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User Agreement

Terms of Use and License
This Terms of Use and License Agreement (these “Terms of Use” or this “Agreement”) is made by and between you (“you”, “your” or “End User”) and WhenInWorld, LLC d/b/a bludarts (“bludarts” or “we” or “us” or “our”) as the operator of bludarts.com, including the bludarts and blumerchant mobile and touch applications (collectively, the “Site”) and any individual sites we have now or in the future. The Site and links contained within or otherwise available through external hyperlinks within the Site (the “Microsites”) will be collectively referred to as the “Site” in these Terms of Use.  By using the Site and the services available through the Site, you agree that these Terms of Use, our Privacy Policy, and any additional terms and conditions applicable to certain services in which you may elect to participate or with respect to any Microsite, as any of the same may exist from time to time govern your use of the Site. YOU MAY ONLY USE THE SITE PURSUANT TO THIS AGREEMENT. BY ACCESSING OR OTHERWISE USING THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS OF USE, YOU ARE NOT PERMITTED TO ACCESS OR USE THE SITE. 

bludarts reserves the right, from time to time, with or without notice to you, to make changes to this Agreement in bludarts’ sole discretion.  Your continued use of any of part the Site constitutes acceptance of such change. Although bludarts may endeavor to notify you when major changes are made to the Terms of Use, you should periodically review the most up-to-date version prior to using the Site.  If you do not agree to any modifications of these Terms of Use, you must not continue to use the Site.

  1. License and Permitted Uses

The Site provides both general information concerning our business and an interactive online service operated by us (the “Service”), which enables merchant End Users to create and purchase advertising (“Ads”) for publication on our mobile application and allows consumer End Users to access those advertisements.

Subject to the terms and conditions of this Agreement, bludarts hereby grants to you the non-transferable, nonexclusive, revocable, limited license to access and use the Site and the Service without any right to re-license, sublicense, distribute, assign or transfer such rights.  All rights not expressly granted in this Section 1 are reserved by Licensor.  As a condition of your use of the Service available on the Site, you agree that:

  • You are an individual person or an authorized person representing a business and at least 18 years of age;
  • If you are a merchant End User, you possess the authority to create a binding legal obligation (either for yourself or the business your represent);
  • You will not modify, copy, distribute, display, send, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, content, software, products or services obtained from or otherwise connected to our Site or Service;
  • You will not reverse engineer, decompile or modify the Site, in whole or in part or otherwise use the Site or the information contained therein or results derived therefrom to develop any products or services that could be competitive with the Site, the Service, or any other products or services provided by bludarts and its affiliates;
  • You will not alter, remove, or otherwise hinder the delivery of any copyright, disclaimer, or other proprietary notice appearing on the Site or the Service; and
  • Your use of the Site and the Service will at all times comply with the terms of this Agreement;
  • You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.

Account Registration:

In order to access certain features of the Site and utilize the Service, you have to create a User Account with bludarts (“User Account”).  You will be asked to provide your name and email address to create an account. 

  • You may create only one account as an individual
  • You may create only one account per business or institution you represent
  • If you represent a legal entity that owns multiple businesses, you may choose to use one account for all of the businesses owned by the legal entity;
  • You may only upload content on the Site for your own business or advertising use;
  • You must safeguard your password and supervise the use of your User Account, and understand and agree that you are responsible for your own use and the use of your User Account by anyone you allow to access it and will notify bludarts immediately of any unauthorized use of your User Account; and
  • You have the right to submit any and all information you submit to the Site, the information is only related to your business and all such information is accurate, true, current and complete.

        2. Availability of the Site

You acknowledge that there may be interruptions in Service or events that are beyond our control. While we use reasonable efforts to keep the Site and the Service accessible, the Site or the Service may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, access to the Site or Service may be interrupted, suspended or terminated. bludarts retains the right in its sole discretion to deny service, or access to the Site to anyone or any User Account, at any time and for any reason.  bludarts retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality and other aspects of the Site or Service and any element, aspect, portion or feature thereof, from time to time).

        3. Ownership of the Site

The content and information on the Site as well as the infrastructure used to provide both, is proprietary to us. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, sell or re-sell any information, software, products or services obtained from or through the Site.

        4. Transmission of Information

Because we do not control the security of the Internet or other networks you use to access the Site or communicate with us, we can’t be, and are not responsible for, the security of information that you choose to communicate with bludarts and the Site while it is being transmitted. In addition, bludarts is not responsible for any data lost during transmission.

Links to third party websites through the Site, if any, are provided solely as a convenience to you.  bludarts is not responsible for the content provided through these links.  We do not endorse, sanction, verify, or guarantee the accuracy or completeness of such content and bludarts makes no warranty as to the accuracy of any such information. bludarts has not reviewed any third party websites accessible through such links and does not control and is not responsible for any third party websites, their content or their policies, including, without limitation, privacy policies or lack thereof.  bludarts does not endorse or make any representations about third party websites or any information, software or other products, services, or materials found there, or any results that may be obtained from using them.  If you access any third party websites linked to the  mobile application, you do so entirely at your own risk.  You acknowledge and agree that bludarts is not 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 third party websites or links to third party websites.

        5. Your Conduct on the Site

The Site is private property. All interactions on the Site must be lawful and must comply with these Terms of Use. To the extent your conduct (as judged by us in our sole discretion) restricts or inhibits any other End User from using or enjoying any part of the Site, we may limit your privileges on the Site and seek other remedies, which include, but are not limited to, terminating your account and use of the Site and retaining all fees paid to us by you for the Services and/or your use of the Site. PLEASE DO NOT ENGAGE IN ANY OF THE FOLLOWING ACTIVITIES as they are prohibited on the Site and constitute express violations of this Agreement:

 

a. Submitting any purposely inaccurate information, committing fraud or falsifying information in connection with your bludarts account;

b. Attempting to, or actually accessing data not intended for you, such as logging into a server or an account that you are not authorized to access;

c. Attempting to scan or test the security or configuration of the Site or to breach security or authentication measures without proper authorization;

d. Tampering or interfering with the proper functioning of the Service or any part, page or area of the Site and any and all functions and services provided by bludarts;

e. Attempting to interfere with service to any user in any manner, including, without limitation, by means of submitting a virus to the Site, or attempts at overloading, “flooding”, “spamming”, “mail bombing” or “crashing” the Site;

f. Using the Service, the Site or any of its contents to disparage third-party merchants, or to compete, directly or indirectly, with bludarts;

g. Using the Service, the Site or any of its contents to harass, abuse or harm another person or entity;

h. Submitting any unlawful, defamatory, threatening, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature in connection with your bludarts account;

i. Reselling or repurposing your access to the Site or the Service;

j. Using the Service, the Site or any of its resources to solicit End Users or other business partners of bludarts to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with bludarts;

k. Using any User Account to purchase Ads for any false, fraudulent or other purpose not expressly permitted by this Agreement;

l. Accessing, monitoring or copying any content or information from the Site using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;

m. Violating the restrictions in any robot exclusion headers on the Site or bypassing or circumventing other measures employed to prevent or limit access to the Site;

n. Taking any action that places excessive demand on our Service or that imposes or may impose an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion);

o. Aggregating any live or post-feature content or other information from the Site (whether using links or other technical means or physical records associated with purchases made through the Site) with material from other sites or on a secondary site without our express written permission;

p. Deep-linking to any portion of the Site without our express written permission;

q. Acting illegally or maliciously against the business interests or reputation of bludarts or our End Users;

r. Violating the copyright, trademark, service mark or other intellectual property rights of a third party in connection with your use of the Site or Service;

s. Hyperlinking to the Site from any other website without our initial and ongoing consent; or

t. Using the Site or Service if you are under the age of 13.

        6. Illegal Activity

The Site may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations. You may not register under a false name.

bludarts has the right, but not the obligation, to monitor any activity and content associated with the Site and investigate as it deems appropriate. bludarts may also investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of Service, termination of your User Account, retention of all fees paid to us by you for our Service and/or your use of the Site, denying access and/or removal of any materials on the Site. bludarts reserves the right and has absolute discretion to remove, screen or edit any content that violates these provisions or is otherwise objectionable.

bludarts also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators or other third parties. In order to cooperate with governmental requests, to protect bludarts’ systems and customers or to ensure the integrity and operation of bludarts’ business and systems, bludarts may access and disclose any information it considers necessary or appropriate, including, but not limited to, End User contact details, IP addressing and traffic information, usage history and posted content.

       7. Creating an Account on the Site

Your account is non-transferrable and may not be sold, combined or otherwise shared with any other person or business.  If you violate any of these limitations, we may terminate any or all of your User Accounts. If we terminate your User Account, you may not re-enroll or join under a new account unless we formally invite you. If you commit fraud or falsify information in connection with your use of the Site or in connection with your User Account, your User Account may be terminated immediately and we reserve the right to hold you liable for any and all damages that we suffer, to pursue legal action through relevant local, national and international law enforcement authorities and to notify your Internet Service Provider of any fraudulent activity we associate with you or your use of the Site.

        8. Intellectual Property

Everything located on or in the Site is the exclusive property of bludarts or is being used with permission. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING OR OTHERWISE MODIFYING THE SITE OR ANY OF THE MICROSITES WITHOUT THE EXPRESS WRITTEN PERMISSION OF BLUDARTS IS PROHIBITED.  Any violation of this requirement may result in a copyright, trademark, service mark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.

The Site and any Microsite contains copyrighted material, trademarks, service marks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. bludarts owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works or in any way exploit any of the content, in whole or in part. You may download, print and/or save copyrighted material for your record-keeping purposes only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of bludarts or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, you will make independent attribution and/or agree to make no changes in or delete any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.

“bludarts” and the bludarts logo are trademarks of WhenInWorld, LLC. These trademarks, together with other trademarks that are located within or on the Site or otherwise owned or operated in conjunction with bludarts shall not be deemed to be in the public domain but rather the exclusive property of bludarts, unless such mark or site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of bludarts unless otherwise stated.

You will not upload, post or otherwise make available on the Site any material protected by copyright, trademark, service mark or other proprietary right without the express permission of the owner of the copyright, trademark, service mark or other proprietary right. bludarts does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, service marks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of the Site, you warrant that the owner of such material has expressly granted bludarts the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, display and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material.

        9. Apple, Inc. App Store

The Terms of this Agreement apply to your use of the Site, including iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

  • Both you and bludarts acknowledge that the Terms of Use are concluded between you and bludarts only, and not with Apple, and that Apple is not responsible for the Application or the content;
  • You will only use the Application in connection with an Apple device that you own or control;
  • You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
  • In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
  • You acknowledge and agree that bludarts, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
  • You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes a third party’s intellectual property rights Apple will not be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
  • Both you and bludarts acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
  • Both you and bludarts acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Use, and that upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as the third party beneficiary hereof.

 

        10. Copyright Policy and Digital Millennium Copyright Act (“DMCA”) Procedures

bludarts reserves the right to terminate its agreement with you or any other End User who infringes third-party copyrights.

If you believe that any material has been posted via the Site by an End User in a way that constitutes copyright infringement, you shall provide bludarts with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Site and description of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, including telephone number and e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
 

Contact information for bludarts’s DMCA Agent for notice of claims of copyright infringement is:

WhenInWorld, LLC

Attn: Copyright Agent

P.O. Box 7134

Alexandria, VA 22307

        11. Disclaimer of Warranty

YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. NEITHER BLUDARTS, ITS SUBSIDIARIES NOR ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (A) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, (B) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION OR SERVICE OFFERED THROUGH THE SITE OR (C) THAT THE FILES AVAILABLE FOR DOWNLOADING FROM THIS SITE, IF ANY, WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THE SITE IS MADE ACCESSIBLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLUDARTS HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

        12. Limitation of Liability

IN NO EVENT SHALL BLUDARTS, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE OR SERVICE, THE CONTENT AND OTHER INFORMATION CONTAINED THEREIN OR IN THESE TERMS OF USE, INCLUDING THE USE BY A CUSTOMER OF THE SITE OR SERVICE ON A DEVICE OWNED BY SUCH CUSTOMER’S EMPLOYER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

        13. License Grant

You hereby grant bludarts a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text and other content or materials that you provide to bludarts via  your User Account or that you otherwise use on the Site in any and all media or formats in connection with bludart’s fulfillment of its rights and obligations under this Agreement

        14. Privacy

Please read the bludarts.com Privacy Policy[1]. The Privacy Policy may be changed by bludarts in the future. You should check the Privacy Policy frequently for changes. bludarts and its affiliates may communicate with you in connection with your User Account or the Site, electronically and in other media, and you consent to such communications regardless of any similar preferences or requests you may have indicated on the Site or by any other means.

You will not, and will cause your affiliates not to, directly or indirectly, disclose, convey or use any order information or other data or information acquired by you or your affiliates from bludarts or its affiliates (or otherwise) as a result of the these Terms of Use, the transactions contemplated hereby or thereby or the parties’ performance hereunder or thereunder (collectively, “bludarts Transaction Information”), except you may disclose this information as necessary for you to perform your obligations under these Terms of Use, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information.  You understand and agree that bludarts owns all bludarts Transaction Information.

        15. Indemnification/Release

You agree to defend, indemnify and hold harmless bludarts, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services purchased by you in connection with the Site or any use of the Site in violation of these Terms of Use, arising out of or relating to (i) your possession or use of the Software, (ii) your breach of this Agreement, or (iii) personal injury or property damage caused by the negligence or willful misconduct of you or your employees or agents.  This indemnity shall survive the termination of this Agreement. You agree to provide the foregoing indemnification as a material condition and inducement for Licensor to grant the license herein.

To the extent permitted under applicable laws, you hereby release bludarts from any and all claims or liability related to any action or inaction by another End User, including such End User’s failure to comply with applicable law and/or failure to perform its obligations under this Agreement or otherwise in connection with its use of the Site and the Service, and any conduct or speech, whether online or offline, of any other End User.

        16. Termination

bludarts may terminate these Terms of Use at any time. Without limiting the foregoing, bludarts shall have the right to immediately terminate or suspend any of your passwords or User Accounts in the event bludarts considers, in its sole discretion, any of your conduct to be unacceptable, or in the event you breach this Agreement. Notwithstanding the above, Sections 3, 8, 11, 12, 13, 14, 15, and 17 of these Terms of Use will survive termination of these Terms of Use.

        17.  United States Government Restricted Rights.

The parties agree that if any Software or documentation is acquired by or on behalf of a unit or agency of the United States Government, such Software or documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the Government’s rights with respect to such Software or Documentation are limited by terms of this Agreement, pursuant to FAR § 12.212(a) and its successor regulations and/or DFARS § 227.7202-1(a) and its successors regulations, as applicable. 

        18. Export Controls. 

You acknowledge and agree that the Software and technical data received from Licensor may be subject to export or import controls, and agree to comply with any and all applicable laws, regulations, rulings and executive orders on exportation and importation.

        19. Injunctive Relief

YOU ACKNOWLEDGE AND AGREE THAT REMEDIES AT LAW MAY BE INADEQUATE TO PROVIDE LICENSOR WITH FULL COMPENSATION IN THE EVENT OF YOUR MATERIAL BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SUCH BREACH WILL CAUSE IMMEDIATE AND IRREPARABLE HARM TO LICENSOR, AND THAT LICENSOR WILL THEREFORE BE ENTITLED TO OBTAIN INJUNCTIVE RELIEF IN THE EVENT OF ANY SUCH MATERIAL BREACH OR THREATENED MATERIAL BREACH.  NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS LIMITING THE LICENSOR’S RIGHT TO ANY OTHER REMEDIES AT LAW, INCLUDING, WITHOUT LIMITATION, THE RECOVERY OF DAMAGES FOR BREACH OF THIS AGREEMENT.

        20. Assignment

You may not assign this Agreement, nor any license or other rights granted under this Agreement, without the prior written consent of Licensor.

        21. Choice of Law

Any disputes arising out of or related to these Terms of Use and/or any use by you of the Site or Service shall be governed by the internal laws of the Commonwealth of Virginia, without regard to its choice of law rules and without regard to conflicts of laws principles.  YOU SUBMIT AND AGREE TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN ALEXANDRIA, VIRGINIA. 

        22. Additional Disclosures

No waiver by either you or bludarts of any breach or default or failure to exercise any right allowed under this Agreement is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under this Agreement. The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect.

The provisions of these Terms of Use apply equally to and are for the benefit of bludarts, its subsidiaries and affiliates and their third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.

        23. Entire Agreement

This Agreement and the bludarts Privacy Policy constitutes the entire agreement, and supersedes all other agreements, oral or written, between the parties pertaining to the subject matter hereof and thereof. 

        24. Contact Information

To contact bludarts about this Agreement or to provide any other notice, send such notice via email or conventional mail.  Notices to us must be sent to the attention of Customer Service at customerservice@bludarts.com, if by email, or WheninWorld, LLC, PO Box 7134, Alexandria, Virginia 22307 if by conventional mail.