Matchup - Matchup Users Agreement

Welcome to the web site of Matchup, Inc. (“Matchup”). Our services and products presented on the Matchup web site (“Matchup.com”, "site") are provided subject to the terms and conditions in the following USER AGREEMENT. If you visit the site, you agree to be bound by these terms and conditions as in effect at the time of your visit. Please read them carefully.

Matchup Inc. USER AGREEMENT

Matchup Inc. (“Matchup”) is a fine art and crafts gallery located at http://www.matchup.com (the “Site”). Matchup allows individuals to list and sell their photographs, paintings, sculptures, furniture, crafts and other art works (collectively “Art”, "Crafts", or “items”). The listing and sale services (the “Services”) are provided by Matchup. (“us” or “we” or “our”) to you (“you” or “user”) subject to the following terms and conditions set forth in this User Agreement (this “User Agreement”).
Acceptance of Terms. Before you attempt to sell or purchase any Art and Crafts through Matchup and/or begin participating in the Services, we require that you read and accept this User Agreement. BY CONTINUING TO USE THE SITE YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND ALL AGREEMENTS AND POLICIES INCORPORATED BY REFERENCE. If you choose not to accept this User Agreement, you may not access or otherwise use the Site. If you have any questions regarding this User Agreement, please contact our Customer Service department by emailing info@matchup.com.
Amendment. We may, at our sole discretion, change, modify, add or remove any portion of this User Agreement, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. Your continued use of the Site and the Services after such changes are posted will constitute your agreement to such changed User Agreement. This User Agreement was last revised on January 31, 2006.

PARTICIPATION REQUIREMENTS
Capacity to Contract. The Services are available only to individuals or entities who can form legally binding contracts. Without limiting the foregoing, neither minors (persons under the age of 18) nor individuals who have been suspended from the Services may participate in the Services. If you are under the age of 18, you can use the Services only in conjunction with, and under the supervision of, your parents or guardians. If you are registering as a business entity, you represent that you have the authority to bind the entity to this User Agreement.
Registration. In order to participate in the Services, you must register with Matchup by filling out our registration form and providing certain information to us. If you are a customer, please go to buyer registration. If you are a seller, please go to seller signup. When Matchup has notified you that your registration form has been approved, you will become a “Registered User.” You agree that the information on your registration form is complete and accurate, and that you will update it in order to keep it current. Matchup reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion, and to prohibit you from participating in the Services. Further, the rights granted to you as a Registered User may not be transferred or sold to another party.
Login ID, Password and Security. During the registration process, you will select a login ID and password. You are solely responsible in all respects for all use of and for protecting the confidentiality of your login ID and password. You agree to notify Matchup immediately of any unauthorized use of any login ID and password and any other breach of security regarding the Services. Once registered, registered names may not be changed. To edit or otherwise modify your registered name, you must repeat the registration process with your new information. If you are a seller, and have items currently available for sale on our site, please contact us at Matchup.com before reregistering so we may assist in minimizing possible disruptions to your sales.
Matchup's Relationship to You. Matchup acts as a broker for your work Matchup is not a party to any transaction relating to the art and crafts. Matchup is only a venue for sellers to list Art and Crafts and for buyers to purchase such Art and Crafts. Matchup has no control over the sellers, buyers or any aspect of the transactions. We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of any state or federal law, including without limitation, any state version of the Uniform Commercial Code, under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller.
Release. In the event that you have a dispute with one or more users, you release Matchup (and our officers, directors, agents, subsidiaries and employees) from 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. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Information Control. Matchup cannot control the information provided by users which is made available through the Services. Users may find other users' information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using the Site. Matchup has no control over the quality or legality of the Art and Crafts listed, the truth or accuracy of the listings or any other information provided by a user about the Art and Crafts.

LISTING AND SELLING ART AND CRAFTS
Listing and Selling. You must be a Registered User in order to list and sell Art.
Listing Policy. In order to list your Art and Crafts for sale on the Site, you agree to complete and submit to us an Art and Crafts Listing Form (http://www.Matchup.com/provider/product_modify.php). You may also submit, together with your completed Art and Crafts Listing Form, images of your Art and Crafts provided such images are in .jpg format.
Listing Period. The maximum period for listing your Art and Crafts on the Site shall be six (6) months. Matchup may choose to extend the maximum period for listing beyond 6 months. The seller may remove the Art and Crafts from the Site at any time.
Basic Listing Obligation. By listing Art and Crafts on the Site, the seller agrees to sell the Art and Crafts once a buyer has completed the check-out process.
Listing Pricing Policy. The Art and Crafts listed on the Site must be offered at a price equal to or lower than any price at which the Art and Crafts is offered on other websites or in any printed media.

PURCHASING ART AND CRAFTS
Purchasing. You must be a Registered User in order to purchase the Art and Crafts. Buyers are obligated to complete the sale transaction upon completion of the check-out process.
Buyer Liable for Purchase Price, Freight and Transportation Fees and Sales Tax. Buyers are liable for the posted purchased price of the piece(s) of Art and Crafts, any insurance, packing, freight and shipping fees associated with the purchase, and any applicable sales tax (collectively, the “Purchase Fees”) unless otherwise agreed to in writing by the parties.
Payments. Payment for the Art and Crafts may be made via PayPal as specified on the Site or by a check, money order or bank draft payable to Matchup. All posted purchase prices are listed according to their value in U.S. dollars. If payment is made by check, money order or bank draft, the piece(s) of Art and Crafts will not be shipped until the check, money order or bank draft clears and payment is received by Matchup.

DELIVERING THE PURCHASED ART AND CRAFTS
Shipping and Packing. Seller shall pack the item(s) sold and ship them to the address specified by buyer. The item(s) should be packed so as to protect them during shipment. Matchup shall not participate in the packing and shipping process, and in no event shall Matchup be liable for any damages of any kind arising from the packing or shipment of any Art and Crafts.
Freight and Transportation. The buyer is responsible for the costs associated with all freight, shipping and other costs related to transporting the Art and Crafts from the seller's location.
Ownership Transfer. The Art and Crafts shall be and remain the risk of the seller until it is shipped to the buyer, and thereafter the risk shall shift to the buyer.

RETURNS
Return Period. Unless otherwise stated under “Returns” for a particular piece of Art and Crafts, a buyer may return an item within seven(7) days after the date of buyer's receipt of such item (the “Return Period”). No returns will be accepted after such period.
No Return. Art and Crafts cannot be returned if it is: (i) purchased as a Commissioned Work; or (ii) shipped outside of the United States.
Return Process. If a buyer elects to return a piece of Art and Crafts, the buyer must contact both the seller and Matchup customer support during the “Return Period”. Contact Matchup customer support at sales@Matchup.com or call 1 877 4MATCHUP (1 877 462-8248). Contact the seller via contact information previously provided to you. If the returned item has not been damaged or altered and is returned within the Return Period, seller shall accept the returned item and notify the buyer and Matchup of its acceptance of the returned piece of Art and Crafts. Once Matchup receives notification of seller's acceptance of the returned piece of Art and Crafts, Matchup shall debit seller for the Purchase Fees less any insurance, packing, freight and transport fees associated with buyer's purchase. Matchup shall reimburse buyer for the same amount within thirty (30) days of receiving verification that seller's account has been successfully debited. Matchup shall have no obligation to reimburse buyer for any returned Art and Crafts unless and until Matchup has verified successful debiting of seller's account. Reimbursement shall be made by crediting buyer's account (if the purchase was made via PayPal) or by issuing a check (if the purchase was made by check, money order or bank draft). Insurance, packing and shipping fees associated with the return of the returned item shall be the sole responsibility of the buyer, and Matchup shall have no obligation to reimburse the buyer for such amounts.

FEES, COMMISSIONS AND PAYMENTS TO SELLER
Fees and Commissions. Our fees and commissions are available at http://www.Matchup.com/customer/fee.php and are hereby incorporated by reference. Matchup may change its fees, payments and commissions from time to time.
Remittance of Proceeds. Matchup shall remit the Purchase Fees to seller, after first deducting Matchup's posted fees and commissions, within forty-five (45) days after the later of (i) the date of shipment of the Art and Crafts to the buyer and (ii) the date when Matchup verifies receipt of the Purchase Fees from buyer. Payments will be made to seller either by PayPal credit, electronic wire transfer, or check (subject to additional fees for overnight courier if such service is requested by seller).

SALES TAXES
Tax Responsibility. Title to the Art and Crafts does not pass to Matchup. The seller is the retailer for sales tax purposes. The seller shall file all sales tax returns in accordance with applicable law, and each seller shall indemnify Matchup against any tax, cost or expense relating to the failure of such seller to satisfy any tax liability related to the sale of such seller's Art and Crafts.
Tax Procedures. Upon registering the seller shall specify the sales tax rate for the state within which the seller must pay taxes. If a buyer purchases an item from a seller that resides in the same state, Matchup shall charge the buyer sales tax at the rate for the state within which such buyer lives, and such sales tax charged and collected shall be passed on to the seller.

RESTRICTED ACTIVITIES
Any information you provide during the registration, listing or sale/purchase process and your activities on the Site shall not: (i) be false, inaccurate or misleading; (ii) be fraudulent or involve the sale of counterfeit or stolen items; (iii) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of privacy or publicity; (iv) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (v) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (vi) be obscene or contain pornography; (vii) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) create liability for Matchup or cause it to lose (in whole or in part) the services of its ISPs or other suppliers; or (ix) link directly or indirectly to or include descriptions of goods or services that: (a) are prohibited under this User Agreement; (b) are concurrently listed for sale on a website other than the Site; or (d) you do not have a right to link to or include.

INTELLECTUAL PROPERTY
Your Information. You agree to grant Matchup a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to exercise the copyright, publicity, and database rights you have in the information you have provided to us, in any media now known or not currently known, including, but not limited to, any images of your items of Art or Craft work. Matchup will use such information solely to enable it to provide the Services.
The Site and Services. The trademarks, trade names, designs and all material contained on this Site, including all portions of the website, content, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of Matchup or its licensors. The use of any such property for any other reason, on any other website, or the modification, distribution or republication of this material without the prior written permission of Matchup, is strictly prohibited.
Copyright or Trademark Violations. If you believe that your material or the material of another user has been wrongfully used in a way that constitutes copyright or trademark infringement, Matchup has a process for you to register your complaint through the following link: Notice of Claimed Infringement form, sign this form where indicated and submit the form to:
Matchup
Attention: Legal Department
P.O. Box 180013
Dallas, Texas 75218
Facsimile: (214) 328-1260

Please note that this procedure is exclusively for notifying Matchup and its affiliates of your belief that your copyrighted material or trademark(s) has been infringed.
In order for Matchup to investigate and address your complaint, please provide Matchup with all of the information requested. If a clear infringement of copyright, trademark, patent, publicity rights or other right comes to the attention of Matchup, Matchup reserves the right to delete all infringing material from the Site and to suspend you from using the Services, even without receiving a complaint from the person whose rights have been infringed.
How We Handle Copyright Violations. Upon receiving notice of a potential copyright infringement, Matchup may immediately delete or suspend access to the infringing material. Matchup may also provide the user who posted the allegedly infringing material with contact information for the complaining party and may ask that the user work with the complaining party to resolve the dispute. If Matchup has deleted or suspended access to materials you posted on the Site because of a complaint that the posting infringed someone else's copyright, it will attempt to provide you with written notice of its actions. If you disagree with such actions and want to have the materials returned to the Site, please provide us with a written response within ten (10) days after receiving the notice from us (a “Response”). Each Response must contain the following:
Your physical or electronic signature;
§ Identification of the material that was deleted or made inaccessible;
§ A statement identified as being made under penalty of perjury that you have a good faith belief that the material was removed or made inaccessible as a result of mistake or misidentification;
§ Your name, address and telephone number and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Matchup may be found, and that you will accept service of process from the person who complained that posting the materials constituted a copyright infringement or from an agent of that person.
§ A copy of your Response, including your name and address, will be sent to the person who complained about your posting. Matchup will then decide, at its sole discretion, whether to re-display the deleted materials on the Site.

DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY
Disclaimer. THE ART AND CRAFTS SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE OR THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MATCHUP DOES NOT WARRANT THAT THE ART AND CRAFTS, SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT OF THE SITE WILL BE TIMELY, ACCURATE, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. MATCHUP MAKES NO WARRANTY THAT THE ART AND CRAFTS, SITE OR SERVICES WILL MEET USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING ART AND CRAFTS ON THE SITE, THE LISTED ART AND CRAFTS WILL BE SOLD. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES. MATCHUP MAKES NO WARRANTY REGARDING ANY ART AND CRAFTS PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MATCHUP OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFOR SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. MATCHUP EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY art and crafts SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
Limitation of Liability. IN NO EVENT SHALL MATCHUP BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (I) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE ART AND CRAFTS (II) DEFECTS IN SUCH ART AND CRAFTS ON ANY THEORY OF LIABILITY OR (III) ANY RETURN OF ANY ART AND CRAFTS. IN ADDITION, IN NO EVENT SHALL MATCHUP BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF MATCHUP OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL LIABILITY OF MATCHUP TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS USER AGREEMENT OR YOUR USE OF THE SITE AND THE SERVICES EXCEED, IN THE AGGREGATE, $100.00.
Indemnity. You agree to defend, indemnify and hold harmless Matchup, its officers, directors, agents, subsidiaries and employees, from 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 any breach or violation by you of this User Agreement, any use by you of the Site or any disputes or damages arising out of your use of or contracts formed with you through this Site.

DISPUTE RESOLUTION
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE ARBITRATION SHALL BE BEFORE A SINGLE ARBITRATOR AND THE ARBITRATION SHALL TAKE PLACE IN DALLAS, TEXAS. IF NOT MUTUALLY AGREED UPON, THE ARBITRATOR SHALL BE SELECTED ACCORDING TO AAA RULES FROM A LIST, PREPARED BY THE AAA, OF PERSONS HAVING EXPERTISE IN THE SUBJECT MATTER. THE AWARD SHALL BE IN WRITING AND IN ACCORDANCE WITH APPLICABLE LAW. JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS PROVISION IS SELF-EXECUTING, AND IN THE EVENT THAT EITHER PARTY FAILS TO APPEAR AT ANY PROPERLY NOTICED ARBITRATION PROCEEDING, AN AWARD MAY BE ENTERED AGAINST SUCH PARTY NOTWITHSTANDING SAID FAILURE TO APPEAR.

GENERAL PROVISIONS
Wording. "Art and Crafts" shall apply to both singular and plural items of "art" and/or "crafts".
Eligibility. Only Registered Users are eligible to participate in the Services.
Third Party Links. Where Matchup provides links to third party Internet sites, no representations or endorsements are made in connection with such sites. Matchup is not liable for any damages or injury arising from use of such sites.
Modification and Availability. Matchup may, at any time, delete, modify or supplement the content of the Site without prior notice. Matchup reserves the right, for any reason, at its sole discretion, to terminate, change, suspend or discontinue any aspect of the Site or the Services, including, but not limited to, content, features or hours of availability. Matchup may also impose limits on certain features of the Services or restrict your access to part or all of the Site or the Service without notice or penalty.
Monitoring. You agree that Matchup has the right, but not the obligation, to monitor at any time, for any reason, at its sole discretion, all material and content on the Site. Matchup reserves the right at all times to edit, disclose or refuse to post any material or information and to request removal of, or remove, any material or information from the Site.
Access and Interference. You agree that you will not use any automatic device or manual process to monitor or copy Matchup's web pages or the content contained herein. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on Matchup's infrastructure.
Service Integrity. Matchup makes reasonable commercial efforts to make its Services and Site available at all times. However, Matchup is not responsible for any interruptions, including, but not limited to, interruptions that may affect the receipt, processing or acceptance of any aspect of a sale.
Termination. This User Agreement constitutes a legally binding agreement between you and Matchup until terminated by you or Matchup, which Matchup may do at any time, without notice, at Matchup's sole discretion. If you become dissatisfied with the Services or the Site in any way, your only recourse is to immediately discontinue use of the Services.
Privacy. Matchup's Privacy Policy, is hereby incorporated by reference.
Governing Law. This User Agreement is made and shall be governed by and construed in accordance with the laws of the State of Texas, excluding its choice of law principles.
Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this User Agreement, breach of the provisions of this User Agreement by you will cause Matchup irreparable damage for which recovery of money damages would be inadequate, and that we shall therefore be entitled to obtain timely injunctive relief to protect our rights under this User Agreement in addition to any and all other remedies available at law or in equity.
Waiver. The failure of you or us to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Severability. In the event that any provision of this User Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this User Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Entire Agreement. This User Agreement comprises the entire agreement between you and Matchup and supersedes all prior agreements between the parties, regarding the subject matter contained herein. All provisions in this User Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this User Agreement.