Finestra, LLC (“Finestra”) connects artists who wish to sell their artwork with people who may wish to purchase or learn more about such artwork through an application for mobile devices (“Licensed Application”).
This Agreement is between you and Finestra only, and not with Apple, Inc. (“Apple”). Although Apple is not a party to this Agreement, Apple has the right to enforce this Agreement against you as a third party beneficiary. Finestra, not Apple, is solely responsible for the Licensed Application and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
Finestra reserves the right, at its sole discretion, to modify Licensed Application or to modify these Terms, at any time and without prior notice. By continuing to access or use the Licensed Application after we have posted a modification via the Licensed Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Licensed Application.
Finestra grants you a limited, non-exclusive, non-transferrable, revocable license to use the Licensed Application for your personal, non-commercial purposes. You may only use the Licensed Application on an iPhone, iPod Touch, iPad, or other Apple device that you own or control and as permitted by the App Store Terms of Service. (http://www.apple.com/legal/internet-services/itunes/ww/).
This license does not allow you to use the Licensed Application on any devices that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the App Store Terms of Service), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Finestra that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. Finestra reserves all rights not expressly granted to you.
Finestra makes no representation that the Licensed Application is appropriate or available for use in any particular location. To the extent you choose to access Licensed Application, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Finestra reserves the right to change, suspend, remove, or disable access to the Licensed Application at any time without notice. In no event will Finestra be liable for the removal of or disabling of access to the Licensed Application. Finestra may also impose limits on the use of or access to the Licensed Application, in any case and without notice or liability.
You agree that Finestra may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Licensed Application. Finestra may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
The license is effective until terminated by you or Finestra. Your rights under this license will terminate automatically without notice from the Finestra if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
The Licensed Application may display, include or make available content, data, information, applications or materials from third parties or provide links to third party websites (“Third Party Materials”) or provide links to certain third party web sites. Use of the Licensed Application may require Internet access and you accept any additional terms of service as required by your Internet provider. You understand that by using the Licensed Application, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Licensed Application at your sole risk and that Finestra shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
By using the Licensed Application, you acknowledge and agree that Finestra is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. Finestra does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
Location data provided by the Licensed Application is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Finestra, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by the Licensed Application.
You agree that the Licensed Application may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Licensed Application. No portion of the Licensed Application may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Licensed Application, in any manner, and you shall not exploit Licensed Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Licensed Application in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Finestra is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Licensed Application.
In the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party’s intellectual property rights, Finestra, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
By uploading any image, artwork or other information to the Licensed Application (“Your Content”) you acknowledge that you will be solely responsible for such content. Finestra reserves the right to refuse any request to feature any image, artwork or other information of any reason or no reason.
You agree that you will not upload Your Content: to which you do not own the copyright, which includes the copyrighted work of a third party, which infringes another party's rights of publicity or privacy, that features a trademark, service mark, certification mark, trade dress, or other intellectual property to which you do not own the rights, that contains nudity, or that is otherwise illegal.
As between you and Finestra, you own Your Content. We own the Finestra Content, which includes but is not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of Your Content and other Finestra Content, computer code, products, software, aggregate user review ratings, and all other elements and components of Licensed Application excluding Your Content, and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the Finestra Content and the Licensed Application, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Finestra Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Licensed Application and the Finestra Content are retained by us.
You expressly acknowledge and agree that use of the licensed application is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. To the maximum extent permitted by applicable law, the Licensed Application and any services performed or provided by the Licensed Application ("services") are provided "as is" and "as available," with all faults and without warranty of any kind, and Finestra hereby disclaims all warranties and conditions with respect to the licensed application and any services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Finestra does not warrant against interference with your enjoyment of the Licensed Application, that the functions contained in, or services performed or provided by, the Licensed Application will meet your requirements, that the operation of the Licensed Application or services will be uninterrupted or error-free, or that effects in the Licensed Application or services will be corrected. No oral or written information or advice given by Finestra or its authorized representative shall create a warranty. Should the Licensed Application or services prove defective, you assume the entire cost of all necessary servicing, repair or correction to your property caused by such defect. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you. To the extent any warranty exists under law that cannot be disclaimed, Finestra, not Apple, shall be solely responsible for such warranty.
To the extent not prohibited by law, in no event shall Finestra be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the Licensed Application, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if application provider has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
In no event shall Finestra’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Finestra, not Apple, is responsible for addressing any claims by you relating to the Licensed Application or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims.
By using the Licensed Application, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against the particular users or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Finestra with respect to such actions or omissions.
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
The laws of the State of Georgia, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws. Any dispute under this Agreement shall be submitted to arbitration by a single arbitrator in Atlanta, GA, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The award rendered by the arbitrator shall be binding and the judgment on such award shall be entered in any court having jurisdiction.
If any term, clause, or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement is valid and enforceable in accordance with its terms.
You hereby agree to indemnify, defend, and hold harmless Finestra and its affiliates, directors, officers, members, agents, shareholders, partners, and employees against any and all claims, demands, losses, liabilities, damages, judgments, actions, proceedings, settlements, penalties, fines, costs and expenses (including reasonable attorney's fees and expenses) (collectively, "Losses") that arise out of your violation of any of these Terms.
If you have any questions, complaints or claims with respect to the Licensed Application, please contact us at:
Finestra LLC PO Box 14673, Atlanta, Ga 30324 (404) 890-0879 support [at] finestraartapp.com