Important Notice: This Agreement Contains A Binding Arbitration Provision And Class Action Waiver. It Affects Your Legal Rights As Detailed In The Arbitration And Class Action Waiver Section Below. Please Read Carefully.
All references to "you" or "your," as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity.
Throughout the Platform, the terms “we”, “us” and “our” refer to Creative Xchange. Creative Xchange offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By using the Creative Xchange platform, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our platform. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features, tools or services which are added to the Platform shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
“Platform” means all Creative Xchange websites, mobile or other applications, software, processes and any other services provided by or through Creative Xchange.
“User” means a person who completes the account registration process with Creative Xchange and operates on Creative Xchange . Included but not limited to Artist, Event Owner or fans.
“Artist” means a person who performs at a venue, sells merchandise or uses any of the services provide
“Gig” mean a service provided by an artist for a specified duration.
“Event” mean a planned occasion. An Event may be private or public. An Event may include but is not limited to a Gig
“Products” mean items that can be purchased on the Creative Xchange platform. Products include but are not limited to artist merchandise, artwork, music, photos and other creative products that an artist might want to sell on the Platform.
“Event Owner” means an individual or an entity that hires an Artist or Artists using the Platform.
“User” means an individual that performs and responds to requests services from an Artist or Artists, purchases Products and creates Events using the Platform. User includes but is not limited to Artist, Event Owner, music fans and related business entities.
"Content" means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Gig requests, forum discussions, reviews, calendar items, and other information or materials available on or through the Platform.
"User Content" means all Content submitted, posted, uploaded, published, or transmitted on or through the Platform by any user of the Platform, including but not limited to photographs, videos, profile information, descriptions, postings, reviews, and payments made through the Platform, but excluding Creative Xchange Content.
“Creative Xchange content” means all Content Creative Xchange makes available on or through the Platform, including any Content licensed from a third party, but excluding User Content.
“Common Content” means all content which is combination of User Content and Creative Xchange content.
“Account” means an established technique for connecting a user and Creative Xchange. It includes but is not limited to , a username-password combination, biometric identifiers or unique identifying numbers.
1. Payments are due on confirming an Artist for a Gig.
2. An Artist will be paid within 7 days of the successfully completed Gigs.
3. Marketplace payment processing services for artists on Creative Xchange are provided by Stripe, and, where applicable, may include money transmission services pursuant to licenses held by Stripe. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement .By agreeing to these terms or continuing to operate as an Artist on Creative Xchange, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Creative Xchange enabling payment processing services through Stripe, you agree to provide Creative Xchange accurate and complete information about you and your business, and you authorize Creative Xchange to share with Stripe this information and transaction information related to your use of the payment processing services provided by Stripe.
4. Creative Xchange serves as a limited payment collection agent of an Artist and is authorized to collect payment from Event Owners on behalf of an Artist. Payment made by a Event Owner to Creative Xchange in connection with Gigs shall be considered the same as a payment made directly to an Artist. As an Artist, you hereby appoint Creative Xchange as your limited payment collection agent solely for the purpose of accepting payment from Event Owners in connection with Gigs. You agree that payment made to Creative Xchange shall be considered the same as a payment made directly to you. You further understand that, as a limited payment collection agent for its Artists, Creative Xchange’s obligation to you, as the Artist, is subject to and conditional upon successful receipt of payment from Event Owner. In accepting appointment as your limited payment collection agent, Creative Xchange assumes no liability for your acts or omissions in your capacity as the Artist.
5. If any Member does not make a marketplace payment on time or if Creative Xchange cannot charge a credit card, PayPal or other payment method for any reason, Creative Xchange reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or payments due will be made by electronic mail or by phone. Such communication may be made by Creative Xchange or by anyone on its behalf, including but not limited to a third-party collection agent. If you have a balance due on any Account, you agree that Creative Xchange may charge such unpaid payments to your credit card or otherwise bill you for such unpaid payments.
6. All cancellation and refund requests will be subject to Creative Xchange’s review and absolute discretion and will follow the Creative Xchange Cancellation Policy. Normally Creative XChange will,process your valid written refund request within thirty (30) days of receiving it, unless a shorter period is required by law. You may request a cancellation or refund by emailing your request to Creative Xchange support at firstname.lastname@example.org. If you cancel your Account at any time, you will not receive any refund.
CANCELLATION POLICY1. The event owner will get a full refund if they cancel 2 weeks prior to the event.
2. If the event owner cancels the gig within three days prior to the event date, then the event owner will be charged 10% of the booking amount as cancellation charges.
CONTENT AND COPYRIGHT1. Creative Xchange may allow Users to upload, content to the platform.
2. You are solely responsible for all User Content that you post. Creative Xchange is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST CREATIVE XCHANGE RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD CREATIVE XCHANGE HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.)
3. You agree that the content you submit is not inappropriate. An inappropriate content : a. infringes upon or violates the copyrights, trademarks or other intellectual property rights of any person
a) is libelous or defamatory
b) is obscene, pornographic, sexually explicit, or vulgar
c) violates a person's right to privacy
d) violates any local, state, national, or international law
e) contains or advocates illegal or violent acts g. degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability, or other classification
f) is predatory, hateful, or intended to intimidate or harass, or contains derogatory name-calling
g) contains advertising
h) contains a solicitation of any kind
i) misrepresents your identity or affiliation
j) impersonates others
k) is in poor taste or is otherwise objectionable
4) You certify that you have the permission of others who have contributed to or are featured in any content that you submit.
5) User Content is generated, owned and controlled solely by you, and not by Creative Xchange.
6) Creative Xchange does not claim any ownership rights in your Content, and you hereby expressly acknowledge and agree that your Content remains your sole responsibility.
7) As a Event Owner or an artist you are responsible for obtaining any license required for live music performance. Creative Xchange does not provide those licenses.The entities that you may have to obtain licenses comprise of but are not limited to PROs( Performing Rights Organizations), artists and record labels. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST CREATIVE XCHANGE RELATED TO THE CONTENT OF YOUR PERFORMANCE, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD CREATIVE XCHANGE HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.)
8)You must not upload, store, distribute, send, transmit, display, perform, make available, continue to make available or otherwise communicate to the public any Content to which you do not hold the necessary rights.
9) You hereby agree that violating any of the guidelines may result in the termination of your account and you may forfeit any pending payment when your account is terminated.
BY USING THE Creative Xchange PLATFORM, THE USER AGREES TO HOLD CREATIVE XCHANGE FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF ARTISTS’ SERVICES. THOUGH WE TAKE CARE IN ONLY ONBOARDING HIGH QUALITY ARTISTS WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROFESSIONALS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES. CREATIVE XCHANGE NEVER COVERS DAMAGES DUE TO AN INJURY OF AN ARTIST OR A USER.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Creative Xchange agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Creative Xchange as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Creative Xchange's support department at email@example.com Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Creative Xchange support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Creative Xchange will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Creative Xchange will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America, and you and Creative Xchange agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND Creative Xchange AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims:Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on Creative Xchange) written notice of your decision to opt out to opt-out@CreativeXchangeInc.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of your first use of the Platform; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Creative Xchange also will not be bound by them.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.