RESPECT OF:

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICE OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND SERVICE.

14.              Dispute Resolution By Binding Arbitration:

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.  Save for users located in the EEA and/or Australia, the following Arbitration Agreement shall apply

a) Agreement to Arbitrate

This Section 14 is referred to in this Terms of Use as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and Magnus, whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify.  Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf.  You agree that, by entering into this Terms of Use, you and Magnus are each waiving the right to a trial by jury or to participate in a class action.  Your rights will be determined by a neutral arbitrator, not a judge or jury.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b) Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND MAGNUS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.  UNLESS BOTH YOU AND MAGNUS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.  ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). 

c) Pre-Arbitration Dispute Resolution

Magnus is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at info@magnus.net. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice to Magnus should be sent to info@magnus.net (“Notice Address”).  The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought.  If Magnus and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Magnus may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Magnus or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Magnus is entitled.

d) Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement.  For information on the AAA, please visit its website, http://www.adr.org.  Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration.  If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  The arbitrator must also follow the provisions of these Terms of Use as a court would.  All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement.  Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Magnus and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, the determination shall be made by AAA.  If your claim is for $10,000 or less, Magnus agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules.  If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e) Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  If the value of the relief sought is $75,000 or less, at your request, Magnus will pay all Arbitration Fees.  If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Magnus will pay your portion of such fees.  In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Magnus will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  Any payment of attorneys’ fees will be governed by the AAA Rules.

f) Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g) Severability

Without limiting the severability provision in Section 17 of the this Terms of Use, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section 14(b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court or the arbitrator decides that any of the provisions of Section 14(b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void.  The remainder of the Terms of Use will continue to apply.

h) Future Changes to Arbitration Agreement

Notwithstanding any provision in this Terms of Use to the contrary, Magnus agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Magnus written notice within thirty (30) calendar days of the change to the Notice Address provided above.  By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.

15.              Dispute Resolution & Governing Law

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Magnus agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

Save for users located in the EEA and/or Australia, the following governing law provisions shall apply:

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Magnus will have no liability or responsibility with respect thereto.  Magnus reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

16.              Government Use

The use, duplication, reproduction, release, modification, disclosure or transfer of the software, application or widget is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. Any such software, application or widget is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of any such software, application or widget shall be governed solely by these Terms of Use.

17.              Integration and Severability

These Terms of Use are the entire agreement between you and Magnus with respect to the Service and use of the Site, Service, Content or User Submissions and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Magnus with respect to the Site. If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

18.              Modification of Terms of Use

Magnus reserves the right, at its sole discretion, to modify or replace any of these Terms of Use, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Service or via email. Magnus may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check these Terms of Use periodically for changes. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service following the posting of any changes to these Terms of Use constitutes acceptance of those changes.

19.              Cancellation of these Terms of Use

In respect of users located in the EEA who wish to receive Services, and/or provide User Submissions, and/or provide or access Content via the Site, such users may have a right to cancel these Terms of Use under the European Distance Selling Directive (97/7/EC) (“Directive”) within 7 days of accepting these Terms of Use solely to the extent such right applies under the Directive to such users, save that if such right to cancel applies, it shall cease to exist from the time of actual use of the Services, and/or provision of the User Submissions, and/or provision or access of Content via the Site by such users.

20.              Miscellaneous

Magnus shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Magnus’ reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). These Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with Magnus’ prior written consent. Magnus may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect.

Unless otherwise specified in these Term of Use, all notices under these Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

Solely in respect of users located in the EEA and/or Australia, in respect of these Terms of Use and your use of this Site, Service, Content or User Submissions, nothing in these Terms of Use shall be deemed to grant any rights or benefits to any person, other than us and you (and our and your respective successors in title or assignees), or entitle any third party to enforce any provision hereof, and we and you agree that we do not intend that any provision of these Terms of Use should be enforceable by a third party by virtue of the Contracts (Rights of Third Parties) Act 1999.

21.              Language

Where Magnus has provided you with a translation of the English language version of these Terms of Use, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with Magnus.

If there is any contradiction between what the English language version of these Terms of Use says and what a translation says, then the English language version shall take precedence.

22.              Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Magnus, Inc., info@magnus.net

23.              Contact

You may contact Magnus at the following address: Artace Inc, 175 West 12th Street, 10011 New York, NY

Effective Date: 30th March 2016

 

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