Introduction

At Padauk & Co., we believe in celebrating creative minds, promoting local talent from Myanmar, and spreading optimism, especially through extremely challenging social and political situations. We welcome and encourage everyone from across the world to join our platform where artists express their imagination and customers enjoy creativity and inspiration.

But, before we start talking about art, creativity, and imagination, we need to lay down some terms and conditions to protect the safety and rights of everyone on our platform.

About the Platform

Padauk & Co., (“Padauk” or “we” or “us” or “our”) provides a range of Products & Services through our website, mobile website, social media, and digital platforms (collectively, the “Services”) which enable you to publish, sell, discuss, promote, and/or purchase artwork and art-related products through the Services and receive the benefits of the Services including but not limited to facilitation of product fulfillment, including payment processing, customer services, third-party product manufacturing, and the delivery of the physical product to its destination.

The platform enables artists to earn money from their artwork by making it available for sale to customers on a variety of products.

The content available on the website may be information, text, data, graphics, images, photographs, sound, video, music, or any other material posted online by our verified partners. Any content that we upload into the portfolio section of the artist account is described as “Art” and may be viewed by all users of the website once published.

If you decide to place an order for a physical product (the “Product”), we will forward your instructions to third parties who will manufacture, prepare, and ship the physical product in the form and destination specified by you.

Legal Agreement

All visitors (“you”, “your”, “user”) mean anyone individually, and if you are accepting these Terms on behalf of a company or other legal entity, that legal entity, to the Padauk & Co., platform (website, mobile website, social media, and/or any other digital platforms) are entering a binding legal agreement on the following terms (the “agreement”) when using the website. The agreement is between you and Padauk & Co., and the use of this website indicates continued acceptance of this agreement.

Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law and are not available to persons under 16 years of age.

In order to protect against fraud, to maintain and protect the property or other rights of us or other users, third parties, or the public large, you agree to the Terms & Conditions set forth in this “Terms of Service”, “Privacy Policy” and “Copyright & Intellectual Property Policy” and any other user agreements, applicable terms or policies we may publish from time to time, when you creating an account, purchasing products, publishing artwork, and otherwise using the Services.

We will notify you if we amend or update any of the terms, conditions, policies or procedures relating to the Services. If you do not meet these requirements or do not agree to these terms, you may not use the services.

Copyright & Intellectual Property Policy

We are about celebrating and empowering creative minds to thrive and providing those artists with a safe, secure, supportive platform to showcase and sell their artwork. To achieve this, we only allow original artwork created exclusively or non-exclusively to be uploaded to our platform, have permission to use, and authorize others to use. If you are a customer or browser, please respect the copyright and trademarks of all the works you see or buy through the Services.

We have Zero Tolerance policy towards the infringement of Copyright and Intellectual Property Rights, and as such we must insist you respect this essential principle of our platform and community.

Copying or imitating someone else’s artwork, photographs, trademarks (logos, characters, or names), or likeness (celebrities or anyone else) is unethical, illegal, and inexcusable and will not be tolerated on our platform.

Artists need to be aware that publishing your work on our platform is subject to legal responsibilities and you must make sure you are not breaking any laws by publishing your work on our platform.

There are several international laws and treaties protecting Intellectual Property. In simple terms -

• Copyright Law: Protects the expression of an original idea recorded in a tangible form, such as artwork in the form of photographs or paintings and literary works in the form of poems or stories.

•  Intellectual Property Law: Protects the use of words, symbols, designs or logos that identify and distinguish a source of goods.

Fair Use Notice

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. However, “fair use” typically applies in limited circumstances and the scope of “fair use” is different in different countries. So even if you think you’ve created a work covered by “fair use” or another permissible use, you should talk to an attorney prior to using it for/on our platform.

In general, you might be able to incorporate someone else's copyright or trademark into your own work, if you do it in such a way that that is considered "fair use" or in such a way that qualifies as another permissible use.

Please be aware that we act in accordance with the “Notice and Takedown” procedure when an infringement report has been received. Additionally, certain works may be taken down, at our sole discretion, without any specific explanation, in appropriate circumstances of potential infringement issues.

Ultimately, you must take full responsibility to ensure anyone’s rights are protected and laws are not broken before your art is uploaded, displayed, and sold on our platform.  In addition to all other remedies available to us, we will withhold any Artist Share if you are found to be in violation of our Copyright and Intellectual Property Policy.

Artwork and Content License, Rights, and Usage

 By submitting artwork and content, you grant us, where applicable, a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to use, publicly display, and publicly perform, publish, reproduce, modify, and distribute your artwork and content in any format on our platform (and its successors' and affiliates') and the Services in facilitating the display, promotion, production, sale, and distribution of products with your artwork and content.

You also hereby grant each user of our website, mobile website, social media, and digital services a non-exclusive license to access your content through these platforms, and to purchase, use, distribute, and display such content as permitted through the functionality of these platforms and under this Terms of Service.

If you wish to discontinue the listing, display, promotion, and sale of your artwork or content on products through our platform, third-party affiliates, and third-party retailers, you are required to provide us with a sixty (60) day notice to remove your artwork from the Services. We retain the right to sell any products bearing your artwork and content during this sixty (60) day period.                                          

You, as an artist, are entirely responsible for all your artwork and content that you create and make available for our platforms and for sale through the services, that you own or have obtained all required intellectual property and other rights in your artwork and content, including without limitation, the right to manufacture, distribute and sell products that include your artwork and content. You represent and warrant that:

• You own all intellectual property rights in your artwork and content or you have obtained all copyrights, trademark rights, rights of publicity, and other rights required for you to make your artwork and content available through the Services, to manufacture, distribute, and sell products that include your artwork and to grant us the rights granted to it in these terms;

• Your artwork and content and the manufacture, distribution, and sale of products that include your artwork do not and will not infringe the intellectual property rights or other rights of any person or entity, including without limitation any copyright, moral rights, trademark, patent, right of publicity or right of privacy;

• Your artwork and content do not contain material that is false, inaccurate, misleading, incomplete, defamatory or libelous obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, abusive, inflammatory or otherwise objectionable;

• Your artwork and content are accurate, not misleading or deceptive and do not offer or disseminate fraudulent or counterfeit goods, products, services, schemes, or promotions.

Copyright & Trademark Notice

All copyrights and trademarks on our platforms and the Services (including the software and systems underlying the Services, and text, graphics, logos, icons, sound recordings and software) are owned by or licensed to us. Other than for the purposes of, and subject to the conditions prescribed under relevant copyright and trademark legislation throughout the world, and except as expressly authorized by this agreement, you may not in any form or by any means:

• Use, adapt, reproduce, store, distribute, print, display, perform, publish, or create derivative works from any part of this website; or

• Commercialize any information, products, or services obtained from any part of this website, without our expressed written permission.

If you use any of our material and trademarks in reference to our activities, products, or services, you must include a statement attributing that trademark to us. You must not use any of our trademarks in or as the whole or part of your own trademarks; in connection with activities, products, or services that are not ours; in a manner that may be confusing, misleading, or deceptive; or in a manner that disparages us or our information, products, services, digital platforms (including this website).

Buying Products

All products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue products without notice, even if you have already placed your order. Your placement of an order as a customer does not necessarily assure that we will accept your order.

We reserve the right to refuse any order in our sole discretion. In addition, before accepting your order, we may require additional information if you have not provided all the information required by us to complete your order.

Generally, use of the Services is limited to orders for your personal use. However, if you are interested in buying large quantities of products, please contact us at orders@banyancanopy.com.

Payments

If products or services are made available for purchase on our platforms and through the Services and you wish to purchase the products or services, you may be asked by us (or, if the products or services are being made available by a third-party provider, by the third-party provider) to supply certain information relevant to your purchase, including credit card number, expiration date, billing address and shipping information.

You represent and warrant that you have the legal right to use any credit card(s) or other payment means used by you or through your account to purchase any product and/or service.

You acknowledge that any such information will be treated by us in accordance with our Privacy Policy. You grant us the right to provide such information to third parties in order to facilitate the completion of transactions initiated by you or on your behalf through the Services. Verification of information may be required prior to acceptance of any order through the Services.

Collaborating artists hereby acknowledge and/or authorize us the following:

• We will collect, hold, and distribute the retail price (“sale proceeds”) from customers and also charge for the shipping which will be retained by us and not affect the amount to be distributed to you.

• We will deduct the base amount (which includes our margin for facilitation services, including tax where applicable) from the sales proceeds for your products before distributing your margin (which will include tax where applicable).

• Pay your margin in accordance with the payment method and schedule, agreed upon prior to becoming a collaborating artist on our platforms. 

• We may set payment amount threshold amounts in relation to a month or other time period - and where the payment amount does not exceed any applicable threshold for the relevant period, we may elect to postpone your payment until the threshold is exceeded.

• If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your margin for up to 6 months from the payment date. If you have not notified us to update the payment method details during that time, the proceeds will be forfeited to us or donated to a charity of our choice.

Artist Earnings

We pay artists (the “Artist Earnings”) for products sold with their original artwork printed on. We will pay the Artist Earnings based on the schedule set forth here. For sales of products on www.banyancanopy.com, and other digital platforms owned by us, you will be paid on a monthly basis, generally within thirty (30) days of the end of a month.

For sales of products through our third-party affiliates, wholesale partners or third-party retailers, you will be paid within thirty (45) days of the end of a month. Unless otherwise stated or agreed upon in writing, all amounts will be paid in U.S. Dollars. You are responsible for paying all applicable taxes associated with your receipt of Artist Share.

In the event that your collaboration with us is suspended or terminated due to your violation of these terms or our policies as determined by us in our reasonable discretion, you will not be eligible to receive any unpaid artist share. In addition, we will have the right to require reimbursement of any artist share paid to you while you were in breach of these terms or our policies.

If you believe that any Artist Earnings has been erroneously withheld from you or that you have been erroneously or unfairly suspended or terminated, please contact us so we may further investigate. If you are still unsatisfied or feel that you have not been treated fairly, please see the section below for Resolution of Disputes.

Shipping & Delivery

Shipping charges will be shown during the checkout process prior to finalizing your order. Shipping charges include the rate we are charged by third parties for sending your order, plus a reasonable amount for packaging and handling. Title to products passes to you upon shipment. We endeavor to deliver all orders on schedule. However, we cannot guarantee that our shipping providers or suppliers will not experience any shipping delays or problems.

Taxes and Your Responsibility

• Except as required otherwise by applicable Federal or State Taxation Laws or Regulations:

• Each party is responsible for their own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of or in connection with obligations under this Terms of Service.

•  We will not collect or pay taxes on behalf of collaborating artists as we are merely acting as an agent in facilitating the sale of your product to the customers. The amounts distributed to artists will be deemed to be inclusive of any taxes, if applicable. Collaborating artists are, at all times, solely responsible for reporting and remitting any tax liabilities arising out of the sale of products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance.

•  All tax-related reporting responsibilities to relevant tax authorities are entirely the responsibility of the individual artist.

Errors, Inaccuracies and Omissions

On rare occasions, you might find that the product you receive does not match what you saw online. If that occurs, let us know.

We strive to be held to the highest standard for our products and be as accurate as possible when the product is delivered to you. However, we do not warrant that all product descriptions, images, photographs, pricing, or other information on the Services are accurate, complete, current, or error-free. In addition, all weights and size dimensions are approximate.

If a product offered by us is not as described or pictured, your sole remedy is to return it in an unused condition for a refund in accordance with our Return, Exchange, and Refund policies below. In the event of an error, whether on the Services, in an order confirmation, in processing an order, in delivering a product, or otherwise, we reserve the right to correct any error and revise your order accordingly or to cancel the order and refund any amount charged.

If you receive an order that you believe contains a mistake, we encourage you to contact us right away so that we may correct the error.

Return, Exchange, and Refund Policies

We comply with the applicable laws and regulations with respect to returns, exchanges, and refunds in your jurisdiction. For more information about our return, exchange, and refund policies, click here.

Registration and Account Information

You can become a registered member (“member”) of the website by setting up a password-protected account. You will be required to select a username and password when registering to become a member. You are not required to become a registered member to purchase on this website, but we highly recommend it. However, you must become a member before placing any content on the website, including writing any comments in forums or reviews.

You may not select a username that is vulgar, offensive, obscene, or attempts to impersonate another person. You may never use another person’s account. We reserve the right to refuse to provide you with an account or cancel your account in our sole discretion, provided that such termination will not terminate our obligation to make any payments to you that may be owed.

You are solely responsible for actions made on the website using your password, including any products purchased any content displayed, or messages sent, even if these actions were not authorized or contemplated by you. You are solely responsible for any loss caused by any use of your password by you, or any other person.

You agree to notify us immediately of any breach of security or unauthorized use of your account. You agree that you will not disclose your password to any other person, and you will not keep your password where it can be copied or used by anyone other than you. If you suspect someone else knows your password, you must change it immediately.

Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable for our losses or the losses of others due to any unauthorized use. We reserve the right to require you to alter your password if we have reason to believe your password is no longer secure. We may also require you to change your password from time to time.

Disclosure of Account Information

We may from time to time require you to provide additional information confirming your identity, including government identification, payment information, and tax identification and/or withholding forms.

You acknowledge and agree that we may access, retain, and disclose your account information, artwork, and content if required to do so by law or in a good faith belief that any access, retention, or disclosure is reasonably necessary to enforce these Terms and Policies, to respond to your requests for customer service, to respond to a legal notice or to comply with legal process, to protect the rights, property or personal safety of our company, our users or the public.

Account Termination

Access to this website may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any such termination.

We will terminate your account if you violate these Terms, Conditions, and Policies.

• We may suspend or terminate your access to the Services if you are determined to be, in our sole discretion, in violation of these Terms or any of our policies. We may also suspend or terminate your access to all or any part of the Services or your account at any time, with or without cause, with or without notice, effective immediately.

• You may terminate these Terms at any time by terminating your use of the Services.

• On termination of these Terms for any reason, the rights and licenses granted to you hereunder will immediately terminate and the provisions of these Terms that by their nature and context are intended to survive termination will survive. We will have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to the Services or your account.

Upon termination, we will suspend your account and remove your artwork, if any, from the Services within ninety (90) days. Without limitation of the foregoing, we will have the right to retain copies of your account information, artwork and content in our archives for our internal business and legal purposes. Unless your account has been terminated for a breach of these Terms or any of our policies, as determined by us in our reasonable discretion, you will be paid, in the ordinary course, any Artist Share owed to you through the termination of your account.

User Conduct

You agree to abide by these Terms and our policies while using the Services and interacting with other users.

• Post content, comments, messages, titles, tags, descriptions, or other content that is pornographic, obscene, offensive, profane, or depicts, promotes, or incites illegal activity, hate, abuse, discrimination, denigration, objectification, or violence, or otherwise violates our community standards, as determined by us in our sole discretion.

• Use, reproduce, copy, modify, adapt, create derivative works from, publish, print, transmit, distribute, perform, display, sell, license, rebrand, or otherwise transfer: (a) any portion of the Services, artwork, or content made available through the Services other than your own artwork or content, without the owner’s express written permission; or (b) any our Copyrights or Trademarks.

• Frame, mirror, or otherwise simulate the appearance or function of the Services or any other user’s artwork or content or forge headers, icons, or otherwise manipulate identifiers in order to disguise the origin of any artwork or content transmitted through the Services.

• Interfere with another user’s artwork or content. 

• Remove any copyright, trademark, or other proprietary rights notices contained in or on the Services or any artwork or content other than your own artwork or content. 

• Upload, post, email, transmit, or otherwise make available any artwork or content that you do not have a right to make available under any law or under contractual or fiduciary relationships. 

• Post artwork, content, titles, tags, or descriptions that infringe on a third party’s copyright, trademark, right of publicity, or other intellectual property rights. Please see our Copyright and Trademark Policy for further details. 

• Stalk, harass, or harm another person via the use of the Services. 

• Impersonate any person or entity, including, but not limited to, our employees, representatives, or users, or falsely state or otherwise misrepresent your affiliation with a person or entity. 

• Harvest or otherwise collect information about other users of the Services, including email addresses, without their express written consent. 

• Upload, post, email, transmit, or otherwise make available through the Services any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. 

• Use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission. 

• Interfere or attempt to interfere with the proper working of the Services or any activities conducted through them. 

• Bypass any measures we may use to prevent or restrict access to the Services; or 

• Circumvent or manipulate our payment process or Artist Earnings.

Dispute Resolution

This Terms of Service and all disputes relating to this Terms of Service or relating to your use of any part of the Services, are governed by the laws of the State of New York and will exclusively resolved under confidential binding arbitration held in Queens County, New York. All disputes will be resolved in accordance with New York law, without regard to conflicts of law principles.

It is our goal that the Services meet your expectations and provide excellent service. However, there may be instances when you feel that we have made a mistake or left you disappointed in some way. In those instances, we are committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your concern.

Therefore, for any problem or dispute that you may have with us, you acknowledge and agree that you will, as an initial matter, email us at admin@banyancanopy.com to describe to us the nature of your complaint or dissatisfaction.

However, if for some reason your problem or dispute is not resolved satisfactorily within thirty (30) days after our receipt of your written description of it, you agree to the further dispute resolution provisions below. To the extent permitted by applicable law, the informal resolution process described in this paragraph is a precondition to pursuing any other process, so please do not forget to contact us first.

You and we agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You and we agree that any cause of action arising out of or related to the Padauk & Co., website, mobile website, or other digital platforms (including but not limited to any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

If you have a dispute with one or more users or sellers, you release Padauk & Co., (and its officers, directors, agents, subsidiaries, joint ventures, and employees) from claims demands and damages (actual and consequential) of every kind of nature, known and unknown, arising out of or in any way connected with such disputes.

Means and Fees

In the interest of efficiency and fairness, you and we agree that the arbitration proceeding will be based solely on written submissions unless the arbitrator deems an oral hearing strictly necessary. Should the arbitrator deem an oral hearing to be necessary, such hearing will be conducted via telephone or other electronic or technical means, or if that’s not possible, in person in the jurisdiction where you reside or at another mutually agreed upon location. The language of the arbitration will be English or, for users who reside outside of the U.S., the official language of your jurisdiction.

Waiver of Trial by Judge or Jury

You and we agree and understand that by using arbitration to resolve disputes you and we are giving up any right that you or we may have to a judge or jury trial regarding all claims subject to this agreement to arbitrate. You and we further agree that any claim heard in a court of competent jurisdiction will be heard by a judge instead of a jury, except where a jury trial waiver is not permissible under applicable law.

Statute of Limitations

You and we agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or relating to the use of the Services, or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.

General Terms 

Waivers and Disclaimers

To the fullest extent permitted by applicable law, you hereby waive any legal or equitable rights or remedies you have or may have against us concerning any activities, artwork, content, actions, or inactions of any third party in connection with the services, including without limitation, any illegal, defamatory, offensive, or unauthorized conduct by any users.

The services are provided “as is”, “as available”, and with all faults. We cannot guarantee continuous or secure access to or that the services will be error-free or that all transactions will be completed. The operation of the services may be interfered with by numerous factors outside of our control. To the extent legally permitted, we disclaim all express and implied warranties, terms, and conditions, including, but not limited to any implied warranties of merchantability, quality of information, quiet enjoyment, noninfringement, title, or fitness for a particular purpose. You assume all risks associated with your use of the services.

Disclaimer

We do not represent or guarantee that the Services or this website, the mobile website, or any other website that is accessible using a hyperlink from this website will be free from errors or viruses. We do not represent or guarantee that access to the Services or these websites will be uninterrupted.

You acknowledge that the Services or this website, the mobile website may be affected by outages, faults, or delays. Such outages, faults, or delays may be caused by factors, including technical difficulties with the performance or operation of our or another person’s software, equipment, or systems, traffic or technical difficulties with the Internet, or infrastructure failures.

We do not accept responsibility for any loss or damage, however, caused (including through negligence), that you may directly or indirectly suffer in connection with your use of this website or any linked website, nor do we accept any responsibility for any such loss arising out of your use of or reliance on information contained on or accessed through this website.

To the extent permitted by law, any condition or warranty that would otherwise be implied in these terms and conditions is hereby excluded.

Release

You acknowledge that any agreement you make with another party through the Services is strictly between you and that party and we are not a party to that agreement. If you have a dispute with another party, you hereby release us (and our affiliates, officers, directors, agents, subsidiaries, joint ventures, and employees) from any and all claims, liabilities, demands, and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with that dispute.

Limitation of Liability

In no case will Padauk & Co., be liable for any consequential loss or damage suffered by you arising from this Services Agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.

Indemnity

You agree to indemnify, defend, and hold us, our officers, directors, employees, agents, and representatives harmless, as well as, all third parties printing, manufacturing, and/or otherwise fulfilling the products you are selling via the website, their officers, directors, employees, agents, and representatives harmless, from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from:

• Your breach of any clause of this agreement;

• Any allegation that any materials that you submit to us or transmit to the website infringe or otherwise violate the copyright, trademark, trade secret, or other intellectual property or other rights of any third party; and/or

• Your activities in connection with the website.

This indemnity will be applicable without regard to the negligence of any party, including any indemnified person.

You may not settle any claim in any manner that binds us without our express prior written consent. We may withhold any amounts due to you pending the resolution of any claim subject to this indemnity and may apply those amounts to the resolution of that claim.

This clause will survive the termination of this Services Agreement.

Modifications

We reserve the right to monitor, modify or discontinue the Services, and to block, modify, publicly comment on, or delete any artwork, content, or information submitted to the Services by any party, at any time without notice in our sole discretion; provided, however, that we have no obligation to update, store, maintain or correct any artwork, content or information on the Services.

We reserve the right, at any time and in our sole discretion, to change these Terms, the Copyright and Intellectual Property Policy, and the Privacy Policy, in whole or in part, by notifying you when required. You are responsible for reviewing and complying with these Terms, the Copyright and Intellectual Property Policy and the Privacy Policy), in effect at the time you use the Services.

You acknowledge that you will be bound by the revised Terms, as of their effective date set forth therein, and your continued use of the Services constitutes acceptance of them.

California Residents

Under California Civil Code Section 1789.3, California users of online services are entitled to the following specific consumer rights notice:

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Force Majeure

We will be excused from performance under these Terms, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from –

• Weather conditions or other elements of nature or acts of God,

• Acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion,

• Quarantines or embargoes,

• Labor strikes,

• Other causes beyond our reasonable control.

In the event that we are temporarily unable to ship you a purchased item because of such an event, we will give you the option of deferring shipment or receiving a refund of your charges.

Contact Us

If you have questions about this Privacy Policy, you may contact us at support@padauk.us.

We will do our best to respond to you in a timely and professional manner to answer your questions and resolve your concerns.