ILLUSTORIA TERMS OF SERVICE

Effective Date: February 2016

This website(“Site”) is provided by Illustoria, LLC, subject to the following terms and conditions (“Terms of Service”). By using the Site, you agree to these Terms of Service. Please read them carefully.

We reserve the right to update and change the Terms of Service from time to time without notice. Your continued use of the Site after any such changes constitutes your agreement to our changes.

1.              USE BY ADULTS.

Although the Illustoria print magazine is geared toward children, Illustoria.com is intended to be used by adults.  You may not purchase anything from our online shop or sign up to receive our newsletter or other mailings unless you are at least 18 years old and competent to understand and agree to these Terms of Service.  We ask that users supervise children who visit the Site.

2.              submission of artwork

Illustoria welcomes and celebrates reader-submitted content, including art by children.  Both our magazine and our Site feature childrens’ artwork (“Artwork”) that has been submitted to us for publication.  In connection with these submissions, the following rules apply:

(a)           Artwork should be submitted by a parent or guardian who is over the age of 18 and who has reviewed these rules.

Artwork must be original.  If the Artwork, or part of it, is traced or copied from someone else’s work, please tell us that.  If the Artwork has been published anywhere else, please tell us that.

Please provide the artist’s name (at least a first name) and their age.  Also provide your name and contact information, so that we can contact the adult who submitted the Artwork if we have questions.

By submitting Artwork to us, you are giving us permission to publish the Artwork either in our print magazine, Illustoria, online at Illustoria.com, or both, without paying you.  Please review Section 4(b) below carefully.  We have the right to publish the Artwork prominently, including on the cover page of our print magazine or the home page of our Site.  If you do not want us to publish the Artwork on these terms, do not submit it to us.

Our invitation for you to submit Artwork is not a promise that it will be published.  There are many reasons why we might choose not to publish Artwork, including space limitations, similarity to other Artwork, subject matter, concerns about copyright infringement, and many other reasons.  Please do not tell a child that we will publish Artwork unless we have confirmed to you that we will do so for a particular Artwork you have submitted.

If we publish Artwork, we have the right to take it off our Site at any time.

We do not return the Artwork you send us.  If you wish to send us Artwork that is valuable to you, please send us a color copy or high resolution photograph of the Artwork, rather than the original.

We have the right to crop, resize, or otherwise make minor alterations to the Artwork when we publish it.

General Guidelines.  In general, we will not publish any material that is indecent, obscene, profane, harassing, bullying, discriminatory, threatening, violent, highly political, or infringes on the copyright of any other person or company. The best Artwork for submission to Illustoria.com is original and has content that is appropriate for all ages.

2.              Proprietary rights and grants.

Copyright

All the Artwork you submit must comply with United States and international copyright law.

You agree that once you submit Artwork and we publish it, it is protected by United States and international copyright laws. Although you retain the ownership of the Artwork you submitted, as described in Section 4, the compilation of all content included in or made available through the Site is the exclusive property of Illustoria. You do not acquire any interests in Illustoria copyrights or related rights.

DMCA Notice

Notifications of claimed copyright infringement (a “DMCA Notification”) must be submitted in writing to Illustoria’s designated Copyright Agent for receiving such notifications.

By email: joanne@illustoria.com

By mail: Illustoria LLC, c/o Joanne Chan, 1137 57th Avenue, Oakland, CA 94621

To be effective, a DMCA Notification must be a written communication and must include the following information:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “Complaining Party”).

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single DMCA Notification, a representative list of such works.

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit Illustoria to locate such material.

Information reasonably sufficient to permit Illustoria to contact the Complaining Party, such as an address, telephone number and if available, an email address at which the Complaining Party may be contacted.

A statement, signed under penalty of perjury, that the information in the DMCA Notification is accurate, and that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please be aware that this procedure is only for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Counter-Notice

(i)            If you believe that your Artwork that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to Post and use the material in your Artwork, you may send a counter-notice containing the following information to the Copyright Agent:

(1)           Your physical or electronic signature;

(2)           Identification of the Artwork that has been removed or to which access has been disabled and the location at which the Artwork appeared before it was removed or disabled;

(3)           A statement that you have a good faith belief that the Artwork was removed or disabled as a result of mistake or a misidentification of the Artwork; and

(4)           Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts in the Northern District of California, and a statement that you will accept Site of process from the person who provided notification of the alleged infringement.

(ii)          If a counter-notice is received by the Copyright Agent, Illustoria may send a copy of the counter-notice to the original Complaining Party informing that person that it may replace the removed Artwork or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Illustoria’s sole discretion.

(a)           Trademarks

You agree that any and all graphics, logos, page headers, button icons, scripts, and Site names included in or made available through the Site are trademarks or trade dress of Illustoria in the U.S. and other countries. You are not permitted to use them on any product or Site that is not Illustoria’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All other trademarks not owned by Illustoria that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. Any use of Illustoria’s trademarks inures to the sole benefit of Illustoria.

(b)           License to You.

Subject to these Terms of Service, we grant you a limited, revocable, non-exclusive, non-transferable license to personal use of the Site. We do not transfer title to the Site to you. This license does not include any resale of the Site.

You agree that: (i) you will not duplicate, copy, distribute, sell, resell, or make derivative works of the Site, or any portion of the Site including the Artwork displayed on it, in any medium now known or hereafter devised without the prior written consent of Illustoria; (ii) you will not alter, modify, use, or access the Site, or any portion of the Site, other than as may be reasonably necessary to use the Site for its intended purposes; (iii) you will not reverse engineer, decompile, disassemble, or try to access the Site’s source code; and (iv) you will otherwise act in accordance with these Terms of Service and in accordance with all applicable local, state, and federal laws. When the Site requires or includes downloadable software, such software may be offered under a separate license, and there may be provisions in that license that expressly override some of these terms.

We reserve all rights not expressly granted to you under these Terms of Service. We may modify or discontinue any feature or functionality of the Site, or suspend or terminate the Site altogether, at any time and for any reason.

3.              Content

Ownership of Content.

Except as provided for in Section 4(b) below, we claim no intellectual property rights over your Artwork.

Please be aware that although we ask that users of our Site not copy or republish Artwork, we cannot prevent users from copying it, modifying it, re-sharing it, displaying it, or broadcasting it. Illustoria has no responsibility for such activity. You understand that publishing Artwork on the Site is not a substitute for registering it with the U.S. Copyright Office or making other similar intellectual property registrations. Please consider carefully what Artwork you choose to share.

License to Us.

You retain full ownership to Your Artwork, but you agree to grant us a worldwide, non-exclusive, irrevocable, transferable, perpetual, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, edit, translate, create derivative works of, publicly display, publicly perform, and distribute Artwork in all media now known or hereafter devised. We may modify or adapt Artwork in order to transmit, display, or distribute it over computer networks and in various media and/or make changes to Artwork as are necessary to conform and adapt Artwork to any requirements or limitations of any networks, devices, Sites, or media.  

4.              General Conditions

You must not modify, adapt, or hack the Site, copy the Site for your own commercial purposes, or modify another website so as to falsely imply that it is associated with the Site, Illustoria, or any other Illustoria Site.

The failure of Illustoria to exercise or enforce any rights or provisions provided by these Terms of Service shall not constitute a waiver of such rights or provisions.

You agree that we may terminate your access to and use of the Site if we reasonably believe that you have violated or acted inconsistently with the letter or spirit of these Terms of Service, or have violated our rights or those any third party, or for any other reason, with or without notice to you.

5.              No Warranty

Your use of the Site is at your sole risk. The Site is provided on an “as is” and “as available” basis, with all faults.

Illustoria does not warrant that: (i) the Site will meet your specific requirements or is fit for any particular purpose; (ii) the Site will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Site will be accurate or reliable; (iv) the quality of any products, Sites, information, or other material purchased or obtained by you through the Site will meet your expectations; (v) any errors in the Site will be corrected; or (vi) the Site will be available at any particular time or location. Illustoria cannot ensure that any files or other data you download from the Site will be free of viruses, contamination, or destructive features. Illustoria will not be liable for any loss of use, including any liability relating to loss of use, interruption of business, lost profits, or lost data.

Illustoria disclaims all warranties, express, implied, or statutory, including but not limited to any warranties of accuracy, non-infringement, merchantability, and fitness for a particular purpose, and waives all warranties to the maximum extent permitted by applicable law. This waiver of warranties will not apply in states that do not permit the exclusion of implied warranties.

6.              Limitation of Liability

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL ILLUSTORIA BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF ILLUSTORIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SITES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SITES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED, OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (III) UNAUTHORIZED ACCESS OR ALTERATION OF, OR LOSS OR DESTRUCTION OF YOUR POSTED DATA AND/OR YOUR ARTWORK; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (V) OR ANY OTHER MATTER RELATING TO THE SITE.

ILLUSTORIA DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE. YOUR SOLE REMEDY AGAINST ILLUSTORIA FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. YOUR EXCLUSIVE REMEDY FOR ANY OTHER CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SITE (IF ANY) IN THE PREVIOUS TWELVE (12) MONTHS. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

THE FORGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

7.              Acceptable Use of the Site

Illustoria reserves the right to access, read, preserve, and disclose any of your personally identifiable information or Artwork as it reasonably believes is necessary to: (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; (v) provide the Sites; and(vi) protect the rights, property or safety of Illustoria, its users, and the public.

We may, but have no obligation to, remove Artwork or other user content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or that violates any party’s intellectual property or these Terms of Service.

8.              Third Party Sites

You understand that Illustoria uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Site.

Third-party sites, ads, Sites, and offers linked to through the Site are not controlled by Illustoria. We do not enforce or assume responsibility for these sites, ads, Sites, and offers. If you access a third-party site from the Site you do so at your own risk and understand that these Terms of Service do not apply to those sites. You release us from any liability arising from your use of those third-party sites.

9.              Indemnification

You agree to defend, indemnify, and hold harmless Illustoria and its employees, contractors, agents, officers and directors, and licensee and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from your use of and access to the Site, including any data or Artwork transmitted or received by you or your violation of these Terms of Service or any applicable law, rule, or regulation.       

10.           Entire Agreement

These Terms, together with any written amendments and any additional written agreements you may enter into with Illustoria in connection with the Site, constitute the entire agreement between you and Illustoria concerning the Site, and supersede all prior agreements, writings, commitments, discussions, and understandings between them. You acknowledge and agree that no reliance is placed on any representation anywhere made that is not expressly contained in these Terms of Service.

If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

11.           Governing Law and Arbitration

Governing Law. By using the Site, you agree that the laws of the state of California, without regard to its principles of conflict of laws, will govern these Terms of Service and any dispute of any sort that might arise between you and Illustoria. For any claim brought by any party, you irrevocably consent and submit to the exclusive jurisdiction of the state courts located within Alameda County, California and/or the federal courts located in the Northern District of California (collectively, the “Alameda Courts”). Except for claims subject to binding arbitration, as provided in Section 12(c) below, venue for any claim brought by any party shall exclusively lie in the Alameda Courts. 

Election of Small Claims. You hereby agree that any dispute or claim that you bring against Illustoria arising out of or in connection with these Terms of Service shall only be adjudicated through binding arbitration, as provided in Section 12(c) below, or in the small claims court located in Alameda County, California (if your claim so qualifies). ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE ACCESS TO A COURT OTHER THAN A SMALL CLAIMS COURT. If you elect to file a small claims court action or to seek arbitration, you must first send a written notice of your claim to Illustoria by Certified Mail and allow fifteen (15) days for us to respond before filing your claim. This notice must be addressed to: Agent for Service of Process – Illustoria, LLC, c/o Illustoria Agent, 585 Cragmont Ave., Berkeley, CA94708.  

Arbitration. You and Illustoria acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in Section 12(a) with respect to applicable substantive law, this Section and any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1–16). Any dispute or claim relating in any way to your use of the Site, except for a dispute or claim submitted to small claims court pursuant to Section 12(b) above, shall be submitted to binding arbitration in Alameda County, California, provided that, however, to the extent you have in any manner violated or threatened to violate Illustoria’s intellectual property rights, Illustoria may seek injunctive or other appropriate relief in any court, and you consent to exclusive jurisdiction and venue in such courts. You acknowledge that any use of the Site contrary to these Terms of Service, or any transfer, sublicensing, copying, or disclosure of technical information or materials related to the Site, may cause irreparable injury to Illustoria. Arbitration under these Terms of Service shall be conducted by ADR Sites, Inc. in Alameda County, California under the then-existing Arbitration Rules of ADR Sites, Inc. Illustoria will promptly reimburse you for your payment of the filing fee, unless your claim is for more than the greater of either (i) Ten Thousand Dollars (US$10,000) or (ii) the amount you have paid to Illustoria in the two years preceding the date you file your arbitration claim, in which event you will be responsible for your filing fees. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which any award is based. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. The arbitrator’s award shall be final and binding, and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, no arbitration under these Terms of Service shall be joined to an arbitration involving any other party subject to these Terms of Service, whether through class arbitration proceedings or otherwise, and any arbitration or trial by a judge of any claim will take place on an individual basis without resort to any form of class or representative action (a “Class Action Waiver”). Notwithstanding the foregoing, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate claims. If the Class Action Waiver is limited, voided, or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The Parties acknowledge and agree that under no circumstances will a class action be arbitrated.

            By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury as permitted by law in respect to any claim. Furthermore, without intending in any way to limit this provision, to the extent that any claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury to the extent permitted by law in respect to such claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided, or found unenforceable. YOU AND ILLUSTORIA AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT YOU AND ILLUSTORIA ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW. The laws of the State of California shall govern the interpretation, enforcement, and exercise of the arbitration provisions of these Terms of Service.

Severability of Arbitration Provisions; Alternative Venue. If any court of competent jurisdiction decides that any terms provided in Sections 12(b) and 12(c) are invalid, illegal, or unenforceable, such terms shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms in this Agreement (including this Section 12(d)) shall remain in full force and effect. You hereby irrevocably consent and agree that, should any court of competent jurisdiction decide that arbitration of this agreement is illegal, unconscionable, or otherwise impermissible: (i) the Alameda Courts shall have exclusive jurisdiction over any claim brought by any party; and (ii) that venue for any claim brought by any party shall lie in the Alameda Courts.