TERMS OF USE

Last Updat: April, 2019

Futile Gallery (“Futile” “we” or “our“) provides a service for showing original works of art and commercially exploiting digital images of works of art (the “Service“, collectively the “Services“) through our website, accessible at www.futilegallery.com (the “Site“). Please read carefully the following terms and conditions (“Terms“) and our Privacy Policy, which may be found at www.futilegallery.com/policy and which is incorporated by reference into these Terms. These Terms govern your access to and use of the Site and Services, and constitute a binding legal agreement between you and Futile Gallery.

Certain areas of the Site and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Site or for specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site or Services.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY SHOWING A WORK ON OR THROUGH THE SITE OR SERVICES OR BY POSTING ANY CONTENT ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Modification

Futile Gallery reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.

Eligibility

The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 18 or older.

Artist Registration

In order to list a work on the Site or to make a purchase through the Site, you must first submit a form, which you can find at www.futilegallery.com/call-for-artists. During the submission process you will be required to provide certain information. Upon completion of our form you will be elegible to become a “Futile Artist.” You agree to provide accurate, current and complete information during the submission process and to update such information to keep it accurate, current and complete. Futile Gallery reserves the right to suspend or terminate your artist profile if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.

Futile Gallery is an online curated gallery. Every submission or application will be examined before being taken into consideration, just to ensure that the artwork or the artist matches our artistic criteria.

Privacy

See Futile Gallery’s Privacy Policy at www.futilegallery.com/privacy-policy for information and notices concerning use of your personal information.

Sales commissions

Futile Gallery does not charge any commission fee on artworks sales. Futile Gallery will forward any contact attempt from potential buyers and interested parties directly to the artist, via email.

Fares and fees

Futile Gallery does not charge any commission fee on artworks sales. Futile Gallery will forward any contact attempt from potential buyers and interested parties directly to the artist, via email.

Artist Terms and Conditions

Listing Works on the Site

As a Futile Artist, you may submit listings for original works of art (“Original Works of Art“) that you have created and that you desire to show through the Site and Services. You may not submit listings for Original Works of Art that were created by another artist. As a Futile Artist you may also submit listings for digital images of works of art (“Digital Works‘) that you have created. You may not submit listings for Digital Works that were created by another artist. In order for your listings to be accepted, you must provide Futile Gallery with all the information requested on the applicable page of our Site and you must comply with any other Futile Gallery requirements as identified on such page. Your listings must be accurate and complete and comply with Futile Gallery’s then-current listings content guidelines, which are available at www.futilegallery.com/submission-guidelines. Futile Gallery reserves the right to edit any listings to ensure that they comply with these guidelines. You acknowledge that your listings may not be immediately searchable by keyword or category for several hours (or up to 48 hours in some circumstances). The placement of your listings in search and browse results may be based on factors that include without limitation title, keywords and price.

Responsibility for Works

You acknowledge and agree that you are solely responsible for all Original Works of Art and Digital Works that you make available through the Site and Services. Accordingly, you represent and warrant that: (i) as to Original Works of Art that you make available through the Site and Services, you are the creator of all such Original Works of Arts and you are the sole and exclusive owner of all such Original Works of Art; (ii) as to Digital Works that you make available through the Site and Services, you are either the sole and exclusive owner of all such Digital Works or you have all rights, licenses, consents and releases that are necessary to grant to Futile Gallery the rights in such Digital Works as contemplated under these Terms; and (iii)neither the Original Works of Art nor Digital Works that you make available through the Site and Services nor Futile Gallery’s use and exploitation thereof as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Color

You understand and agree that Futile Gallery uses reasonable efforts to display the colors of Original Works of Art, Digital Works and Printed Works accurately via the Site and Services. However, because individual computer monitors may display colors differently, Futile Gallery is not responsible for the color accuracy of any Original Works of Art, Digital Works or Printed Works displayed on the Site and Services, and disclaims all liability in this regard.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback“). You may submit Feedback by emailing us at hello@futilegallery.com.

General Prohibitions

You agree not to do any of the following:

  • Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i)infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v)promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) harms minors in any way; or (viii) promotes illegal or harmful activities or substances.
  • Use, display, mirror or frame the Site, or any individual element within the Site, Futile Gallery’s name, any Futile Gallery trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Futile Gallery’s express written consent;
  • Access, tamper with, or use non-public areas of the Site, Futile Gallery’s computer systems, or the technical delivery systems of Futile Gallery’s providers;
  • Attempt to probe, scan or test the vulnerability of any Futile Gallery system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Futile Gallery or any of Futile Gallery’s providers or any other third party (including another user) to protect the Site or Services;
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Futile Gallery trademark, logo URL or product name without Futile Gallery’s express written consent;
  • Use the Site or Services for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these Terms;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Services to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
  • Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Futile Gallery will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Futile Gallery may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Futile Gallery has no obligation to monitor your access to or use of the Site or Services or to remove any artist content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Futile Gallery reserves the right, at any time and without prior notice, to remove or disable access to any artist content, listings for Original Works of Art or Digital Works or any other text, graphics, images, software, music, audio, video, information or other content or material that Futile Gallery, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Site or Services.

Sweepstakes and Contests

Futile Gallery may operate sweepstakes, contests and similar promotions (collectively, “Promotions“) through the Site and Services. You should carefully review the rules (e.g., the “Official Rules“) of each Promotion in which you participate through the Site and Services, as they may contain additional important information about Futile Gallery’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of any Official Rules conflict with these Terms, the terms and conditions of the Official Rules will control.

Ownership

The Site and Services are protected by copyright, trademark and other international laws. Except as expressly provided in these Terms, Futile Gallery and its licensors exclusively own all right, title and interest in and to the Site and Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Services.

Copyright Policy

Futile Gallery respects copyright law and expects its users to do the same. It is Futile Gallery’s policy to terminate in appropriate circumstances of Artists or Users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Futile Gallery’s Copyright Policy at www.futilegallery.com/copyright-policy for further information.

Links

The Site may contain links to third-party websites or resources. You acknowledge and agree that Futile Gallery is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Futile Gallery of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Termination and Account Cancellation

If you breach any of these Terms, Futile Gallery will have the right to suspend or disable your Artist profile or terminate these Terms, at its sole discretion and without prior notice to you. Futile Gallery reserves the right to revoke your access to and use of the Site and Services at any time, with or without cause.

Disclaimers

THE SITE AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FUTILE GALLERY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FUTILE GALLERY MAKES NO WARRANTY THAT THE SITE AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FUTILE GALLERY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES OR CONTENT OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FUTILE GALLERY OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, FUTILE GALLERY DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SITE OR SERVICES, NOR DOES FUTILE GALLERY MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES. FUTILE GALLERY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES.YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

Indemnity

You agree to defend, indemnify, and hold Futile Gallery, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your or use of the Site and Services, or your violation of these Terms.

Limitation of Liability

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site and Services remains with you. Neither Futile Gallery nor any other party involved in creating, producing, or delivering the Site and Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Site and Services, or from any communications, interactions or meetings with other users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Futile Gallery has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Futile Gallery used herein are trademarks or registered trademarks of Futile Gallery. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws and state and local courts of Madrid, Spain without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and local courts located in Madrid, Spain and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Futile Gallery and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Futile Gallery and you regarding the Site and Services.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without Futile Gallery’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Futile Gallery may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Futile Gallery via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

General

The failure of Futile Gallery to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Futile Gallery. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Contacting Futile Gallery

If you have any questions about these Terms, please contact Futile Gallery at hello@futilegallery.com.