Welcome, and thank you for your interest in Cohart, Inc. (“Cohart,” “we,” or “us”) and our website at cohart.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Cohart regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” MAKING ANY PURCHASES THROUGH THE SERVICE, OR DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING COHART’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND COHART’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY COHART AND BY YOU TO BE BOUND BY THESE TERMS.
IF YOU CHECK “I AGREE TO RECEIVE TEXT MESSAGE ALERTS”, YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF COHART AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE GENERAL APP UPDATES AND NOTIFICATIONS. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 21 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration. IF YOU WISH TO OPT OUT OF THE ARBITRATION PROVISION SET FORTH BELOW, YOU MUST FOLLOW THE PROCEDURES SET FORTH IN SECTION 21.c. OTHERWISE, BY ACCEPTING THESE TERMS, YOU AND COHART ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. THESE PROVISIONS APPLY SOLELY TO THE EXTENT PERMITTED IN YOUR JURISDICTION.
Cohart provides the Service to facilitate connections in the art community, allow users to display artwork they own or have the right to display and sell (“Artwork”) and offer such Artwork for sale (“Sellers”), and other users to buy such Artwork (“Buyers”). Users may create their own profiles, view profiles and Artwork of other users, communicate with other users, and buy or sell Artwork.
| a. |
Link-in-Bio Feature. The Link-in-Bio (aka Portfolio) feature allows Sellers to sell artworks directly from their social media profiles by linking their Cohart profile with their social media accounts. This service provides tools to manage sales, track performance, and interact directly with Buyers, enhancing the traditional online art sales experience. If you choose to use Link-in-Bio, you are responsible for ensuring that the Artwork you share and sell through the feature complies with all applicable laws and does not infringe on the rights of others. You must also manage your social media connections in accordance with these Terms and the terms of the social media platforms you connect to your Link-in-Bio. |
| b. |
Events Feature. The Service includes an events feature that allows users to post events, sell tickets, and manage event check-ins via QR codes (the “Events Feature”). If you purchase tickets through the Events Feature, you agree to the ticket price and any applicable fees displayed at the time of purchase. Tickets are subject to the event organizer’s cancellation and refund policies. COHART IS NOT RESPONSIBLE FOR THE CANCELLATION, POSTPONEMENT, OR MODIFICATION OF ANY EVENT BY THE EVENT ORGANIZER. By purchasing tickets or checking into events using the Events Feature, you acknowledge and agree that your information, including your name and email address, may be collected and shared with the event organizer in accordance with our Privacy Policy and Section 11 (Communications) of these Terms. |
| c. |
Custom Website Feature. The Service includes a feature that allows users to build personal websites using available themes (a “Custom Website”). Inventory of Artwork uploaded to the Service is interlinked with your Custom Website and is immediately purchasable by Buyers. You are solely responsible for all content displayed on your Custom Website, including Artwork listings, descriptions, images, and any other materials. Your Custom Website must comply with all applicable laws and these Terms, including, but not limited to, Section 12 (Prohibited Conduct). |
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, phone number, email address, or other contact information, including but not limited to your correct contact details (including permanent business address and warehouse address if applicable), tax or VAT registration number, financial and payment information, or any supporting documentation that verifies such information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up-to-date at all times. We may request additional financial, business, or personal information at any time to confirm your identity. If you are a Seller based in the UK, EU, Norway, or Switzerland and are exempt from collecting VAT, you are required to provide us with proof of such exemption upon request; we reserve the right to decline such documentation at our discretion and to reject transactions in case of doubt regarding the claimed exemption. To ensure the security of our Service, we may ask for identity documentation, bank or financial references, and other qualifying information at any time. If you do not provide the necessary documentation or information upon request within a reasonable timeframe before, during, or after a related sale, we may cancel the sale and will not be held liable to Buyer or Seller. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You are not authorized to use any name in connection with your account or the use of Service that you are not legally entitled to use. You may not transfer, lease, sell, rent, sub-license, or otherwise assign your account to any third party. If you believe that your account is no longer secure, or you suspect or become aware of any unauthorized access to or use of your account or password or other security breaches on the Service, then you should immediately notify us at hello@cohart.com. We reserve the right to change your password, require you to change it, or request additional information to confirm your identity before accessing or using the Service.
| a. |
Overview. The Service offers a marketplace feature (the “Marketplace”) which may allow you to buy and sell Artwork. Any transactions that occur via the Marketplace (“Transactions”) are between the applicable Buyer and Seller. Cohart provides services and functionality through the Marketplace, including valuation and authentication of Artwork, to attempt to facilitate Transactions between Buyers and Sellers. Cohart charges a listing fee via subscription, rather than taking a commission on Transactions. Notwithstanding the foregoing authentication services, you acknowledge and agree that Cohart is not a party to any Transaction and will have no liability for the quality or authenticity of any Artwork or any other dispute between Buyer and Seller. All Artwork listed on the Service will be listed, marketed, and sold under the Seller’s name. By using the Service, Seller agrees that Cohart may use Seller’s name in connection with the listing, marketing, offer, and sale of any Artwork. |
| b. |
Listings. Seller is solely responsible for: (i) accurately describing the Artwork on the Service, and (ii) ensuring that all images, information, and material Seller submits, uploads, posts, publish, or otherwise make available through the Service are accurate. Any information provided by Cohart to Buyer regarding Artwork, including pre-sale estimates (written or oral) and any listings, condition reports, commentary, or valuations, is a statement of belief held solely by Cohart based on the information provided by Seller and is not a representation of fact. Cohart reserves the right to revise, edit, and modify listings, as well as unpublish a listing, at its sole discretion. Pre-sale estimates may be revised by Cohart from time to time. Listing descriptions and condition reports may mention certain imperfections of an Artwork, but Buyer should be aware that other faults may exist that are not specifically referred to in the listing or condition report. All dimensions are approximate. Illustrations are for identification purposes only and do not provide precise indications of size or full information on the condition of the Artwork. If Artwork is sold framed, Cohart is not responsible for the frame’s condition. |
| c. |
Cohart's Rights. Cohart’s Rights. Cohart reserves the right, at any time and at its sole discretion, to: (i) refuse registration to any Buyer or Seller; (ii) modify, edit, revise, or withdraw any Artwork from the Service; (iii) revise, edit, and modify listings, as well as remove a listing (for example, if the listing is factually inaccurate); (iv) reject any inquiry; (v) rescind a sale and cancel or reverse a related Transaction (including, without limitation, if the Artwork previously sold and is no longer available for sale, the description of the Artwork was not accurate, or the Artwork has been damaged); or (vi) terminate your access to the Service. Cohart will have no liability for taking any of the foregoing actions. If Cohart elects to rescind a sale or to cancel or reverse a Transaction, Buyer will promptly return the Artwork to Cohart or Seller, at Cohart’s discretion, and Cohart or Seller will then refund the Total Purchase Price. Such refund shall constitute Buyer’s or Seller’s sole remedy against Cohart with respect to such rescinded sale. |
| d. |
Sales Methods. Cohart offers three methods for completing Transactions on the Marketplace:
| i. |
Invoice-Only Transactions: For Transactions designated “Invoice-Only Transactions”, Cohart facilitates payment processing between Buyer and Seller but does not handle shipping or bear any responsibility for receipt of Artwork. Because Cohart does not manage the physical handover of the Artwork, no money-back guarantee is offered for Invoice-Only Transactions. COHART SHALL HAVE NO LIABILITY FOR ANY DISPUTES ARISING FROM THE CONDITION, DELIVERY, OR NON-DELIVERY OF THE ARTWORK. |
| ii. |
Ship by Cohart: For Transactions designated as “Ship by Cohart”, Cohart manages the shipping process by coordinating with Buyer and Seller and arranging logistics through a third-party provider. For Ship by Cohart Transactions, Cohart will issue a refund to Buyer in accordance with Section 4.p (Returns and Refunds) below if the Artwork is not received or does not match the listing description. |
| iii. |
Pickup and Shipping by Seller. For Transactions designated as “Pickup and Shipping by Seller”, Cohart supports the Transaction process and facilitates payment, but the Seller manages the physical handover or shipping of the Artwork directly to Buyer. Because Cohart does not manage the physical delivery, no money-back guarantee is offered for Pickup and Shipping by Seller Transactions. COHART SHALL HAVE NO LIABILITY FOR ANY DISPUTES ARISING FROM THE CONDITION, DELIVERY, OR NON-DELIVERY OF THE ARTWORK FOR PICKUP AND SHIPPING BY SELLER TRANSACTIONS. |
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| e. |
Transactions. If you enter into a Transaction as a Buyer, you agree to pay the full purchase price for the Artwork (the “Price”) and any taxes and shipping, handling, and processing charges, if any, which will be calculated for you at the time of the Transaction (collectively, “Fees”). The Price and Fees (collectively, the “Total Purchase Price”) must be paid immediately upon completion of an Online Purchase. For Ship by Cohart Transactions, shipment will only be processed once Buyer has paid the full shipping fee. All Prices are determined by the Seller of the Artwork in the Seller’s sole discretion. You agree to pay, using a Cohart-approved payment method, the Total Purchase Price incurred by you or any other user of your credit card or other payment mechanism issued to you. Payments may be processed by a third-party payment processor, in which case, by making a payment through the Service, you agree to be bound by and subject to such payment processor’s terms of service and privacy policy. Cohart reserves the right to charge the Total Purchase Price you owe to the payment method specified in your account. Cohart reserves the right to refuse to process or complete any Transaction, and to cancel any transaction, in our sole discretion. Before you pay the Total Purchase Price, you will have an opportunity to review and accept the Total Purchase Price that you will be charged. Unless otherwise specifically provided for in these Terms, the Total Purchase Price is non-refundable, except for refunds of the Price as described in Section 4.p (Returns and Refunds) or as required by law. |
| f. |
Resale Policy. Buyer must not offer any purchased Artwork for resale until full payment has been made and legal ownership and physical possession of the Artwork has been assumed, in accordance with these Terms. |
| g. |
Title and Risk of Loss. Legal ownership of Artwork transfers from Seller to Buyer upon payment of the Total Purchase Price and delivery of the Artwork. The risk of loss for each Artwork passes to Buyer when legal title to the Artwork is transferred to Buyer. |
| h. |
Non-Payment Remedies. In the event that Buyer cancels any payment or fails to pay the Total Purchase Price, Buyer will be in default. Cohart may, in its sole discretion, take the following actions: (i) cancel the sale and retain any partial payment as liquidated damages; (ii) reject future purchases or require a deposit; (iii) charge interest at 15% per annum on overdue amounts or the highest rate permitted under applicable law (whichever is lower); (iv) commence legal proceedings to recover the amount due; (v) set off the outstanding amount against any amounts owed to Buyer in other transactions; (vi) release Buyer’s name and address to Seller; (vii) charge a 15% cancellation fee; or (viii) take other appropriate action. The defaulting Buyer will also be liable for any costs, expenses, and damages incurred in connection with the default, collection of amounts due, and/or resale of the Artwork. Buyer authorizes Cohart to charge any outstanding portion of the Total Purchase Price using Buyer’s payment information if not paid by the applicable deadline. |
| i. |
Seller's Representations and Warranties. Seller’s Representations and Warranties. Seller affirms, represents, and warrants as follows:
| i. |
The Artwork that Seller ships to Buyer matches the images and description that Seller provides on the Service; |
| ii. |
Seller has and will have all requisite ownership, rights, and licenses to sell, and grant all rights associated with, the Artwork to Buyer; |
| iii. |
Seller’s listing or sale of the Artwork on the Service does not violate any applicable laws or infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; |
| iv. |
Seller will pack the Artwork in a manner that avoids damaging the Artwork and is commercially suitable for the applicable shipment method. |
| v. |
In the case of Pickup and Shipping by Seller, Seller will comply with its shipping and/or pickup obligations with Buyer; and |
| vi. |
Upon sale, good and marketable title and right of possession of the Artwork will be transferred to Buyer free from any claims, liens, or other encumbrances of any third party, including claims by governments or governmental agencies |
| vii. |
The Artwork is authentic and is not counterfeit, and Seller has no reason to believe otherwise; |
| viii. |
If applicable, the Artwork has been lawfully imported into the jurisdiction in which it is currently located and lawfully exported in accordance with the laws of the country in which it was previously located, and any taxes and/or duties on such import and export have been paid; |
| ix. |
Unless otherwise indicated, Seller will collect, pay, report, and remit any and all transactional taxes and any other taxes and duties as required by applicable law in connection with the listing, marketing, offer, or sale of the Artwork; and |
| x. |
Seller has all necessary rights and authority to enter into these Terms and perform Seller’s obligations under these Terms, and none of Seller’s acts or performance in connection with these Terms will conflict with any obligation Seller has to any third party (collectively with the foregoing representations and warranties, the “Seller Warranty”). Seller agrees that the Seller Warranty is for the benefit of Cohart and Buyer, and that such Seller Warranty will survive these Terms and the Transactions contemplated by these Terms. Seller agrees to immediately notify Cohart in writing of any event or information that may cause the Seller Warranty to be inaccurate or breached in any way. |
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| j. |
Authentication of Artwork. By agreeing to these Terms, Cohart will automatically issue Seller a certificate of authentication for the Artwork being sold (the “Certificate”). Seller understands that the Certificate is being issued in Cohart’s reasonable reliance on the Seller Warranty. Cohart will not be liable to Buyer regarding the accuracy of the Certificate. Seller agrees to ship the Certificate to Buyer, in the same shipment as the Artwork, and provide a copy of the Certificate to Cohart. |
| k. |
Buyer's Representations and Warranties. Buyer’s Representations and Warranties. Buyer represents and warrants that: (a) all information provided by Buyer or on Buyer’s behalf through the Service is true and accurate; (b) Buyer will not permit any other person or entity to use Buyer’s account or login credentials; (c) any purchases made or offers placed by Buyer are not the result of any illegal or anti-competitive agreement and are in compliance with all applicable laws; and (d) the funds used for settlement are not associated with any illegal activity, including tax evasion, and Buyer is not under investigation, nor has been charged with or convicted of, crimes such as money laundering, terrorism, or any other crimes. |
| l. |
Revenue to Seller. For Invoice-Only Transactions and Pickup and Shipping by Seller Transactions, Cohart will pay Seller within seven to ten days of Buyer’s receipt of the Artwork. For Ship by Cohart Transactions, so long as a refund has not been initiated by Buyer pursuant to Section 4.p, Cohart will pay Seller within three days of Buyer’s receipt of the Artwork. All payments will be made through the payment method specified in Seller’s account. Cohart will pay Seller the Price minus Cohart’s share (based on Seller’s Subscription). Please visit the pricing tab on cohart.com/pricing for the most up-to-date information on Seller’s revenue share. |
| m. |
Authorization. You authorize Cohart or any third-party payment processor we may use to charge all Fees you owe as described in these Terms or published by Cohart, including all applicable taxes, to the payment method specified in your account. If you pay any Fees with a credit card, then Cohart may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. |
| n. |
Logistics Services and Shipping. For Ship by Cohart, Cohart will utilize a third-party provider to facilitate the shipping of Artwork from Seller to Buyer, using the address and shipping preferences provided by Buyer in a given Transaction. Such third-party providers are utilized at Cohart’s sole discretion. Cohart will deduct the applicable shipping fee set forth at https://support.cohart.com/migration/shipping (“Shipping Fees”) from amounts paid to Seller. Upon checkout, Cohart will provide the Shipping Fees for a Transaction, and the actual Shipping Fees charged will not exceed the amount shown to you. Seller agrees to provide the Artwork to the third-party provider that Cohart designates to facilitate shipping, at a mutually agreed upon place and time, and reasonably cooperate with Cohart, the third-party provider, and Buyer in the shipping process. Buyers and Sellers must ensure that a valid delivery address is provided when buying or selling any Artwork. Buyers or Sellers may be required to pay additional shipping fees, storage fees, or taxes if the delivery address is changed or not promptly confirmed after paying the Total Purchase Price. Sellers may be required to pay additional shipping fees if Cohart or the shipping provider determines the Artwork was not accurately described on the Service. Buyers and Sellers are required to disclose any and all information required to import or export the Artwork. Cohart may, but is not obligated to, provide support in the shipping process; however, any such support or recommendations are for convenience only and do not constitute or imply any representation, warranty, or assumption of liability by Cohart. |
| o. |
Export and Import Licenses and Restrictions. Buyers are advised to be aware that: (i) certain countries may have restrictions on exporting or importing certain Artwork, including Artwork made from endangered or protected plant or animal species; (ii) cross-border deliveries may be subject to inspection by customs authorities; (iii) some countries may have laws that prohibit the resale of imported Artwork; and (iv) some countries may have a right to purchase exported Artwork. Cohart makes no representations or warranties regarding compliance with such laws. It is Buyer’s sole responsibility to determine and obtain any necessary licenses and permits for purchased Artwork at Buyer’s own cost and to disclose relevant information for its export or import. Unless otherwise agreed upon, a failure to obtain required licenses or permits will not excuse cancellation of the Transaction or delay in payment of the Total Purchase Price. Neither Cohart nor Seller will be liable for any damage or loss resulting from confiscation, transportation restrictions, or actions taken by any government or public authority. |
| p. |
Returns and Refunds. ’For Ship by Cohart Transactions only, Buyer may seek a refund for the Artwork by notifying Cohart within 48 hours of delivery of the Artwork to Buyer, and Cohart will refund to Buyer the total Price of the Artwork after the Artwork has been returned to Seller. Buyer shall return the Artwork to Seller in the condition it was delivered to Buyer. Buyer will be responsible for all Shipping Fees in connection with returns of Artwork’. For the avoidance of doubt, Cohart does not accept returns of, or issue refunds for, Artwork outside of the specified 48-hour period. Any refunds or returns for Invoice-Only Transactions or Pickup and Shipping by Seller Transactions, or after the 48-hour period for Ship by Cohart Transactions, are at the Seller’s sole discretion and must be arranged directly between Buyer and Seller; provided that, if Seller agrees to a refund and notifies Cohart of this agreement, Cohart will help facilitate the refund between Buyer and Seller as agreed upon by Buyer and Seller.’ |
| q. |
Cancellation Rights for EU and UK Buyers. As per the European Union Directive on Consumer Rights (2011/83/EC) and the UK Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, a Buyer based in the EU or the UK who purchases Artwork via the Marketplace has the right to cancel the sale contract within 14 days of receiving physical possession of the Artwork, for any reason without incurring any liability. The EU or UK Buyer will need to return the Artwork and Seller will refund the payment made for the purchase and the shipping cost. The cost of returning the Artwork will be borne by the EU or UK Buyer. Additionally, if Cohart is not the Seller but has received payment for shipping, the EU or UK Buyer will not receive a refund for the shipping cost when canceling the sale contract. To exercise this right, the EU or UK Buyer must inform Seller through a clear statement (such as a letter sent via post or email). |
| r. |
Marketplace Dispute Resolution. As Cohart is not the agent of any Buyer or Seller for any purpose, Cohart has no obligation to mediate and will not act as the agent of any Buyer or Seller in resolving any disputes. However, Cohart may, at its sole discretion, offer intermediation services between Buyers and Sellers in regards to customer service or dispute resolution matters. In the event that Cohart chooses to offer intermediation services, Cohart will make efforts to help Buyer and Seller resolve disputes in good faith and based on Cohart’s own interpretation of its policies, and at Cohart’s sole discretion. Buyer and Seller agree to promptly cooperate with Cohart in any investigations Cohart may choose to conduct, as allowed by relevant law. All orders and Transactions should be carried out through the Service, and those who engage in communication outside the Service will not be protected by these Terms. |
| a. |
You may sign up for a subscription for the Service (“Subscription”) charged (except for the free tier) on a monthly or an annual basis (based on your billing selection at sign up) (the “Subscription Period”) to list more Artworks on the Marketplace or access other features of, or higher limits for, the Service. If you sign up for a paid Subscription or a free trial for a paid Subscription, you authorize us or our authorized third-party payment processor to charge the payment information on file with your account at the end of your Subscription free trial period (if applicable) and at the start of each renewal Subscription Period for your Subscription at the then-current fee for such Subscription tier and Subscription Period. You may not exceed the limit on the number of Artworks you may offer for sale at one time associated with your subscription tier without upgrading your subscription. We will notify you via the email associated with your account if we make any changes to these limits. If we detect that you have exceeded your limit, we will charge you the difference between the Subscription tier you paid for and the lowest Subscription tier necessary for the number of Artworks you actually offered for sale at one time at the start of the next Subscription Period (or at the time of your cancellation, if you choose not to renew), and we will automatically switch you to the appropriate Subscription tier. |
| b. |
AUTOMATIC RENEWAL. YOUR SUBSCRIPTION WILL CONTINUE AND AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL. To cancel your Subscription, you may email us at hello@cohart.com or cancel through your account settings page. Your cancellation will take effect at the end of your current subscription term. THERE ARE NO REFUNDS FOR CANCELLATION. We will provide you with notice of any price increases and reminders of upcoming renewals to the email address associated with your account. |
| a. |
Limited License. Subject to your complete and ongoing compliance with these Terms, Cohart grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service. |
| b. |
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it. |
We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Cohart an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
The Service is owned and operated by Cohart. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Cohart (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Cohart or its third-party licensors. Except as expressly authorized by Cohart, you may not make use of the Materials. There are no implied licenses in these Terms and Cohart reserves all rights to the Materials not granted expressly in these Terms.
| a. |
Third-Party Services and Linked Websites. Cohart may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on Cohart with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you hereby authorize Cohart to transfer that information to the applicable third-party service. Third-party services are not under Cohart’s control, and, to the fullest extent permitted by law, Cohart is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Cohart’s control, and Cohart is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Cohart will have no control over the information that has been shared. |
| b. |
Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses. |
| a. |
User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, or descriptions of Artwork, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms. |
| b. |
Limited License Grant to Cohart. By Posting User Content to or via the Service, you grant Cohart a worldwide, non-exclusive, irrevocable, fully transferable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Cohart’s exercise of the license set forth in this Section. |
| c. |
Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service. |
| d. |
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Cohart disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
| i. |
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Cohart and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Cohart, the Service, and these Terms; |
| ii. |
your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Cohart to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and |
| iii. |
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. |
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| e. |
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post, and will not be in any way responsible or liable for User Content. Cohart may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the extent permitted under applicable law, you agree to waive, and do hereby waive, any legal or equitable right or remedy you have or may have against Cohart with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Cohart does not permit infringing activities on the Service. |
| f. |
Monitoring Content. Cohart does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Cohart reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Cohart chooses to monitor the content, then Cohart still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Cohart may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service. |
| a. |
General Consent Notice. Your consent requirements for receiving communications depend on your jurisdiction. If you are located in the European Union (EU) or United Kingdom (UK), we will obtain your affirmative opt-in consent before sending you marketing communications via email, text message, or other electronic means, in accordance with the General Data Protection Regulation (GDPR) and the Privacy and Electronic Communications Regulations (PECR). If you are located in the United States or other jurisdictions that permit opt-out consent, you may receive marketing communications unless you opt-out. In the EU and UK, business contact information (such as names, business email addresses, and job titles) that permit opt-out consent, you may receive marketing communications to business contacts in the EU or UK require opt-in consent. |
| b. |
Text Messaging. If you check the associated box affirming your consent to receive text messages, you agree that Cohart and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. If you are located in the EU or UK, your consent to receive marketing text messages is obtained in accordance with GDPR and PECR requirements. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM COHART, YOU CAN EMAIL HELLO@COHART.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM COHART, YOU CAN EMAIL HELLO@COHART.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Service. |
| c. |
Push Notifications. When you install our app on your mobile device, you may agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page. |
| d. |
Email. We may send you emails concerning our products and services, as well as those of third parties. For marketing emails, your consent requirements depend on your jurisdiction. If you are located in the EU or UK, or other jurisdictions requiring affirmative consent for marketing communications, you must affirmatively opt-in to receive marketing emails by checking the appropriate consent box. If you are located in a jurisdiction that permits opt-out consent for marketing communications, you will receive marketing emails unless you opt out. You may opt out of marketing emails at any time by following the unsubscribe instructions in the promotional email itself or by contacting us at hello@cohart.com. |
| e. |
Platform Messaging. The Service includes an inter-platform messaging system that allows users to communicate with each other within the Service. Platform messaging is distinct from text (SMS) marketing and is governed by separate terms. Messages sent through the platform messaging system are subject to these Terms and our Privacy Policy. We process platform messaging data as necessary to perform our contract with you and to provide the Service, and we may also process such data based on our legitimate interests in maintaining the security and integrity of the Service and preventing fraud. You agree not to use the platform messaging system to send spam, unsolicited communications, fraudulent content, or content that violates Section 12 (Prohibited Conduct). |
| f. |
Inquiries. The Service may include features that allow Buyers to communicate with Sellers regarding Artwork listed on the Service. Buyers may use these features to make inquiries (“Inquiry”). Both Seller and Cohart have the discretion to accept, respond to, or forward any Inquiry and will not be held liable for any delays or failure to do so. At Cohart’s discretion, Cohart may provide Buyers with price information and other relevant details about the Artwork in response to an Inquiry, regardless of whether the information is posted on the Service. Unless otherwise agreed upon in writing, any sales resulting from an Inquiry will be handled between Cohart and Buyer, with Cohart being responsible for collecting payment from Buyer. All payments collected on behalf of Seller for an Inquiry sale will be subject to all applicable terms and conditions of these Terms. Seller may receive or obtain information such as Buyer names, email addresses, and postal addresses in connection with Inquiries or sales through the Service (“User Information”). Seller must only use User Information for purposes related to Inquiries or Transactions and not for unsolicited marketing emails or communications, unless a Buyer has given their express consent for such use. If Seller is located in the EU or UK, or if Seller processes User Information of individuals located in the EU or UK, Seller must comply with GDPR and UK data protections laws, including obtaining appropriate opt-in consent before sending any marketing communications to Buyers. Upon receiving User Information, Seller becomes an independent data controller responsible for Seller’s own compliance with applicable data protection laws. Seller will be solely responsible for use of User Information to initiate or conduct a sale outside of the Service. |
| g. |
Seller Data Sharing. If you are a Buyer who makes a purchase from a Seller on the Marketplace, your information (including your name and email address) may be shared with the Seller to facilitate the Transaction. This sharing is necessary to perform our contract with you and to complete the Transaction. By making a purchase, you acknowledge that the Seller may contact you regarding your Transaction. Sellers may only contact you for transaction-related purposes; any marketing communications from a Seller require your separate consent. If you are located in the EU or UK, the Seller receiving your information is an independent data controller and must process your information in accordance with applicable data protections, including the GDPR and UK GDPR. We encourage you to review the Seller’s privacy practices before completing a transaction. |
BY USING THE SERVICE YOU AGREE NOT TO:
| a. |
use the Service for any illegal purpose or in violation of any local, state, national, or international law; |
| b. |
harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service; |
| c. |
violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; |
| d. |
access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, agentic artificial intelligence, and data mining tools) other than the software or search agents provided by Cohart; |
| e. |
interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; |
| f. |
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; |
| g. |
perform any fraudulent activity including making any false claims concerning any Artwork, impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth; |
| h. |
sell, rent, timeshare, or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or |
| i. |
attempt to do any of the acts described in this Section 12 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 12 (Prohibited Conduct). |
| a. |
Respect of Third Party Rights. Cohart respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service. |
| b. |
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
Cohart, Inc.
ATTN: Legal Department (Copyright Notification)
305 South Street
Sausalito, CA 94965
Email: copyright@cohart.com |
| c. |
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service, including any Artwork listed for sale, has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
| i. |
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; |
| ii. |
a description of the copyrighted work or other intellectual property right that you claim has been infringed; |
| iii. |
a description of the material that you claim is infringing and where it is located on the Service; |
| iv. |
your address, telephone number, and email address; |
| v. |
a statement by you that you have a good faith belief that the use of the material on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and |
| vi. |
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf. |
Your Notification of Claimed Infringement may be shared by Cohart with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Cohart making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
|
| d. |
Repeat Infringers. Cohart’s policy is to: (a) remove or disable access to material, including Artwork listed for sale, that Cohart believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights, either by Posting infringing content or listing infringing Artwork for sale. Cohart will terminate the accounts of users that are determined by Cohart to be repeat infringers. Cohart reserves the right, however, to suspend or terminate accounts of users in our sole discretion. |
| e. |
Counter Notification. If you receive a notification from Cohart that any material, which includes Artwork listed for sale and other content, made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Cohart with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Cohart’s Designated Agent through one of the methods identified in Section 13.b (DMCA Notification), and include substantially the following information:
| i. |
your physical or electronic signature; |
| ii. |
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; |
| iii. |
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and |
| iv. |
your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Cohart may be found, and that you will accept service of process from the person who provided notification under Section 13.b (DMCA Notification) above or an agent of that person. |
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
|
| f. |
Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Cohart in response to a Notification of Claimed Infringement, then Cohart will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Cohart will replace the removed User Content or Artwork listing, or cease disabling access to it in 10 business days, and Cohart will replace the removed User Content or Artwork listing, and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Cohart’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Cohart’s system or network. |
| g. |
False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Cohart relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Cohart reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law. |
We may, from time to time, change these Terms. Please check these Terms and the email address associated with your account periodically for changes. Revisions will be effective 30 days after providing notice to you of the revisions at the email address associated with your account and the next time you log into your account. We may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 14 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
| a. |
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 15.b (Termination). |
| b. |
Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Cohart may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at hello@cohart.com. |
| c. |
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Cohart any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7 (Feedback), 8 (Ownership; Proprietary Rights), 15.c (Effect of Termination), 16 (Indemnity), 19 (Disclaimers; No Warranties by Cohart), 20 (Limitation of Liability), 21 (Dispute Resolution and Arbitration), and 22 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification. |
| d. |
Modification of the Service. Cohart reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Cohart will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
We may update or discontinue any aspect of the Link-in-Bio feature at any time without notice. We will strive to inform you of any significant changes to the service that may affect your use of the Link-in-Bio. Your continued use of the feature following any updates represents your acceptance of these changes. |
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend, indemnify, and hold Cohart, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Cohart Entities”) harmless from and against every claim, demand, proceeding, and investigation brought by a third party, and any related liability, damage, loss, cost, award, fee, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between Buyer and Seller arising out of a Transaction and not the Service itself; or (e) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims and to pay our defense expenses. The obligations outlined in this Section will remain in effect after your use of the Service.
Cohart does not endorse or take responsibility for the behavior, performance, or inaction of any of its Buyers or Sellers in any way related to the Service or any Artwork listed, marketed, offered, or sold through the Service. If you have a dispute with a Buyer or Seller connected to the Service or any Artwork, to the fullest extent permitted by law, you release Cohart from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising from or in any way connected to such disputes. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” BY AGREEING TO THESE TERMS, YOU VOLUNTARILY GIVE UP ANY BENEFITS OR PROTECTIONS (INCLUDING THOSE UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR SIMILAR LAWS IN OTHER JURISDICTIONS) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO ONLY THOSE CLAIMS THAT YOU KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF ENTERING INTO THIS AGREEMENT.
THE SERVICE AND ALL MATERIALS AND CONTENT, INCLUDING ARTWORK AND OTHER USERS’ USER CONTENT, AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COHART DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT, INCLUDING ARTWORK AND OTHER USERS’ USER CONTENT, AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; (C) ANY WARRANTY WITH RESPECT TO THE QUALITY, AUTHENTICITY, ORIGINALITY, OR NON-INFRINGEMENT OF ARTWORK LISTED, SOLD, OR BOUGHT ON THE SERVICE; (D) ANY WARRANTY REGARDING THE ARTWORK’S DESCRIPTION, SIZE, QUALITY, CONDITION, ATTRIBUTION, PROVENANCE, EXHIBITION HISTORY, LITERATURE, OR HISTORICAL RELEVANCE; (E) ANY WARRANTY AS TO THE EXPECTED SALE PRICE OF ANY ARTWORK OR THAT AN ARTWORK WILL SELL; AND (F) ANY WARRANTY REGARDING THE BUYER’S ACQUISITION OF ANY REPRODUCTION RIGHTS OR INTELLECTUAL PROPERTY RIGHTS, OR ANY ARTIST’S MORAL RIGHTS OR RESIDUAL RIGHTS. COHART DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND COHART DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. EXCEPT FOR ARTWORK SOLD BY COHART ITSELF, COHART MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (EXPRESS OR IMPLIED) WITH REGARD TO ANY ARTWORK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR COHART ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE COHART ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS, INCLUDING, BUT NOT LIMITED TO, ANY STATEMENTS MADE IN ARTWORK DESCRIPTIONS OR ANY CERTIFICATES. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 19 (DISCLAIMERS; NO WARRANTIES BY COHART) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Cohart does not disclaim any warranty or other right that Cohart is prohibited from disclaiming under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COHART ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES (HOWEVER CHARACTERIZED) FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COHART ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTIONS 21.e (COMMENCING ARBITRATION) AND 21.g (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COHART ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO COHART FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE FIRST EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COHART ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
| a. |
Generally. Except as described in Section 21.b (Exceptions) and 21.c (Opt-Out), you and Cohart agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration is less formal than a court proceeding. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. |
| b. |
Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim. |
| c. |
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 21 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Cohart, Inc., Attention: Legal Department – Arbitration Opt-Out, 305 South Street, Sausalito, CA, 94965 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Cohart receives your Opt-Out Notice, this Section 21 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 22.b (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice. |
| d. |
Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Cohart. |
| e. |
Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Cohart’s address for Notice is: Cohart, Inc., 305 South Street, Sausalito, CA, 94965. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Cohart may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Cohart will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Cohart has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA. |
| f. |
Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Cohart must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. |
| g. |
Arbitration Relief. Except as provided in Section 21.h (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Cohart before an arbitrator was selected, Cohart will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly required by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction. |
| h. |
No Class Actions. YOU AND COHART AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cohart agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. |
| i. |
Modifications to this Arbitration Provision. If Cohart makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Cohart’s address for Notice of Arbitration, in which case your account with Cohart will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive. |
| j. |
Enforceability. If Section 21.h (No Class Actions) or the entirety of this Section 21 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Cohart receives an Opt-Out Notice from you, then the entirety of this Section 21 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 22.b (Governing Law) will govern any action arising out of or related to these Terms. |
| a. |
General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Cohart regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. These Terms are written in English, and in the event of any conflict between translated versions, the English version will take precedence. The provisions of these Terms that apply after the expiration of these Terms or your use of the Service, such as those regarding intellectual property, indemnification, warranty disclaimers, and limitations of liability, will survive the termination of this agreement. Both parties are independent contractors, and nothing in these Terms implies the formation of an agency, partnership, joint venture, employment, sales representative, or franchise relationship. You cannot represent yourself as a representative of Cohart and do not have the authority to make or accept offers or representations on Cohart’s behalf. |
| b. |
Governing Law. These Terms are governed by the laws of the State of California without regard to its conflict of law principles. You and Cohart submit to the personal and exclusive jurisdiction of the state courts and federal courts with jurisdiction over Marin County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations. |
| c. |
Privacy Policy. Please read the Cohart Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Cohart Privacy Policy is incorporated by this reference into, and made a part of, these Terms. |
| d. |
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. |
| e. |
Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. |
| f. |
Contact Information. The Service is offered by Cohart, Inc., located at 305 South Street, Sausalito, CA, 94965. You may contact us by sending correspondence to that address or by emailing us at hello@cohart.com. |
| g. |
Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service. |
| h. |
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies. |
| i. |
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. |
| j. |
Availability and Pricing. Cohart cannot guarantee that any Artwork listed on the Service will be available for purchase or listed with the correct price or listed with a given price for any period of time. The availability and pricing of Artwork on the Service are subject to change. By using the Service, you acknowledge and agree that all Artwork listed on the Service is subject to availability. |
| k. |
Employee Participation. Cohart employees may use the Service as Buyers in their personal capacity and not as representatives of the company, as long as they do not possess any confidential information regarding the Artwork they are purchasing. In such cases, the employees are personally bound by these Terms just like any other Buyer. |
| l. |
Force Majeure. Cohart will not be held responsible for any failure or delay in performing its obligations under these Terms due to circumstances beyond its reasonable control, including but not limited to acts of God, accidents, riots, war, terrorism, epidemics, pandemics, quarantine, civil unrest, communication failures, hosting failures, internet service provider failures, natural disasters, governmental acts or omissions, changes in laws or regulations, national strikes, fire, or explosion. |
| m. |
Notice Regarding Apple. This Section 22.m (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Cohart only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. |
| n. |
Notice Regarding Google. This Section 22.n (Notice Regarding Google) only applies to the extent you are using our mobile application on an Android device. You acknowledge that these Terms are between you and Cohart only, not with Google Inc. (“Google”), and Google is not responsible for the Service or the content of it. Google has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Google, and Google will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Google has no other warranty obligation with respect to the Service. Google is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Google is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Google and Google’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. |
