Artists Terms

Artists Sunday^TM Toolkit for Artists Terms of Use

Last Modified: 04/13/2020

The Artists Sunday^TM is a national movement created by Artists Sunday, LLC (“we”, or “us”) dedicated to supporting and celebrating artists and craftspeople. Together with artists, non-profits, municipalities, we formed the Artists Sunday Alliance to launch Artists Sunday, dedicated to encouraging customers to support artists.

Your use of the Artists Sunday Toolkit (the “Program”) is governed by these Artists Sunday Toolkit for Artists Terms of Use (the “Terms of Use”). By participating, you represent you are authorized to agree to these Terms of Use on your behalf and on behalf of your business. You are, for yourself and your business, are also agreeing to be bound by these Terms of Use. You are also agreeing that our decisions with respect to the interpretation and application of these Terms of Use, including decisions about your eligibility, will be final and binding and made by us in our sole discretion. We reserve the right to modify these Terms of Use at any time. We will indicate that changes have been made by updating the “Last Modified” date above. Your continued use of the Artists Sunday Toolkit (as defined below) after the Terms of Use have been modified constitutes your agreement to the modified Terms of Use.

PROGRAM OVERVIEW

By participating in this Program, the following marketing materials may be available to you (collectively, the “Artists Sunday Toolkit”), subject to availability and the eligibility requirements set forth in these Terms of Use, as set forth in greater detail below.

Artists Sunday Toolkit may include marketing assets, such as generic and/or customizable in-store signage, digital banners, sample social media posts and email templates, and more, to be used by you to help promote yourself and Artist Sunday.

Artists Sunday Toolkit is provided to you subject to a limited license to promote your business in connection with Artists Sunday. We may terminate your right to use all or any part of the Artists Sunday Toolkit at any time if we determine, in our sole discretion, that (i) your business is not eligible for the Program, (ii) any information provided by you to apply for, download or use Artists Sunday Toolkit, including, without limitation, any description you provide as to the nature of your business(individually and collectively referred to herein as “Your Content”), is false, misleading, inaccurate, incomplete or otherwise in breach of the Artists Sunday Marketing Material restrictions (see below), (iii) you alter the Artists Sunday Toolkit in breach of these Terms of Use, (iv) you use the Artists Sunday Toolkit inappropriately or in a manner inconsistent with our values, the values of the Artist Sunday Alliance, and/or (v) you otherwise breach these Terms of Use.

ELIGIBILITY REQUIREMENTS FOR THIS PROGRAM:

• – You must be in the business of creating original, physical works of art or an experiential artist.
• – You must have at least one physical or online business location within the United States and/or the U.S. territories;
• – You must not be a franchise brand;
• – You must not be a reseller or re-distributor of artwork created by another person;
• – You must not be a government agency, public administration organization, charity, religious organization, gas station, business located on the same premises as a gas station, non- profit, trade association, shopping property management company, sporting event producer, movie theater, antique dealer, multilevel marketer, direct seller, travel agent or political organization;
• – You must not be a business that is primarily in the business of manufacturing, promoting or selling diet aids, cannabis, pornography, sexual aids, gambling, liquor, tobacco (including tobacco-related equipment, such as e-cigarettes), firearms or other weapons, or any sensitive or controversial topics with respect to current events or otherwise be engaged in any activity that violates any rules, laws or regulations; and
• – You may not be eligible if you participate in activities that we determine to be inconsistent with our values, or the values of the Artists Sunday Alliance.

ADDITIONAL TERMS

In addition to the terms and conditions of these Terms of Use, your use of the Artists Sunday Toolkit is subject to and you are also agreeing to be bound by the:

• – Artists Sunday Terms of Service (a/k/a Website Rules and Regulations) (www.artistssunday.com/tos), and
• – Artists Sunday Privacy Policy(www.artistssunday.com/privacy).
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In the event of a conflict among or between these Terms of Use, the Terms of Service and the Privacy Policy, the precedence shall be, first, the Terms of Service, then the Privacy Policy, then these Terms of Use.

ARTISTS SUNDAY TOOLKIT REQUIREMENTS

Except with respect to materials where certain alterations are specifically intended by us (such as sample emails, social postings and templates), Artists Sunday Toolkit may not be modified in any way, except as expressly directed or authorized by us in writing.

Any information provided as permitted alterations or modifications to the Artist Sunday Toolkit may not include any statement, opinion, information or other content, or be incorporated into any web page, sign, banner or other marketing material that contains content, that:

• – is fictitious, false, inaccurate or misleading;
• – promotes sweepstakes (this means any giveaway or promotion in which random chance, rather than skill, determines who wins or gets a prize);
• – is disparaging or defamatory to any person or entity;
• – contains any profanity or is otherwise obscene, pornographic or offensive;
• – contains superlatives (e.g., words like “best,” “first,” “fastest” and “cheapest”);
• – promotes any illegal or unlawful product or service or suggests, encourages or promotes the violation of any laws, rules or regulations;
• – infringes the rights of any person or entity, including, without limitation, rights of privacy, publicity or intellectual property;
• – promotes or advocates for any sensitive or controversial topic; and/or
• – is otherwise inconsistent with our values or the values of the Artists Sunday Alliance.
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You agree that you are solely liable and responsible for the cost of any events, activities and other promotional efforts that you may undertake in connection with Artist Sunday, and for obtaining any necessary permits or permissions in connection with such efforts.

THE ARTISTS SUNDAY TOOLKIT CONTAIN IDEAS, DESIGNS, GRAPHICS, TRADEMARKS, TRADE NAMES, LOGOS, HASHTAGS AND OTHER PROPRIETARY MATERIALS THAT ARE OUR INTELLECTUAL PROPERTY. BY AGREEING TO THESE TERMS OF USE, YOU ACKNOWLEDGE AND AGREE THAT WE ARE GRANTING YOU A LIMITED RIGHT TO USE THE ARTISTS SUNDAY TOOLKIT AS SET FORTH.

MODIFICATION & CANCELLATION OF THE PROGRAM

We reserve the right to modify or cancel the Program, or any portion thereof, at any time at its discretion, without prior notice or liability to you.

DISQUALIFICATION & OUR OTHER REMEDIES

ALL DESIGN ELEMENTS OF THE ARTISTS SUNDAY TOOLKIT, INCLUDING ANY AND ALL IMAGES, GRAPHICS, LOGOS, HASHTAGS, AND COPY DEPICTED ON ARTISTS SUNDAY TOOLKIT, ARE OUR INTELLECTUAL PROPERTY. ARTISTS SUNDAY TOOLKIT IS PROVIDED TO YOU SUBJECT TO A LIMITED LICENSE FOR THE PURPOSE OF PROMOTING YOUR BUSINESS IN CONNECTION WITH ARTISTS SUNDAY AND THE ARTISTS SUNDAY ALLIANCE. YOU MAY USE, DISPLAY AND DISTRIBUTE THE ARTISTS SUNDAY TOOLKIT FOR THAT PURPOSE, PROVIDED THAT YOU DO NOT MODIFY THEM IN ANY WAY EXCEPT AS EXPRESSLY DIRECTED OR AUTHORIZED BY US IN WRITING.

WE RESERVE THE RIGHT TO DELETE, EDIT OR MODIFY ANY ARTISTS SUNDAY TOOLKIT AND/OR TO TERMINATE YOUR LICENSE TO USE, DISPLAY OR DISTRIBUTE THE ARTISTS SUNDAY TOOLKIT AT ANY TIME, INCLUDING IF WE DETERMINE, IN OUR SOLE DISCRETION, THAT (I) YOUR BUSINESS IS NOT ELIGIBLE FOR THE PROGRAM, (II) ANY INFORMATION PROVIDED BY YOU TO US IS FICTITIOUS, FALSE, MISLEADING, INACCURATE, INCOMPLETE OR OTHERWISE IN BREACH OF THESE TERMS OF USE, (III) YOU HAVE ALTERED OR MODIFIED THE ARTISTS SUNDAY TOOLKIT IN ANY WAY IN VIOLATION OF THESE TERMS OF USE, (IV) YOU HAVE USED THE ARTISTS SUNDAY TOOLKIT INAPPROPRIATELY OR IN A MANNER INCONSISTENT WITH OUR VALUES OR THE VALUES OF THE ARTISTS SUNDAY ALLIANCE, (V) YOU HAVE USED THE ARTISTS SUNDAY TOOLKIT IN CONNECTION WITH SOMETHING OTHER THAN ARTISTS SUNDAY, OR (VI) YOU HAVE OTHERWISE BREACHED THESE TERMS OF USE.

Persons who tamper with or abuse any aspect of the Program, who act in an unsportsmanlike or disruptive manner or who violate these Terms of Use, as determined by us in our sole discretion, will be disqualified from participating in the Program. ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT TO SEEK DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) AND OTHER REMEDIES FROM ANY SUCH INDIVIDUAL TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION.

You may not use the materials in a way that creates the appearance that we or Artists Sunday are associated with a promotional offer, contest or sweepstakes or edit the materials to include product claims (including, superlatives like “best,” “first,” “fastest” and “cheapest”), to promote any illegal or unlawful product or service or suggest, encourage or promote the violation of any laws, rules or regulations or to promote or advocate for any sensitive or controversial topic or otherwise use the materials in any manner that is inconsistent with the purpose the materials were provided, any instructions provided by us and/or that is inconsistent with our values or the values of Artists Sunday.

YOU ACKNOWLEDGE AND AGREE THAT ANY IDEAS, TIPS, SUGGESTIONS, OPINIONS, INFORMATION OR ADVICE CONTAINED IN THE ARTISTS SUNDAY TOOLKIT OR OTHERWISE PROVIDED BY US ARE FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE RELIED UPON TO REPLACE THE ADVICE OF YOUR OWN PROFESSIONAL LEGAL, TAX AND FINANCIAL ADVISORS.

DISCLAIMER OF WARRANTY

WE ARE PROVIDING THE ARTISTS SUNDAY TOOLKIT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY AND TIMELINESS, TO THE FULLEST EXTENT PERMITTED BY LAW.

TERMINATION

Notwithstanding anything to the contrary in these Terms or elsewhere, we reserve the right to terminate your use of the Artists Sunday Toolkit (and any other tools, tips or resources made available in connection with Artists Sunday) at any time and for any reason, including, without limitation, if we determine, in our sole discretion, that you are not in compliance with and/or have violated these Terms or if we decide to cease use of the Artists Sunday Toolkit as a marketing initiative.

NAME, TRADEMARK & YOUR CONTENT LICENSE

By participating in the Program, you are granting us the right and license to include Your Content: on ArtistsSunday.com, Facebook.com/artistssundayand other web pages or social media accounts dedicated to, or otherwise promoting Artists Sunday or the Artists Sunday Alliance, and in other advertising, marketing and promotional materials relating to Artists Sunday and the Artists Sunday Alliance (including the right to re-tweet or re-post any social media posts that you publish).

This license is in perpetuity, for any and all media, including as such materials may be displayed, performed or distributed by our agents or supporters of Artists Sunday and/or the Artists Sunday Alliance, without any compensation or other obligation to you.

“Your Content” means (i) your name, your business’s name, logo, service marks, trademarks, trade names, any information provided by you or other content provided by you in connection with the Program or your use of the Artists Sunday Toolkit, (ii) links to your and your business’s social media handle(s) and/or the URL of your or your business’s official website and/or branded web page(s), and (iii) statements, quotes, descriptions, photos, drawings, screenshots, clippings, social media posts and other images and depictions by you relating to Artists Sunday, the Artists Sunday Alliance and/or your use of the Artists Sunday Toolkit.

All other rights to your works are reserved to you.

You further grant us the right and license to use, publish and incorporate any and all feedback, ideas, comments, suggestions and concepts shared or contributed by you relating to Artists Sunday and the Artists Sunday Alliance in perpetuity for any purpose without any compensation or other obligation to you. You acknowledge that we have no obligation to exercise any of the foregoing rights.

You further acknowledge that we may have developed or may develop ideas and concepts similar or identical to the ideas and concepts that you develop for Artists Sunday or the Artists Sunday Alliance. Nothing shall restrict our right to create, protect (whether by patent, trademark, copyright, trade secret or other means), procure or market any programs, products or services whether relating to Artists Sunday Toolkit, Artists Sunday, the Artists Sunday Alliance or otherwise, and you agree not to challenge or make claims against or to such programs, products or services.

You agree that the rights granted by you in these Terms do not conflict with any commitment on your or your organization’s part. You agree that your statements and feedback will (i) reflect your honest opinions, beliefs, and experiences; and (ii) not include representations that are untrue, misleading, unsubstantiated or deceptive. You agree to immediately inform us of any material changes in beliefs, findings or opinions that you have expressed publicly and/or to us.

REPRESENTATIONS & WARRANTIES; INDEMNIFICATION

You represent and warrant that all of the information and other content you provide to us in connection with the Program, including, but not limited to, the Your Content, is complete and accurate and does not violate any laws, regulations or the rights of any third parties. Further, you acknowledge and agree that you are solely responsible for the content of your personalized or edited Artists Sunday Toolkit (including, without limitation, your physical business location(s)) and your actions in connection with the Program.

You agree to indemnify and defend us, other participating artists, Artists Sunday Alliance members, participating websites, and their respective parents, affiliates, licensees, direct or indirect subsidiaries, and advertising and promotion agencies, and the respective officers, directors, shareholders, employees, agents and representatives of the foregoing (collectively, “Released Parties”) from any against any and all costs or damages (including court costs and reasonable attorneys’ fees) resulting from any action, claim or demand, including any governmental inquiries or investigations, that may be made or brought against a Released Party (a “Claim”) arising out of or relating to your participation in the Program.

GENERAL RELEASE

You agree to release, discharge and hold harmless us and other Released Parties from any and all injuries, liability, losses and damages of any kind to persons, including death, or property resulting, in whole or in part, directly or indirectly, from your participation in the Program.

You acknowledge and agree that the Released Parties are not responsible for lost, late, incomplete, damaged, inaccurate, stolen, delayed, misdirected, undelivered, or garbled submissions; or for lost, interrupted or unavailable network, server, Internet Service Provider (ISP), website, or other connections, availability or accessibility or miscommunications or failed computer, satellite, telephone or cable transmissions, lines, or technical failure or jumbled, scrambled, delayed, or misdirected transmissions or computer hardware or software malfunctions, failures or difficulties, or other errors or difficulties of any kind whether human, mechanical, electronic, computer, network, typographical, printing or otherwise relating to or in connection with the Program. You further acknowledge and agree that the Released Parties are not responsible for any loss, injury or damage to property related to or resulting from your use of the Artist Toolkit or downloading materials from or use of any website in connection with Artists Sunday. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §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.”

DISCLAIMERS OF WARRANTY

WE ARE PROVIDING THE PROGRAM, INCLUDING ARTISTS SUNDAY TOOLKIT, “AS IS” AND ON AN “AS AVAILABLE BASIS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT, SECURITY, OR ACCURACY AND TIMELINESS, TO THE FULLEST EXTENT PERMITTED BY LAW.

You acknowledge that there is no guarantee that participation in the Program will lead to any sales, much less an increase in sales.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL WE, OTHER ARTISTS SUNDAY PARTICIPANTS, THE ARTIST SUNDAY ALLIANCE, THEIR MEMBERS, DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO YOU FOR ANY LOST PROFITS OR REVENUES, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, EVEN IF THEY, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RELEASED PARTIES’ AGGREGATE LIABILITY ARISING OUT OF THE PROGRAM WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE RELEASED PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

GOVERNING LAW

Any and all disputes, claims or actions arising out of or relating to the Program or your participation therein, including the enforcement and interpretation of these Terms of Use, shall be governed by the substantive laws of the state of Texas without regard to conflict of law principles, and shall be brought solely within the state of Texas and Travis County.

DISPUTES

You agree that any dispute arising out of or related to the Program (“Disputes”) shall be, upon the election of either you or us, submitted for binding arbitration, which shall take place in the State of Texas, Travis County pursuant to the rules of the American Arbitration Association (“AAA”). Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. You and we will be responsible for paying your and our respective shares of the arbitration fees (including filing, administrative, hearing and/or other fees) as provided by AAA rules. The provisions of this paragraph may be enforced in a court of competent jurisdiction.

THIRD PARTY BENEFICIARIES

Except as otherwise expressly set forth herein, these Terms of Use are for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the parties hereto any legal or equitable rights hereunder.

ASSIGNMENT

You may not assign any of your rights or delegate any of your obligations under these Terms of Use without the prior written consent of us. Any purported assignment or delegation in breach of this provision will be null and void.

ENTIRE AGREEMENT

These Terms of Use constitute the entire agreement between the parties and supersede all previous discussions, agreements, promises, proposals, representations and understandings pertaining to the subject matter hereof.

SEVERABILITY AND WAIVER

If any provision(s) of these Terms of Use are held by a court of competent jurisdiction to be void, contrary to law or for any reason otherwise unenforceable, then such provision(s) shall be construed, as nearly as lawfully possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. The severance of any void, unlawful or otherwise unenforceable provision, shall not affect the validity or enforceability of any remaining provisions herein. Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.