Terms of Use

THIS IS A BINDING LEGAL CONTRACT. EACH USER (“USER”) SHOULD CAREFULLY READ THESE WEBSITE TERMS OF USE (“TERMS OF USE”) BEFORE USING THIS WEBSITE (THE “WEBSITE”). THE USER AGREES TO BE BOUND BY THESE TERMS OF USE, AND BE LIABLE TO ARC/K, A CALIFORNIA CORPORATION (THE “COMPANY”), FOR ANY NONCOMPLIANCE WITH THESE TERMS OF USE. IF THE USER DOES NOT AGREE TO THESE TERMS OF USE, USER SHOULD CLOSE THE WINDOW OR TAB FOR ARCK-PROJECT.COM AND NOT USE THE WEBSITE.

1. License. User hereby grants to the Company a non-exclusive, irrevocable, worldwide, royalty free license to use, copy, sublicense through multiple tiers, publish, reproduce, prepare derivative works, distribute, and display the Content, or any derivative works thereof on the Website. Such license shall be deemed granted as of the moment of creation without the necessity of any further action on the part of either party. User represents and warrants to the Company with respect to the Content that the Content, and the license of rights in and to the Content, do not infringe or violate any copyrights, trade secrets, or other intellectual or proprietary rights of any third party, and that posting any Content will not violate any applicable laws, rules, or regulations. User hereby acknowledges that User is not entitled to any compensation or remuneration in exchange for uploading, donating or otherwise contributing any “Content” to the Company. User further acknowledges that (while it is not the intent of the Company to sell the Content) it is not entitled to any portion of the proceeds generated to the extent any Content is monetized.

2. Limitations. User may not circumvent any technological measures or features of the Website that are intended to or effectively control access to the Website, or any other protected content or information included on the Website. The Website may contain robot exclusion headers. User agrees to not use any robot, spider, crawler, scraper or other automated means to access the Website for any purpose without the Company’s express prior written consent. User further agrees to not (i) take any action that imposes or may impose, in the Company’s sole discretion, an unreasonable or disproportionately large load on the Website’s infrastructure; (ii) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website; or (iii) bypass any measures the Website may use to prevent or restrict access to the Website. The Company reserves the right to refuse the use of or access to the Website for any User for any reason in the Company’s sole discretion.

3. Changes to Terms of Use. The Company reserves the right, in its sole discretion, to modify, update, or otherwise revise these Terms of Use at any time. Such revisions shall be effective immediately upon posting notice of the revised Terms of Use on the Website. By using the Website after the Company has posted any modifications, updates or revisions, User agrees to be bound by such revised Terms of Use. User shall have the right to immediately terminate these Terms of Use by terminating any use of or access to the Website, if any modification, update, or other change to these Terms of Use is not acceptable to User. In addition to these Terms of Use, additional terms may govern use of certain webpages within the Website, and User agrees to be bound by such terms.

4. Intellectual Property Ownership.
a. User acknowledges and agrees that the trademarks of the Company (the “Marks”), the Website, and the look and feel of the Website, to the extent protectable, are proprietary, original works of authorship of the Company, or licensors of the Company, protected under United States and worldwide copyright, trademark, and trade secret laws of general applicability. User further acknowledges and agrees that all right, title and interest in and to the Marks, the Website, and the look and feel of the Website are and shall remain with the Company, or its licensors. User agrees not to contest or infringe these rights, directly or indirectly, at any time. Without the prior written consent of the Company, User’s modification of the Content, use of the Content on any other website or networked computer environment, or use of the Content for any purpose other than personal, non-commercial use, violates the copyrights, trademarks or other intellectual property rights of the Company or its licensors, and is prohibited. Except as expressly provided under these Terms of Use, User may not use the Marks, or any other trademarks or copyrighted materials appearing on the Website, including without limitation any logos, without the express prior written consent of the owner of the mark or copyright.
b. The Company hereby grants to User a revocable, limited, non-assignable, non-sublicensable, nonexclusive license for the duration of User’s current viewing session to access and use the Website, and to view, submit, and upload Content via the WeTransfer portal provided on the Website, subject to the limitations set forth in these Terms of Use. This license may be terminated immediately and without notice as provided in these Terms of Use. All rights not expressly granted in these Terms of Use are reserved.
c. The Company makes no representations or warranties with respect to the reliability or performance of the Website, and will not be liable to anyone for losses, damages, liabilities, settlements, causes of actions, or other claims arising out of or due to the use of the Website. User waives any such claims it may have against the Company for access to or the use of the Website.
d. User shall indemnify and hold harmless the Company, and its officers, directors, employees, shareholders, members, managers, and agents, from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with any claim that the Content or any portion of the Content infringes the rights of any third party. USER ACKNOWLEDGES THAT THE FOREGOING SENTENCE MEANS THAT USER MUST OBTAIN ASSIGNMENTS OR LICENSES FROM THE AUTHORS OF ANY PORTIONS OF THE CONTENT, INCLUDING AFFILIATES, PHOTOGRAPHERS, AND OTHER THIRD PARTY CONTRIBUTORS, AS NECESSARY FOR USER TO LICENSE THE CONTENT TO THE COMPANY AND TO OTHERWISE MAKE FULL USE OF THE CONTENT UNDER THESE TERMS OF USE. IF USER FAILS TO DO SO, USER WILL ASSUME AND REIMBURSE THE COMPANY FOR THE COST OF DEFENDING THE COMPANY AGAINST INFRINGEMENT CLAIMS AND PAYING DAMAGES ON ANY SUCH CLAIMS.
e. User agrees not to challenge the Company’s rights in and to the Website, or to take any action inconsistent with the provisions of this Section 4 of these Terms of Use.
f. Without limiting the generality of this Section 4.f, User acknowledges and agrees that the Company may license, or otherwise grant rights in or to the Website, including any and all Content, to any third party for any lawful purpose reasonably deemed appropriate by the Company.

5. Links to Other Websites. The Website may contain links to other websites (“Linked Websites”). The Linked Websites are provided for User’s convenience and information only and, as such, User accesses them at its own risk. User agrees and acknowledges that the Company is not responsible for, and does not endorse, the content of or anything that may be delivered to User or User’s computer as a result of accessing any Linked Websites, whether or not the Company is affiliated with the owners of such Linked Websites. Without limiting the generality of the foregoing, the Company is not responsible and shall have no liability for any viruses or other illicit code that may be downloaded through a link found on the Website, or by accessing a Linked Website.

6. No Assignment. User agrees that the license granted in these Terms of Use is personal to User, and User may not assign or transfer any license granted under these Terms of Use, or transfer any rights or delegate any duties under these Terms of Use, to any third party. Any attempt to assign, transfer, or delegate any of User’s rights, duties, or obligations under these Terms of Use shall be void.

7. Interruptions to the Website. User acknowledges that access to the Website may from time-to-time be unavailable to User, whether because of technical failures or interruptions, intentional downtime for service or changes to the Website, or otherwise. User agrees that any modification of the Website, and any interruption or unavailability of access to the Website shall not constitute a default of any obligations of the Company under these Terms of Use, and the Company shall have no liability of any nature to User for any such modifications, interruptions, unavailability, or failure of access.

8. Removal of Content. The Company reserves the right for any reason in its sole discretion, but has no obligation, to remove or temporarily suspend the posting of any Content that violates these Terms of Use or is otherwise unacceptable to the Company.

9. Notification of Potential Infringement.
a. If any User believes its copyright, trademark or other property rights have been infringed by any Content included or posted on the Website, User should immediately send a notification to the Company’s designated agent (“Designated Agent”), as identified below. To be effective, the notification must include:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed;
iii. Information reasonably sufficient to permit the Company to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
iv. Identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit the Company to locate the material;
v. 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, agent, or the law; and
vi. 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.
b. Pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c), the Company’s Designated Agent for notice of claims of copyright infringement can be reached as indicated below. The Designated Agent shall be:
Arc/k a California corporation c/o Compliance Agent
[email protected]
5 Columbus Circle
8th Floor
New York, NY 10019

c. User acknowledges and agrees that upon receipt of a notice of a claim of copyright infringement, the Company may immediately remove the identified materials from the Website without liability to User or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the DMCA.
d. Any copyright infringement by Users shall not be tolerated. If any User is a repeat infringer of any copyright, trademark or other proprietary right, the license granted to User in Section 4(b) shall immediately terminate.

10. Representations, Warranties, and Covenants. User represents, warrants, and covenants the following:
a. User has all rights, title and interest, including all copyright rights and other intellectual property rights, in and to the Content it submits.
b. User shall not knowingly submit any information that is false or misleading, including any Content with any false or misleading information.
c. User shall not use its account to breach the security or gain access to the account of any other User.
d. If any graphical Content includes any persons, or the likeness or image of any person, User has obtained the written consent of each such person to the display of the person’s likeness or image in the graphic, including a waiver of all applicable publicity rights, and delivered a copy of such consent to the Company.
e. There is no claim, litigation or proceeding pending or threatened with respect to the Content submitted by User.
f. User shall not use the Website for any purpose that is prohibited by these Terms of Use, including without limitation the transmitting of any harassing, threatening, infringing, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or is otherwise in violation of federal, state, or local laws and regulations.
g. By using the Website, these Terms of Use will be valid, binding and enforceable with respect to User in accordance with these terms. The performance of User’s obligations under these Terms of Use will not constitute a default, or an event which with the passage of time, the giving of notice, or both, would constitute a default, under any other agreement by which User is bound.
h. These Terms of Use, upon use of the Website, will be valid, binding and enforceable in accordance with its terms with respect to User.
i. The provisions of the services provided under these Terms of Use and the fulfillment of User’s obligations as contemplated under these Terms of Use are proper and lawful.
j. User is not and shall not be under any disability, restriction or prohibition related to use of the Website and the performance of its obligations under these Terms of Use.
k. User is at least eighteen (18) years of age.

11. No Warranty. THE LICENSE GRANTED TO USER UNDER THESE TERMS OF USE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY NATURE. THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

12. Limitation of Liability.
a. IN NO EVENT SHALL THE COMPANY BE LIABLE TO USER FOR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF FORESEEABLE OR IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE.
b. WITHOUT LIMITING THE FOREGOING, USER ACKNOWLEDGES AND AGREES THAT THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE WEBSITE AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT USER’S OR OTHER THIRD PARTIES’ CONNECTIONS TO THE INTERNET, OR PORTIONS OF THE INTERNET. ALTHOUGH THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, THE COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

13. Injunction. The Company and User agree that a breach or violation of Sections 4, 6, 10, 11 and 17 of these Terms of Use will result in immediate and irreparable injury and harm to the Company. In such event, the Company shall have, in addition to any and all remedies of law and other consequences under these Terms of Use, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligation under these Terms of Use; provided, however, that, this shall in no way limit any other remedies which the Company may have, including, without limitation, the right to seek monetary damages.

14. Termination.
a. The Company may at any time and without notice terminate User’s license upon the occurrence of any of the following events: (1) User requests in writing to the Company that its license be terminated; or (2) User defaults under any material term or condition of these Terms of Use.
b. Upon termination of User’s license granted in these Terms of Use, User agrees to immediately destroy any printouts or copies of the Website in User’s possession or under User’s control, and all licenses granted and all services provided to User under these Terms of Use shall terminate. Specifically, the Company may terminate User’s access to the Website, and User’s user identification and password shall be disabled.

15. Indemnification. In addition to User’s obligation to indemnify under Section 6.d, User agrees to indemnify and hold harmless the Company, and its officers, directors, employees, shareholders, members, and manager from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with these Terms of Use, submission to the Company of any Content, and the inclusion of any Content by User in the Website or any portion thereof, including, without limitation, any claim that the access to, display of, and/or use of any Content infringes on or constitutes a misappropriation of any patent, copyright, or trade secret, or any other intellectual property right of any person or entity anywhere in the world. The Company shall have the right to control its own defense and engage legal counsel acceptable to the Company.

16. Proprietary and Other Notices. User agrees that it will not alter or remove any trademarks or copyright notices or other notices and disclaimers located or used on, or in connection with, the Website or any printouts of the Website allowed under these Terms of Use.

17. General.
a. Notices. All notices, demands, or consents required or permitted under these Terms of Use shall be in writing and shall be delivered personally; sent by registered or certified mail, return receipt requested; or by a reputable overnight courier service, to the appropriate party at the following addresses:
If to User:

At User’s street address or e-mail maintained by the Company.

If to the Company:

Arc/k a California corporation c/o Compliance Agent
[email protected]
5 Columbus Circle
8th Floor
New York, NY 10019

The foregoing addresses may be changed from time-to-time by delivering notice of such change, referencing these Terms of Use, to the other party.

b. Governing Law; Submission to Jurisdiction. These Terms of Use shall be governed by and construed in accordance with the laws of the state of California. User acknowledges that by using the services provided under these Terms of Use, User has transacted business in the state of California. By transacting business in the state of California, User voluntarily submit and consent to, and waive any defense to the jurisdiction of courts located in Santa Clara County, state of California, as to all matters relating to or arising from these Terms of Use.
c. Costs of Litigation. If any action is brought by either party against the other party regarding the subject matter of these Terms of Use, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney’s fees, costs, and expenses of litigation.
d. Severability. Any provision of these Terms of Use which is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable shall not invalidate or make unenforceable any other provision of these Terms of Use.
e. No Waiver. The waiver by either party of, or the failure of either party to take action with respect to, any breach of any term, covenant or condition contained in these Terms of Use shall not be deemed to be a waiver of such term, covenant or condition, or subsequent breach of the same, or any other term, covenant or condition contained in these Terms of Use. The subsequent acceptance of any payment due under these Terms of Use by any party shall not be deemed to be a waiver of any preceding breach of the party making payment with respect to any term, covenant or condition contained in these Terms of Use.
f. Entire Agreement; Modifications Only in Writing. These Terms of Use (i) constitute the entire agreement between the Company and User concerning the Website, Content, and all other subject matter of these Terms of Use; (ii) supersede any contemporaneous or prior proposal, representation, agreement, or understanding between the parties; and (iii) may not be amended except in writing signed by the Company and User. Notwithstanding the foregoing, the Company reserves the right, in its sole discretion, to modify, update, or otherwise revise these Terms of Use at any time. Such revisions shall be effective immediately upon posting on the Website. User shall have the right to immediately terminate these Terms of Use if any modification, update, or other change to these Terms of Use is not acceptable to User. By using the Website after the Company has posted any modifications, updates or revisions, User agrees to be bound by such revised Terms of Use.
g. No Third Party Beneficiaries. These Terms of Use is for the sole and exclusive benefit of the Company and User and is not intended to benefit any third party. No third party may claim any right or benefit under or seek to enforce any of the terms and conditions of these Terms of Use.
h. Survival. The provisions of Sections 4, 6, 9.h, 11, 12, 13, 14, 16, 17, and 18 of these Terms of Use shall survive the termination of these Terms of Use.

18. Definitions. The following terms shall have the following meanings in these Terms of Use:
a. Content means all data and content, including without limitation, all photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, and narratives submitted by Users to the Website.
b. Designated Agent has the meaning set forth in Section 9.a of these Terms of Use.
c. DMCA has the meaning set forth in Section 9.b of these Terms of Use.
d. Linked Website has the meaning set forth in Section 5 of these Terms of Use.
e. Marks has the meaning set forth in Section 4.a of these Terms of Use.
f. User has the meaning set forth in the first paragraph of these Terms of Use.
g. Website has the meaning set forth in the first paragraph of these Terms of Use
h. Company has the meaning set forth in the first paragraph of these Terms of Use.