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Terms of Use

These Terms of Use are effective as of January 18, 2009
Welcome to Wittygraphy, an social utility that connects caricaturists, caricature buyers, caricature lovers, fans, and friends.

By using Wittygraphy service (the "Service", the "Web site", the "Company" or "Wittygraphy") you signify that you have read, understand and agree to be bound by these Terms of Use ("Terms of Use" or "Agreement"). we reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the Terms of Use's effective date. Your continued use of the Service or the Web site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, please do not use or access the Service or the Web site. It is your responsibility to regularly review these Terms of Use.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

Description of Service

The Wittygraphy service is designed to allow caricaturists to maintain a web presence, market and publicize their work, and connect with caricature buyers and lovers to sell their services. Communications are public and private to the registered user.

Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the Terms of Use. You understand and agree that the Service is provided "AS-IS" and that Wittygraphy assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.

You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider). You are responsible for those fees and must providing for all equipment necessary (such as a computer) to access the Service.

Wittygraphy is a Venue

Wittygraphy is not a booking "agent" or a caricatures reseller. Instead, our site acts as a venue to allow anyone to buy and sell caricature services. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell services or the ability of buyers to buy services. We cannot ensure that a buyer or seller will actually complete a transaction.

Release

Because we are a venue, in the event that you have a dispute with one or more artists or users, you release Wittygraphy (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 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."

Eligibility

You must be eighteen (18) years of age or older to register as a member of Wittygraphy (a "Member") or use the Web site. If you do not meet this requirement, you are not allowed to register and become a member of Wittygraphy, features and services on the Web Site. Membership in the Service is void where prohibited. By using the Service or the Web site, you represent and warrant that you agree to and to abide by all of the terms and conditions of this Agreement. Wittygraphy may terminate your Membership and/or prohibit you from using or accessing the Service or the Web site for any reason, at any time.

Member Conduct

You represent, warrant and agree that no materials of any kind submitted through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

You further agree not to harvest or collect email addresses or other contact information of Members from the Service or the Web site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Service or the Web site or for any other purpose. You further agree that you may not use the Service or the Web site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Web site. In addition, you agree not to use the Service or the Web site to:

Member Content Posted on the Web Site

You understand that all information, data, text, photographs, graphics, messages, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Wittygraphy are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. Wittygraphy does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Wittygraphy be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted, or otherwise made available via the Service.

You acknowledge that Wittygraphy does not pre-screen Content, but that Wittygraphy and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, Wittygraphy and its designees shall have the right to remove any Content that violates the TOU or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

You may find other Members and user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe buying, selling, booking, and communications when using the Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using this Site, you agree to accept such risks and Wittygraphy is not responsible for the acts or omissions of users on the Site.

You acknowledge that your Organization and its designees are frequently monitoring posted Content and have the right (but not the obligation) in their sole discretion to remove any Content deemed unfit for the Web site.

Proprietary Rights in Content on the Web Site

All content on the Web site, except all User Submissions (as defined below), including but not limited to design, text, graphics, other files, and their selection and arrangement (the "Content"), are the proprietary property of the Company or its licensors. All rights reserved. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission. You may download or print a copy of any portion of the Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. You may not republish Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation. Any other use of the Content is strictly prohibited.

All trademarks, logos, trade dress and service marks on the Web site are either trademarks or registered trademarks of Wittygraphy or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission.

Wittygraphy does not claim ownership of the Content (User Submissions) you post on the website. After posting your Content to Wittygraphy, you continue to retain all ownership rights in such Content, and you continue to have the right to use your Content in any way you choose. In order for us to use certain types of content and provide you with the service, you agree to the following:

  1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Wittygraphy ("IP License"). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it).
  2. Upon cancellation of your account and removal of your images, Wittygraphy shall no longer maintain these rights. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
  3. We always appreciate your feedback or other suggestions about Wittygraphy, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

Copyright Policy

We respect the intellectual property rights of others. If you believe your work has been copied in a way that constitutes copyright infringement or are aware of any infringing material on the Web site, please contact us at copyright {at} wittygraphy {dot} com and provide us with the following information:

Links to Other Websites

The Web site contains links to other websites. We are not responsible for the content, accuracy or opinions express in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website on or through the Web site or the Service does not imply approval or endorsement of the linked website by us. If you decide to leave the Web site and access these third-party sites, you do so at your own risk.

Member Disputes

You are solely responsible for your interactions with other Members. We reserve the right, although we have no obligation, to monitor disputes between you and other Members, and to take any action that we feel may be appropriate in our sole discretion, consistent with the terms of this Agreement, including the termination of the membership of one or more Members.

Termination

You agree that Wittygraphy and its licensors, in their sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of the Terms of Use.

Without limiting any other remedies, Wittygraphy may suspend or terminate your account and/or Membership if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity, misrepresentation, or falsehoods in connection with the Site.

Wittygraphy may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Use may be effected without prior notice, and acknowledge and agree that Wittygraphy may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Wittygraphy shall not be liable to you or any third-party for any termination of your access to the Service.

Feedback and Review Integrity

You may not take any actions that may undermine the integrity of the Wittygraphy feedback/review system. We may limit the number of client feedback reviews you ("performer") may place on the Site based upon the level of your feedback. If you ("performer") engage in the practice of libel, slander, foul language, threats and/or threatening language, Wittygraphy has the right to remove or edit your feedback. Wittygraphy also has the right not to edit or remove your feedback. Likewise, Wittygraphy clients are not permitted to engage in the practice of libel, slander, foul language, threats and/or threatening language. All feedback will be published live on the Wittygraphy Site at the discretion of Wittygraphy.

Feedback is not to be used by performers in order to threaten, harass, blackmail, or extort money, goods/services from clients. If Wittygraphy concludes that feedback has been used by a performer to threaten, harass, blackmail, or extort money, goods/services from clients, Wittygraphy reserves the right to temporarily suspend or permanently remove said performer and said performer's Wittygraphy Membership from the Wittygraphy website.

Feedback is not to be used by clients in order to threaten, harass, blackmail, or extort money, goods/services from performers. If Wittygraphy concludes that feedback has been used by a client to threaten, harass, blackmail, or extort money, goods/services from performers, Wittygraphy reserves the right to temporarily suspend or permanently prevent said client from utilizing the Wittygraphy website to contact Wittygraphy performers and book live entertainment through the Wittygraphy website. A Wittygraphy performer may not cancel on a Wittygraphy client because he or she is afraid of receiving less than perfect or negative client feedback after the event has taken place.

Fees and Services

Joining Wittygraphy and and using the Service is free for most part. We do charge fees for using other services, such as transaction fee for sold items. Our Fees schedule is state on this page, which we may change from time to time. Changes to that Policy are effective after we provide you with at least fourteen days' notice by posting the changes on the Sites. We may choose to temporarily change the fees for our services for promotional events (for example, free transaction days) or new services, and such changes are effective when we post the temporary promotional event or new service on the Sites.

Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Sites in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your PayPal account balance.)

No Resale of Service

You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

No Agency

There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and us or between us and any other Member or user of the Website.

Privacy

We care about the privacy of our Members. Click here to view the Web site's Privacy Policy. By using the Web site or the Service, you are consenting to have your personal data transferred to and processed in the United States.

Disclaimers of Warranties

The Company is not responsible for any incorrect or inaccurate Content posted on the Web site or in connection with the Service, whether posted or caused by users of the Web site, Members or by any of the equipment or programming associated with or utilized in the Web site or the Service. The Company is not responsible for the conduct, whether online or offline, of any user of the Web site or Member of the Service. The Web site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Wittygraphy assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user or Member communications. The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to users and/or Members or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will the Company be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Web site or the Service, any Content posted on or through the Web site or the Service or transmitted to Members, or any interactions between users of the Web site or Members, whether online or offline.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Wittygraphy EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. Wittygraphy MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Wittygraphy OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

Limitation on Liability

You will not hold Wittygraphy responsible for other users' actions or inactions, including things they post. You acknowledge that we are not a shopping website. Instead, the Wittygraphy is a venue to allow caricaturists to offer, sell their services directly to caricature buyers, at anytime, from anywhere, in a variety of pricing formats. We are not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT Wittygraphy SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Wittygraphy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

Indemnity

You agree to indemnify and hold Wittygraphy, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, or demand, including reasonable attorney's fees, arising out of any claim, action, investigation or proceeding made or instituted by any third party due to or arising out of your use of the Service or the Web site in violation of this Agreement or your violation of any law or the rights of a third party.

Arbitration

Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by Wittygraphy to collect our fees and/or recover damages for, or obtain an injunction relating to, the Wittygraphy site operations, intellectual property, and our services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Jose, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Wittygraphy may seek any interim or preliminary relief from a court of competent jurisdiction in San Jose, California necessary to protect the rights or property of you or Wittygraphy pending the completion of arbitration. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.

Quality of Service

Because Wittygraphy services are provided over the internet, there are many factors that are required to be both working and communicating properly in order for the service to be available to an end-user. This includes not only the end-user's hardware (computer, modem) and software (web browser), but also the internet at large. When your computer communicates with a website, many computers across the country or even around the world may become involved in passing the information back and forth between the website you requested and your computer. If any one of these links is broken, you may not be able to reach the website you intended to view.

Additionally, our web server that hosts your Wittygraphy website is a computer that may also require routine maintenance or may experience problems like any mechanical or electronic device, and thus may not be always be available. While we endeavor to make your website available as continuously as possible, there may be times when your website is unreachable due to factors that Wittygraphy has no control over, such as bad connections among various servers between your computer and our web hosting server. Likewise, Wittygraphy leases its web hosting servers from third-party companies that may experience problems with their hardware or their internet connection, or may decide to perform routine maintenance from time to time. These activities and problems may cause you to be unable to view or interact with your web site for an indeterminate amount of time. If Wittygraphy does not have the ability or right to control these service outages, we will make every reasonable effort to determine the cause of such outages and pass such information on to our customers if they so request it.

Modifications to Service

Wittygraphy reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Wittygraphy shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

Other

These Terms of Use, together with the Privacy Policy and any other policies of the Company posted by us on the Web site, constitute the entire agreement between you and Wittygraphy regarding the use of the Web site and/or the Service, superseding any prior agreements between you and Wittygraphy relating to your use of the Web site or the Service. The failure of Wittygraphy to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.