Terms & Conditions

TERMS OF USE

EFFECTIVE DATE: August 1, 2022

These terms of use (the “Terms”) apply exclusively to your access to, use of, and transacting via the website offered by newcube LLC (“Newcube” or “newcube” or “Company”), located at www.newcube.art (the “Site”), a bespoke online marketplace that discovers, curates, supports, promotes, and sells artworks (the “Works”) by emerging artists around the world (the “Services”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with newcube, its subsidiaries or affiliates, for products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such an entity’s behalf, and that such entity agrees to indemnify newcube for violations of these Terms. You as an individual or on behalf of a business entity will be referred to as “You” in the Terms. Newcube grants you a limited license to access and make personal use of the site and not to modify it or any portion of it.

Please read these Terms carefully. By visiting, accessing, using, or transacting on the Site, you agree to be bound by the terms stated herein. If you do not agree to all of these terms, please do not use this Site.

Newcube’s privacy policy can be found at https://www.newcube.art/privacy (the “Privacy Policy”). The Privacy Policy is incorporated into and is an integral part of these Terms. By accessing or using the Site in any way, you agree that your information may be collected, stored, shared, processed, and used in accordance with the Privacy Policy and these Terms.

GENERAL TERMS and CONDITIONS

• In the event that you are asked to register for an account, you agree to provide only true and accurate information in connection with any such account, and to update all such information as necessary to keep it accurate and current.
• The Services are available only to and may only be used by individuals who can form legally binding contracts under applicable law. If you are under the age of 18, you may use the Site only in conjunction with, and under the supervision of, a parent or legal guardian. If you do not qualify, please do not use newcube.
• You are responsible for maintaining the confidentiality of an account password, and for all activities undertaken by you on the site or that occur under and/or through your account and password. You agree to notify us immediately if you suspect or become aware of any unauthorized access to or use of your account or password or other breach of security on the Site.
• You must not abuse, harass, threaten, impersonate, or intimidate anyone on the Site.
• You must not modify, adapt, or hack the Site or create or modify a third-party website in order to falsely imply that it is associated with or is an agent of the Site or newcube.
• Your right to register for an account and use the Site is non-exclusive and non-transferable. You are not allowed to rent, sell, lease, sublicense or otherwise transfer your newcube account or any access to or use of the Site, to any third party.
• You may not directly contact an artist whose Work appears on the Site to discuss a purchase of its Work. If at any time newcube learns that you have found a Work on the Site but purchased it directly from the artist, (a) any protections offered by newcube surrounding that purchase shall not apply, and (b) newcube reserves the right to cancel your account (if such an account exists) for violation of these Terms and/or to ban you from any further use of the site
• You must not transmit any worms or viruses or any code of a destructive nature that could affect the Site, newcube, or its users.
• All content is owned by newcube or by others who have licensed their content to newcube, and it is protected by U.S. and international copyright laws, trademark laws, and/or other proprietary rights and laws. The Site is also protected as a compilation and/or collective work under U.S. and international copyright laws.
• These Terms do not grant any ownership over any content, any license to use the content, or any intellectual property rights in any content, beyond that which is permitted by virtue of the fact that you are visiting the Site and/or transacting via it.
• If you are permitted to post content directly to the site, you represent and warrant that doing so does not violate the rights of any third party, and you hereby indemnify newcube and hold it harmless from and against any claims which may arise as a result of any third party bringing an intellectual property claim against newcube.
• These Terms do not grant you the right to use any of newcube’s trademarks, service marks, logos, product names, domain names, or other distinctive features in any way. newcube reserves all rights not specifically granted to you in the Terms.
• Newcube may, but has no obligation to, remove content and accounts that newcube determines, in its sole discretion, may be unlawful, offensive, threatening, libelous, defamatory, obscene, or otherwise objectionable or violates any party’s intellectual property rights, the Terms, the Privacy Policy, or other policy documents and/or community guidelines as posted on the Site.
• If you have created an account, you can remove your profile at any time by requesting that we delete your account. Once deleted, newcube retains the right to continue to communicate with you for any reason relating to transactions that may remain open at the time of your deletion. The data that will be stored by newcube after you have deleted your account shall be aggregated and anonymized and will not be able to be used by anyone to identify you or your household.
• The Works cover a wide range of art and subject matter, are generally uncensored, and may include nudity or other visual or written material that some people may consider offensive or inappropriate for children and minors. If you allow your child or anyone else to use your computer or other device, it is solely your responsibility to prevent them from accessing any Work that you think is or may be inappropriate for them.
• While newcube will endeavor to provide the most accurate information available for any given Work, which information is provided by the Artist, newcube cannot be held responsible for any discrepancies that may exist. Newcube reserves the right to amend the specifications of any of the Works as they are listed on the Site. Additionally, if a Work is handcrafted, the exact size may alter slightly from piece to piece as well as from the dimensions listed on the Site. Newcube cannot guarantee that the colors of the Work as displayed on your monitor or as printed by you from the Site will be identical to those appearing in the Work itself.
• Newcube reserves the right to adapt, modify, redesign, suspend, or terminate the Site for any reason and without notice at any time.

CONDITIONS OF SALE

• Works are available for sale on the Site, and purchases may be made either directly via the Site or through an inquiry process which is facilitated by newcube. If your purchase is conducted via inquiry, the artist (the “Artist”) is under no obligation to accept your offer to purchase the Work, and both newcube and the Artist are entitled to decline selling the Work for any reason. Should either newcube or the Artist withdraw a Work from the Site, neither newcube or the Artist shall have any further obligation to any prospective buyer, unless the Work has been withdrawn after a transaction has been finalized and payment has been made; in which case, the buyer’s sole remedy shall be a refund of the payment.
• If the sale is made via inquiry, we will accept payment from you on behalf of the Artist . For inquiry purchases, payment is accepted via wire transfer only, and we will request, and you agree to provide, all necessary information in order for us to effectuate that transfer of funds. You authorize us to send instructions to the financial institution in accordance with the terms of our agreement with you. If any wire transfer is not approved, you will remain personally liable for all amounts otherwise due. You agree to notify us if there are any claims or issues regarding any payment made on your transaction.
• Upon the confirmation of any purchase via the Site, the sale contract between the buyer and the Artist is concluded, and the buyer must pay the total purchase price immediately upon the conclusion of its purchase. The “Total Purchase Price” includes: (i) the purchase price of the item; (ii) any sales tax, use tax, VAT and/or any other taxes or levies that we are required to collect from the buyer under applicable law; (iii) any applicable artist resale royalty; (iv) any and all shipping, packing, and insurance costs; and (vi) any and all other applicable charges. Where a separate shipping invoice is issued to the buyer, the buyer will be required to settle the invoice within five (5) business days of the date of the invoice. Shipment of the property will only be processed once all payments from the buyer have been received. Whether or not we accept any payment from any buyer and/or remit any funds to you in connection with any sale, in no event will we be the purchaser of any Item. We accept American Express, Visa, MasterCard or Discover only and may place limits on the total amount of any credit card order that we will process at our sole discretion. We may use payment processors selected at our sole discretion to process any payment.
• All prices listed on the Site are in U.S. dollars; as such, the buyer is responsible for any foreign exchange costs incurred to make all payments to us in U.S. dollars regardless of the buyer’s home currency, should such foreign exchange be necessary. Furthermore, the buyer agrees that newcube may retain its commission on the sale from the  purchase price of the Work.
• No discounts or promotional pricing shall be available unless offered by newcube. Any and all terms regarding discounts or promotions shall be at newcube’s sole discretion and may be withdrawn by them at any time. In the event that a discount or promotion is offered on a Work but rejected by the Artist, the decision of the Artist shall be final.
• All sales are final. The transaction once finalized with payment made in full will constitute a binding agreement between you and newcube. Except for a donation to a fine art museum, should Buyer wish to resell or transfer the Work privately or in an auction, whether directly or by an agent within two years, then Buyer shall first offer the Work back to newcube on equal terms to any offer that Buyer has received for the Work. Buyer shall give written notice to newcube of its intention to sell/transfer the Work and, at newcube’s request, provide reasonable documentation of the offer to purchase the Work.
• You are required to pay any and all sales taxes, VAT, export and/or import taxes and duties, and any other transactional taxes or levies related to the purchase of the Work. You are required to pay any taxes the Artist is, or newcube is, as applicable, required to collect, but the failure of the Artist or newcube to collect any taxes from you will not relieve your obligation to pay them. Unless expressly otherwise indicated, all prices listed on the Services are exclusive of taxes, and applicable taxes will be collected from the buyer in addition to the listed price.
• You agree that all information provided in order to finalize the transaction will be correct and that the bank account or credit card used to pay for the Work shall be in your name. You further guarantee that there shall be sufficient funds available to cover the full cost (including shipping and taxes) of the transaction. Newcube reserves the right to request additional financial information from you at any time and for any reason before finalizing the transaction.
• We and the Artists reserve the right to withdraw any Work at any time from the Site and will have no liability whatsoever for any such withdrawal.
• Newcube reserves the right to reject any order and/or transaction for any reason.
• You are required to pay all shipping and transit fees and costs (including insurance) for purchased property. We may, but are not obligated to, provide support in the shipping process, such as facilitating communication or payment between buyers and shippers. However, any such support or recommendations are for convenience only and do not constitute or imply any representation, warranty, or assumption of liability of any kind by newcube. Newcube is not the agent of any buyer, Artist or third party in connection with the shipping, packing, or handling of any property. We do not control and are not liable or responsible for the acts, omissions, or policies of the Artist or any third party in connection with the shipping or handling of any property, whether or not recommended by us. Unless we specifically agree otherwise in writing with respect to certain property, we are not responsible for the safe delivery of any purchased Work.
• The order will be processed by newcube and the Work shipped as soon as commercially possible; provided,however, that any delivery dates are estimates only and cannot be guaranteed. As it pertains to the delivery only, time will not be of the essence, and any delays experienced shall not constitute a breach of the agreement between you and newcube. Newcube shall not be liable for any loss or expenses incurred by you resulting from any delay in the shipment or delivery of the Work.
• You must inspect the Work immediately upon delivery. If the Work is damaged or defective, you must immediately notify us, in writing, and we will communicate directly with the Artist. We will facilitate communication between you and the Artist regarding the alleged damage and will, if feasible, assist in attempting to find a remedy.
• If you fail to take delivery of the Work, the Artist shall be under no obligation to refund the purchase price to you.
• Risk of damage to or loss of the Work will pass to you on delivery at the address to which the Work was shipped.
• Notwithstanding delivery and the passing of risk in the Work, property ownership of the Work will not pass from the Artist to you until the Artist has received full payment for the sale.
• We may facilitate communication or payment between prospective buyers, buyers, and Artists in connection with a Work, however we are not the agent of any prospective buyer or buyer of any Work. Newcube is the agent for the Artist as regards any transaction undertaken on the Site.

RETURN POLICY

• If you would like to cancel an order, you may do so within 24 hours of the email in which we send you our invoice by emailing email info@newcube.art. However, cancellation of an order is only possible if the works have not been paid for, shipped, or collected or delivered.
• When you receive the Work, we ask that you inspect it immediately in order to determine if there are any issues with it such as but not limited to if there is a discrepancy between the listing and the artwork. Should there be an issue, you may initiate a return with newcube within 2 business days of receipt of the Work. Please email shipping@newcube.art with the subject line ‘Return Request’ followed by the invoice number and the title of the Work. Our team will contact you within 3 business days of the date of your email.
  • If the Work is damaged, we will require that you send us, in the same email as your return request, copies of all documentation regarding the purchase, including photographs of the shipping materials and the Work itself, so that we may investigate further.
  • Newcube is not, nor can it be, responsible for any act or omission of any packer, shipper, or common carrier. Any damage caused by a packer, shipper, or common carrier will be coordinated directly with that vendor.
  • Unless otherwise specified by newcube, the Work must be returned in its original packaging (which the Buyer must retain for this specific purpose) and must be in an unused condition.
  • Once a return is requested, if newcube has determined in the case of alleged damage that such damage does exist, it will start the process of securing a return shipping quote (only newcube may arrange return shipping). Any details regarding the safe transport of the Work shall be made at newcube’s sole discretion in order to ensure safe transport.
  • All return shipping fees shall be paid by the Buyer.
  • Once you have the quote for return shipping, you may decide whether you would like to proceed with the return process. If you decide to proceed, you must respond to Client Services within 3 days of the date of its email to you to accept the return shipping terms; the cost of insured return shipping will be deducted from the total amount refunded to you.
  • The cost of shipping the Work (including but not limited to handling, taxes and/or duties, and insurance) to you at the time of purchase is non-refundable.
  • The Work must be received by the Artist or newcube in the same condition in which it was sent to you. The value of any damages assessed when the work is delivered back to the gallery will also be deducted from the total amount refunded, up to 100% if the work can no longer be sold.
• Newcube will endeavor to process and refund all returns within 30 business days of confirmation that the Artist has received the Work. In the event that newcube is working with a third party, such as but not limited to the shipper, to determine who is responsible for any damage to the Work, newcube cannot guarantee a time period during which the return/refund process will be complete.
• For Buyers in the EU Only: You may return the Work for any reason by notifying newcube within 14 days of receipt of the Work.
• EXCEPTION TO THE RETURN POLICY: Any and all costs associated with any special framing, commissioned works, shipping fees, and any taxes and/or duties are not refundable. 

INTELLECTUAL PROPERTY RIGHTS

• Copyrighted material including, but not limited to the Works as they appear on the Site, remains with the copyright holder at all times. Site users may not reproduce copyrighted material without express permission from newcube and the copyright holder.
• Unless otherwise indicated, the Site is newcube’s proprietary property and, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site and the trademarks, service marks, and logos contained therein are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. newcube owns and retains, solely and exclusively, all rights, title, and interest in and to the Site, the look and feel, design and organization of the Site and its content, and the compilation of all content on the Site, including all copyrights, moral rights, trademark rights, trade secrets, patent rights, database rights, and other intellectual property and proprietary rights therein.
• Except as expressly provided in these Terms, no element of the Site, including newcube’s trademarks, service marks, and logos, may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without newcube’s express written permission.
• You are granted a limited license to access, use, and transact on the Site, which license may be revoked by newcube at any time and in its sole discretion.
• The Artist shall at all times retain and control all copyright ownership and moral rights in and to its Works that are listed on the Site.

DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY

We respect the intellectual property rights of others. If you believe that any material available on or through the Site infringes upon any copyright you own or control, please immediately notify our designated copyright agent using the contact information provided below (a “Notification”). Please be advised that pursuant to US federal law you may be held liable for damages if you make material misrepresentations in a Notification.

Once submitted to newcube, the Notification will be sent to the person who posted or stored the material addressed in the Notification.

All Notifications must meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information:

(1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by the Notification, a representative list of such works on the Site;

(3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

(4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;

(5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.

Counter Notification

If you believe your own copyrighted material has been removed from the Site as a result of a mistake or misidentification, you may submit a written counter notification to our designated copyright agent using the contact information provided below (a “Counter Notification”).

To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:

(1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;

(2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which we are located;

(3) a statement that you will accept service of process from the party that filed the Notification or the party’s agent;

(4) your name, address, and telephone number;

(5) a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;

(6) your physical or electronic signature.

If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question.

Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees. Filing a false Counter Notification constitutes perjury.

DMCA contact information:

• Name of Agent Designated to Receive Notification of Claimed Infringement: Julie Samuels, Esq.
• Full Address of Designated Agent to Which Notification Should be Sent: Peppercorn Partners LLC, 267 Fifth Avenue, New York, NY 10001
• E-Mail Address of Designated Agent: contact@peppercornpartners.com

USER DATA

Newcube will maintain certain data that you transmit to the Site for the purpose of managing the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site.

You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

For further information regarding how your data is used by newcube, please visit our Privacy Policy which is an integral part of these Terms.

RELEASE

 In the event that you have a dispute with one or more users, you hereby release newcube (and newcube’s officers, directors, agents, subsidiaries, joint ventures, and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

PROHIBITED ACTIVITIES

You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any third-party commercial endeavors.

As a user of the Site, you agree not to:

• Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
• Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
• Disparage, tarnish, or otherwise harm, in our opinion, newcube and/or the Site, or harass, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.
• Use any information obtained from the Site in order to harass, abuse, or harm another person.
• Submit false reports of abuse or misconduct or use the Site in a manner inconsistent with any applicable laws or regulations.
• Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site.
• Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
• Delete the copyright or other proprietary rights notice, if any, from the Site.
• Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
• Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats, bugs, and cookies.
• Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
• Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site or engage in unauthorized framing of or linking to the Site.
• Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site, or copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
• Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software.
• Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.

SITE MANAGEMENT

We reserve the right to: (1) monitor the Site for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable the Site or any portion thereof; and (4) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.

MODIFICATIONS and INTERRUPTIONS

We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third party for any modification, suspension, or discontinuance of the Site.

We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.

DISCLAIMER

THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

LIABILITY

IN NO EVENT SHALL NEWCUBE AND NEWCUBE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).

NEWCUBE’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF NEWCUBE’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY YOU TO NEWCUBE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) $100.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) any fees paid to us by You; (2) use of the Site; (3) breach of these Terms; (4) any breach of your representations and warranties set forth in these Terms; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Site with whom you connected via the Site.

Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

LEGAL COMPLIANCE

You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of our service and your listing, purchase, solicitation of offers to purchase, and sale of items.

NOTICES

Any notices shall be sent to newcube at legal@newcube.art, and to you at the email address you provide to newcube. Notice shall be deemed given 24 hours after an email is sent, unless the sending party is notified that the email address is invalid. Alternatively, newcube may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to newcube during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any and all legal requirements that such communication be in writing.

YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE.

You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

DISPUTES AND GOVERNING LAW

In the event that a dispute arises between you and newcube, please contact newcube at legal@newcube.art.

These Terms and your use of the Site are governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles.

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 14 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

Binding Arbitration

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org.

Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will render a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York, New York.

Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in New York, New York, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.

Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms. In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

MISCELLANEOUS

These Terms and any policies or operating rules posted by us on the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.

These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.

If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Terms or use of the Site. You agree that these Terms will not be construed against us by virtue of having drafted them.

You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

TERM AND TERMINATION

These Terms of Use shall remain in full force and effect while you use the Site. Without limiting any other provision of these terms of use, we reserve the right to, in our sole discretion and without notice or liability, deny access to and use of the site (including blocking certain IP addresses), to any person for any reason or for no reason, including without limitation for breach of any representation, warranty, or covenant contained in these terms of use or of any applicable law or regulation. We may terminate your use or participation in the site, without warning and for any reason, at our sole discretion.

If we terminate or suspend your account for any reason, you are prohibited from registering and/or creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

CORRECTIONS

There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Site, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

DISCLOSURES

The services hereunder are offered by Newcube LLC.

Parental control protections that may assist you in limiting access to material that is harmful to minors (such as computer hardware, software, or filtering services) are commercially available. If you are interested in learning more about these protections, information is available at http://www.safetysurf.com/ or other analogous sites providing information on such protections. The preceding link is provided for information purposes only and is not intended as an endorsement of Safety Surf’s internet site, services, or policies. newcube is not affiliated with Safety Surf.

QUESTIONS, COMMENTS, CONCERNS

If you have any questions regarding any aspect of this document, please contact newcube at legal@newcube.art.