Last Updated. August 22, 2022
AS OUTLINED MORE FULLY IN THE “GOVERNING LAW AND DISPUTE RESOLUTION” SECTION BELOW, THESE TERMS INCLUDE AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND TPCAF TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
BY CLICKING “AGREE,” YOU AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS AND ALL OF TPCAF’S ADDITIONAL GUIDELINES, POLICIES, TERMS, AND RULES, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE WEBSITE.
Amendment. TPCAF reserves the right to change or modify these Terms at any time in our sole discretion. If we make changes to these Terms, we will provide notice of such changes by updating the “Last Updated” date at the beginning of these Terms and by requiring you to click “agree” before using the Website subject to the modified Terms. By clicking “agree,” you confirm your acceptance of the revised Terms and all of the guidelines, policies, terms, and rules incorporated therein by reference. We encourage you to review these Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Website. We reserve the sole right to either modify or discontinue the Website, including any features therein, at any time, with or without notice to you. We shall not be liable to you or any third-party should we exercise such right. Modifications may include the implementation of fee-based services or other changes. Any new features that augment or enhance existing services on the Website shall also be subject to these Terms. If you do not agree to the revised Terms, you may not access or use the Website.
Eligibility. In order to be eligible to use TPCAF’s Website, you represent and warrant that: (a) you are at least eighteen years of age; (b) you have not previously been suspended or removed from the Website; (c) your use of the Website is in compliance with all applicable laws, rules, and regulations; (d) you are able to form legally binding contracts under applicable law; (e) you are not located in a country that is subject to a U.S. government embargo and you have not been identified as a Specially Designated National or placed on any U.S. government list of prohibited, sanctioned, or restricted parties; and (f) you have agreed to be bound by all of the provisions of these Terms.
Accessing the Website. Use of certain portions of the Website may require you to register for an account on the Website. At the time of registration, you will be asked to provide us with personal data and to create a username and password. By registering, you agree that all information provided is true and accurate and that you will maintain and update this information as required in order to keep it accurate. You acknowledge that you are solely responsible for maintaining the confidentiality of your password, account, and credentials and for any and all statements made and acts or omissions that occur through the use of your password and account. You agree to use a strong password and to keep it confidential. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account in the event of any unauthorized transfer or sharing of your account. You agree to notify us immediately if your account has been compromised (you can contact us here).
No Advice. The contents of the Website do not constitute advice and should not be relied on in making or refraining from making any decision.
Anti-Money Laundering (AML). TPCAF complies with the appropriate legislation, sanctions and guidelines designed to prevent financial crime and to combat money laundering activity and the funding of terrorist or criminal activity. We are committed to fulfilling our responsibilities under the relevant legislation and conduct appropriate client due diligence and employ ongoing monitoring where applicable. We have in place procedures to ensure that any suspicions that a money laundering offence has been or is being committed are reported to the appropriate authorities.
Ownership and Intellectual Property Protection. The Website is owned and operated by TPCAF. The Website and all elements thereof, including without limitation user interfaces, design, layout, its “look and feel,” content, information, the TPCAF name and logo, all text, graphics, logos, images, photographs, systems, methods, data, software, scripts, code, algorithms, sounds, and other media or information contained on the Website, and the selection, compilation, or arrangement thereof (all of the foregoing, the “Intellectual Property”), are the exclusive property of TPCAF and its third-party licensors and affiliates, who own all legal right, title, and interest in and to all Intellectual Property, and which are protected by copyright, trademark, trade dress and other U.S. and international laws or treaties relating to intellectual property, and may be subject to other restrictions as well, including, without limitation moral rights, rights of privacy, and rights of publicity under applicable law. TPCAF and third party owners of all Intellectual Property on the Website expressly reserve all rights, including without limitation copyright and the right to make derivative works, in whole and in part, throughout the world, in the Website and all elements embodied within the Website. Nothing contained on the Website in or these Terms grants or should be construed as granting, by implication, estoppel, or otherwise, any right or license to any Intellectual Property without the prior written permission of TPCAF or any third party owner and you agree not to take any action(s) inconsistent with such ownership interests. While we welcome your Feedback, you acknowledge and agree that any contribution of Feedback does not and will not give or grant you any right, title, or interest in the Website or in any such Feedback and you hereby assign to TPCAF any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property rights) that you may have in and to any and all Feedback. TPCAF fully supports the protection of intellectual property and is committed to complying with and adhering to all applicable law, including without limitation copyright laws. If you believe that the Website contains elements that infringe your copyrights or other intellectual property rights, please contact us here.
Third Party Links and Services. The TPCAF Website may contain links or functionality to access or use third-party websites and applications, or otherwise display, include, or make available content, data, information, databases, websites, documents, software, services, or materials from third parties (“Third Party Materials”). When you click on a link to, or access and use, Third Party Materials, though we may not warn you that you have left our Website, you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Materials are not under the control of TPCAF and TPCAF is not responsible or liable for any Third Party Materials, including without limitation the accuracy, copyright compliance, legality, decency, errors or omissions in any references, or any other aspect of the content of such Third Party Materials. TPCAF provides links to these Third Party Materials as a convenience only and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Materials, or their products or services, and a link or reference to any third party or Third Party Materials by name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, recommendation, sponsorship, association, or any affiliation with the linked Third Party Materials. You use and access all Third Party Materials entirely at your own risk.
User Conduct. You are solely responsible for use of the Website. Accordingly, you represent and warrant the following:
- You will not reproduce, duplicate, copy, imitate, modify, alter, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, download, transmit, repost, sell, resell, or circulate to any third party (including, without limitation on or via a third party website or Website), or otherwise use, the Website or any portion thereof for any commercial purpose whatsoever;
- You will not alter, modify, remove, delete, or conceal, in whole or in part, any copyright, trademark, service mark, or other notices contained on the Website or on any images or other content made available on the Website;
- You will not use any metatags or other “hidden text” utilizing “TPCAF” or any other name, trademark or product or service name of TPCAF or our affiliates or licensors without our prior written permission.
- You will not use, post, link to, upload, reproduce, email, send, create or display, store on the Website or otherwise transmit or make accessible on or through the Website any unlawful, harassing, defamatory, libelous, abusive, threatening, deceptive, fraudulent, false, obscene, scandalous, inflammatory, profane, or pornographic material, or material that promotes suicide or self-harm or which incites racism, bigotry, hatred, harassment, discrimination, disparagement or physical harm of any kind against any individual or class of individuals, “doxes” any individual, or is otherwise objectionable, or any material that infringes, misappropriates, or encourages infringement or misappropriation of, the intellectual property or confidentiality of another, or is invasive of another’s privacy rights or which exploits children under eighteen years of age or which we, in our sole judgement and discretion, consider illegal, offensive, or objectionable.
- You will not tamper with, hack, modify, alter, interfere with, disrupt, compromise, or otherwise corrupt the integrity of the network, security, performance, or functionality of the Website or any of the data therein, or engage in any conduct, including without limitation through disseminating any software or interacting with any API, that could damage, disable, overburden, impose an unreasonable or disproportionally large load on the Website’s infrastructure, or impair the functioning of the Website in any manner, bypass or ignore instructions or measures that control, prevent, or restrict access to the Website, direct traffic through multiple IP addresses, obfuscate the source of the traffic you send to TPCAF, or use the Website in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Website, or attempt to gain unauthorized access to the Website or related systems or networks;
- You will not reverse engineer, disassemble, decompile, duplicate, decode, create derivative works from, or otherwise attempt to derive the source code of the Website;
- You will not use the Website or data collected from our Website for any advertising or direct marketing activity (including without limitation email marketing, SMS marketing, and telemarketing), or access or use the Website to build or develop competitive products or services;
- You will not use, post, link to, upload, reproduce, email, send, create or display, store on the Website or otherwise transmit or make accessible on or through the Website any material containing software viruses, worms, spyware, Trojan horses, invalid data, or other code, files, software agents, or programs intended to modify, destroy, disrupt, limit, alter, interfere with, or otherwise impair the features, functionality, maintenance, or operation of any computer software or hardware or telecommunications equipment;
- You will not solicit passwords or other personal data from other users, or engage in spamming or the distribution of other unsolicited messages (including without limitation chain letters, pyramid schemes, or sending unwanted NFTs to other users), flooding, harvesting of email addresses or other personal information, spoofing or otherwise impersonating any person or entity, such as another user or any of our personnel, falsely stating or otherwise misrepresenting your identity or affiliation, or forging any TCP/IP packet header or any part of the header information in any email or other posting, use or attempt to use another user’s account without authorization, pose as another person or entity, impersonate another person, misrepresent your affiliation with another person or entity, or make any representation to us or any third party under false pretenses;
- You will not use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or any other automated means or interface not authorized by us to access, copy, index, process, and/or store any material made available on or through the Website;
- You will not access the Website from an address or account if we have blocked any of your other addresses or accounts from accessing the Website, unless you have our prior written permission;
- Your use of the Website does not violate these Terms, or any applicable law, rule, or regulation and you will not use the Website for any fraudulent or illegal purpose, including without limitation violation of any applicable local, state, national, or international law, rule, or regulation, including without limitation laws governing financial services, export control, gambling, money laundering, terrorist financing or other illicit finance, fraudulently obtained or stolen property, and intellectual property, or in any manner which could constitute or encourage conduct that would be considered a violation of these Terms, a criminal offense, may give rise to civil liability, or otherwise violate any applicable law, rule, or regulation;
- You are not located in a country that is subject to a U.S. government embargo and you have not been identified as a Specially Designated National or placed on any U.S. government list of prohibited, sanctioned, or restricted parties and you may not be able to access all or some of the Website outside of the United States and that access may not be legal by certain persons or in certain countries;
- You will not use the Website from a country sanctioned by the U.S. government or to facilitate transactions involving individuals sanctioned by the U.S. government or located in sanctioned countries and you are otherwise legally permitted to use the services in your jurisdiction and that TPCAF is not liable for your compliance with such applicable laws;
Termination of Use; Violation of these Terms. We reserve the right to terminate or suspend your access to all or part of the Website, in our sole discretion, with or without notice and for any reason, including, without limitation if we believe that your conduct fails to conform with these Terms. Upon termination or suspension, regardless of the reasons therefore, your right to use the Website immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and bar any further access to this Website. We reserve the right to investigate and take any action TPCAF deems appropriate, including without limitation to seek criminal or civil liability, with or without notice, against anyone who, in TPCAF’s sole discretion, violates, is suspected of violating, or who aids or facilitates the violation or suspected violation of these Terms, and to involve and fully cooperate with any law enforcement authorities or court order in connection with such violation or suspected violation of these Terms or for any alleged or actual illegal activities involving TPCAF’s Website. TPCAF may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law, rule, or regulation dictates, or to investigate a potential violation of these Terms. In such cases, TPCAF, in its sole discretion, may disable your Account and block your ability to access the Website until such additional information and documents are processed by TPCAF. If you do not provide complete and accurate information in response to such a request, TPCAF may refuse to restore your access to the Website.
No Warranties; Disclaimers; Limitations of Liability. While TPCAF uses reasonable efforts to include accurate and up-to-date information on the Website, TPCAF makes no representations or warranties whatsoever as to its accuracy, functionality, or operation and your use of the Website is entirely at your own risk. Although this Website may be accessible worldwide, we make no representation that the Website is appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Website from other locations do so on their own initiative and are responsible for compliance with local laws, rules, and regulations. Any service or information available through this Website is void where prohibited. TPCAF assumes no liability or responsibility for any errors or omissions on the Website and you understand and agree that, to the fullest extent permissible by law, TPCAF and its licensors, suppliers, service providers, or any other party involved in creating, producing, delivering, or maintaining the Website shall not be liable for any loss or damage of any kind in connection with or arising out of your access to, or use of, the Website, or from these Terms.
Accordingly, and without limiting the foregoing and to the fullest extent permitted by law, THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY, OR CONDITION OF ANY KIND, EITHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, OR ANY GUARANTY OR ASSURANCE THE WEBSITE WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES, OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED, THAT THE WEBSITE WILL BE ERROR OR DEFECT-FREE, SAFE UNINTERRUPTED, COMPLETELY SECURE, RELIABLE, ACCURATE, OR THAT ERRORS CAN OR WILL BE CORRECTED, AND TPCAF ASSUMES NO RESPONSIBILITY, AND IN NO EVENT SHALL BE LIABLE TO, ANY USER OR THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATING TO THESE TERMS OR THE WEBSITE, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, ANY DIRECT OR INDIRECT LOSS OF SAVINGS, REVENUE, BUSINESS OPPORTUNITY, GOODWILL, OR REPUTATION, AND WHETHER IN CONTRACT, TORT OR ON ANY THEORY OF LIABILITY, EVEN IF TPCAF HAS BEEN ADVISED OF SUCH CLAIM, OR ANY ACCIDENTS OR INJURIES, MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OMISSIONS, DAMAGES TO, OR VIRUSES OR WORMS OR OTHER CONTENT THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATIONS EQUIPMENT, OR OTHER PROPERTY ARISING OUT OF YOUR ACCESS TO OR USE OF THE WEBSITE.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY, AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE WEBSITE AND IN CONNECTION WITH YOUR USE OF THE WEBSITE OR ANY PORTION THEREOF AND THAT IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, AND POSSIBLE USEFULNESS OF ANY INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE.
Indemnification. You agreed to indemnify, defend and hold TPCAF, its licensors and affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, causes, allegations, costs, expenses, fees, judgments, liabilities, losses and damages (including reasonable attorneys’ fees) arising out of or relating to your use or operation of the Website and your content or Feedback. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Governing Law and Dispute Resolution. The Website (excluding links to web sites operated by others) is controlled and operated by TPCAF from the State of New York and is not intended to subject TPCAF to the laws or jurisdiction of any state, country or territory other than the United States. Although TPCAF has made no effort to publish the Website elsewhere, it is accessible in all fifty U.S. states and in other countries due to its online presence. As each of these states and countries have laws which may differ from those of New York and from each other, and as you and TPCAF both benefit from establishing a predictable legal environment in which to publish, access, and use the Website, by accessing, and/or using the Website you expressly agree that all matters arising from or relating to the use and operation of the Website or these Terms will be governed by the internal laws of the State of New York, without regard to its conflict of laws principles which may lead to the application of the law of another jurisdiction.
The parties mutually agree that any and all disputes, claims or controversies arising out of or relating to the Website and/or these Terms (“Claims”) shall be submitted to JAMS, or its successor, for individual, final, and binding arbitration in the State of New York pursuant to its Streamlined Arbitration Rules and Procedures, including Rules 16.1 and 16.2 of those Rules. The Federal Arbitration Act (FAA) governs application and interpretation of this arbitration provision and any question as to the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration. In the event of any Claim, you consent to accept service of any process via electronic mail to the email address that you register with TPCAF; for the avoidance of doubt, you explicitly waive any requirements for or rights to foreign service of process under the Hague Service Convention or other applicable law or treaty and expressly acknowledge that this mutual agreement to arbitrate means limits on pre-hearing discovery and a waiver of a right to a jury trial as well as a waiver of the right to participate in any class action lawsuits, class-wide arbitrations, private attorney-general actions, any action combining individual proceedings without the consent of all parties, and any other proceeding where someone acts in a representative capacity. Judgment on any award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party, plus interest at the rate authorized by law, to the non-prevailing party. You waive any objection which you may have now or hereafter to the laying of venue in New York or the exclusive jurisdiction of JAMS over you. Any Claim brought by you against us or our affiliates must be instituted within one year after the Claim arises or be deemed forever waived and barred.
If you are not a United States domiciliary and if the foregoing provision is unenforceable pursuant to the governing law of your jurisdiction, then the terms of the foregoing provision shall be applicable herein to the fullest extent permissible by law, and any dispute arising from your use of the Website and/or these Terms will be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce then in effect, by one arbitrator appointed in accordance with such Rules, and such arbitration shall be the exclusive method to settle any such dispute. The arbitration award, as well as any other decision of the arbitrator (including any conservative or interim measures), shall be final, non-appealable, binding and executory. The arbitration shall be conducted in the English language and it shall have its seat in New York, New York, USA. Judgment on the arbitrator’s decision may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or over such party’s assets, and the parties hereby irrevocably waive any defense and any objection to the exercise of jurisdiction by such courts, based on international comity, improper venue or forum non-conveniens.
Miscellaneous. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of the Website arising from any event beyond our reasonable control, whether or not foreseeable, including without limitation labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by us to enforce or exercise any provision of these Terms or related rights shall not constitute a waiver of that right or provision.
Questions? Questions about the Website or these Terms can be directed to:
TPC Art Finance
630 Fifth Avenue, Suite 2505
New York, NY 10111