The following terms and conditions (Terms and Conditions) govern your use of this website, and any content made available through the FlashWand website.
The Site is owned and operated by ArtWand, Poland

By using and accessing the Site you accept these Terms and Conditions.

1. 1. Membership

   You do not need to be a member of the Site to access it or use its content or services. However, access to some areas of the Site and some content and services may be restricted to members exclusively.

   Upon becoming a member, you will be required to enter into a separate Membership Agreement.

2. 2. Proprietary Rights

   Your use of the Site does not grant you ownership or interest in any content, code, data or materials you may access on or through the Site, or any intellectual property rights subsisting any content, code, data or materials you may access on or through the Site.

   You may download a single copy of any item found on the Site, for your personal, non-commercial use only, in accordance with these terms of use, provided that you maintain the copyright and other notices contained within. This does not apply to products available for sale/licensing on the Site.

   Your use of the Site does not grant you ownership or interest in any content, code, data or materials you may access on or through the Site, or any intellectual property rights thereof.

   Making other use of the Site, or the Products, content, code, data or materials on the Site or available through the Site, except as otherwise provided above, shall be tantamount to violation of copyright and other laws in Poland, other countries, as well as applicable state laws, and may be subject to liability for such unauthorized use.

3. 3. Copyright Agent

   We respect the intellectual property rights of others, and require the same from those who use the Site, or the services or features made available on or through the Site.

   If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to FlashWand:

   1. your address, telephone number, and email address;
   2. a description of where the alleged infringing material is located;
   3. a description of the copyrighted work that you claim has been copied; and
   4. a statement that you warrant that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner.

4. 4. Trade Marks

   The trade marks, logos, service marks and trade names (collectively the Trade Marks) displayed on the Site, or in the content available throughout the Site, are registered and unregistered Trade Marks of ArtWand and other entities.

   Nothing contained on the Site should be construed as granting expressly or by implication any license or right to use any Trademark displayed on the Site without the written permission of ArtWand or a third party that may own the applicable Trademark.

5. 5. Changes to Terms and Conditions

   ArtWand may, at its sole discretion, revise or change these Terms and Conditions (in whole or in part) from time to time and at any moment without notice.

   Changes in the Terms and Conditions will be effective when posted on the Site.

   Your continued use of the Site and/or the services made available on or through the Site after any changes to the Terms and Conditions have been posted will be considered acceptance of those changes.

6. 6. User Information

   In the course of your use of the Site and/or the content or services made available on, or through the Site, you may be asked to provide certain personalized information (User Information). ArtWand’s information collection and use policies with respect to the privacy of such User Information are set out in the Site’s Privacy Policy.

   You are solely responsible for the accuracy and content of User Information.

7. 7. Linking to the Site

   You shall agree to include a link from any other web site to the Site, redirecting to the full version of an HTML formatted page of the Site.

   You are not permitted to link directly to any image hosted on the Site or our services, such as using an “in-line” linking method, to cause the image hosted by us to be displayed on another web site.

   You agree not to download or use images hosted on the Site or another web site for any purpose, including, without limitation, posting such images on another web site.

   You agree not to link from any other web site to the Site in any manner such that the Site, or any page of the Site, is “framed,” surrounded or obfuscated by any third party content, materials or branding.

   We reserve the right to insist that any linking to the Site be discontinued, and to revoke your right to link to the Site from any other web site at any time upon written notice.

8. 8. Third Party Site.

   You may be able to move from the Site to third party web Site (Linked Site).

   You acknowledge and agree that we shall have no responsibility for the information, content, products, services, advertising, code or other materials, which may or may not be provided by or through a Linked Site, even if they are owned or run by our affiliates.

   The inclusion of any link to a web Site on our Site does not imply ArtWand’s endorsement, sponsorship, or recommendation of that web site.

   ArtWand disclaims any liability for links to other web sites.

9. 9. Disclaimer

   The Trade Practices Act and similar state and territorial legislation in Poland may confer rights and remedies on you in relation to the provision of goods or services on the Site, which cannot be excluded, restricted or modified by ArtWand (Non-excludable Rights). ArtWand does not exclude any Non-excludable Rights, but does exclude all other conditions and warranties implied by custom, law or statute.

   Except as provided for by the Non-excludable Rights:

   1. all content and services on the Site are provided “as is” and without warranties of any kind, either expressed or implied;
   2. ArtWand and its suppliers expressly disclaim all warranties of any kind, including but not limited to the implied warranties of merchantability and fitness for a particular purpose;
   3. ArtWand does not warrant uninterrupted or error-free functions contained in any content or your access to the Site, or that any defects will be corrected or that the Site or the server which stores and transmits content to you are free of viruses or any other harmful components; and
   4. ArtWand neither warrants nor makes any representation regarding your access to, or the results of your access to the Site (including any related or linked web sites) or any content in terms of correctness, accuracy, timeliness, completeness, reliability or otherwise.

   Under no circumstances (including but not limited to any ArtWand’s act or omission) will ArtWand or its affiliates be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever, resulting from any use or access of, or any inability to use or access, the Site or the content.

   ArtWand’s liability for breach of any implied warranty or condition, which cannot be excluded, is limited to the fullest extent permitted by law at the option of ArtWand to the following:

   1. in the case of services provided or offered by ArtWand:
      1. the further provision of the services;
      2. the payment of the cost of having services provided again; and
   2. in the case of goods supplied or offered by us:
      1. the replacement of goods or provision of equivalent goods; or
      2. the payment of the cost of replacing the goods or acquiring equivalent goods.

10. 10. Applicable Laws

    We control and operate the Site from our offices in Poland in accordance with Polish laws. We do not maintain that materials on the Site are appropriate or available for use in other locations. Persons choosing to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

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The following Membership terms and conditions (Membership Terms) govern access to, and use (as a Member) of FlashWand.com.

The Site and the content uploaded to the Site may be viewed by any person browsing the Internet but only a person, who has agreed to the Membership Terms, is able to sell and buy Products.

After you have clicked “I agree”, you will be deemed to have agreed to the Membership Terms and a legally binding contract, incorporating those Membership Terms, will then be concluded between you and ArtWand in relation to your use of the Site.

If you do not want to agree to these Membership Terms, you should leave this page.
Members who buy Products will only acquire a license to use that product. More detail available in clause 14.

If you agree to enter into contract under the Membership Terms on behalf of a third party (which may include your employer, client or other entity) named in the application details you provide before clicking “I agree”, you shall represent and warrant that you have full legal authority to bind that third party to the Membership Terms. If you do not have the authority to do so, then you must not agree to be bound by the Membership Terms or use the Site on behalf of such third party.

1. 1. Definitions

   In these Membership Terms:

   • Buyer means a Member who buys Products available on the Site.
   • Exclusive Seller means a Member who makes Products available for sale on the Site exclusively.
   • General Seller means a Member who makes Products available for sale on the Site non-exclusively.
   • Member means a person who registers as a Member by completing and submitting the Membership application, accepts these Membership Terms and whose application is accepted by ArtWand.
   • Member Account has the meaning given to that term in clause 12.
   • Member Ledger has the meaning given to that term in clause 12.
   • Payment Agent means any payment agent approved by ArtWand from time to time including, but not limited to, PayPal.
   • Products mean products in the form of creative digital computer files available for sale on the Site including, but not limited to, web templates, Content Management System themes, stock music, audio effects and other forms of stock content.
   • Seller means a General Seller and an Exclusive Seller.
   • In these Membership Terms, “we” or “us” refer to ArtWand and “you” or “your” refer to a Member.

2. 2. Membership

   Membership is only open to people who are 18 years or older. You are not automatically entitled to Membership and ArtWand may, at its sole discretion, choose to:

   1. reject your application to become a Member; or
   2. once you have been granted Membership, suspend, terminate or restrict your Membership at any time.

   ArtWand is not obliged to give reasons for its decision to reject your application or suspend, terminate or restrict your Membership at any time.

   Your Membership is non transferable.

   Once Membership is granted, you will only have access to all areas of the Site using the username and password you set up upon becoming a Member.

   You shall be responsible for each and every attempt at accessing or using the Site that occurs in conjunction with your username and password.

   The use of your username and password is conclusive evidence that you have accessed the Membership sections of the Site.

   You shall be required to make every effort to maintain the confidentiality of your username and password.

   You must not allow any third party to access the Site using your username and password and make use of the Site on your behalf.

   You must notify ArtWand in writing as soon as you become aware of any unauthorized access to your Member Account, username or password.

   You shall acknowledge your liability for your access to, and use of the Site as a Member, and shall indemnify ArtWand, its related corporate bodies, affiliates, officers, directors, agents and employees against any and all claims made by a third party.

3. 3. Benefits conferred by Membership

   Being registered as a Member entitles you to:

   1. buy Products from other Members;
   2. sell Products to other Members (subject to clause 15);
   3. generally make use of the Membership section of the Site; and
   4. participate in the referral program as described in clause 18,
      but subject to these terms and conditions.

   ‘Buying’ or ‘selling’ a Product in these Membership Terms means the acquisition or grant of a license or other right to use that Product.

4. 4. ArtWand’s Role

   The Site is an online facility that allows creating, selling, and buying Products.

   Ownership of Products remains with the seller. ArtWand does not obtain any right of ownership or use (including any intellectual property rights) in respect to the Products. This only applies to cases when the product has been uploaded by the user, not when it has been created with our tools.

   ArtWand does not have any control over, and shall not take any responsibility for the quality, safety or legality of any Products you may download from the Site.

   ArtWand does not warrant that the Products or any content, code, data or materials downloaded from the Site does not infringe the intellectual property rights of a third party. Each Seller is required to warrant that their Products do not infringe the intellectual property rights of any third party.

5. 5. Availability and Use of the Site

   The Site will usually be available 24 hours a day, seven days a week or as otherwise stated on the Site.

   ArtWand may, in its absolute discretion, for any reason, and at any time, with or without notice:

   1. interrupt or suspend your right to access the whole or any part of the Site; and/or
   2. alter, interrupt or suspend the provision of the whole or any part of the content and/or the services available on the Site.

   You agree that ArtWand shall not be held liable for any loss that you may suffer as a result of any such interruption, suspension or alteration.

   When accessing the Site (as a Member) and using the content and/or the services available, you must also comply with any directions, instructions or protocols that may be posted on the Site from time to time.

6. 6. Fees and Services

   Paying a fee is not required to become a Member.

   Paying a fee is not required to sell Products on the Site.

   If you are a Buyer of a Product, you will be required to pay a fee to buy the right to use that Product in accordance with clause 14.

   If you are a Seller, you will receive the fee (minus the commission to which ArtWand is entitled in accordance with clause 17) collected by ArtWand for each sale of your Products to a Buyer.

   Buyers must make all payments on the Site through a Payment Agent.

   You are responsible for paying all fees and taxes (including withholding tax), associated with your use of the Site wherever levied (including any goods and services or value added taxes, which, if applicable, will be added to amounts billed to you).

   All references on the Site or in these Membership Terms to “$” and “dollars” are referring to the virtual currency of ArtWand, known as the ArtWand Credit.

   All prices on the Site are in ArtWand Credit, where 1 ArtWand Credit is equal to 1 US Dollar, which is the currency of the United States of America. Payments will be made in US currency and in accordance with the rules of the applicable Payment Agent.

   The Buyer shall bear all costs of currency conversion from their preferred currency to the US Dollar, which in turn will be converted to the ArtWand Credit at time of purchase and at no cost to the Buyer.

   Where a payment is made by ArtWand to a Seller, the Seller is responsible for all costs of converting the amount of the payment from US currency into their preferred currency.

7. 7. Member Information

   In the course of your application for Membership and your use of the Site, you may be asked to provide certain personal information (Member Information). You shall promise that the Member Information you provide is true, accurate and complete.

   ArtWand’s policies for the collection and use of information with respect to the privacy of such Member Information are set out in the Site’s Privacy Policy.

   Any Member Information that you disclose may be used by ArtWand, its agents and contractors in relation to the provision of services accessible on the Site, including marketing activities associated with the Site.

8. 8. Proprietary Rights

   ArtWand, its licensors, advertisers or affiliates own all:

   1. the content of the Site (other than Products which are owned by Members who offer them for sale on the Site);
   2. the Site’s look and feel, design as well as its organization;
   3. the compilation of the materials on the Site; and
   4. the intellectual property rights (if any) subsisting in the works described in paragraphs (a), (b) and (c) above.

   Your use of the Site does not grant you ownership or interest in any content, code, data or materials you may access on or through the Site, or any intellectual property rights.

9. 9. Copyright Agent

   ArtWand respects other entities’ intellectual property rights, and requires that you do the same.

   If you believe that a work you own has been infringed or a Product being offered for sale on the Site has been copied in a way that constitutes copyright infringement, please forward the following information (Copyright Claim) to ArtWand:

   1. your address, telephone number, and email address;
   2. a description of the location of the alleged infringing material;
   3. a description of the copyright work that has allegedly been infringed
   4. a statement warranting that the information you have provided in the Copyright Claim is accurate and that you are either the copyright owner or are authorized to act on the copyright owner’s behalf.

   ArtWand shall take down the Product that is the subject of the Copyright Claim and seek an explanation from its Seller upon receiving a Copyright Claim.

10. 10. Trade Marks

    Unless otherwise stated, the trade marks, logos, service marks and trade names (collectively referred to as Trade Marks) displayed on the Site are the registered and unregistered Trade Marks of ArtWand and other entities.

    You may not use a Trade Mark without its owner’s consent.

    Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trade Mark displayed on the Site without the written permission of its owner.

11. 11. Confidential Information and Privacy

    ArtWand does not warrant or represent the confidentiality of your use of the Site.

    ArtWand shall not be responsible for any harm that you or any person may suffer as a result of a confidentiality breach in respect of your use of the Site.

    While ArtWand has taken precautions to protect information that you transmit to the Site over the Internet, ArtWand does not warrant the security of that information. Once ArtWand receives your transmission, it shall take reasonable steps to preserve the security of such information.

    You must not disclose any confidential information made available to you through the Site.

    When using the Site or dealing with other users of the Site, you must respect the privacy and legal rights of other Members.

    If a Member provides you with (or your Product accesses or uses) user-names, passwords or other login information or the Member’s personal information (Personal Information) you must:

    1. inform the Member that the Personal Information will be available to you; and
    2. ensure that, by proceeding to transact with you, the Member is giving you permission to use their Information; and
    3. provide a privacy notice to the user, recording the manner in which you will handle the Personal Information, that is legally sufficient; and
    4. use the Personal Information for the limited purposes under the Member’s permission; and
    5. handle the information in accordance with the terms of the privacy notice.

    If a Member has entered into a separate agreement with you, allowing you (or your Product) to store or use the Member’s Personal Information directly related to your Product (not including other products or applications), then the terms of that separate agreement shall govern your use of such Personal Information.

    Without limiting the generality of the foregoing, if the user provides you with information about the Member’s Member Accounts, you may only use that information to access the Member’s Member Accounts when, and for the limited purposes, for which the user gave permission for you to do so.

12. 12. Member Accounts

    When your application for Membership has been accepted by ArtWand, you will have a single account that you may access from the Site (Member Account). Among other things, your Member Account will enable access a ledger, which records payments you make to ArtWand (as a Buyer) and payments made by ArtWand to you (as a Seller or in accordance with clause 18) (Member Ledger).

13. 13. Payments from Member Ledger

    You can make payments into your Member Ledger by credit card or using a Payment Agent.

    You shall authorize ArtWand to:

    1. on your direction, debit monies from your Member Ledger to pay for Products you buy at the Site;
    2. credit to your Member Ledger any amounts due to you in relation to sales of your Products on the Site; and
    3. credit to your Member Ledger any Referral Commissions earned from referring new Members to the Site (in accordance with clause 18).

    ArtWand is not a licensed financial service provider, nor does it conduct banking operation in Poland. ArtWand provides its services as a cashier using a payment processing service rather than a banking service as defined in the Banking Act 1959 (Cth).

    ArtWand is not providing a financial product or service as defined in the Corporations Act 2001 (Cth), nor is it acting as a fiduciary or an escrow with respect to your funds.

    Any monies that you deposit into your Member Ledger must be used to pay for Products you buy on the Site.

    ArtWand will not refund any monies that you deposit into your Member Ledger as a Buyer. Any monies that you deposit into your Member Ledger as a Buyer, which are not used for a period of 12 months, shall be forfeited to ArtWand.

    However, if you make a new deposit into your Member Ledger before any unutilized previously made deposits have been forfeited, the whole balance of your Member Ledger (comprising both the new deposit and your previous balance) will be available to you for a period of 12 months from the date of the new deposit, but shall be forfeited to ArtWand if not used after the expiration of 12 months.

    ArtWand may, but is not obliged to, warn you about the forfeiture before it occurs.

    ArtWand will pay you the amounts you have earned as a Seller and the Referral Commissions you have earned in accordance with clause 18 subject to the following conditions:

    1. If you have earned less than $100.00 from sales of your Products or in Referral Commissions within 12 months from the date of your first sale or the date on which ArtWand last paid out monies standing to your credit in your Member Ledger (whichever is more recent), ArtWand will pay you the balance of your Member Ledgerbut only if paid by ArtWand through PayPal (and in no other manner).
    2. If you have earned more than $100.00 within 12 months from the date of your first sale or the date on which ArtWand last paid out monies standing to your credit in your Member Ledger (whichever is most recent), ArtWand will pay a minimum of $100.00 if through a Payment Agent (and in no other manner).

    Other than as provided for in clause 13, ArtWand will not pay any earnings or Referral Commissions standing to your credit in your Member Ledger below $100.00 in total, but you may use this to buy Products.

    You must bear all expenses incurred by ArtWand in paying monies back to you. Payments made via a SWIFT transfer incur a processing fee of $35 for each payment.

    The Payment Agent’s standard terms and conditions regarding refunds, chargeback, and unauthorized transactions shall apply, and you shall authorize ArtWand to automatically deduct such refunds, chargeback and unauthorized transactions from the Member Ledger. The following additional terms apply to your distribution of Products on the Site.

    1. No refund is required or allowed on Products that can be previewed by the Buyer (such as audio and graphics)
    2. Where Products cannot be previewed by the Buyer (such as WordPress themes, Adobe After Effect Projects, applications) and the Buyer asserts that the Product is not as described or is either broken or corrupt, you shall authorize us to give the Buyer a full refund on the Product price if the Buyer requests the refund within 30 days after purchase and the claim is considered valid.

14. 14. Buying Products

    When you buy a Product, you acquire a license to use that Product.

    If you buy a Product, you do so under the following terms:

    1. you cannot cancel an order for a Product once the order has been submitted;
    2. ArtWand does not guarantee the availability of Products offered for sale on the Site;
    3. once your order for a Product has been accepted, and you have paid the fee, you acquire a nonexclusive, nontransferable license to use the Product in accordance with the conditions of the license that you acquire;
    4. ownership of the Product remains with the Seller, unless the product comes from a flash creator, then the ownership remains with ArtWand;
    5. the Buyer may not re-sell the Product; and
    6. payment of the fee will be made at the time of download by deduction from your Member Ledger.

    You shall acknowledge and agree that, despite ArtWand’s reasonable precautions, Products may be listed at an incorrect price or with incorrect information due to typographical errors or similar oversights. In such circumstances, ArtWand reserves the right to cancel or reverse a transaction, even after your order has been confirmed and a payment has been processed. If a transaction is cancelled, ArtWand will immediately arrange for any payment refunds.

    Due to the digital nature of the Products offered for sale at the Site, we maintain a “no refunds” policy for Products which can be previewed by the Buyers (such as audio and graphics). A Buyer may make a claim for refund in case of Products that cannot be previewed (such as WordPress themes, Adobe After Effect Projects, applications) and the Buyer asserts that the Product is not as described, or is either broken or corrupt. The deadline for a Buyer to make a refund claim is 30 days after purchase, and this claim must be submitted to Support. We will verify the validity of the claim before a refund is approved.

15. 15. Selling Products

    As a Member, you may not start selling Products through the Site unless you first:

    1. read the tutorial; and
    2. pass a test, which you will be prompted to take at the end of the tutorial.

    In relation to each Product that you offer for sale on the Site, you shall warrant to ArtWand and each Buyer that, as a Seller:

    1. you own the intellectual property rights to that Product;
    2. that Product does not infringe the intellectual property rights of third parties;
    3. that Product is not false, inaccurate or misleading;
    4. that Product is not a fraudulent, stolen or unlawful item;
    5. that Product does not violate any applicable law, statute, ordinance or regulation (including, but not limited to, export control, consumer protection, unfair competition, criminal law, antidiscrimination or trade practices or fair trading laws);
    6. that Product is not defamatory, unlawfully threatening or harassing;
    7. that Product is not obscene and does not contain child pornography and does not constitute or contain material that is adult in nature or harmful to minors;
    8. that Product does not contain any content that may be regarded as prohibited or potentially prohibited for the purposes of the Broadcasting Services Act 1992 (Cth);
    9. that Product does not contain viruses or other computer codes, files or programs designed to limit or destroy the functionality of other computer software or hardware;
    10. that Product would not create liability for ArtWand or cause it to lose (in whole or in part) the services of its ISP or other suppliers; and
    11. that Product would not cause ArtWand to violate any applicable law, statute, ordinance or regulation by making it available on the Site.

    As a Seller, you must:

    1. ensure all copies of your Products bear a notice of ownership of the intellectual property rights to your Products;
    2. not offer or sell to Members any Products that have not been approved by ArtWand in accordance with clause 15;
    3. notify us of any information, which may affect or assist in sales of your Product(s);
    4. provide us with full and accurate information regarding enhancements and new releases of your Products;
    5. act in good faith at all times and provide such assistance and co-operation asreasonably requested; and
    6. to the extent practical, maintain records of all relevant intellectual property rights and of all names relating in any way to your Products.

    You shall acknowledge and agree that any Product you offer for sale on the Site must first be submitted to ArtWand in order to check the quality of the Product and the information provided with the Product.

    ArtWand may refuse, in its sole discretion, to allow you to offer the Product for sale on the Site. ArtWand is not required to give reasons for such refusal.

    You shall acknowledge and agree that, if ArtWand observes, in its absolute discretion, or is notified by a third party, that a Product that you offer for sale on the Site does not comply with any applicable laws and/or these Membership Terms, ArtWand will disable your Member Account and Member Ledger and withhold all amounts that you may have earned from the sale of the relevant Product until the earlier of:

    1. any dispute related to the Product has been resolved to the satisfaction of ArtWand; and
    2. two years have passed since the date your Member Account and Member Ledger have been disabled.

    If after two years, the dispute has not been resolved, ArtWand will pay you the amounts standing to your credit in your Member Ledger via PayPal.

    You shall acknowledge and agree that ArtWand will, in its sole discretion, determine the fee payable for each Product on the Site.

    Products on the Site are being continuously reviewed to ensure the library remains coherent with ArtWand’s latest quality and technical standards, currency of software and market trends.

    You acknowledge and agree that ArtWand may, at its sole discretion, choose to remove your Products from the Site at any time and for any reason, without notice. ArtWand is not responsible for any loss you might suffer as a result of removing a Product from the Site by ArtWand.

    ArtWand is not liable for any loss you might suffer as a result of a Buyer making use of a Product that you offer for sale on the Site contrary to the conditions under which the Product was sold to the Buyer.

    Unless you choose to become an Exclusive Seller in accordance with clause 16, you are free to sell the Product on other web Sites or through other outlets as you see fit.

    You shall agree and acknowledge that ArtWand may use the whole or any part of a Product which you offer for sale at the ArtWand web site to promote the Site. This promotional use may include use on a features page on the Site itself. No compensation is due or payable for such uses of your Product.

    You shall agree and acknowledge that an ArtWand affiliate may use your watermarked previews while promoting the Site. No compensation is due or payable for such uses of your preview.

    You agree that a Seller may use a watermarked preview of your Product in a preview of another Product without requiring permission from you, without violating your copyright and without providing monetary compensation. The Seller must credit such usage by providing a link to your Product.

16. 16. Prohibited Conduct

    While using the Site and the various services and features offered on or through the Site, you undertake not to:

    1. use a false email address, impersonate any person or entity, or misrepresent your affiliation with any other person or entity;
    2. place your or a third party’s advertising, branding or other promotional content into any of the Site’s content, materials or services or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes; or
    3. attempt to gain unauthorized access to other computer systems through the Site.

    You must not:

    1. engage in “spidering”, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic measures of obtaining user lists or other information from or through the Site or the services offered on or through the Site, including without limitation any information residing on any server or database connected to the Site or the services offered on or through the Site;
    2. obtain or attempt to obtain unauthorized access to computer systems, materials or information through the Site by any means;
    3. use the Site or the services available on or through the Site in any manner with the intent to interrupt, damage, disable, overburden, or impair the Site or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests;
    4. use the Site, content or services offered therein for any purpose or illegal, fraudulent, obscene, offensive, personally offensive or defamatory activity;
    5. use the Site to distribute or make available any Product whose primary purpose is to facilitate the distribution of Products outside of the Site;
    6. apply any mechanism, device software or script to affect the proper functioning of the Site, including any action, which may infect the Site with any routine, including (but not limited to) any virus, time bomb, Trojan horse, worm, cancelbot or other computer routine that may intercept, damage, delay, interfere with, or expropriate any system, data or personal information;
    7. take any action, which may disrupt, interfere with, manipulate, tamper with or otherwise abuse the Site or networks connected to it;
    8. use the Site or the Site’ services or features in violation of ArtWand’s or any third party’s intellectual property or other proprietary or legal rights; or
    9. use the Site or the Site’ services in violation of any applicable law.

    You further agree not to attempt (or encourage or support anyone else’s attempt) to circumvent, decrypt, reverse engineer, or otherwise alter or interfere with the Site or its services, or any content of the Site or its domains, or make any unauthorized use of the Site or its services or any content of the Site or its domains.

    You agree not to use the Site in any manner that could damage, disable, overburden, or impair the Site, or interfere with any other party’s use and enjoyment of the Site or any of its services.

    You must not obtain or attempt to obtain any materials or information through any means, not intentionally made publicly available or provided for through the Site.

    ArtWand reserves the right, in its absolute discretion, to determine whether or not your use of the Site or content or the services available on the Site complies with these Membership Terms.

    Any commercial or promotional distribution, publishing or exploitation of the Site, or any content, code, data or materials on the Site, is strictly prohibited unless you have received prior written permission from ArtWand.

    Other than as expressly allowed in these Membership Terms, and unless otherwise indicated in these Membership Terms, you may not download, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on or made available through the Site.

17. 17. Linking to the Site

    You shall agree to include a link from any other web site to one or more of the Site’s pages, redirecting to the full version of an HTML formatted page of the relevant Site.

    You are not permitted to link directly to any image hosted on the Site or our services, such as using an “in-line” linking method, to cause the image hosted by us to be displayed on another web site.

    You agree not to download or use images hosted on the Site or another web site, for any purpose, including, without limitation, posting such images on another site.

    You agree not to link from any other web site to any of the Site in any manner such that the Site, or any page of the Site, is “framed”, surrounded or obfuscated by any third party content, materials or branding.

    We reserve all of our rights under the law to insist that any linking to any of the Site be discontinued, and to revoke your right to link to the Site from any other web site at any time upon written notice.

18. 18. Third Party Site

    You may be able to link from the Site to a third party web Site and vice versa (Linked Site).

    You acknowledge and agree that we shall have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through a Linked Site, even if they are owned or run by our affiliates.

    The inclusion of a link to a Linked Site on the Site does not constitute or indicate any relationship between ArtWand and the operator of that Linked Site or any endorsement or sponsorship by ArtWand of that Linked Site.

    ArtWand disclaims any liability for links:

    1. from another web site to the Site; and
    2. to another web site from the Site.

    ArtWand is not responsible for any form of transmission received from any Linked Site.

19. 19. Third Party Developers

    ArtWand is aware that third party developers offer applications for use in conjunction with the Site and that using these applications may require you to disclose confidential information (such as your ArtWand password and user name).

    While welcoming the contribution made by these third party developers, ArtWand is not able to, and does not warrant or endorse those applications and cannot be responsible for any interaction between you and a third party developer. ArtWand disclaims any liability arising from such circumstances.

    You will need to form your own view of the benefits of using any such applications and the third party developer’s reliability and trustworthiness.

20. 20. Public Forums

    ArtWand may, from time to time, provide access on or through the Site, to messaging services, chat services, bulletin boards, message boards, blogs, other forums and other such services.

    In addition to any other rules or regulations that we may post in connection with a particular service, you agree not to upload, post, transmit, distribute or otherwise publish through the Site or any of its services or features, any materials which:

    1. restrict or inhibit any other user from using and enjoying the Site or the Site’ services;
    2. are fraudulent, unlawful, threatening, abusive, harassing, libellous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent;
    3. display or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
    4. violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right;
    5. contain a virus, spyware, or other harmful component;
    6. contain embedded links, commercial solicitation, advertising, chain letters, mass mailings or any kind of pyramid schemes;
    7. constitute commercial solicitation or ‘spam’ of any kind; or
    8. constitute or contain false or misleading indications of origin, endorsement or statements of fact.

    You further agree not to impersonate any other person or entity, whether actual or fictitious, including anyone from ArtWand.

    You also may not offer to buy or sell any product or service on, or through, the comments you submit to our forums. You shall take the sole responsibility for all information and materials that you post on the Site and the consequences of any of your activities therein.

    ArtWand reserves the right, but does not have an obligation, to monitor and/or review all information and materials posted to the Site or through the Site ArtWand is not responsible and assumes no liability for any such materials posted by users. However, ArtWand reserves the right to disclose any information at any moment, as required by any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in ArtWand’s sole discretion are objectionable or violate these Membership Terms, ArtWand’s policies or applicable law.

    ArtWand may also impose limits on certain forum features, or restrict your access to part or all of the forums without notice or penalty if we believe you are in breach of these Membership Terms or applicable laws, or for any other reason without notice or liability.

    It is noteworthy that comments submitted to a forum may be recorded and stored in multiple places, both on our Site and elsewhere on the Internet, and remain easily accessible for a long time, providing you no control over who will read them eventually.

    It is therefore important that you are careful and selective about the personal information that you disclose about yourself and others. In particular, you should not disclose sensitive, embarrassing, proprietary or confidential information in your comments to our public forums.

21. 21. Disclaimer

    The Trade Practices Act 1974 (Cth) and similar state and territory legal provisions in Poland may confer rights and remedies on you in relation to the provision of goods or services on the Site, which ArtWand cannot exclude, restrict or modify (Non-excludable Rights).

    ArtWand does not exclude any Non-excludable Rights, but does exclude all other conditions and warranties implied by custom, law or statute.

    Except as provided for by the Non-excludable Rights:

    1. all content and services on the Site are provided “as is” and without warranties of any kind, either expressed or implied;
    2. ArtWand and its suppliers expressly disclaim all warranties of any kind, including but not limited to the implied warranties of merchantability and fitness for a particular purpose;
    3. ArtWand does not warrant uninterrupted or error-free functions contained in any content or your access to the Site, or that any defects will be corrected or that the Site or the server which stores and transmits content to you are free of viruses or any other harmful components; and
    4. ArtWand neither warrants nor makes any representation regarding your access to, or the results of your access to, the Site (including any related or linked website) or any content in terms of correctness, accuracy, timeliness, completeness, reliability or otherwise.

    Under no circumstances (including but not limited to any ArtWand’s act or omission) will ArtWand or its affiliates be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever, resulting from any use or access of, or any inability to use or access, the Site.

    ArtWand’s liability for breach of any implied warranty or condition which cannot be excluded is limited to the fullest extent permitted by law at the option of ArtWand to the following:

    1. in the case of services provided or offered by ArtWand:
       1. the further provision of the services;
       2. the payment of the cost of having services provided again; and
    2. in the case of goods supplied or offered by ArtWand:
       1. the replacement of goods or the provision of equivalent goods; or
       2. the payment of the cost of replacing the goods or acquiring equivalent goods.

22. 22. Indemnification and Release

    You shall be solely responsible (and agree that ArtWand has no responsibility to you or to any third party) for, and shall agree to indemnify and hold ArtWand (as well as ArtWand’s affiliates, directors, officers, employees and agents) harmless from any and all claims, liabilities, costs and expenses (including legal fees) arising in any way from any of the following matters:

    1. your use of the Site;
    2. any Products you might have sold or purchased through the Site;
    3. your placement or transmission of any Product, message, content, information, software or other materials through the Site;
    4. your breach of any applicable related third party contract or terms of service
    5. your breach of the law or these Membership Terms.

    ArtWand reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you shall cooperate with ArtWand’s defense of such claim.

23. 23. Changes to Membership Terms

    ArtWand may, at its sole discretion and at any moment, revise or apply changes to these Membership Terms in whole or in part, or the content of the Site from time to time without notice.

    Changes in the Membership Terms shall become effective upon our posting a notice of the change on the Site. It is your responsibility to check for these notices.

    Your continued use of the Site and/or the content or services made available on or through the Site after we have posted any changes to the Membership Terms, will be tantamount to acceptance of those changes.

24. 24. Relationship between the Parties

    Nothing in these Membership Terms:

    1. constitutes a partnership between the parties; and
    2. except as expressly provided, makes one party an agent of another party for any purpose.

    A party cannot in any way or for any purpose:

    1. bind another party; or
    2. conclude agreements in the name of another party.

    If a party must fulfil an obligation and is dependent on another party, then that other party must do everything reasonably within its power to assist the other in the performance of that obligation.

25. 25. Suspension or Termination

    ArtWand may suspend or terminate your Member registration and deny you access to your Member Account immediately if:

    1. you breach these Membership Terms or any other terms and conditions, agreements or rules governing the Site;
    2. ArtWand is unable to verify or authenticate any information you provide in your original application or in the course of using the Site; or
    3. ArtWand believes that your actions may cause legal liability for you, our other Members or us.

    Should ArtWand choose to suspend, terminate or restrict your Membership in any way, you may be prohibited from accessing the Site temporarily or permanently. In either case, applying for a new Member account is prohibited.

26. 26. Notices

    Any notice given in accordance with these Membership Terms will be considered effectively delivered if submitted in writing and emailed to a party to the email address that party has specified, or any other email address as may be notified for the purpose of notice support.

    A notice will be deemed to have been effectively delivered on the date of delivery.

27. 27. Applicable Laws

    Except as otherwise provided for in these Membership Terms, while making use of the Site, or the Products, content, code, data or materials on the Site or available through the Site, you may breach intellectual property laws (including copyright) and other state and federal laws of Poland and other countries, and may be subject to liability for such unauthorized use.

    We control and operate the Site from our offices in Poland in accordance with the Polish laws. We do not maintain that materials on the Site are appropriate or available for use in other locations. Persons choosing to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

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ArtWand has developed this Privacy Policy (“Policy”) to inform you about how we deal with privacy issues in relation to our website. Your privacy is very important to us and you must agree to the terms of this Policy before becoming an ArtWand member and/or using the web site.

This Policy governs the information we collect regarding you and your use of information we provide you with. By accepting this Policy and the User Terms & Conditions Agreement, you expressly consent to our use and disclosure of your personal information in a manner specified in this Policy. Using the Site is considered tantamount to acknowledging the above.

Information About Children

Children (persons under the age of 18 years) are not eligible to use our services unsupervised and we ask children not to submit any personal information to us. If you are under 18 years of age, you can only browse the Site together with and under the supervision of your parents or guardians. The Membership Section of the Site is off limits to you if you are under 18 years of age.

It is the responsibility of parents to monitor the way their children’s use our Site.

Information Collection

PART A – The Public Generally

Our primary purpose in collecting personal information is to offer you a safer trading experience and encourage commerce between buyers and sellers using the Site as a venue. We only collect personal information that we consider necessary for this purpose and to achieve this goal.

You are under no obligation to provide us with this information and accessing many aspects of the Site is possible without revealing any personal information.

When you visit this website, we can record certain information in relation to your visit such as:

• Your IP or proxy server IP;
• Basic domain information;
• Your Internet service provider is sometimes captured depending on the configuration of your ISP connection;
• The date and time of your visit to the website;
• Your session length;
• The pages you have accessed;
• The number of times you access our site within any month;
• The size of file you view;
• The website, which referred you to our website; and
• The operating system your computer uses.

This information is only used for the purpose of statistics and website development.

Various pages on this Site encourage you to give us your name and contact details; examples include going onto our mailing list for our newsletter enter competitions, or enabling us to provide you with web site related services such as notifications.

Should you use our Site’s feedback and support forms, you will be asked to provide your name, organization, title, address, email address and telephone number. ArtWand will not otherwise collect information from you through this Site unless you knowingly provide it to us.

By voluntarily providing us with information when using the Site, you are consenting to our collection and use of your personal information.

The Site uses session cookies, which are only used during a browsing session, and expire when you quit your browser. Upon closing your browser, the session cookie set by this Site is destroyed, maintaining no personal information that might identify you should you visit our Site at a later date.

If you choose to buy or sell on our Site, we collect information about your buying and selling behaviour. This information is only used for statistical and website development purposes.

Please note that when you voluntarily disclose information on the bulletin boards or in the forums or in the chat areas of the Site or in member profile pages, the personal and other information you have disclosed in your communication shall become publicly available, and can be collected and used by other parties. We cannot control the way third parties handle your personal information provided in the bulletin board, chat room or member profile pages.

PART B – Members

We gather information from people who use the Membership Section of our Site (“Members”). This information may be used:

1. to send news, information regarding our activities and general promotional material that we consider useful to you or to us;
2. to monitor, who is accessing the membership section of the Site or using services offered on the Site; and
3. to profile the type of people accessing the Site.

If you choose to buy or sell on our Site, we will collect information about your buying and selling behaviour.

If you use a payment facilitator on the Site, we will collect additional necessary information, including, but not limited to, billing address, credit card number and credit card expiry date.

USE AND DISCLOSURE OF INFORMATION

ArtWand will only use the information it collects through the Site for the following purposes:

• Forwarding important information regarding ArtWand’s activities and other requested information;
• Contacting you in response to your feedback or query to discuss our services;
• Monitoring Site performance;
• Improving our Site and services;
• Internal administration; and
• Other purposes, in accordance with your instructions.

ArtWand will not give, sell, trade or otherwise disclose any personal information about you to a third party unless:

• You have provided us with your consent; or
• We are required to do so by law.

COOKIES AND ADVERTISING

We may occasionally use third party advertising companies to serve ads based on previous visits to the Site. These advertising companies use cookies to anonymously collect data.

These cookies collect no personally identifiable information. The personal information in your Member account is kept separate from the anonymous data they collect.

You can opt out of third party advertising cookies at any time by visiting this page: http://www.networkadvertising.org/managing/opt_out.asp

ACCESS AND /OR CORRECTION OF YOUR DETAILS

You may request access to your personal information and ask us to correct your personal information.

You can do this by emailing legal@flashwand.com

DISCLAIMER

This Site contains links to other sites. ArtWand is not responsible for the privacy practices of linked sites. Underlined words and phrases are click-through links or hyperlinks redirecting to other pages and websites. ArtWand strongly recommends that you read the Privacy Policy of the linked websites as they may contain further applicable terms and conditions.

SECURITY

This Site has implemented security measures to prevent the loss or misuse of, or alteration or unauthorised access to the information under our control. However, if you send information from this Site, it will not be encrypted unless expressly stated otherwise.

AMENDMENTS TO THE PRIVACY POLICY

We reserve the right to change this Policy. Such changes shall become effective when a notice of the change is made available on the Site. We will provide you with thirty (30) days’ notice to allow you the opportunity to notify ArtWand if you do not agree to such changes.

OPT – OUT PROVISION

To protect you from unwanted email communications, ArtWand adopts an opt-out facility for marketing communication. If you decide you no longer wish to receive our marketing communications, please inform us by contacting support or follow the instructions in the “Opt-Out” section of the email you have received.

Should you request us not to use your personal information in a particular manner or not to use it at all, we will adopt all reasonable measures to observe your request but we may still use or disclose that information if:

1. we subsequently notify you of the intended use or disclosure and you do not object to that use or disclosure;
2. we believe that the use or disclosure is reasonably necessary to assist a law enforcement agency or a body responsible for governmental or public security in the performance of their functions; or
3. we are required by law to disclose that information.

INTERNATIONAL TRANSFER OF INFORMATION

Our servers and information processing equipment are located in a number of countries around the world. Therefore, the information collected from you will be stored in these countries. By voluntarily providing information to us when using the Site, you are consenting to our collection and use of your personal information, including the transfer to another jurisdiction outside Poland.

FURTHER INFORMATION

Please contact support for more information about ArtWand’s privacy policy.

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