PLEASE READ THIS DOCUMENT CAREFULLY
EFA’s Platform can be found at https://epiphanyfineart.com, and also includes all of the subdomains, mobile applications, any other media, location, application, etc. owned, managed, operated, etc. by EFA. When referring to the infrastructure in this Agreement, we will be collectively referring to them as the “Platform”.
EFA, Inc. (“EFA”) provides an online content creation and delivery platform designed to allow Artists to build, design, publish, and sell courses and services (“Content”) to their Members. EFA offers this Content creation platform along with a number of additional services and tools (e.g. payment gateways, author and affiliate payouts) and the entire selection of tools and services offered via the Platform will be referred to in this Agreement as “EFA Services”.
By using our Platform in any manner, You are expressly agreeing to, and give Your consent to be governed by these Terms. If You do not agree with these Terms or You do not wish to be bound by these Terms, You must not use or access EFA’s Platform in any manner.
EFA is neither a content provider nor an educational institution. Artists and Members are not employees of EFA. EFA is not responsible for interactions between Artists and Members, with the exception of providing the technological means through which Artists may broadcast and otherwise make their Content available and for processing payments through EFA’s payment gateway(s). EFA is not liable for any disputes, claims, losses, injuries, or damage of any kind that may arise out of the Artist/Member relationship, including but not limited to, any Member’s reliance upon any information provided by an Artist or Artist Content at any time.
Members assume full responsibility for the disclosure and use of any other personal information the Member chooses to disclose to any Artist on the Platform.
II. Terms Applicable to All Users of the EFA Platform
A. Age of Access
You must be at least 18 years old to use the Platform, or, if You are between the ages of 13 and 18, You must have your parent or guardian’s permission to use the Platform. By using our Platform, You are telling us by your actions that You have obtained that permission (You are ‘representing’ and ‘warranting’ that You have obtained the appropriate permissions to use our Platform). IF YOU ARE UNDER THE AGE OF 13 YOU MAY NOT USE OUR PLATFORM IN ANY MANNER NOR MAY YOU REGISTER FOR AN ACCOUNT.
B. License to Artists & Members
EFA grants You a limited, non-exclusive license to access and use EFA’s Platform for Your own personal and commercial purposes. This license is only for Your use and may not be assigned or sublicensed to anyone else, without EFA’s express written consent. Except as expressly permitted by EFA in writing, You will not try to reproduce EFA’s Platform (legally that’s known as engaging in activity that would reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Platform). You also agree that in exchange for this license You will not engage in any activity that would interfere with or damage or harm the Platform. All rights not expressly granted by EFA are reserved.
C. Code of Conduct
We have to set up some ground rules. Honestly, most of what we cover here should go without saying. However, it’s better to be upfront about things, rather than just assume everyone knows how they are expected to conduct themselves on our Platform.
1. No Illegal Activity: This is about as simple as it gets. Do not use the EFA Platform for any illegal activity. Period. You are not allowed to use our Platform to engage in any kind of conduct that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
2. No Fraud: Yes, this is probably covered in the No Illegal Activity section above, but we want to make this very clear. Fraud will not be tolerated in any capacity.
3. No Bad Code: Do not use the EFA Platform to transmit, distribute, send, or otherwise expose the Platform or its Users to viruses, worms, or any other code that may be deemed dangerous, harmful, or destructive in any manner.
4. No Spamming: Seriously. No one likes spam. We don’t like spam. We’re pretty sure that You don’t like your inbox cluttered with spam. You may not use the EFA Platform to engage in any activities that will result in sending spam to anyone on the EFA Platform, including EFA (and its employees), Artists, and Members.
5. Be Civil: We mean this. We’re a representational art platform. Not all Content is for everyone. But the one thing we can all agree on is that when we use the EFA Platform we are going to be civil and respectful at all times.
6. No Exploitation: You will not use the EFA Platform to try to gather personal information on anyone outside of the limited permissible uses for offering or accessing Content.
7. No Impersonation: Imitation is the sincerest form of flattery, but not when it comes to representing that You are a part of EFA. You will not impersonate anyone on the EFA Platform, including EFA (and its employees), Artists, and Members.
8. No Data Mining or Bots: You may not use any data mining, robots, or similar data gathering or extraction methods.
9. No Use Other Than Intended: You may not use the Platform or any Content contained on the Platform for any purposes other than intended.
10. No Prohibited Content: You may not use the Platform if Your Content contains material that is libelous, slanderous, pornographic, obscene, unlawful, threatening, hateful, violent, predatory, defamatory, or otherwise objectionable, all of which shall be determined in Our sole discretion. NOTE: The tasteful depiction of the nude human form for the purposes of teaching art is permitted. EFA is the sole and final decision maker in any dispute on the determination of what is considered to be “tasteful” in any particular case.
If You violate this Code of Conduct, we reserve the right to remove You and any of Your Content from the EFA Platform. Whether conduct violates our Code of Conduct will be determined in EFA’s sole discretion.
III. Terms Applicable to Artists
EFA may provide the opportunity for Artists to sell coaching offerings (“Coaching”) to Members in addition to the courses that the Artist sells on the Platform (together Coaching and courses are referred to as Content). All Coaching offerings shall be covered by this Agreement and are included in the definition of Content. Should the Coaching involve any third party content, You agree that EFA is not responsible in any way for such content, and makes no representations or guarantees as to its merchantability or fitness of use. The delivery of the Coaching is the sole responsibility of the Artist.
B. Intellectual Property and Data Processing
In operating our Platform, it’s important for us to make it clear who owns what and who’s responsible for what. You are trusting us with Your content and consistent with EFA’s genuine belief in transparency we want to make it simple for You to know exactly what You are getting into when You join the EFA community.
1) EFA Content: Content that EFA uploads to the Platform, EFA intellectual property and proprietary information, including all information, software, technology, data, logos, marks, designs, text, graphics, pictures, audio and video files, other data or copyrightable materials or content, and their selection and arrangement, is referred to herein as “EFA Content”, and is and remains the sole property of EFA. EFA Content, including our trademarks, may not be modified by You in any way.
2) Your Content: Content that You provide EFA to upload to the Platform is and remains Your content. EFA does not claim any intellectual property rights over the materials You have us upload to the EFA Platform by virtue of Your use of EFA Services. By having us upload Your content to the EFA Platform, You agree that:
a) EFA may review Your content for any reason, including compliance with our Code of Conduct and prohibited content requirements, but EFA has no obligation to review anything that You provide us to upload.
b) You are uploading Your content to the EFA Platform at Your direction and EFA does not in any way certify or provide approval or permission prior to You uploading Your content.
c) EFA may display Your content to other users (e.g. Your Members) via the EFA Platform.
d) You agree that by uploading Your content to Our Platform, You are allowing Us to store Your Content.
e) You agree to provide EFA with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g, to display or transmit) Your Content in furtherance of the EFA Services. This includes a permanent license to use your content in advertising and marketing for the EFA platform. (In other words, because You own Your Content, You have to give Us permission to display it, or to use it for internal operational purposes, like storing it on Our servers).
f) You are responsible for and own, or have the rights to use, all of Your Content.
3) Content Free of Infringement of Any Third Party Rights
a) You agree that Your Content does not infringe upon anyone else’s intellectual property rights and that You have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the content.
b) In plain language, this means that if You’re using someone else’s work (including videos, text, charts, powerpoints, etc.) in Your Content, You’ve gotten the content owner’s permission to use it. You wouldn’t want anyone selling any of Your Content without Your permission. If You are going to use something that You didn’t create, make sure You can demonstrate that You have the right to use it before You make it a part of Your Content.
4) Processing of Personal Information by Artists
a) Artists are responsible for protecting all personal information they provide to, or receive from, EFA in connection with the use of EFA Services. EFA’s Data Processing Agreement (“DPA”) forms part of this Agreement and sets out EFA’s and Artist’s obligations with respect to the processing of personal information. Artists agree to abide by the DPA when and to the extent Data Protection Laws apply to an Artist’s use of EFA Services to process Member Data or Artist Data (as these terms are defined in the DPA).
b) Artists are considered controllers or “owners” of the personal information they collect from and about Members. In addition to agreeing to the terms of the DPA, Artists are also responsible for providing an appropriate privacy notice to their Members, respecting their Members’ privacy rights in accordance with applicable law, and providing access to or deleting Members’ personal information if they request and as required by applicable law.
IV. EFA’s General Rights In Operating Its Platform
A. EFA Reserves the Following Rights Over the Entire EFA Platform:
1. EFA may modify, terminate, or refuse to provide EFA Services at any time for any reason, without notice.
2. EFA may remove anyone from the EFA Platform at any time for any reason, solely in EFA’s discretion. This right is not modified by any other section of this Agreement.
3. EFA reserves the right to access Your account and Content in order to respond to requests for technical support, to maintain the safety and security of the EFA Platform, and for other legitimate business purposes, as necessary, in EFA’s discretion.
4. EFA may, but has no obligation to, monitor any content that appears on the EFA Platform or review any conduct occurring through the Platform, including any interactions between Artists and Members and EFA employees.
5. EFA reserves the right to modify, suspend, or alter its refund policy, at its sole discretion.
6. If You close Your account or terminate Your relationship with EFA, EFA may keep a copy of Your content after termination. You grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for compliance with any relevant laws and regulations and for our internal business purposes, subject to applicable law.
7. EFA reserves the right to remove You and Your Content without warning if You violate any of the provisions of this Agreement.
8. EFA has, in its sole discretion, an absolute right to modify, change, alter, suspend, or terminate any provision of this Agreement without warning at any time.
V. EFA’s Copyright, DMCA, Trademark, and Takedown Policy
EFA takes a firm stance against anyone who is infringing upon anyone else’s intellectual property. This Platform is all about You transforming Your knowledge into Content. We draw a hard line when the EFA Platform is used to exploit someone else’s intellectual property.
A. Copyright Violations and the DMCA
If EFA has a good faith belief that any content (including Artist Content) appearing on its Platform violates any copyrights or has been illegally copyrighted, EFA reserves the right to remove, block, or otherwise ‘take down’ the content. EFA also reserves the right to remove from the Platform any Artists, Members, or other parties, who are repeat offenders of the EFA repeat offender policy.
1) Reporting Copyright Infringement under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”):
a) EFA provides an online form for submitting copyright infringement notices under the DMCA. If you believe that content on the EFA Platform is infringing on your copyrights, please complete EFA’s copyright infringement notice form to forward your notice to EFA’s designated agent for review. (For trademark infringement claims, refer to Section V(B) below).
b) If your submission contains all of the information required by the form and complies with the DMCA, EFA will expeditiously remove or disable access to the content alleged to be infringing.
c) Please note that when EFA removes content in response to a DMCA notice, EFA will attempt to contact the party who posted the content You report as infringing and provide information about the notice and removal, including information about how to submit a counter notice. EFA may also send a copy of any notices received to the affected party.
2) DMCA Counter Notice Procedure
a) If Your content is removed due to the receipt of a DMCA notice and you believe that your content was wrongly removed, you may send EFA what is known as a Counter Notice.
b) Your Counter Notice must contain:
(1) A physical or electronic signature
(2) Identification of what was removed and the location where the material appeared before it was removed
(3) A statement under penalty of perjury that you have a good faith belief that the material was removed as a result of mistake or misidentification
(4) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district of Massachusetts and that you will accept service of process from the person who provided notification
c) Your Counter Notice must be sent to EFA’s designated agent at firstname.lastname@example.org.
d) Please note that a copy of any Counter Notice received will be sent to the party who reported the content as infringing.
3) Repeat Infringement Policy
a) As we stated above, EFA really doesn’t look favorably on anyone who is using someone else’s intellectual property without permission. Should EFA receive two or more DMCA complaints regarding any Artist, EFA may simply remove that Artist from the EFA Platform without further warning. Note: as we state in our EFA Rights section, we still reserve the right to any Artist Content at any time for any reason. This Repeat Infringement section does not change that right in any way.
B. Trademark Violations
EFA reserves the right to remove access to content that it knows, or has reason to know, violates the rights of trademark owners. Please note that EFA will send a copy of any trademark infringement claim received to the user who posted the content you report as infringing.
1) Reporting Trademark Infringement
a) EFA provides trademark owners an online form for submitting information to enable EFA to evaluate trademark infringement claims. If you believe that a user of the EFA Platform is infringing your registered trademark, please complete EFA’s trademark complaint form to forward your claim to EFA’s team for review. (For copyright infringement claims, refer to Section V(A) above).
b) If your submission contains all of the information required by the form and demonstrates that a user of the EFA Platform is infringing your registered trademark by using your trademark in connection with the goods or services covered by your registration, EFA will take appropriate action, which may include removing access to the infringing content and/or terminating the user.
c) Do note EFA is not a court of law and there may be times that we cannot take action based on the information that you submit in our online form. In such cases, we may refuse to take action, and if warranted, you may resubmit the online form with additional information and materials requested by the form that were not previously submitted.
2) Counter Notice Procedure
a) If Your content is removed due to the receipt of a Trademark notice, you may send EFA a counter notice if you believe that your content was wrongly removed.
b) If EFA receives a counter notice that denies the infringement claim and asserts that it has a good faith basis for doing so, EFA may choose not to remove the allegedly infringing content but will put you in contact with the user so that you and the user can address the matter directly.
VI. Third Party Communications
By using EFA’s Platform, You may receive communications from third parties (e.g. a Artist may communicate with a Member). EFA is not responsible for these communications and shall not have any liability in connection with them. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any such third-party communications. EFA assumes no responsibility for verifying, and makes no representations or warranties regarding the identity or trustworthiness of the source or content of any such third-party communications.
VII. Third Party Offerings
Through the EFA Platform, You may have the ability to access content, links to websites, and services provided by Artists, Members, and other third parties (“Third Party Offerings”). Your use of any Third Party Offerings provided on this Platform or a third party website is at Your own risk. EFA does not monitor or have any control over, and makes no claim or representation regarding Third Party Offerings and accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third Party Offerings. You should review applicable terms and policies, including privacy and data gathering practices, of any third party, and should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any third party.
A. EFA Gateways
1) Appointment of EFA as a Limited Payment Collection Agent for EFA Gateways: Each Artist collecting payment for services provided on the EFA platform via EFA Gateways hereby appoints EFA as the Artist’s payment collection agent solely for the limited purpose of accepting funds from Members purchasing such services.
a) Each Artist agrees that payment made by a Member through the EFA Gateways shall be considered the same as a payment made directly to the Artist, and the Artist will provide the purchased services to the Member in the agreed manner as if the Artist has received the payment directly from the Member. Each Artist agrees that EFA may refund the Member in accordance with the Terms. Each Artist understands that EFA’s obligation to pay the Artist is subject to and conditional upon successful receipt of the associated payments from Members. EFA guarantees payments to Artists only for such amounts that have been successfully received by EFA from Members in accordance with these Terms and those outlined in Schedule A – Artist Instructor. In accepting appointment as the limited payment collection agent of the Artist, EFA assumes no liability for any acts or omissions of the Artist.
b) Each Member acknowledges and agrees that EFA acts as the Artist’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Artist. Upon payment of the funds to EFA, the Member’s payment obligation to the Artist for the agreed amount is extinguished, and EFA is responsible for remitting the funds to the Artist in the manner described in these Terms, which constitute EFA’s agreement with the Member. In the event that EFA does not remit any such amounts once successfully received from the Member, the Artist will have recourse only against EFA and not the Member directly. Artists are responsible for making payments to authors and affiliates on their own.
1. Artists may be charged a fee for any chargeback on credit card, debit card, or PayPal transaction that is processed through the EFA Gateways. This fee is deducted from Your payout but is returned to You if You win the dispute. Current fees may be found on the EFA Knowledge Base. Fees are subject to change.
1. EU Value Added Tax (EU VAT)
(1) For Content sold through the EFA Gateways, EFA is the supplier of the Content and acts as the principal in that transaction. Regardless of whether the Artist is a taxable or non-taxable individual or entity, EFA is taking part in the supply of the Content and as such shall collect and remit EU VAT.
(2) As the provider of the gateway responsible for processing the payment for the Content purchased, EFA is responsible for collecting payment.
(3) EFA sets the general conditions for all Content sold over the EFA Gateways, including adherence to EFA’s refund policy.
(4) EFA determines the delivery of the Content to Members, utilizing the payments processed through EFA Gateways as a predicate event to delivering the Content to the Member.
(5) Invoices issued to Members shall clearly display EFA as the supplier of the Content.
(6) Invoices issued to Members shall identify the Content purchased by the Member.
(7) EFA is responsible for authorizing the charges made to Members for Content purchased through the EFA Gateways.
(8) Any EU VAT filings made by EFA shall be the sole responsibility of EFA. EFA will handle all EU VAT which may be levied on the charges made to Members for purchasing Content. Artists should not have to submit EU VAT tax returns themselves for the sales made through the EFA Payments Gateways. Artists will indemnify, defend, and hold EFA harmless from and against any tax, penalty and interest arising from the Artist’s personal tax position.
a) Otherwise Responsible
(1) Unless explicitly mentioned in this Agreement or through a separate notice, Artists and Members are fully responsible for the payment of any and all applicable taxes that become due from their use of the Platform.
EFA is not responsible for setting the pricing on an Artist’s Special Events Content. Prices for Artist Special Events Content are set by the Artist.
X. Account Ownership Disputes
In the unlikely event that there is a dispute over the ownership of an account, EFA has the right to request additional information from You to determine ownership and settle the dispute. The information that We may request to assist in resolving ownership disputes includes, but is not limited to, the following:
• a copy of Your photo ID;
• Your billing information and details; and
• Other documentation as we deem necessary to settle the dispute
Should a dispute arise, EFA reserves the right determine the account ownership in its sole judgment, and the ability to transfer the account to the rightful owner, unless otherwise prohibited by law
A. Pricing for the EFA Platform is described in Schedule A – Artist Instructor
B. Depending on the processing method, EFA may charge transaction fees. You agree to pay all fees and charges that are made to Your account and that You are solely responsible for payment of these fees and charges.
C. Paid plans are automatically charged at the beginning of each billing period. Unless You submit a cancellation request to us in writing via email (email@example.com) or directly through Your account prior to the start of the billing period, Your plan will be charged upon the anniversary of its billing period. You agree that EFA may charge any recurring service to the credit card or debit card that You provide.
D. Should You not authorize payment or are otherwise not current on Your payments for EFA Services, EFA may restrict Your Platform access until Your account becomes current and paid in full.
E. EFA reserves the right to pursue fees owed using collection methods which may include charging other payment methods on file with EFA and/or retaining collection agencies or legal counsel.
F. EFA reserves the right to offer custom plans and pricing in addition to what is offered on the pricing page. Custom plans may also include custom billing and payment terms, including billing periods and renewals, that are different from our standard terms.
XIII. Refund Policy
We want You to be happy with EFA’s Platform. If You’re not feeling excited about joining the EFA community, we have some options for You regarding Your plan.
1. Monthly Recurring Memberships
a) In general, no refunds will be provided to any and all Members purchasing a regular Monthly Recurring Membership (MRM) to follow and access an Artist’s Content. Members can cancel their MRM to any or all Artists at any time within the period of their then-current monthly term. This will terminate any future charges to the Member for any cancelled Artist MRM. Unless authorized by EFA in EFA’s sole discretion, no refunds for any MRM current term will be provided.
2. Special Events
a) In general, all Members purchasing Special Events offered by an Artist that are a part of the EFA Gateways are entitled to a full refund up until twenty (20) days prior to the scheduled date of the Special Event. Unless authorized by EFA in EFA’s sole discretion, no refunds for any Special Event will be provided to Members within twenty (20) days of the Special Event.
b) If an Artist has been allowed to offer a refund period that differs from EFA’s general policy, the Artist must provide notice to Members prior to the purchase of the course.
c) EFA reserves the right to refuse refunds to Members who abuse this Refund Policy. Examples of abuse include, but are not limited to, requesting refunds for multiple Artists or Artist Special Events, or requesting refunds in consecutive months.
a) Coaching is defined as providing any direct “live” one-on-one or one-on-many Artist guidance, teaching, critiques, or other special direct services not covered as a group Special Event, yet still provided through the EFA platform. An event is defined as a standard Special Event if it is offered for purchase greater than 29 days in advance of performance of the Special Event. The refund policy for Special Events is outlined in Section 2 above. All events offered with immediate or less time in advance are considered direct Coaching.
b) Artists are solely responsible for setting the refund policy regarding the sale of Coaching offerings.
c) The Artist must provide notice to Members regarding their refund policy prior to the purchase of the Coaching offering.
d) Regardless of any other section to the contrary in this Agreement, EFA’s refund policy does not cover the provision of Coaching offerings provided by Artists to Members.
4. General Provisions
a) It is the Member’s responsibility to understand the refund policy for Content prior to purchasing such Content from an Artist.
b) EFA reserves the right to provide a refund to any Member at any time in EFA’s sole discretion.
XIV. Cancellation and Deletion
1. If You cancel a paid plan, the cancellation will become effective at the end of the then-current billing cycle. When You cancel a paid plan, Your account will revert to a free account and EFA may disable access to features available only to paid plan users.
1. You may delete Your account at any time.
2. Any account on the free plan may be deleted if it remains inactive (e.g., the user fails to log in) for a continuous period of at least six (6) months. Activity will be determined by EFA in its sole discretion.
3. Accounts on paid plans will be considered active accounts unless You explicitly ask us to delete Your account.
4. If Your account is deleted (regardless of the reason), Member Content (if any exists) may no longer be available. EFA is not responsible for the loss of such content upon deletion.
5. Upon deletion of Your account (regardless of the reason), all licenses granted by EFA will terminate.
C. Effect of Cancelation/Deletion
1. Should an Artist be cancelled or terminate their relationship with EFA, the currently existing Artist Content will remain exclusively on the EFA platform for a period of one (1) year. All Members subscribed to follow that artist will be notified of the Artist’s termination and the date upon which their content will no longer be available on the EFA Platform. The Artist however, will no longer have access to the EFA Platform and will not be able to interact with Members in any way through the EFA Platform. Should a Member account be canceled or deleted, the Member may no longer have access to EFA Content and any Member Content (should any exist) may be irrecoverable. EFA shall not be liable to any party in any way for the inability to access Content arising from any cancelation or deletion, including any claims of interference with business or contractual relations.
XV. Errors and Corrections
EFA does not guarantee that the Platform or any services offered through the Platform will be error-free or otherwise reliable, nor does EFA guarantee that defects will be corrected or that any offerings through the Platform will always be accessible. EFA may make improvements and/or changes to the Platform and their features and functionality at any time, and will use commercially reasonable efforts to avoid disrupting peak hours, though some downtime may occur. Errors in Content are the responsibility of the Artist who owns the Content.
We reserve the right to amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the Platform to Artists and Members.
XVI. Limitations of Liability
In running the Platform, we require that You understand and agree that EFA is not liable for a number of things, including Your breach of this Agreement and losses that may result from Your use of the Platform. We also require that You understand and agree that the Platform is offered As Is and may not always be 100% perfect or reliable and that EFA doesn’t warrant or guarantee that it will always be free of errors or defects. Any claims for damages against EFA will be limited to a portion of the fees You have paid us.
Our limitations of liability are as follows:
A. You agree that EFA, including its employees, officers, directors, and agents, shall not be liable for any kind of loss, injury, claim, or damages resulting from Your use of the EFA Platform.
B. You agree that EFA shall not be liable for any injuries, losses, claims, or damages that result from Your use or engagement with third party content, downloads, or communications.
C. EFA is not liable for any losses or damage caused by any viruses, distributed denial of service attacks, and any and all other malicious computer code. Malicious computer code means computer code or other mechanisms of any kind designed to disrupt, disable or harm in any manner the operation of any software or hardware or other business processes or to misuse, gain unauthorized access to or misappropriate any business or personal information, including worms, bombs, backdoors, clocks, timers, or other disabling device code, or designs or routines that cause software or information to be erased, inoperable, or otherwise incapable of being used, either automatically or with passage of time or upon command.
D. EFA does not guarantee that any files available for downloading from the Platform will be completely free from viruses or other harmful computer code.
E. The EFA Platform is provided to You on an “As Is, As Available” basis. As such, You agree to have an external method of recovering any lost data that may be uploaded to the EFA Platform.
F. EFA disclaims any warranties to the Platform and the content contained therein, including warranties for merchantability, fitness for a particular purpose, non-infringement, or title.
G. EFA shall not be liable for any special, direct, indirect, incidental, punitive, or consequential damages, resulting from the use of or inability to use the Platform.
H. You agree that EFA shall not be liable for any losses, injuries, claims, or damages from Your violation or breach of this Agreement. You agree to indemnify, defend, and hold harmless EFA, its present and future officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Platform from and against all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You or arising from or related to Your use or misuse of the Platform (including, without limitation, use in contravention of this Agreement, other EFA policies, and copyright and other intellectual property law)
I. You are solely responsible for ensuring that Your use of the Platform complies with applicable law and does not violate the rights of any third party, including, without limitation, intellectual property rights. You assume all liability for any claims, suits or grievances filed against You, including, but not limited to, all damages related to Your use of the Platform.
J. You may not assign Your rights under this Agreement without EFA’s prior written consent.
K. Should EFA’s limitation of liability not be applicable, EFA’s sole obligation to You, or any third party, for damages shall not exceed the amounts paid by You to EFA over the prior twelve (12) months directly preceding Your claim, unless otherwise required by law.
L. You agree that EFA shall not be liable for any content that appears on the Platform.
M. Except as set forth herein, nothing express or implied in this Agreement is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity.
N. You agree that any cause of action or claim that You may have against EFA must be brought against us within one (1) year after the cause of action or claim arises. Should You not commence such cause of action or claim within this time period, it shall be barred.
XVII. Remedies for Violations
EFA reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including but not limited to removing Artists and Members from the Platform, the right to block access to the Platform from a particular IP address or other user identifier, or to refer the violation to the appropriate law enforcement authorities.
EFA may notify You of relevant information regarding the Platform and EFA Services in any of the following ways: (a) by emailing You at the contact information You provide in Your account registration, (b) by posting a notice in dashboard areas of the Platform, and (c) by posting the notice elsewhere on the Platform in an area suitable to the notice. It is Your responsibility to periodically review the Platform for such notices.
XIX. Governing Law and Jurisdiction; Disputes and Arbitration
A. This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of laws principles. Any action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in the County of Suffolk in the Commonwealth of Massachusetts. You consent and submit to the exclusive personal jurisdiction of such courts for the purpose of litigating any such action.
B. Any dispute, controversy, proceeding, or claim arising out of or in connection with or relating to this Agreement, shall be resolved by binding confidential arbitration by JAMS pursuant to its Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
C. The arbitration will be conducted in Suffolk County, Massachusetts, unless You and EFA agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing EFA from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, dilution, or violation of our data security, intellectual property rights, or other proprietary rights.
D. You and EFA agree to waive the right to trial by jury. You further agree that any proceedings to resolve any disputes shall be done solely on an individual basis and that You will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which You act or propose to act in a representative capacity.
E. You also agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of EFA and all parties to any such proceeding.
XX. California Civil Code Section 1789.3
California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Complaints or requests for further information can be sent to the address listed in the Contact Us section of this Agreement.
XXII. Entire Agreement; Severability of Provisions; No Waiver
B. If any provision of this Agreement is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability.
C. No waiver of any provision hereof shall be valid unless in writing signed by the parties. Any failure to enforce any right or remedy hereunder shall not operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy.
You represent and warrant that You are not, nor are You owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Department of the Treasury’s Office of Foreign Asset Control (“OFAC” ), or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States, including Executive Order 13224, as a “Specially Designated National and Blocked Person”, terrorist, or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a (“Prohibited Person“); (ii) You are not (nor are You owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) You (and any person, group, or entity which You control, directly or indirectly) have not conducted nor will conduct business nor have engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including, without limitation, the making or receiving of any contribution of funds, good or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation; (iv) You are not prohibited by any sanctions program as maintained by OFAC from transacting with EFA, including those sanctions programs currently in effect with respect to Cuba, Iran, North Korea, Syria, Venezuela, or Crimea. In connection with the foregoing, it is expressly understood and agreed that the representations and warranties contained in this subsection shall be continuing in nature.
The headings and titles of sections to this Agreement have been inserted for the convenience of reference for the parties and are for informational purposes only and shall not be deemed to be a part of the language of this Agreement. Neither You nor EFA shall rely on, or interpret substantively, the headings when construing the meaning of each section or the Agreement as a whole.
Whenever such wording may appear in this Agreement, words in the singular shall mean and include the plural and vice versa and words in the feminine shall mean and include the masculine and vice versa.
XXVII. Contact Us