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These Terms and Condition of Use (these “Terms”) govern your access to and use of the Muzeboard platform, website, products, and services (collectively, the “Platform”). Please read these Terms carefully, as your enrollment to use the Platform is subject to, and conditioned upon, your acceptance of, agreement to and compliance with these Terms.
1. General Use of Muzeboard.
You may use the Platform only if you can form a binding contract with Muzeboard, and only in compliance with these Terms and all applicable laws. When you create your Muzeboard account, you must provide us with accurate and complete information. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. Some of aspects of the Platform may be software that is downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade such downloads, and these Terms will apply to such upgrades.
b. Limited License for Use of Muzeboard.
Subject to these Terms and your continuing compliance with them, we grant you a limited, non-exclusive, non-transferable, royalty-free and revocable license to use the Platform for the creation and deployment of Boards (as defined below), as specifically provided for within the Platform. For the avoidance of doubt, the immediately preceding license does not extend to, or apply to, any alteration, modification, reverse-engineered form of or other changed version of the Platform in any unauthorized manner or for the purpose of any use beyond that intended by us for the Platform.
c. Has Offers Account.
As part of your enrollment and creation of a Muzeboard account in order to use the Platform, you will also either receive an e-mail directing you, or be automatically be directed, towards www.hasoffers.com (“Has Offers”) or some other site maintained by, or affiliated with, Has Offers. You are required to sign up and create an account with Has Offers, which will involve submission of your billing and banking information as well as your agreement to, and acceptance of, Has Offers’ own terms and conditions and other policies that Has Offers requires of its account holders. Has Offers is a third-party, unaffiliated service provider that tracks sales made through your Boards and processes payments of commissions to which you are entitled for such sales. Please see subsection e., “Commissions”, below for further detail about commissions that you may earn through your Boards.
d. Creation and Sharing of Boards.
Our Platform enables you to create design boards (“Boards”), consisting of “inspiration” images selected and uploaded by you in accordance with the provisions herein regarding such images and their content, along with links enabling viewers of such Boards to purchase home furnishings and other items displayed, or similar to those displayed, in the “inspiration” image. Such purchases are fulfilled by our affiliated e-commerce site www.homesquare.com (“Home Square”). While an affiliate, Home Square operates a retail e-commerce site, different from our Platform and with its own set of terms and conditions, and nothing in here should be deemed, interpreted or construed to apply to or govern any purchases made through your Boards (other than subsection e., “Commissions”, below). Without limiting the generality of the foregoing, (i) fulfilment of orders made through Home Square are subject to Home Square’s availability of inventory and we do not guarantee the availability of any products that might be displayed for purchase on your Board and (ii) the terms and conditions of any sale made through your Board are between Home Square and such person making a purchase through your Board and based upon Home Square’s standard procedures for purchases made through its e-commerce sites.
Subject to the following terms, you are entitled to a commission payable upon completion of a purchase order placed through your Board and fulfilled by Home Square. Muzeboard pays a commission of 10% of the order amount (less taxes, discounts, rebates and the like on the order) on all orders made and completed by Home Square through your Board. Commissions are payable only on orders that are not cancelled, have been shipped and are no longer subject to return and refund in accordance with Home Square’s return policy. Orders made through your Board, and any commissions payable to you for such orders in accordance with the foregoing, are tracked and calculated by Has Offers. Has Offers subsequently submits on a monthly basis an invoice to us of commissions payable to you earned in such month, which we subsequently process and pay via direct deposit, typically within 30 to 60 calendar days of receipt (assuming receipt of correct and complete bank information from you as part of initial enrollment). All taxes and tax-related obligations related to paid commissions, including any related to reporting or declaring such commissions as income, are solely your responsibility and we undertake no obligation or liability whatsoever with respect to any such taxes or obligations.
2. Guidelines for Your Content.
a. Your Content.
You represent and warrant (i) that at all times you have full rights, license, permission, and authorization, which shall remain valid and in full force at all times, to any images and other content, uploaded or otherwise imported into the Platform, by you in connection with use of the Platform (collectively, “Content”), including without limitation any “inspiration” images in any Board and (ii) that all of your Content does not, and shall not at any time, infringe on the intellectual property, privacy or other rights of any third-party, including without limitation any copyright, rights of authorship or similar rights. You hereby grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify, create derivative works, and distribute your Content solely for the purposes of operating, developing, providing, and using the Platform and all related purposes. Following termination or deactivation of your account, or if you remove any Content from Muzeboard, we may retain your Content for a commercially reasonable period of time for backup, archival, audit or other internal purposes. Nothing in these Terms shall restrict other legal rights we may have to your Content, for example under other licenses.
b. Compliance with Laws.
You shall not post Content that violates or encourages any conduct that violates laws or regulations. You are responsible for your Content and any third-party content posted on your Boards, and you represent and warrant that your Content and any third-party content posted on your boards comply with all applicable laws and regulations at all times.
c. Standards for Content..
In no event shall your Content contain at any time (i) any pornographic images, nudity or other similarly inappropriate content, (ii) images showing gratuitous violence or glorify violence, (iii) hate speech or any statement, symbols or other forms of communication advocating discrimination, or groups and people associated with discrimination, (iv) anything that promotes physical or sexuall exploitation of people or self-harm, like self-mutilation, eating disorders or drug abuse, (v) anything that threatens or organizes violence or supports violent organizations, or (vi) anything used to sell or buy regulated goods, like drugs, alcohol, tobacco, firearms and other hazardous materials. The foregoing guidelines are not intended to be comprehensive or exhaustive and your Content shall not contain anything else which we may identify in our sole discretion as being substantially suggestive or evocative of any of the foregoing or otherwise offensive in nature, contradictory to the purposes of Muzeboard or otherwise harmful to us or any of our affiliates or damaging to our standing or reputation. Muzeboard is an application intended for the display of interior spaces and promotion of interior design. In light of this, we expect that you will use your discretion and judgement in the type of Content you use in the creation and publication of Boards.
d. Ownership of Boards.
While you retain all rights in, and are solely responsible for, the Content you post to a Board, the Board itself, and all technology involved in the creation of the Board, remains our intellectual property and nothing herein in is intended as, or shall be deemed, construed or interpreted as any transfer, assignment, license or grant of rights to you in the Board or the Platform (except for the limited license referred to in Section 1.b., “Limited License for Use of Muzeboard”, above). Furthermore, your use of the Product does not create any proprietary or ownership interest, intellectual property rights, or other similar rights in any Board you may create in connection with the use of the Platform. In connection with the various ways in which you publish or share your Boards to third parties, make your Boards viewable by anyone on the Internet, or otherwise make your Boards viewable to the public (whether through any website maintained by you, social media (Facebook, Instagram, Pinterest, etc.), embedding links on an existing website, e-mailing links to your Boards or other methods as may be available from time to time), your Boards may be replicated or copied by other Muzeboard users. We bear no responsibility or liability for any replication or copying, in whole or in part, of any Board created by you, including any unauthorized use of your Content on such Boards in connection with such replication or copying. Please contact us regarding any use of your Content in any Board (other than one created by you) in which you believe unauthorized use of your Content is occurring.
While we maintain customary security measures to protect your account, Muzeboard cannot guarantee that unauthorized third parties will not be able to defeat our security measures. We ask that you keep your account password secure. Please notify us immediately of any compromise or unauthorized use of your account. For accounts created on behalf of a company, organization, or other entity, you are responsible for ensuring that only authorized individuals have access to the account.
4. Third-party Links, Sites and Services.
The Platform may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Muzeboard. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third-party website, service, or content from Muzeboard, you do so at your own risk and you agree that Muzeboard will have no liability arising from your use of or access to any third-party website, service, or content.
Muzeboard may terminate or suspend this Terms and all licenses and rights granted hereunder to you at any time, with or without cause or notice to you. Notwithstanding any such termination, you shall continue to be bound by Section 2, this Section 5, and Sections 6 through 16.
You agree to indemnify and hold harmless Muzeboard, its affiliates and their respective officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to: (a) your access to or use of the Platform, (b) your Content, or (c) your breach of any of these Terms.
The Products and all included content are provided on an “as is” basis without warranty of any kind, whether express or implied. WE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHERMORE, WE DO NOT GUARATNEE OR ASSURE ANY LEVEL OF USER-TRAFFIC TO YOUR BOARDS, LEVEL OF SALES MADE THROUGH THEM OR COMMISSIONS PAYABLE ON SUCH SALES. Muzeboard takes no responsibility and assumes no liability for any Content that you or any other user or third party posts or transmits using the Platform.
These Terms are being entered into as a legally binding contract with Cymax Stores USA, LLC, a Delaware limited liability company and all references to “Muzeboard”, “we”, “us”, “our” and the like are in reference to Cymax Stores USA, LLC.
9. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MUZEBOARD AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES. IN NO EVENT SHALL MUZEBOARD’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE PRODUCTS EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) AND THE AMOUNT OF COMMISSIONS PAID TO YOU BY MUZEBOARD FOR THE PAST THREE MONTHS.
10. Governing Law and Jurisdiction.
These Terms shall be governed by the laws of the State of California, without respect to its conflict of laws principles. Except where an election to resolve through arbitration pursuant to Section 16, “Alternative Dispute Resolution Procedures”, below has been elected, any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, these Terms shall be brought in the federal or state court sitting in the City of Los Angeles, California, and your acceptance of these Terms constitutes your consent to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and your irrevocable waiver, to the fullest extent permitted by law, any objection that you may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
11. Notification procedures and changes to these Terms.
Muzeboard reserves the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if we so choose. We may revise these Terms from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material we will notify you. By continuing to access or use the Platform after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Platform.
12. Relationship of the Parties.
Nothing herein contained shall constitute a partnership between or joint venture between the parties or constitute one party the agent of the other.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Muzeboard without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
14. Entire Agreement/Severability.
15. No waiver.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Muzeboard’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
16. Alternative Dispute Resolution Procedures.
For any dispute you have with Muzeboard, you agree to first contact us and attempt to resolve the dispute with us informally. If Muzeboard has not been able to resolve the dispute with you informally, at Muzeboard’s election in its sole discretion, any such claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms shall be resolved by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein or other arbitration body that we may select in our sole discretion. Unless you and Muzeboard agree otherwise, the arbitration will be conducted in such location where we may select. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with applicable arbitration rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 16 shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PINTEREST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.