#TERMS OF SERVICE
Last Updated: August 31, 2023
Welcome to pamm.org, owned and operated by the Pérez Art Museum Miami (“we”, “us”, “our”, “PAMM”). These Terms of Service (“Terms”) govern your access to and use of our web and mobile website(s) and applications, including our online store PAMM Shop, (the “Sites”) and PAMM’s online video streaming site (“PAMMTV™”), together with the Sites, the “Services”) and any software, tools, features, functionalities and content provided on or in connection with our Services. Before perusing the information and materials offered on the Services, please take a minute to ensure that you understand the terms and conditions of our relationship by reading this important information.
I. This is a Contract Between You and Us.
A. Agreement to the Terms.
By accessing or using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please refrain from accessing or using the Services. If you choose to accept these Terms, you must do so as it is presented to you – no changes will be accepted by us.
B. Future Versions of the Terms.
We may update the Terms from time to time at our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Services and/or through other means of communication. We will also update the “Last Updated” date at the top of the Terms. If you don’t agree to be bound by the changes, you should stop accessing and using the Services. If you continue to access or use the Services after we have posted updated Terms, it means that you accept and agree to the changes.
C. Limitations to the Terms.
Notwithstanding the foregoing, the laws of some jurisdictions may limit or not permit certain provisions of these Terms, such as indemnification, the exclusion of certain warranties, or certain limitations of liability. In such a case, such provisions will apply only to the maximum extent permitted by the laws of such jurisdictions. Also, you may have additional legal rights in your jurisdiction, and nothing in these Terms will prejudice such rights that you may have as a consumer of the Services under such applicable law.
D. Binding Arbitration.
WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND PAMM THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION XVI (DISPUTE RESOLUTION) BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION XVI WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION XV (GOVERNING LAW AND FORUM CHOICE) WILL APPLY INSTEAD.
E. Age of Majority.
We require all users of the Services to be at least 18 years old. If you are at least 13 years old but under 18 years old, you may only use the Services with a parent or guardian’s approval and oversight. The parent or guardian is responsible for your actions on the Services. If you are at least 13 but under 18, your parent or guardian must agree to these Terms. No one under 13 years old is permitted to use our Services.
F. Privacy Policy.
When you agree to these Terms, you also agree to our Privacy Policy, found here, which is incorporated herein by reference.
II. Our Services
A. Equipment.
You must provide all equipment, connectivity, and software necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
B. Interruption to the Services.
Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Services, or other actions that we, in our sole discretion, may elect to take. You acknowledge and agree that your use of the internet and all access to and use of the Services is solely at your own risk.
C. Changes to the Services.
Because our Services are evolving, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
III. Accounts
A. Account Creation
You may be required to create an account (“Account”) to access certain of the Services. To register for an Account, you must go through the sign-up process. Is it important that you provide us with accurate, complete, and current account information and keep this information up to date.
B. Account Protection.
To protect your Account, keep Account details and your account username and passwords (” Account Credentials”) confidential, and notify us right away of any unauthorized use of your Account or any other breach of security. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE SECURITY AND CONFIDENTIALITY OF YOUR ACCOUNT AND ACCOUNT CREDENTIALS, AND FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. We will not be liable for any loss that you may incur as a result of someone else using your Account Credentials, either with or without your knowledge. You may be held liable for any losses incurred by us or another party due to someone else using your account or Account Credentials.
C. Account Prohibitions.
You are only allowed to create one Account and you agree you won’t share your Account or Account Credentials with anyone. You also agree that you will not: (i) create another Account if we’ve disabled one you previously established unless you have our prior written consent; (ii) buy, sell, rent, or lease access to your Account or Account Credentials, unless you have our prior written consent; (iii) share your account password with anyone; or (iv) log in or try to log in to access the Service through unauthorized third-party applications or clients.
D. We reserve the right to at any time, in our sole discretion, terminate or suspend your Account or access to the Services, at any time and without notice to You.
IV. Ownership; Intellectual Property.
A. The Services.
The Services, including their “look and feel” (e.g., text, graphics, images, logos, page headers, button icons, style, and scripts) and all other content, designs, properties, text, graphics, logos, images, button icons, artwork, audio clips, video clips, documentation, other files software, information, data, and materials contained therein and the selection and arrangement thereof (cumulatively, “ Content”), including, without limitation, the PAMMTV platform, all content and artworks hosted on PAMMTV, and the PAMM logo, and all intellectual property rights in each of the foregoing, are protected by law, including but not limited to U.S. intellectual property law and related law (including copyright law, trademark law, and individual’s rights of publicity) as well as other state, national, and international laws and regulations and also may be covered by other restrictions. Except as otherwise indicated, the Content is the proprietary property of PAMM or our affiliates, licensors, or users, as applicable., and You agree not to take any action(s) inconsistent with such ownership interests. We and our affiliates, licensors, and users, as applicable, reserve all rights in connection with the Services and its Content, including, without limitation, the exclusive right to create derivative works.
B. Copyrights:
Unless otherwise indicated, all of the Content on the Services is protected by copyright laws. The Content of pamm.org is copyrighted as a collective work under United States copyright laws. Except as granted in the limited license herein, any other use of this Content, including modification, transmission, presentation, distribution, or republication, is prohibited without the prior written consent of PAMM. The copyright of the Content and other proprietary rights are held by PAMM or other entities and individuals.
C. Public Domain.
The Content on the Site marked “Public Domain” consists of images of works from PAMM’s permanent collection that PAMM believes are in the public domain. The images marked “Public Domain” indicates PAMM is unaware of any current copyright restrictions on the designated Content because either: (i) the term of copyright has expired or (ii) no evidence has been found that copyright restrictions apply. PAMM does not warrant that the sharing or the other use of this Content will not infringe upon the rights of third parties holding rights to these works, including rights other than copyright, such as rights of privacy and publicity. It is your responsibility to determine and satisfy copyright and other use restrictions before downloading, copying, transmitting, publishing or making any use of these items. If you have knowledge about rights holders of any of these works, please contact PAMM’s Intellectual Property, Images and Permissions department at ip@pamm.org. Users should cite the artist/author and source of the Public Domain images as they would cite material from any printed or other work, and citation should include the URL www.pamm.org in addition to all other proprietary notices, if any, provided with the Public Domain image.
D. Trademarks.
All trademarks, trade names, logos, brands, brand names, trade dress, and service marks of PAMM, whether registered (such as Jorge M. Pérez Art Museum Miami-Dade County®, and PAMM®, or Art Detectives® ) or unregistered (including Por Favor, Don’t Touch the Art™ ), (collectively, the “Trademarks”) are the property of PAMM and are protected by trademark laws.
1) Third-Party Trademarks.
All other third-party trademarks, registered trademarks, logos, brands, brand names, trade dress, and trade product names mentioned on the Services or contained in the Content linked to or associated with any Content displayed on the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable intellectual property rights holder. Reference to any products, Services, processes, or other information by name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
2) Nothing contained on the Services should be construed as granting, by implication, estoppel, or otherwise, any right or license to use any Trademarks displayed on the Services without written permission of PAMM or any third-party trademark owner displayed on the Services. Your misuse of the Trademarks displayed on the Services, including alteration or use out of context, is strictly prohibited.
V. Digital Millennium Copyright Act Notification.
A. Notice of Infringement under the Digital Millennium Copyright Act (“DMCA”).
We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. It is not our intent to infringe on anyone’s intellectual property rights, and we will respond to allegations of copyright infringement in accordance with the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice (“DMCA Notice”) with the following information:
1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2) A description of the copyrighted work that you claim has been infringed;
3) A description of where the infringing material is located on the Services;
4) Your address, telephone number, and email address;
5) A statement by you that you have a good faith belief that the alleged infringing use is not authorized by the copyright owner, its agent, or the law; and
6) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
B. Notice to You.
We may notify you if we receive a DMCA Notice about the Content that you submit. If you receive a notification that you are allegedly infringing on another’s copyright, you may file a counter-notice. We will review all DMCA Notices and counter-notices in an objective manner. If we determine that the DMCA Notice is valid, we may remove the infringing content. If we determine your counter-notice to be valid, we will remove the complaint and take no further action regarding your Account.
C. Contact Information
You can reach us directly by emailing us at dmca@pamm.org with the subject “DMCA Copyright Infringement.” We may request additional information before removing any allegedly infringing material.
D. No Misrepresentation.
Please note that if you knowingly and/or materially misrepresent any of the above information (in a DMCA Notice or counter-notice), you may be responsible for damages, including the costs involved in investigating and responding to your claim and any legal costs and fees that may arise from your misrepresentation. If you continue to file fraudulent or inaccurate DMCA Notices or counter-notices, we reserve the right to contact law enforcement and terminate your Account.
VI. License to Use the Services.
A. License to the Services.
We hereby grant you a limited license to access the Services solely for your noncommercial use and subject to the terms and conditions set forth herein. The limited license granted by these Terms and Conditions is non-exclusive, non-sublicense and non-transferable.
B. Reservation of Rights; Fair Use:
Nothing contained in these Terms shall be construed as granting any right or license to reproduce, distribute, publish, display, perform, modify, create derivative works of or otherwise use the Services or Content (as defined below), except as expressly set forth herein. Notwithstanding the foregoing, “fair use” (as defined by U.S. copyright laws) of the Content for non-commercial purposes and otherwise in accordance with these Terms is permitted. Fair use of copyrighted material may include certain use of protected materials for noncommercial, educational purposes, such as teaching, scholarship, research, criticism, commentary, and news reporting. However, you agree to cite (refer to) the author and source of any Content as you would material from any printed work. The citation should include a reference to this website’s address, pamm.org. Please be advised that the Content may be subject to other third-party rights in addition to copyrights, such as rights of privacy or publicity.
C. Commercial Use Restricted:
Unauthorized commercial copying, redistribution, publication, or exploitation of the Services or the Content is prohibited. If you would like to use the Services or any of the Content for commercial use, publication, or any other non-fair-use purpose, please contact PAMM at ip@pamm.org.
Injunctive Relief: You agree that in the event of a breach of these Terms and Conditions, monetary damages will be insufficient to compensate the Museum for the harm done to it and that the Museum will consequently be entitled to seek a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any and all remedies to which the Museum will be entitled.
Termination of License: If you violate any of these Terms and Conditions, your permission to use the Content of this Website will automatically terminate, and you must immediately destroy any copies you have made of any portion of the Content. In addition, the limited license granted herein by the Museum may be terminated at any time and for any reason or for no reason, without cause or notice.
D. Restrictions on PAMMTV Content:
You acknowledge that the platform that hosts PAMM TV is configured with robust security protocols and piracy controls (“Security Controls”). Certain Security Controls, such as geo-blocking and download controls, may limit your ability to access, download, reproduce or otherwise use Content from PAMMTV. Without limiting any other provision in these Terms, you agree to abide by, and refrain from circumventing (directly or indirectly), all Security Controls.
E. Injunctive Relief.
You agree that in the event of a breach of these Terms, monetary damages will be insufficient to compensate PAMM for the harm done to it and that PAMM will consequently be entitled to seek a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any and all remedies to which PAMM will be entitled.
F. Termination of License.
If you violate any of these Terms, your permission to access the Services will automatically terminate, and you must immediately destroy any copies you have made of any portion of the Content. In addition, the limited license granted herein by PAMM may be terminated at any time and for any reason or for no reason, without cause or notice.
G. General Prohibitions. You agree not to do any of the following:
1) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not expressly permitted by these Terms;
2) Reproduce, distribute, display, publish, perform, modify, create derivative works of or otherwise use any Content in any manner not expressly permitted by these Terms;
3) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
4) Use, display, mirror, or frame the Services or any individual element within the Services, our name, any of our trademarks, logos, or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent;
5) Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like) other than the software and/or search agents provided by us or other generally available third-party web browsers;
6) Post, upload, publish, submit, or transmit any Content that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive or depicts minors in sexually suggestive situations; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) is inappropriate or disruptive; (viii) promotes suicide or self-harm; (ix) degrades or doxes another individual, or (x) is otherwise illegal or promotes illegal or harmful activities or substances;
7) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
8) Engage in behaviors that have the intention or the effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing view counts, favorites, or other metrics that we might use to sort search results;
9) Use the Services or data collected from our Services for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
10) Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services.
11) Impersonate or misrepresent your affiliation with any person or entity; or
12) Violate any applicable law or regulation.
VII. User Content
A. Representation.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for any Content that you submit, post, or display on or through the Services. You agree that any Content will not contain material subject to copyright or other intellectual property rights, or rights of publicity or privacy, unless you have necessary permission or are otherwise legally entitled to post the material and to grant us the license described in these Terms.
B. Your Responsibility for Content.
You are solely responsible for all your Content. You represent and warrant that neither your Content, nor your use and provision of your Content to be made available through the Services, nor any use of your Content by us on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
C. Removal of Content.
You should know that in certain instances, some of your Content (such as posts or comments you make) may not be completely removed and copies of your Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any Content.
VIII. Feedback.
We welcome feedback, comments, and suggestions for improvements to the Services (” Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title, or interest in the Services or in any such Feedback. You agree that we may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to us any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property right) that you may have in and to any and all Feedback.
IX. Complying with Laws and Providing Us with Information.
A. Compliance with Laws.
You represent and warrant that you will comply with all applicable laws (e.g., local, state, federal, and other laws) when using the Services, including U.S. export and re-export control and economic sanction laws and regulations. Without limiting the foregoing, by using the Services, you represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo; and (2) you have not been identified as a Specially Designated National or placed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Services outside the United States, you are solely responsible for ensuring that your access and use of the Services in such country, territory, or jurisdiction does not violate any applicable laws.
B. Additional Information.
We may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, we may, in our sole discretion, disable your Account and block your ability to access the Services until such additional information and documents are processed by us. If you do not provide complete and accurate information in response to such a request, we may refuse to restore your access to the Services.
X. Suspension, Termination, or Limitation of Your Access to the Services.
A. For Violation of Law.
We may suspend or terminate your access to the Services at any time as required by applicable law or any governmental authority.
B. For Violation of Terms.
We may suspend or terminate your access to the Services at any time if we in our sole and reasonable discretion determine you are violating these Terms or the terms of any third-party service provider.
C. For Compliance Purposes.
In accordance with our compliance policies and practices, we may impose reasonable limitations and controls on the ability of you or any beneficiary to utilize the Services. Such limitations may include rejecting transaction requests, freezing funds, or otherwise restricting you from accessing or using the Services.
D. Right to Take Action.
We reserve the right to take action, with or without advance notice, if we believe you have violated any law, these Terms, or the terms of any third-party service provider, or for compliance purposes.
XI. Links to Third-Party Websites or Resources
A. Third-Party Websites.
The Services may allow you to access third-party websites (“Third-Party Sites”) or other resources. We provide access only as a convenience and are not responsible for any Content, products, or services on or available from those resources or links displayed on such Third-Party Sites. You acknowledge sole responsibility for and assume all risk arising from, your access to or use of any Third-Party Sites or resources and we expressly disclaim any and all liability arising therefrom.
B. Third-Party Hosts.
Some of the Services, including PAMMTV and our online store, may be hosted on Third-Party Sites, such as Shopify or Shift-72. These Third-Party Sites contain their own Terms of Service and Privacy Policies that govern the use and access of Services hosted on their website and you agree to comply with all such Terms of Service and Privacy Policies. We expressly disclaim any and all liability arising from these Third-Party Sites and their Terms of Service and privacy practices.
XII. Disclaimers
A. AS IS AND AS AVAILABLE.
THE SERVICES, AND CONTENT CONTAINED THEREIN (THE “PAMM MATERIALS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE PAMM MATERIALS: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (III) WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT, NON-INFRINGING, LEGAL, OR SAFE. WE DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON ANY PAMM MATERIALS. WHILE WE ATTEMPT TO MAKE YOUR ACCESS TO AND USE OF THE PAMM MATERIALS SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE PAMM MATERIALS OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
B. Fraud and Gross Negligence.
Nothing in these Terms shall exclude or limit the liability of either party for fraud, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
C. LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
XIII. Indemnity
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless PAMM, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “PAMM Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to: (i) your use or misuse of the PAMM Materials; (ii) your Content or Feedback; (iii) your violation of these Terms; (iv) your violation of the rights of a third party or of applicable law; or (v) your negligence or willful misconduct. You agree to promptly notify us of any Claims and cooperate with the PAMM Parties in defending such Claims. You further agree that the PAMM Parties shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN ANOTHER WRITTEN AGREEMENT (IF ANY) BETWEEN YOU AND PAMM.
XIV. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL WE OR OUR SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PAMM MATERIALS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICES INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PAMM MATERIALS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE OR OUR SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL PAMM’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE PAMM MATERIALS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR PAMM MATERIALS EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO US FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO US, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims
XV. Governing Law and Forum Choice
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the Dispute Resolution section, the exclusive jurisdiction for all Disputes (defined below) that you and we are not required to arbitrate will be the state and federal courts located in Miami-Dade County, Florida, and you and we each irrevocably waive any objection to jurisdiction and venue in such courts, and any claims of inconvenient forum.
XVI. Dispute Resolution
A. Mandatory Arbitration of Disputes.
We each agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms and that you and we are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
B. Exceptions.
As limited exceptions to Section XVI(A) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
C. Conducting Arbitration and Arbitration Rules.
The arbitration will be conducted by JAMS under its JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at https://www.jamsadr.com/. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at https://www.jamsadr.com/. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location, but will be conducted remotely to the extent permitted by the JAMS Rules. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
D. Arbitration Costs.
Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
E. Injunctive and Declaratory Relief.
Except as provided in Section XVI (A) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
F. Class Action Waiver.
YOU AND PAMM 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. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
G. Severability.
Except for any of the provisions in Section XVI(F) of these Terms (” Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
XVII. General Terms.
A. Miscellaneous.
These Terms constitute the entire and exclusive understanding and agreement between PAMM and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between PAMM and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
B. Notices.
Any notices or other communications provided by us under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
C. Waiver of Rights.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
D. Contact Information.
If you have any questions about these Terms or the Services, please contact PAMM at ip@pamm.org.
CONTACT US
Pérez Art Museum Miami
Attn: Privacy Coordinator
1103 Biscayne Blvd.
Miami, FL 33132
Phone: 305.375.3000
digital@pamm.org - For troubleshooting, questions, or concerns. Please contact us and include information about your viewing device, browser, and query.
ip@pamm.org - For IP, images, and permissions requests.
dmca@pamm.org - For copyright infringement matters and DMCA (Digital Millennium Copyright Act) notifications.