Last updated on August 15, 2024
Terms of Service
THE NATIONAL ART FOUNDATION PROVIDES A VARIETY OF SERVICES SUBJECT TO THIS AGREEMENT. BY CHECKING THE BOX OR CLICKING THE BUTTON NEXT TO A LINK TO THIS AGREEMENT ON ANY OF OUR SIGN-UP PAGES, BY EXECUTING A SIGN-UP FORM THAT REFERENCES THIS AGREEMENT, BY SIGNING UP FOR AN ACCOUNT, BY LOGGING IN TO YOUR ACCOUNT, BY ACCESSING ANY PART OF THE SERVICES OFFERED, YOU, AS A CUSTOMER OF THE SERVICES OR A REPRESENTATIVE OF AN ORGANIZATION THAT IS A CUSTOMER OF THE SERVICES (COLLECTIVELY, “YOU”), REPRESENT AND WARRANT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, (3) THE INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR SIGN-UP FOR SERVICES IS TRUE, ACCURATE, CURRENT AND COMPLETE, AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ORGANIZATION YOU HAVE NAMED AS THE AUTHORIZED USER, AND TO BIND THAT ORGANIZATION TO THIS AGREEMENT. NOTE THAT BY REPRESENTING AND WARRANTING TO THE ABOVE, YOU ARE MAKING A LEGALLY ENFORCEABLE AGREEMENT.
We may change the terms of this Agreement by posting a revised Agreement and the revised Agreement will be effective immediately upon posting or the effective date indicated in the new Agreement, as applicable, and apply to any continued or new use of the Services. We may change the Services, or any features of the Services at any time, and we may discontinue the Services or any features of the Services at any time. If you do not agree with the terms of this Agreement, you must immediately discontinue your use of the Services. Otherwise, your continued use of the Services constitutes your acceptance of such changes. We recommend that you regularly check our website to view the then-current terms.
We may refuse service, close your accounts or the accounts of any Authorized Users, and change eligibility requirements at any time, in our sole discretion. Such refusal of service, closure of account or changing eligibility requirements does not constitute reimbursement in full or in part of any membership fees or other payments made to The National Art Foundation.
DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall have the meaning indicated below. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
“Agreement” means these Terms of Service and any guidelines, rules or operating policies that we post on our website(s).
“The National Art Foundation”, “we“, “us” or “our” means The National Art Foundation, LLC.
“Intellectual Property Rights” means any and all intellectual property and other proprietary rights throughout the world, including all rights in, to, or arising out of trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
“Sign-up Form” means the form evidencing the initial sign-up for Services, including any addendum or online confirmation form, and any subsequent sign-up separately entered into by you and us. Each Sign-up Form shall be incorporated into and become a part of this Agreement.
“Services” means, collectively, all our products and services and related offerings, features and functionalities, including email and digital communication services, Communities and Marketplaces, customer relationship management services.
1.1 Access. Upon the terms and subject to the conditions of this Agreement, you are granted a limited, non-exclusive, revocable, non-transferable, non-sublicensable, worldwide limited right to access and use the Services. For purposes of this Agreement, you are the “Account Owner” and any other users you authorize will be deemed “Authorized Users.” This is particularly true for Corporate Users. To the extent applicable, Authorized Users that you appoint as your administrators shall have the authority to act on your behalf to perform administrative duties, enter into binding agreements and pay Fees (as defined below). You will be responsible for all activity occurring under your account(s), including each Authorized User’s compliance with this Agreement.
1.2 Restrictions. Neither you or any Authorized User or other party shall: (a) modify, adapt, alter, translate, or create derivative works of the Services (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to us); (c) tamper, bypass, delete, or disable any copy protection or security mechanisms of the Services; (d) remove any notice of proprietary rights from the Services.
2.1 General Rules of Use. By agreeing to this Agreement, you agree to comply with our Acceptable Use Policy and with the following in connection with the use of the Services:
(a) You may not use our Services, specifically our Groups to send spam.
(b) You may not use our Services to promote or incite harm toward others. Promoting discriminatory, hateful, or harassing content may at our sole judgement result in the suspension or termination of your account. Among such content but not limited to are the following
(i) Any statement, photograph, video, advertisement, or other content that could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others; or
(ii) Any statement, image, photograph, video, advertisement, or other content that could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.
(c) You may not distribute content that is materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances.
2.2 Username and Password. You are responsible for maintaining the security of your account, usernames, passwords, files and any content you post on our website including the passwords and files that your Authorized Users, if any, have access to. You will be solely responsible and liable for any activity that occurs under your username and the activities of your Authorized Users, if any, and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use or access of your account or any other known or suspected breach of security. We are not responsible for any losses due to stolen or hacked passwords. We do not have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. We may contact you, or any Authorized User, or log-in added to your account, based on the information provided for your account.
2.3 Communities and Marketplace. The Services may include areas where you may be able to publicly post information or communicate with others. i.e. Groups, Group Members, Merchants, review products, merchants, fairs and other community members and otherwise submit content. The National Art Foundation may at a pertinent time issue Community Rules.Any information you post may be accessible to anyone with internet access, and any personal or other information you include in your posting may be read, collected and used by others.
2.4 Service Outages. You understand that due to power or other service outages like cable, fiber optics, website maintenance or any other incidents, The National Art Foundation is not liable for any information or data loss. You further understand that delivery of content by means of the Services may involve transmissions over various networks, and that the content could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that content exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
Although we have no obligation to monitor the content provided by you or your use of the Services, including Your Products (as defined below), we may do so. We shall be entitled, without liability to you, to immediately suspend, terminate or limit your access to the Services at any time, delete or confiscate all or a portion of your contacts, files, content, and/or domain name registrations and/or terminate this Agreement for any reason in our sole discretion, including a determination by us that (a) the Services are being used by you, or your Authorized Users, in violation of any applicable laws or regulations or this Agreement, (b) the Services are being used by you in an unauthorized, inappropriate, or fraudulent manner, (c) the use of the Services by you adversely affects our equipment or service to others, (d) we are prohibited by an order of a court or other governmental agency from providing the Services, (e) there is a security incident or other disaster that impacts the Services or the security of the Services, your account or your content, or (f) any amount due under this Agreement is not received by us within fifteen (15) days after it was due. You further understand and agree that we and any applicable third party that supports, posts, publishes or distributes any content provided by you, including content provided through Your Products, has the right to reformat, edit, monitor, reject, block or remove any such content at any time or for any other reason.
If, at your request, we agree to perform Professional Services for your benefit, the parties will execute a Statement of Work. Each Statement of Work will be governed by this Agreement. Any conflict between this Agreement and a Statement of Work will be resolved in favor of such Statement of Work solely with respect to the professional or consulting services described therein.
5.1 The Services may permit you to, among other things, (a) create an e-commerce store (“Store”) for selling your products and/or services (“Store Content”), (b) book courses and appointments with your users (“Appointments”), (c) communicate about or administer contests, competitions, sweepstakes, or other similar promotional events (“Promotions”), (d) sell your products and services and tickets to your events to your subscribers and others in the form of various promotional deals, coupons, tickets, vouchers, passes or cards (each, a “Deal”), or (e) collect donations (each a “Donation Campaign,” and together with Store, Store Content, Appointments, Promotions, collectively, “Your Products”).
5.2 You are solely responsible for Your Products and Services, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto. You shall be responsible for all costs of procuring and delivering Your Products and Services, including any associated shipping, taxes and any other fees associated therewith.
5.3 You will be solely responsible for any and all statements and promises you make and for all user assistance, warranty and support of Your Products and Services, and to comply with any promises you make to your customers, users, donors and donation recipients. You further agree to provide your contact information for any end-user questions, complaints or claims. To the extent applicable, you shall ensure that the rules for each Promotion (a) state that each entrant or participant unconditionally releases us of any liability arising from the Promotion, and (b) inform each entrant or participant that the Promotion is in no way sponsored, endorsed or administered by, or associated with, us.
We reserve the right to send messages to you to (a) inform you of changes or additions to the Services, this Agreement or the Fees (defined below), (b) to inform you of violations of this Agreement or actions relating to your access and use the Services, or (c) for marketing and other purposes. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us.
The National Art Foundation enables Members to communicate with other Members in a variety of Groups. We strictly prohibit executing mass mailings to Groups or Group Members.
8.1 We own and shall retain all right, title and interest in and to all Intellectual Property Rights in the Services and Professional Services. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Services or Professional Services, including any right to obtain possession of any software, source code, data or technical material related to the Services or Professional Services. Any use of the Services other than as specifically authorized herein, including our Acceptable Use Policy, is prohibited and will automatically terminate your rights with respect to your use of the Services and Professional Services.
8.2 You own any information that you provide to us in connection with your use of the Services, such as contact lists (including email addresses and phone numbers of your contacts) and other content (including your website) (collectively, “Customer Data”). You grant us a limited, non-exclusive, royalty-free, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform and display your Customer Data in order (a) to provide the Services under this Agreement, (b) to develop services, and (c) to comply with any court order, legal process, law, regulation or any request from a governmental, regulatory or supervisory body.
8.3 You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement).
8.4 If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Services or otherwise (“Suggestions”), you agree that each such Suggestion is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
9.1 Fees. In consideration for the Services and Professional Services, you agree to pay us the then-current fees set forth in the Membership Level Statements, forms and Membership level selectors unless otherwise set forth in an applicable Order Form or Statement of Work (“Fees”), i.e. the posting of images in our Showcases. We may change any of our Fees at any time by posting a new pricing schedule to the Services or in your account and/or sending you a notification by email. You are responsible for reviewing the Fees from time to time and remaining aware of the Fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for any payment due and owed hereunder.
9.2 Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement or applicable Sign-up, Order Form or Statement of Work must be submitted to us in writing within thirty (30) days of the date such charges are incurred. You agree to waive all disputes not brought within the thirty (30) day period, and all such charges will be final and not subject to challenge. If we are not able to resolve the Dispute informally, then the below provisions set forth in section 19 (Arbitration). will govern any Dispute.
9.3 Payment. We will charge you the Fees for the Services in advance, unless otherwise set forth in an applicable Order Form. We will charge you the Fees for Professional Services as set forth in an applicable Statement of Work. Payment shall be made by a payment method accepted by us. Fees are only payable in the currencies made available to you when you purchase the Services or as set forth in the applicable Order Form or Statement of Work. Checks (including e-checks or those sent by mail) may be accepted for prepayments of at least twelve (12) months. If you are paying by credit card, (a) you hereby irrevocably authorize us to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if your credit card is declined, we will attempt to reach out to you for a new payment method, and (d) if your credit card expires, you hereby give us permission to submit the credit card charge with a later expiration date. If we fail to resolve an issue with you resulting from a credit card decline or expiration, we may terminate the account due to non-payment. Fees charged, paid and completed are non-refundable regardless of Services provided or cancelled for any reason.
9.4 Taxes. “Tax” or “Taxes” means all applicable taxes, including indirect taxes such as goods and services tax (“GST”), value added tax (“VAT”), sales tax, fees, duties, levies, or other similar taxes. Unless otherwise stated, any Fees or any other amounts charged by The National Art Foundation are exclusive of Taxes. In the event that any amount payable by you to us is subject to Taxes, we will collect the full amount of those Taxes from you and the collection shall not reduce or somehow impact the amount to which we are entitled. Paying such Taxes is your responsibility. You will reimburse us and indemnify and hold us harmless against any and all claims by any competent tax authority related to any Taxes, including withholding or similar Taxes, penalties and/or interest that we may be compelled to pay on account of your non-payment.
You represent and warrant that your use of the Services, including in connection with Your Products and Services, will comply with all applicable laws and regulations. You are responsible for determining whether the Services are suitable for you to use in light of your obligations under any applicable laws or regulations. You may not use the Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
11.1 Term and Automatic Renewal. The term of this Agreement shall be annual for memberships and monthly for Showcase postings, or to the extent applicable, the period specified in your Sign-up Form (the “Initial Term”). The Initial Membership Term shall automatically renew for additional annual periods or as specified in the Sign-up Form The Term for Showcase postings shall be monthly (each a “Renewal Term”, and together with the Initial Term, the “Term”).
11.2 Termination. You can terminate your account or subscription for any of the Services at any time by contacting Customer Support (support @ nationalartfoundation.org) or click the “Cancel” Button in your Membership Profile. Except as otherwise agreed to by us in writing, there are no refunds for any pre-paid Fees. We may terminate this Agreement at any time without cause. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND/OR SUBSCRIPTION TO THE SERVICES OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND/OR SUBSCRIPTION.
You hereby agree to defend, indemnify and hold us, our officers, directors, employees, affiliates, subsidiaries, licensors, agents, members, sponsors, investors, agents, and representatives (each, an “Indemnified Party”) harmless from any losses, damages, judgments, fines, reasonable attorneys’ fees, and costs, in connection with any third party claims arising out of or relating to (a) any actual or alleged breach by you of this Agreement, (b) your contacts and content, including the content or effects of any messages you distribute, websites you publish, events you host, surveys you administer, social media campaigns you publish, online courses you teach, or Your Products and Service (including claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, defective products or services or unclaimed property), or (c) otherwise arises from or relates to your use of the Services. Any settlement that does not fully release the Indemnified Party from liability or which would impose any monetary, injunctive or other obligation or restriction upon the Indemnified Party shall be subject to the Indemnified Party’s prior written approval. The Indemnified Party may participate in the defense of the claim with counsel of its choosing at its expense; provided, that if you fail to promptly assume the defense or settlement of the claim, the Indemnified Party may assume sole control of the defense of the claim at your expense.
13.1 You represent and warrant that (a) you have all necessary rights and consents to post and distribute Your Products and Services and the Customer Data through our Services, (b) that Your Products and Services and Customer Data will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party, not constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, not be used in any activity in violation of the law or to promote such activities, including a manner that might be illegal or harmful to any person or entity, and comply with applicable industry standards, and (c) that your use of the Services will not violate any rules, restrictions, policies, or requirements of your email service provider, internet service provider or other applicable service providers.
YOU EXPRESSLY AGREE THAT THE SERVICES (INCLUDING ANY CUSTOM SERVICE OFFERINGS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES, INCLUDING IN CONNECTION WITH YOUR PRODUCTS AND SERVICES IS AT YOUR SOLE RISK.WE DO NOT WARRANT THAT THE USE OF THE SERVICES WILL BE NINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
15.1 EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO OUR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL THE NATIONAL ART FOUNDATION OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, ACCOUNT PROVIDERS, LICENSORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “THE NATIONAL ART FOUNDATION”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF THE NATIONAL ART FOUNDATION SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY US TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
16.1 If you believe any materials accessible on or from the Services infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from the Services by contacting support @ nationalartfoundation.org and providing the following information:
(i) Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL or image) of an authorized version of the work.
(ii) Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
(iii) Your name, address, telephone number and (if available) email address.
(iv) A statement that you have a good faith belief that the complaint of use of the materials is not authorized by the copyright owner, its agent, or the law.
(v) A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
(vi) A signature or the electronic equivalent from the copyright holder or authorized representative.
For all email submissions please include the subject line: DMCA Takedown Request.
16.2 In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of our customers who are repeat infringers.
If you have a dispute with another Member on the National Art Foundation Platform or with any third party, you agree that National Art Foundation is under no obligation to become involved. In the event that you have a dispute with one or more other Members, you release National Art Foundation, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the National Art Foundation Platform. As part of this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit this release to only include those claims that you may know or suspect to exist in your favor at the time of agreeing to this release.
18.1 Full Force and Effect. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
18.2 Entire Agreement. Each party agrees that this Agreement, together with any Sign-up, Order Form or Statement of Work entered into by the parties, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and any Sign-up, Order Form or Statement of Work entered into by the parties pertaining to such subject matter, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. However, in the event of a conflict between the provisions of this Agreement and any Order Form or Statement of Work entered into by the parties, the terms of such Order Form or Statement of Work, as applicable, shall prevail. No delay or omission by either party in exercising any right or remedy under this Agreement, an Order Form or Statement of Work, or existing at law or equity shall be considered a waiver of such right or remedy.
18.3 Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
18.4 Force Majeure. We are not liable for any failure, default or delay in the performance of any part of the Services or of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, changes to law or regulations, embargoes, labor disputes, accidents, insurrection, epidemic, pandemic, acts of war (declared or undeclared) or terrorism, riots, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder, including acts of hackers or third-party internet service providers.
18.5 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
18.6 Governing Law and Legal Actions.
This Agreement will be interpreted in accordance with the laws of the State of Texas and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in San Antonio, Texas for any actions for which the arbitration provision does not apply.
19.1 THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN THE “GOVERNING LAW; ARBITRATION” SECTION BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND
19.2 Arbitration Administration and Rules. The arbitration will be administered by ADR Services Inc. (“ADR Services”) and shall be subject to ADR Services’ most current version of its Arbitration Rules, available at https://www.adrservices.com/services/arbitration-rules or by calling ADR Services, Inc. at (310) 201-0010. If ADR Services is not available to arbitrate, the parties will mutually select an alternative arbitral forum, and either party may invoke 9 U.S.C. § 5 to request that a court appoint an arbitration provider. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) may resolve that dispute, and the arbitration shall be stayed pending the court’s ruling.
19.3 Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified by ADR Services’ Rules available at https://www.adrservices.com/services-2/arbitration-rules. The Demand must describe the nature and basis for the claim and includes all of the information required in the Notice. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from ADR Services’ roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 business days of delivery of the Demand, then ADR Services will appoint the arbitrator in accordance with ADR Services’ Rules.
19.4 Arbitration Location and Procedure. Arbitration hearings will take place through videoconferencing by default, unless you and National Art Foundation agree upon another location in writing. If the arbitration is in person, the seat of the arbitration shall be in San Antonio, Texas, unless you and National Art Foundation agree otherwise or ADR Services’ Rules provide otherwise. If your claim does not exceed USD $10,000, then the arbitration will be conducted solely on the basis of documents you and National Art Foundation submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD $10,000, your right to a hearing will be determined by ADR Services’ Rules. Subject to ADR Services’ Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
19.5 Arbitrator’s Decision and Governing Law. The arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in ADR Services’ Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section set forth in this Terms of Use. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
19.6 Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees are set forth in ADR Services’ Rules. National Art Foundation will consider reimbursing the opposing party’s portion of ADR Services’ fees upon a showing of financial hardship, but only if the opposing party is an individual consumer, and not a professional or business. Either party may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim, or defense that is groundless in fact or law, brought in bad faith, or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and ADR Services’ Rules.
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