TERMS OF SERVICE


Welcome, and thank you for your interest in Athena Fine Arts, Inc. (“Arthena”, “we,” or “us”) and our Web site at Arthena.com (the “Site”), and our related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Use is displayed (together with the Site, our “Service”). These Terms of Use are a legally binding contract between you and Arthena regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. WHEN YOU SIGN UP TO BECOME A USER, YOU WILL BE REQUIRED TO ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE ARTHENA PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the Service.

These Terms provide that all disputes between you and Arthena will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Arthena.

  1. Eligibility.You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

  2. Requirements related to Investments.

    1. That you will use your own judgment before making any decision to invest what is to you a material amount of money;

    2. That you will be solely responsible for complying with applicable law regarding any transaction, including without limitation the determination of whether any investor is an Accredited Investor and whether any investment complies with the terms of local law (whether the law of a US state, or the law of any foreign government with jurisdiction over you or any investor);

    3. That you will obtain such professional advice as is appropriate to protect your interests, including legal, accounting and other advice; and

    4. That you have reviewed and understand the discussion of risks found here, and that you are otherwise aware of the risks of any investment in art funds or art funds of funds; and

    5. Regarding Collections on Arthena’s platform:

      1. That you understand that Arthena is not acting as an investment advisor or in any other capacity in relation to “Collections” (described here), and that the Advisor in a Collection is also not providing any such advice or in any way responsible for the success or failure of that investment and you are not relying on his or her advice.

      2. You specifically agree and acknowledge that you are not relying upon any Person, other than the underlying issuer and its officers and directors, in making its investment or decision to invest in any Collection. You further agree that no sponsor or other participant in any Collection nor the respective controlling Persons, officers, directors, partners, agents, or employees of any such person shall be liable to any other Investor for any action heretofore taken or omitted to be taken by any of them in connection with an investment through a Collection.

  3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@arthena.com. We will require all new users of Arthena who identify themselves as Investors to obtain and upload an Accreditation Report, which is a summary of user financial information relating to the SEC accredited investor rules. Investor Questionnaire. We do not verify the representations users make that become part of their Accreditation Report.

  4. Payment.Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. If Arthena changes the fees for the Service, including by adding additional fees or charges, Arthena will provide you advance notice of those changes. If you do not accept the changes, Arthena has the right to discontinue providing the Service to you. Arthena will charge the payment method you specify at the time of purchase. You authorize Arthena to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Arthena may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

  5. User Content

    1. User Content Generally.Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.

    2. Limited License Grant to Arthena. By posting or publishing User Content, you grant Arthena a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Arthena’s use of your User Content may be without any compensation paid to you.

    3. Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.

    4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:

      1. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Arthena and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 6 and in the manner contemplated by Arthena, the Service, and these Terms; and

      2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Arthena to violate any law or regulation.

    5. User Content Disclaimer.We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Arthena may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Arthena with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Arthena does not permit copyright-infringing activities on the Service.

  6. Digital Millennium Copyright Act

    1. DMCA Notification.We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

      Arthena Fine Arts, Inc.
      c/o Corporation Trust Center
      1209 Orange Street
      Wilmington, DE 19801
      E-mail: copyright@arthena.com

      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

      • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

      • a description of the copyright-protected work or other intellectual property right that you claim has been infringed;

      • a description of the material that you claim is infringing and where it is located on the Service;

      • your address, telephone number, and email address;

      • a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and

      • a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

    2. Repeat Infringers.Arthena will promptly terminate without notice the accounts of users that are determined by Arthena to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.

    Prohibited Conduct.BY USING THE SERVICE YOU AGREE NOT TO:

    1. expect Arthena to evaluate, confirm, endorse, or otherwise stand behind any person’s statements or recommend any investment;

    2. use the Service for any illegal purpose or in violation of any local, state, national, or international law;

    3. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

    4. use the Service to market services, particularly investment advisory services, that might cause Arthena to have to register as a broker dealer with the SEC, or to be treated as an underwriter.

    5. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

    6. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

    7. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;

    8. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

    9. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 12) or any right or ability to view, access, or use any Material; or

    10. attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.

  7. Third-Party Services and Linked Websites. Arthena may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Arthena with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

  8. Termination of Use; Discontinuation and Modification of the Service.If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Arthena may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at support@arthena.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.

  9. Privacy Policy

    ; Additional Terms
    1. Privacy Policy. Please read the Arthena Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Arthena Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

    2. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 11 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

  10. Modification of these Terms.We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

  11. Ownership; Proprietary Rights.The Service is owned and operated by Arthena. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Arthena are protected by intellectual property and other laws. All Materials contained in the Service are the property of Arthena or our third-party licensors. Except as expressly authorized by Arthena, you may not make use of the Materials. Arthena reserves all rights to the Materials not granted expressly in these Terms.

  12. Indemnity.You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Arthena and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Arthena Entities") from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

  13. Disclaimers; No Warranties

    THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ARTHENA ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE ARTHENA ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ARTHENA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. WE ARE NOT RESPONSIBLE FOR DOING DILIGENCE ON THE USERS YOU MEET THROUGH ARTHENA.

    WE DO NOT RECOMMEND ANY ART FUNDS OR ART FUNDS OF FUNDS FOR INVESTMENT OR ENDORSE THEIR FITNESS FOR INVESTMENT, VERIFY THE INFORMATION ON THE SITE OR IN OUR EMAILS AND WE DON'T CLAIM ANY OF THAT INFORMATION IS ACCURATE. IN PARTICULAR, WE DO NOT ACT AS INVESTMENT ADVISER TO ANY INVESTOR(S) AND NO PART OF THIS WEBSITE IS INTENDED TO CONSTITUTE INVESTMENT ADVICE.

    YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

    SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

  14. Limitation of Liability

    IN NO EVENT WILL THE ARTHENA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ARTHENA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    YOU AGREE THAT THE AGGREGATE LIABILITY OF THE ARTHENA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ARTHENA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  15. Governing Law.These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Arthena agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New York County, New York for the purpose of litigating any dispute. We operate the Service from our offices in the United States, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

  16. General. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Arthena regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 2, 4, and 6 through 19.

    Certain information provided by Advisors or Investors may be subject to United States export controls. Thus, no such materials may be downloaded, exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any material available through the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.

    You and the Company both agree that regardless of any statute or law to the contrary but only to the extent permissible by law in each relevant jurisdiction, any claim or cause of action arising out of or related to use of the Service, this agreement or our Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.

  17. Dispute Resolution and Arbitration

    1. Generally.In the interest of resolving disputes between you and Arthena in the most expedient and cost effective manner, you and Arthena agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ARTHENA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    2. Exceptions.Despite the provisions of Section 19.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

    3. Arbitrator. Any arbitration between you and Arthena will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Arthena.

    4. Notice; Process. party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Arthena's address for Notice is: Athena Fine Arts, Inc., c/o Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801.

      376 Broadway, Suite. 4C, New York, New York 10013. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Arthena may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Arthena must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Arthena will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Arthena in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

    5. Fees. If you commence arbitration in accordance with these Terms, Arthena will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Arthena for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    6. No Class Actions.YOU AND ARTHENA 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, unless both you and Arthena agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

    7. Modifications.If Arthena makes any future change to this arbitration provision (other than a change to Arthena's address for Notice), you may reject the change by sending us written notice within 30 days of the change to Arthena's address for Notice, in which case your account with Arthena will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

    8. Enforceability.If Section 19.6 is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.

  18. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

  19. Contact Information. The Service is offered by Athena Fine Arts, Inc., located at 376 West Broadway, Suite 454, New York, New York 10012. You may contact us by sending correspondence to that address or by emailing us at support@arthena.com.

  20. Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 20 with your electronic mail address and a request for a copy of these Terms.

  21. Definitions

    Accredited Investor is defined by the SEC in rule 501 as follows:

    1. a bank, insurance company, registered investment company, business development company, or small business investment company;

    2. an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million;

    3. a charitable organization, corporation, or partnership with assets exceeding $5 million;

    4. a director, executive officer, or general partner of the company selling the securities;

    5. a business in which all the equity owners are accredited investors;

    6. a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase;

    7. a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year; or

    8. a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.

     

  22. Users accessing the site from outside of the U.S. may also need to meet other sophistication standard so required by laws in that jurisdiction. Specifically, references to “Accredited Investors” accessing this site from the United Kingdom are those persons who have been certified as a High Net Worth Individual or Self Certified Sophisticated Investor in accordance with the UK Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.

    1. Qualified Purchaser: The definition of “qualified purchaser” is found in the Investment Company Act of 1940. The definition includes:

      1. any natural person (including any person who holds a joint, community property, or other similar shared ownership interest in an issuer that is excepted under section 3(c)(7) [of the Investment Company Act of 1940] with that person’s qualified purchaser spouse) who owns not less than $ 5,000,000 in investments, as defined below;

      2. any company that owns not less than $ 5,000,000 in investments and that is owned directly or indirectly by or for 2 or more natural persons who are related as siblings or spouse (including former spouses), or direct lineal descendants by birth or adoption, spouses of such persons, the estates of such persons, or foundations, charitable organizations, or trusts established by or for the benefit of such persons;

      3. any trust that is not covered by clause (ii) and that was not formed for the specific purpose of acquiring the securities offered, as to which the trustee or other person authorized to make decisions with respect to the trust, and each settlor or other person who has contributed assets to the trust, is a person described in clause (i), (ii), or (iv); or

      4. any person, acting for its own account or the accounts of other qualified purchasers, who in the aggregate owns and invests on a discretionary basis, not less than $ 25,000,000 in investments.

      5. any qualified institutional buyer as defined in Rule 144A under the Securities Act, acting for its own account, the account of another qualified institutional buyer, or the account of a qualified purchaser, provided that (1) a dealer described in paragraph (a)(1)(ii) of Rule 144A shall own and invest on a discretionary basis at least $25,000,000 in securities of issuers that are not affiliated persons of the dealer; and (2) a plan referred to in paragraph (a)(1)(D) or (a)(1)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(F) of Rule 144A that holds the assets of such a plan, will not be deemed to be acting for its own account if investment decisions with respect to the plan are made by the beneficiaries of the plan, except with respect to investment decisions made solely by the fiduciary, trustee or sponsor of such plan;

      6. any company that, but for the exceptions provided for in Sections 3(c)(1) or 3(c)(7) under the ICA, would be an investment company (hereafter in this paragraph referred to as an “excepted investment company”), provided that all beneficial owners of its outstanding securities (other than short-term paper), determined in accordance with Section 3(c)(1)(A) thereunder, that acquired such securities on or before April 30, 1996 (hereafter in this paragraph referred to as “pre-amendment beneficial owners”), and all pre-amendment beneficial owners of the outstanding securities (other than short-term paper) or any excepted investment company that, directly or indirectly, owns any outstanding securities of such excepted investment company, have consented to its treatment as a qualified purchaser.

      7. any natural person who is deemed to be a “knowledgeable employee” of the, as such term is defined in Rule 3c-5(4) of the ICA; or

      8. any person (“Transferee”) who acquires Interests from a person (“Transferor”) that is (or was) a qualified purchaser other than the, provided that the Transferee is: (i) the estate of the Transferor; (ii) a person who acquires the Interests as a gift or bequest pursuant to an agreement relating to a legal separation or divorce; or (iii) a company established by the Transferor exclusively for the benefit of (or owned exclusively by) the Transferor and the persons specified in this paragraph.

      9. any company, if each beneficial owner of the company’s securities is a qualified purchaser.

    2. For the purposes of above, the term Investments means:

      1. securities (as defined by section 2(a)(1)of the Securities Act of 1933), other than securities of an issuer that controls, is controlled by, or is under common control with, the prospective qualified purchaser that owns such securities, unless the issuer of such securities is: (i) an investment vehicle; (ii) a public company; or (iii) a company with shareholders’ equity of not less than $50 million (determined in accordance with generally accepted accounting principles) as reflected on the company’s most recent financial statements, provided that such financial statements present the information as of a date within 16 months preceding the date on which the prospective qualified purchaser acquires the securities of a Section 3(c)(7) Company;

      2. real estate held for investment purposes;

      3. commodity interests held for investment purposes;

      4. physical commodities held for investment purposes;

      5. to the extent not securities, financial contracts (as such term is defined in section 3(c)(2)(B)(ii) of the ICA entered into for investment purposes;

      6. in the case of a prospective qualified purchaser that is a Section 3(c)(7) Company, a company that would be an investment company but for the exclusion provided by section 3(c)(1) of the ICA, or a commodity pool, any amounts payable to such prospective qualified purchaser pursuant to a firm agreement or similar binding commitment pursuant to which a person has agreed to acquire an interest in, or make capital contributions to, the prospective qualified purchaser upon the demand of the prospective qualified purchaser; and

      7. cash and cash equivalents (including foreign currencies) held for investment purposes. For purposes of this section, cash and cash equivalents include: (i) bank deposits, certificates of deposit, bankers' acceptances and similar bank instruments held for investment purposes; and (ii) the net cash surrender value of an insurance policy.