CaM Terms of Service (for Art Dealers)
These Terms of Service (these “ToS”) set forth terms and conditions under which you use the service intended for art dealers (the “Service”) on CaM, a social media on contemporary arts which is intended for art dealers and collectors provided by NeuerGarten Inc. (“NeuerGarten”)Article 1. Definition
1. The term “Registered Gallery” means an individual or corporation that has concluded these ToS with NeuerGarten by following the process specified by NeuerGarten. The term “Registered Gallery” includes the term “Initial Registered Gallery” defined in the following paragraph.2. The term “Initial Registered Gallery” means a Registered Gallery that has access to specific functions that are designated in accordance with the process specified by NeuerGarten and are made available for exclusive use.
3. The term “Application Form” means an application form specified by NeuerGarten used to apply for the agreement to use the Service and register with the Service.
4. The term “Individual Terms” means a separate set of terms and conditions set forth as guidelines for the use of a specific individual service that forms part of the Service.
5. The Term “Posted Contents” means images, videos, text, event information and other contents that a Registered Gallery has itself posted on the Service.
6. The term “NeuerGarten Contents” means images, videos, text and other contents created by NeuerGarten.
7. The term “Collector” means a user of CaM who is invited in accordance with the procedure specified by NeuerGarten and is not a Registered Gallery. The term “Collector” includes the term “Premium Collector” defined in the following paragraph.
8. The term “Premium Collector” means a Collector that has access to specific functions that are designated in accordance with the procedure specified by NeuerGarten and are made available for exclusive use.
9. The term “Regular User” means a user of CaM who is neither a Registered Gallery nor a Collector.
Article 2. Conclusion of Agreement and Application of These ToS
1. An agreement to use the Service (“Agreement”) shall be offered by filling out an Application Form on the website designated by NeuerGarten or submitting to NeuerGarten a written Application Form filled out with necessary information, and will be concluded when NeuerGarten has expressed its intention to accept the offer. Upon conclusion of the Agreement, the applicant will be a Registered Gallery.2. These ToS constitute the provisions of the Agreement. A Registered Gallery that has concluded the Agreement shall comply with the provisions of these ToS. If there is a discrepancy between the content of the relevant Application Form and the provisions of these ToS, the Application Form will prevail.
3. NeuerGarten may a separate set of Individual Terms for an individual service that forms part of the Service. Those Individual Terms constitute part of these ToS.
4. NeuerGarten’s failure to execute any right under these ToS does not mean NeuerGarten’s waiver of that right.
5. A Registered Gallery shall, without delay, notify NeuerGarten of any change to the items entered in its Application Form by using the method specified by NeuerGarten, and, if required, shall submit to NeuerGarten any documents required by NeuerGarten. Any notice from NeuerGarten to a user that is delayed or has not reached that user due to that user’s failure to make such a change is deemed to have reached that user.
6. A Registered Gallery may not assign or transfer to a third party, or create a security interest over or otherwise dispose of its position under the Agreement or its rights or obligations under these ToS, without NeuerGarten’s prior written consent.
Article 3. Cancellation of the Agreement by a Registered Gallery
1. A Registered Gallery may cancel the Agreement by giving notice to NeuerGarten no later than 30 days prior to the day on which the Registered Gallery wants to cancel the Agreement by following the method specified by NeuerGarten. A Registered Gallery who has cancelled the Agreement will have no access to the Service on the day on which the Agreement has been cancelled.2. Any Posted Content that has been posted by a Registered Gallery who has cancelled the Agreement will be deleted. Please note that NeuerGarten will make no backup of those Posted Contents.
3. Upon cancellation, any debt a Registered Gallery owes to NeuerGarten shall be accelerated and become due and payable to NeuerGarten immediately in total.
Article 4. Termination for Cause
1. NeuerGarten may, without prior notice or warning, delete Posted Contents of a Registered Gallery, suspend the use of the Service by a Registered Gallery, or terminate the Agreement with a Registered Gallery if:(1) the Registered Gallery breaches any provision of these ToS;
(2) NeuerGarten discovers that an item registered by the Registered Gallery contains a false fact;
(3) the Registered Gallery has suspended payments or becomes insolvent, or a petition is filed by or against the Registered Gallery for commencement of bankruptcy proceedings, civil rehabilitation proceedings, corporate reorganization proceedings, special liquidation proceedings or any other similar proceedings;
(4) the Registered Gallery fails to answer a question from NeuerGarten or any other communication that requires the Registered Gallery’s response for 30 days or more;
(5) NeuerGarten deems such disposition necessary for proper operation or maintenance of the Service;
(6) NeuerGarten deems that the Registered Gallery is not appropriate as a Registered Gallery; or
(7) otherwise NeuerGarten deems that continuing the Registered Gallery’s use of the Service or continuing the Agreement with the Registered Gallery is inappropriate.
2. Upon termination of the Agreement, any debt a Registered Gallery owes to NeuerGarten shall be accelerated and become due and payable to NeuerGarten immediately in total.
3. A Registered Gallery shall not be discharged from its duties and obligations, including but not limited to compensation for damage, under the Agreement even after the termination of the Agreement.
4. NeuerGarten will assume no liability for any loss or damage a Registered Gallery may incur from any act conducted by NeuerGarten in accordance with this Article.
Article 5. Registered Gallery and Initial Registered Gallery
Separation between Registered Galleries and Initial Registered Galleries shall be made at NeuerGarten’s sole discretion according to the criteria established by NeuerGarten.Article 6. Inviting a Collector
1. Either a Registered Gallery or Collector may invite a third party to CaM by following the procedure specified by NeuerGarten. The third party who has been invited to CaM will be a Collector.2. An Initial Registered Gallery may designate Collectors it has invited as Premium Collectors up to the limit specified by NeuerGarten.
Article 7. Change, Discontinuation or Suspension of the Service
1. NeuerGarten may make changes to the whole or part of the Service without giving prior notice to Registered Galleries.2. NeuerGarten may, at its discretion, discontinue to provide or operate the whole or part of Service. In such a case, NeuerGarten will notify Registered Galleries thereof using the method NeuerGarten deems appropriate; provided that NeuerGarten will not give such notice in case of emergency.
3. NeuerGarten may temporarily suspend the whole or part of the Service without giving prior notice to Registered Galleries if:
(1) regular or emergency maintenance or repair is carried out to the hardware, software, or communication equipment used for the Service;
(2) there is a heavy load on the relevant system due to an enormous volume of traffic or any other unexpected reason;
(3) NeuerGarten needs to ensure the security of Registered Galleries;
(4) the provision of a third-party’s service used in the Service which is provided by a third party has been temporarily stopped or suspended, in whole or part;
(5) any necessary service of a telecommunications carrier is not provided;
(6) it is almost impossible to provide the Service due to force majeure such as natural disasters;
(7) it is almost impossible to provide the Service due to fire, power failure or other unexpected accidents;
(8) it is almost impossible to provide the Service due to a war, conflict, disturbance, riot, labor dispute or other similar incidents;
(9) it is almost impossible to operate the Service by applicable laws or ordinances or due to measures taken in accordance with applicable laws or ordinances; or
(10) otherwise NeuerGarten deems such suspension necessary in accordance with any of the preceding items.
4. NeuerGarten will assume no liability for any loss or damage a Registered Gallery may incur due to a measure taken by NeuerGarten in accordance with this Article.(2) there is a heavy load on the relevant system due to an enormous volume of traffic or any other unexpected reason;
(3) NeuerGarten needs to ensure the security of Registered Galleries;
(4) the provision of a third-party’s service used in the Service which is provided by a third party has been temporarily stopped or suspended, in whole or part;
(5) any necessary service of a telecommunications carrier is not provided;
(6) it is almost impossible to provide the Service due to force majeure such as natural disasters;
(7) it is almost impossible to provide the Service due to fire, power failure or other unexpected accidents;
(8) it is almost impossible to provide the Service due to a war, conflict, disturbance, riot, labor dispute or other similar incidents;
(9) it is almost impossible to operate the Service by applicable laws or ordinances or due to measures taken in accordance with applicable laws or ordinances; or
(10) otherwise NeuerGarten deems such suspension necessary in accordance with any of the preceding items.
Article 8. Handling of Posted Contents
1. The copyright or other intellectual property rights to a Posted Content is retained by the Registered Gallery who has posted that Posted Content or the holder of those rights who has granted the Registered Gallery a license to use that Posted Content.2. NeuerGarten shall assume no duty to keep and store Posted Contents. It is a Registered Gallery’s responsibility to store necessary information that Registered Gallery has entered, provided, or transmitted in connection with the use of the Service.
3. Notwithstanding the provisions of the preceding paragraph, NeuerGarten may, if necessary, reproduce any Posted Content stored in a server installed in the facility for the Service to the extent necessary for the purpose of making backups required for providing the Service.
4. If NeuerGarten discovers a Posted Content that falls under any of the prohibited items under Article 10, NeuerGarten will immediately make that Posted Content invisible to Collectors and Regular Users and notify the Registered Gallery who has posted that Posted Content thereof. The Registered Gallery who has been so notified shall correct or delete that Posted Content according to the instructions given by NeuerGarten so that that Posted Content does not conflict with the prohibited items under Article 10.
5. A Registered Gallery warrants that any of that Registered Gallery’s Posted Contents does not infringe any third party’s right. Further, a Registered Gallery shall, at its cost and responsibility, handle and resolve any objection, claim, demand or notice of infringement raised against or given to that Registered Gallery by a third party.
6. A Registered Gallery shall grant NeuerGarten non-exclusive license to use, or reproduce, perform on screen, transmit to the public, adapt, translate, or create or show a derivative work of, any of that Registered Gallery’s Posted Contents that is set to be viewable to Regular Users, without restriction on area, times, or length of period in which it is used, free of charge, for the purpose of advertising or promoting CaM.
7. The copyright and other intellectual property rights of any NeuerGarten Content is in principle retained by NeuerGarten; provided that NeuerGarten will allow any Registered Gallery to use NeuerGarten Contents during the effective period of the Agreement with that Registered Gallery, to the extent that NeuerGarten has approved in advance.
Article 9. Services under Development
1. NeuerGarten may provide a service under development as part of the Service or as an independent service.2. A Registered Gallery understands that NeuerGarten will provide such a service under development that may, by nature, contain bugs, faults, or malfunctions or otherwise cause such a failure that service is not working properly.
3. NeuerGarten may, at any time and without prior notice, change the content of, or suspend or discontinue the provision of, such services under development.
Article 10. Prohibited Acts
When using the Service, a Registered Gallery shall not commit any of the following acts or any act that NeuerGarten believes falls under any of the following acts:(1) an act in violation of laws and ordinances;
(2) an act in breach of public morality;
(3) an act in breach of any provision of these ToS;
(4) an act of slandering any third party;
(5) an act that infringes any third party’s right of name, right of portrait, right of privacy, intellectual property right, or other rights;
(6) an act of putting an excessively heavy load on the Service or accessing the Service while attacking it;
(7) an act of otherwise interfering with the provision of the Service or NeuerGarten’s business;
(8) an act of using the Service for a purpose other than those listed in that Registered Gallery’s Application Form;
(9) an act of sharing certain accounts between more than one corporation or organization without NeuerGarten’s prior consent;
(10) an act of collecting information from the Service without obtaining prior permission from relevant parties;
(11) act of posting content that may cause other people to feel disgust, such as sexually explicit, excessively violent, or antisocial content;
(12) an act of posting crime-related content or an act that is otherwise related to a crime using the Service;
(13) an act of allowing a third party to use its name, impersonating or otherwise falsifying its name when using the Service; or
(14) an act that otherwise NeuerGarten deems inappropriate.
Article 11. Revision to These ToS
1. NeuerGarten may, at any time and its discretion, make any change to these ToS without obtaining prior approval from Registered Galleries. After such a change, the Service will be provided under the terms and conditions set forth in the revised ToS, unless otherwise expressly specified by NeuerGarten.2. NeuerGarten shall notify Registered Galleries of any such change as stated in the preceding paragraph by posting the change on a website operated by NeuerGarten no later than the day on which these ToS is officially changed so, unless the change is minor and NeuerGarten deems that the change will not cause any particular detriment to Registered Galleries.
Article 12. Notice and Communication
Any inquiry on the Service and other communication or notice from a Registered Gallery to NeuerGarten and any notice of revision to these ToS or other communication or notice from NeuerGarten to a Registered Gallery shall be made in accordance with the method specified by NeuerGarten.Article 13. Disclaimers and No Guarantee
1. NeuerGarten makes no warranty as to the correctness, continuity, completeness, reliability including certainty, usefulness, availability, accessibility, security protection, error-free condition, virus-free condition, quality satisfaction, and fitness for a particular purpose of any party of the Agreement or any other nature whatsoever. NeuerGarten will assume no liability for any loss or damage a Registered Gallery or other third parties may incur therefrom.2. NeuerGarten makes no warranty as to the compatibility of CaM with all terminals. A Registered Gallery hereby acknowledges that, even though its terminal is compatible with CaM when that Registered Gallery has started using CaM, CaM can display a faulty behavior on that terminal after its operating system is upgraded or for any other reason. NeuerGarten makes no warranty that corrections NeuerGarten makes to related programs when such faulty behaviors occur will completely resolve such faulty behaviors.
3. Unless otherwise set forth in these ToS, NeuerGarten will assume no liability for compensation for loss or damage a Registered Gallery may incur in connection with CaM due to NeuerGarten’s suspending, discontinuing or ceasing the provision of CaM, making CaM unavailable, or making a change to CaM, or deleting or erasing a message or information sent by the Registered Gallery to CaM, or removing the registration of the Registered Gallery, or due to loss of registered data or a malfunction of or damage to devices caused by the use of CaM, or for any other reason.
4. NeuerGarten will assume no liability for any transaction, communication, dispute or other matter between a Registered Gallery and another Registered Gallery or a third party that may arise in connection with CaM or NeuerGarten’s websites.
Article 14. Compensation for Damage
1. If, in connection with the use of CaM by a Registered Gallery, a petition is filed against NeuerGarten or a third party by another Registered Gallery or third party for infringement of rights or for another cause, that Registered Gallery shall compensate NeuerGarten or that third party for the total amount of payment NeuerGarten or that third party is required to pay to said another Registered Gallery or third party in accordance with said petition, and the total amount of cost incurred by NeuerGarten or that third party for resolving such dispute, including attorneys’ fees and other experts’ fees and fees for NeuerGarten’s related personnel.2. Unless otherwise set forth in these ToS, NeuerGarten will assume no liability for compensation for any loss or damage a Registered Gallery may incur in connection with CaM. If a provision of the Consumer Contract Act of Japan or any other applicable law, ordinance, regulation, order or whatever requires NeuerGarten to assume liability for compensation for loss or damage incurred by a Registered Gallery despite this paragraph or other provisions that discharge NeuerGarten from liability for compensation for loss or damage, NeuerGarten’s liability shall be limited to actual, direct and usual damage caused by a reason attributable to NeuerGarten, up to the total amount of the fees paid by that Registered Gallery to NeuerGarten for the past six months from the time when the event causing the damage has occurred, or 10,000 yen if no such fees are payable.
Article 15. Elimination of Antisocial Forces
1. Either NeuerGarten or a Registered Gallery represents to the other party that it is not an organized crime group or boryokudan, a boryokudan member, a person who ceased to be a boryokudan member within the past five years, an associate member of a boryokudan, a business involved with a boryokudan, a corporate extortionist, a blackmailer under the pretext of conducting social campaigns, an organized crime group specialized in intellectual crimes or any other person similar thereto (collectively, a “Boryokudan Member”) or does not fall under any of the following items, and covenants that it will never be a Boryokudan Member or fall under any of the following items:
(i) the party has a relationship with a Boryokudan Member where that Boryokudan Member is deemed to control the management of the party;
(ii) the party has a relationship with a Boryokudan Member where that Boryokudan Member is deemed to be virtually involved with the management of the party;
(iii) the party has a relationship with a Boryokudan Member where the party is deemed to unlawfully use that Boryokudan Member for the purpose of unlawfully benefiting the party or any other third party or damaging a third party or other similar purposes;
(iv) the party has a relationship with a Boryokudan Member where the party is deemed to provide that Boryokudan Member with funding or interest or has a similar involvement with that Boryokudan Member; or
(v) an officer of the party or a person who is virtually involved with the management of the party has a socially reproachable relationship with a Boryokudan Member.
2. Either NeuerGarten or a Registered Gallery covenants with the other party that it will never commit or have a third party commit any of the following acts:(ii) the party has a relationship with a Boryokudan Member where that Boryokudan Member is deemed to be virtually involved with the management of the party;
(iii) the party has a relationship with a Boryokudan Member where the party is deemed to unlawfully use that Boryokudan Member for the purpose of unlawfully benefiting the party or any other third party or damaging a third party or other similar purposes;
(iv) the party has a relationship with a Boryokudan Member where the party is deemed to provide that Boryokudan Member with funding or interest or has a similar involvement with that Boryokudan Member; or
(v) an officer of the party or a person who is virtually involved with the management of the party has a socially reproachable relationship with a Boryokudan Member.
(i) an act of making a demand in a violent manner;
(ii) an act of making an unlawful demand to a person beyond that person’s liability;
(iii) an act of making a threating speech or behavior or using violence against a counterparty of a deal;
(iv) an act of spreading a rumor or using fraudulent means or force thereby damaging the confidence of a counterparty or interfering with a counterparty’s business; or
(v) other acts similar to any of the preceding items.
3. If either NeuerGarten or a Registered Gallery discovers that the other party is a Boryokudan Member or falls under any of the items of paragraph 1 of this Article, or if the other party commits an act defined in any of the items in paragraph 2 of this Article, or if either NeuerGarten or a Registered Gallery discovers that the other party makes a false statement on the representation and covenants under paragraph 1 of this Article, the party may terminate the Agreement concluded with other party without notice and the other party agrees to make no demand for loss or damage it may incur due to such termination.(ii) an act of making an unlawful demand to a person beyond that person’s liability;
(iii) an act of making a threating speech or behavior or using violence against a counterparty of a deal;
(iv) an act of spreading a rumor or using fraudulent means or force thereby damaging the confidence of a counterparty or interfering with a counterparty’s business; or
(v) other acts similar to any of the preceding items.
Article 16. Governing Law and Jurisdiction
1. The Agreement shall be governed by the Laws of Japan.2. Any dispute arising out of or in connection with the Agreement or CaM shall be subject to the exclusive jurisdiction of the Tokyo District Court in the first instance.
Established on May 21, 2019
© NeuerGarten Inc. All Rights Reserved.
© NeuerGarten Inc. All Rights Reserved.