MySoirée ’s Terms of Use Agreement

By using the MySoiree.net web site ("MySoiree" or the "Site"), a service of Soiree International Inc., you (the "user" or "you") agree to be bound by the following terms and conditions (the "Terms of Use" or the "Agreement"), including those available by hyperlink. If you have any questions, please refer to the Help section of the Site. Before you may become a member of MySoiree, you must read and accept all the terms and conditions in, and linked to, the Agreement. The Agreement is effective on September 1, 2008 for current users, and upon acceptance for new users. These terms of use were revised July 13, 2009.

1. MySoiree is a Venue

MySoiree acts as a venue to allow users who comply with MySoiree’s policies to offer, sell, and buy certain original works of art under a fixed price format. MySoiree is not directly involved in the transaction between buyers and sellers. As a result, MySoiree has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. MySoiree does not pre-screen users or the content or information provided by users. MySoiree cannot ensure that a buyer or seller will actually complete a transaction.

Consequently, MySoiree does not transfer legal ownership of items from the seller to the buyer. MySoiree cannot guarantee the true identity, age, and nationality of a user. MySoiree encourages you to communicate directly with potential transaction partners through the tools available on the Site. MySoiree highly recommends that you use a third party escrow service or services that provide additional user verification.

You agree that MySoiree is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on MySoiree. You use the MySoiree service at your own risk.

2. Membership Eligibility

Age: MySoiree’s services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. Individuals under the age of 18 can use this service only in conjunction with and under the supervision of a parent or legal guardian. In this case, the adult must be registered with MySoiree and is the user for all purposes and is responsible for any and all activities under that account. Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes, if any. In addition, you must abide by MySoiree’s policies as stated in the Agreement and these MySoiree policy documents:

• Fees Policy
• Privacy Policy
• Legal terms and submissions
• Copyright and Intellectual Property Policy

Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify MySoiree of any unauthorized use of your password or any breach of security. You also agree that MySoiree cannot and will not be liable for any loss or damage arising from your failure to keep your password secure.

Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on MySoiree, you must have a valid unexpired credit card on file with MySoiree at all times.

Account Transfer: You may not transfer or sell your MySoiree account and User ID to anyone else. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.

Right to Refuse Service: MySoiree’s services are not available to temporarily or indefinitely suspended MySoiree members. MySoiree reserves the right, in MySoiree’s sole discretion, to cancel unconfirmed or inactive accounts. An account is inactive when no completed transactions have occurred within any consecutive six month period. MySoiree reserves the right to refuse service to anyone, for any reason, at any time.

3. Fees and Services

Joining and setting up a studio on MySoiree is free. MySoiree charges a flat price for showing up to 50 works at a time for sale, as well as a percentage of the sale price when the item sells. When you list an item you have an opportunity to review and accept the fees that you will be charged. MySoiree’s Fees Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees Policy and the fees for MySoiree’s services are effective after MySoiree provides you with at least fourteen (14) days' notice by posting the changes on the Site. However, MySoiree may choose to temporarily change the Fees Policy and the fees for MySoiree’s services for promotional events; such changes are effective when MySoiree posts the temporary promotional event on the Site. MySoiree may, at MySoiree’s sole discretion, change some or all of MySoiree’s services at any time. In the event MySoiree introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted and paid in US Dollars (USD). You are responsible for paying all fees associated with using MySoiree. MySoiree keeps sellers' valid unexpired credit card or other accepted payment information on file. A seller’s credit card is charged monthly for sellers maintaining a studio with art for sale, and commission on the previous 30 days sales. If the seller's account is not paid in full, the seller risks penalties such as the suspension of privileges and/or termination of the account.

Fees and Termination: If MySoiree terminates your account, if you close your account, or if the payment of your MySoiree fees cannot be completed for any reason, you remain obligated to pay MySoiree for all unpaid fees plus any penalties, if applicable. If you have a question or wish to dispute a charge, contact MySoiree at info@MySoiree.net.

4. Listing and Selling

Listing Description: By listing an item on the Site you warrant that you and all aspects of the item comply with MySoiree’s policies. You also warrant that you are the sole owner of the item and may legally sell it. You must accurately describe your item and all terms of sale in your MySoiree studio. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. If the "in stock" quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing.

Studio Policies: All sellers are urged to outline studio policies for their MySoiree Studio. These policies may include, for example: shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All studio policies must comply with MySoiree’s site-wide policies. Sellers are responsible for enforcing their own reasonable studio policies. MySoiree reserves the right to request that a seller modify its studio policy.

Binding Sale: All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner not more than 21 days after confirmation of sale, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller’s listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance. Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and delivering the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item's price after a sale for the purpose of avoiding MySoiree transaction fees, misrepresent the item’s location, or use another user’s account without permission.

5. Prohibited, Questionable and Infringing Items and Activities

You are solely responsible for your conduct and activities on and regarding to MySoiree and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that you submit, post, and display on MySoiree. Restricted Activities: Your Content and your use of MySoiree shall not:

1. Be false, inaccurate or misleading
2. Be fraudulent or involve the sale of illegal, counterfeit or stolen items,
3. Infringe upon any third party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy (See also, MySoiree’s Copyright and Intellectual Property Policy),
4. Violate this Agreement, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising),
5. Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall,
6. Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including MySoiree staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device,
7. Be obscene or contain child pornography,
8. Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information,
9. Host images not part of a listing,
10. Modify, adapt or hack MySoiree or modify another website so as to falsely imply that it is associated with MySoiree,
11. Appear to create liability for MySoiree or cause MySoiree to lose (in whole or in part) the services of MySoiree’s ISPs or other suppliers,
12. Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, the Privacy Policy of MySoiree, or other policy documents as posted on MySoiree.

Furthermore, you may not list any item on MySoiree (or consummate any transaction that was initiated using MySoiree’s service) that, by paying to MySoiree the listing fee or the final value fee, could cause MySoiree to violate any applicable law, statute, ordinance or regulation, or that violates the Terms of Use.

6. Content

License: MySoiree does not claim ownership rights in your Content. You grant MySoiree a license solely to enable MySoiree to use any information or Content you supply MySoiree with, so that MySoiree is not violating any rights you might have in that Content. You grant MySoiree a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the Content, in any media now known or not currently known, with respect to your Content. You agree to allow MySoiree to store or re-format your Content on MySoiree and display your Content on MySoiree in any way as MySoiree chooses. MySoiree will only use personal information in accordance with MySoiree’s Privacy Policy.

As part of a transaction, you may obtain personal information, including email address and shipping information, from another MySoiree user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for MySoiree-related communications. MySoiree has not granted you a license to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the user, you are not licensed to add any MySoiree user to your email or physical mail list. For more information, see MySoiree’s Privacy Policy.

Re-Posting Content: By posting Content on MySoiree, it is possible for an outside website or a third party to re-post that Content. You agree to hold MySoiree harmless for any dispute concerning this use. If you choose to display your own MySoiree-hosted image on another website, the image must provide a link back to its listing page on MySoiree.

7. Information Control

MySoiree does not control the Content provided by users that is made available on MySoiree. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.

Additionally, there may also be risks dealing with international trade and foreign nationals. By using MySoiree, you agree to accept such risks and that MySoiree (and MySoiree’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on MySoiree. Please use caution, common sense, and practice safe buying and selling when using MySoiree.

Other Resources: MySoiree is not responsible for the availability of outside websites or resources linked to or referenced on the Site. MySoiree does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that MySoiree shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.

8. Resolution of Disputes and Release

In the event a dispute arises between you and MySoiree, please contact MySoiree. Should you have a dispute with one or more users, or an outside party, you release MySoiree (and MySoiree’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. MySoiree encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable. MySoiree, for the benefit of users, may try to help users resolve disputes. MySoiree does so in MySoiree’s sole discretion, and MySoiree has no obligation to resolve disputes between users or between users and outside parties. To the extent that MySoiree attempts to resolve a dispute, MySoiree will do so in good faith based solely on MySoiree’s policies. MySoiree will not make judgments regarding legal issues or claims.

9. MySoiree’s Intellectual Property

MYSOIREE, and other MySoiree graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of MySoiree, Inc. in the U.S. and/or other countries. MySoiree’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.

10. Access and Interference

MySoiree may contain robot exclusion headers which contain internal rules for software usage. Much of the information on MySoiree is updated on a real-time basis and is proprietary or is licensed to MySoiree by MySoiree’s users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access MySoiree for any purpose without MySoiree’s prior express written permission. Additionally, you agree that you will not:

1. Take any action that imposes, or may impose, in MySoiree’s sole discretion, an unreasonable or disproportionately large load on MySoiree’s infrastructure
2. Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content, or other allowed uses as set out in the DOs & DON’Ts of MySoiree from the Site without the prior expressed written permission of MySoiree and the appropriate third party, as applicable
3. Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site
4. Bypass MySoiree’s robot exclusion headers or other measures MySoiree may use to prevent or restrict access to MySoiree

11. Breach

Without limiting any other remedies, MySoiree may, without notice, and without refunding any fees, delay or immediately remove Content, warn MySoiree’s community of a user’s actions, issue a warning a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:

MySoiree suspects (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement, the Privacy Policy, or other policy documents and community guidelines incorporated herein; MySoiree is unable to verify or authenticate any of your personal information or Content; Or MySoiree believes that a user is acting inconsistently with the letter or spirit of MySoiree’s policies, has engaged in improper or fraudulent activity in connection with MySoiree or the actions may cause legal liability or financial loss to MySoiree’s users or to MySoiree.

12. Privacy

Except as provided in MySoiree’s Privacy Policy MySoiree will not sell or disclose your personal information (as defined in the Privacy Policy) to third parties without your explicit consent. MySoiree stores and processes Content on computers located in the United States that are protected by physical as well as technological security.

13. No Warranty

MYSOIREE, MYSOIREE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND MYSOIREE’S SUPPLIERS PROVIDE MYSOIREE’S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. MYSOIREE, MYSOIREE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND MYSOIREE’S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM MYSOIREE SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

14. Liability Limit

IN NO EVENT SHALL MYSOIREE, AND (AS APPLICABLE) MYSOIREE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR MYSOIREE’S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, MYSOIREE’S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

MYSOIREE’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF MYSOIREE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO MYSOIREE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

15. Indemnity

YOU AGREE TO INDEMNIFY AND HOLD MYSOIREE AND (AS APPLICABLE) MYSOIREE’S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.

16. No Guaranty

MySoiree does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside MySoiree’s control.

17. Legal Compliance

You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of MySoiree’s service and your listing, purchase, solicitation of offers to purchase, and sale of items.

18. Severability

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.

19. No Agency

You and MySoiree are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

20. MySoiree Service

MySoiree reserves the right to modify or terminate the MySoiree service for any reason, without notice, at any time. MySoiree reserves the right to alter these Terms of Use or other Site policies at any time. If the alterations constitute a material change to the Terms of Use, MySoiree will notify you via email to the email address in your account. What constitutes a "material change" will be determined at MySoiree’s sole discretion, in good faith, and using common sense and reasonable judgment.

21. Choice of Law

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Ohio and disputes arising under this Agreement will be adjudicated by the courts of the State of Ohio.

22. Survival

Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 7 (Information Control), 8 (Meetings, Groups or User Fees), 9 (Resolution of Dispute and Release), 10 (MySoiree’s Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.

23. Notices

Except as explicitly stated otherwise, any notices shall be given by postal mail to MySoiree Attn: Legal; 23 ½ East Broad St., Newton Falls, OH 44444 (in the case of MySoiree) or, in your case, to the email address you provide to MySoiree (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, MySoiree may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to MySoiree. In such case, notice shall be deemed given three days after the date of mailing.

For issues with intellectual property, please provide the notice as specified in MySoiree’s Copyright and Intellectual Property Policy.

24. Disclosures

The services hereunder are offered by Soiree International Inc., located at 23 ½ East Broad St., Newton Falls, OH 44444. If you are an Ohio resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.