Terms and Conditions
Gayle Printz, GaylePrintz.com, and its officers, representatives, affiliates, successors, assigns, directors, employees and agents (individually, and collectively, referred to herein as “Seller”) provides a website and mobile application at GaylePrintz.com (the “Website”) with features and tools enabling qualified users, purchasers, buyers, and other person(s) or companies they represent (individually, and collectively, referred to as “Buyer”) to view, bid on, and purchase Seller’s unique original artwork (“Paintings”) from Seller’s Gallery (the “Gallery”) via Website services, software, tools, features or functionality, made available through associated Third party Service Providers of online services (collectively “Services”). Buyer’s access to, and use of, the Website and Services are contingent upon Buyer’s acceptance of these TERMS AND CONDITIONS, which include the PRIVACY POLICY, incorporated herein and made a part hereof by reference, as each may be amended and modified from time to time (collectively the “Terms and Conditions”).
SECTION 1: TERMS AND CONDITIONS CONSTITUTE A BINDING LEGAL CONTRACT
By accessing the Website, viewing, using, browsing, bidding on, and/or purchasing Paintings on or through the Seller, Website or Services, or submitting or posting any content or material on the Website, or otherwise using the Services, Buyer understands, warrants and expressly agrees to the following:
A. The Terms and Conditions govern purchases, offers, access to, and use of, the Website and Services;
B. Buyer recognizes that Buyer’s consent to the Terms and Conditions are a condition precedent to Buyer’s use of any and all Services, including viewing, bidding on, and purchasing Paintings, and/or conducting business with Seller, whether online, by phone, in person, via an Agent, or through any associated Services. That is, every interaction, communication, transaction, use of the Website, bid, sale, purchase, and all associated actions are contingent upon Buyer’s acceptance of the Terms and Conditions;
C. Before accessing or using the Website and Services, Buyer has read, has had the opportunity to ask questions, understands and unconditionally accepts, and consents to to be bound by, all Terms and Conditions, whether or not Buyer registers with the Services;
D. If Buyer accepts or agrees to the Terms and Conditions on behalf of a company or other legal entity, Buyer represents and warrants that Buyer has authority to bind that company or legal entity to the Terms and Conditions and, in such event, that company or other legal entity is so bound;
E. Buyer understands that Seller reserves the right to modify any item contained in the Terms and Conditions at any time without notice. Changes are effective immediately upon posting to the Website, at which time such modifications shall be incorporated herein and made a part hereof. Should Buyer access or use the Services after such changes are posted, Buyer is subject to the terms; and,
F. Buyer understands, expressly acknowledges and warrants that the Terms and Conditions, constitute a legally binding agreement between Buyer and Seller:
1. If Buyer does not accept all Terms and Conditions, Buyer agrees not to access the Website or use any of the Services; and,
2. Buyer understands that any purchase initiated or completed in abrogation of the Terms and Conditions, in whole or in part, may be terminated by Seller.
SECTION 2: CONSIDERATION
Buyer expressly acknowledges that the Terms and Conditions, are supported by reasonable and valuable consideration, the receipt and adequacy of which are acknowledged. Without limiting the foregoing, Buyer also acknowledges that such consideration includes, without limitation, Buyer’s use of the Website, Services and receipt or use of data, content, images, User-Generated Material and information available at, or through, the Services, the possibility of our review, use or display of User-Generated Material, and the possibility of publicity and promotion from our review, use, or display of User-Generated Material Buyer provides.
SECTION 3: REPRESENTATION AND RESERVATION OF RIGHTS
As to all Paintings, Buyer represents, warrants, understands, acknowledges, and expressly agrees to the following:
A. Seller is the creator of all Paintings;
B. Seller is the sole and exclusive owner of all such Paintings;
C. Seller is the sole and exclusive owner of the Copyrights to, and all derivative intellectual property rights of, all Paintings including, without limitation, all digital rights thereto;
D. All Copyrights, derivative intellectual property rights, digital rights and interest in the Paintings remain the sole intellectual property of Seller, and Seller retains all such Copyrights, derivative intellectual property rights, and digital rights to all Paintings after sale of the physical Paintings; and,
E. Reproduction (in any form whatsoever) of any Painting and/or its images infringes upon the Seller’s copyright and, therefore, is an actionable violation of U.S. Copyright Laws, International Copyright Laws, and hereunder. That is, Buyer understands, expressly agrees, and warrants that any and all Copyrights, Derivative Intellectual Property Rights and Interests including, but not limited to, all Digital rights, to all images of the Paintings are reserved by, and forever remain the property of, Seller, her heirs and assigns. Buyer understands, expressly acknowledges and agrees that no licenses or rights are granted to Buyer by implication or otherwise under any intellectual property rights owned or controlled by Seller, her Representatives, licensors, and/or Third-party Providers.
SECTION 4: DISCLAIMERS
A. Without limiting the foregoing, Seller explicitly disclaims any and all warranties of merchantability and fitness for a particular purpose, and any and all warranties arising by operation of law or from a course of dealing or usage in trade, including without limitation, warranties of accuracy, availability, quality, and compatibility with Buyer’s standards or requirements.
B. No advice or information, oral or written, obtained by Buyer in any manner creates a warranty;
C. Seller makes no warranty that the Website, Services, or Content, will meet Buyer’s requirements, or be available, uninterrupted, secure, or error-free;
D. Seller makes no warranty regarding the quality, accuracy, timeliness, or completeness of any content obtained through the Services or Website; and
E. Buyer understands and expressly agrees that no warranty, express or implied, is created based on Buyer’s reliance on oral or written advice or information obtained from the Services, Website, Seller, its representatives, affiliates, successors or assigns.
SECTION 5: PAYMENT, FULFILLMENT, AND GIFT CARD INFORMATION
Nothing on the Website constitutes an offer. Rather, the prices posted constitute an invitation for Buyer to bid on, or make Buyer’s own offer to purchase. All offers by Buyer are subject to acceptance by Seller:
A. Payments are processed by a PCI-compliant third-party payment processor. All orders and Services by the third-party payment processor are governed by the Terms and Conditions;
B. Checks and Cryptocurrency are not accepted;
C. Payment will not be processed if any information Buyer submits is incorrect or invalid;
D. Seller has no liability if Buyer’s payment is declined;
E. Should Buyer purchase a gift card through the third-party payment processor, Buyer acknowledges that Seller does not issue store credit for gift cards;
F. Once payment is made, Buyer warrants and agrees that Buyer is subject to, and will comply with, all Shipping Terms and the Terms of Return hereunder; and
G. Seller reserves the following rights:
1. To change the price of any Painting on the website without notice; and,
2. To take a Painting out of inventory, or modify a listed Painting, at any time, without notice.
SECTION 6: TERMS OF SALE
A. Each Painting comes with Certificate of Authenticity hand-signed by the Artist;
B. Seller makes every effort to accurately display the colors, textures, dimensions and images of every Painting via the Services. However, because individual computer monitors may display colors differently, Seller cannot guarantee that Buyer’s computer monitor will accurately depict the detail and color of the Painting. Therefore, Seller cannot be responsible for the color accuracy of any Artworks displayed on the Services, and Seller expressly disclaims all liability in this regard;
C. Painting colors, measurements, and weights are approximate and may vary from the representation on the Services. These differences will not constitute noncompliance by Seller or a material defect in the Painting;
D. As Buyers know, it is not unusual for the back-side of the Painting canvas to arrive with stray paint marks and/or Artist’s notes. In many cases, in time, this will add value to the Painting. If it does not please Buyer, please know that many Collectors cover it with the signed Certificate of Authenticity;
E. Although Seller entertains all bids, Seller cannot guarantee that the Buyer’s Painting of choice will still be available at the time of Buyer’s bid;
F. As Paintings are sold to the highest bidder, it is possible Paintings will sell at prices above List Price;
G. Buyer understands that all of Buyer’s purchases are Subject to Seller’s Cancellation and Return Policies contained herein;
H. After Seller receives Buyer’s offer to purchase Paintings, Seller will send an order acknowledgement to the email address Buyer provide listing the contents of Buyer’s requested order. This email serves only as information to the Buyer acknowledging that the order has been received;
I. Seller expressly reserves the right, in Seller’s sole discretion, to refuse Buyer’s order if problems are identified by credit and fraud avoidance services. In this case, Seller may require additional verifications, approvals or other information before acceptance. Buyer agrees to promptly provide such information as a condition precedent to Seller’s acceptance;
1. Buyer’s bid is considered accepted after full payment is received, deposited by Seller’s third-party payment processor into Seller’s account, and receipt of the funds are confirmed by the Seller’s bank;
2. Right of First Refusal: In the event the Buyer receives a bona fide offer from a third party to purchase the Painting, Buyer shall provide written notice of the offer’s terms to the Seller, and Seller shall have Two (2) business days to exercise this Right of First Refusal by providing written notice to Seller at Sales@GaylePrintz.com, agreeing to purchase the Painting on the same terms and conditions as the third-party offer. Buyer’s failure to provide such notice within the timeframe shall constitute a waiver of this Right of First Refusal for that Painting;
3. Limitations on Seller’s ability to accept orders for shipment to addresses outside the Continental United States: Seller reserves the right to refuse any order Buyer places with Seller. Seller may, in Seller’s sole discretion, limit or cancel any order. These restrictions may, or may not, be imposed by U.S. Law prohibiting sales to foreign destinations. In the event that Seller makes a change to or cancels an order, Seller may attempt to notify Buyer by contacting the e-mail and/or billing address/phone number Buyer provided at the time the order was made. Seller reserves the right to limit or prohibit orders that, in Seller’s sole judgment, appear to be placed by dealers, resellers or distributors.
4. Buyer agrees to provide current, complete and accurate account information for all purchases. Buyer agrees to promptly update Buyer’s account and other information, including Buyer’s full legal name, email address, physical address, phone numbers, and credit card information, expiration dates, CVV Codes, and the like, so that Seller can accurately complete Buyer’s transactions and contact Buyer as needed;
5. Paintings may not be available for immediate delivery;
6. If Buyer’s offer is declined by Seller, Buyer agrees that Seller may contact Buyer to let Buyer know and to help Buyer find similar works; and,
7. An offer for any Painting or service made on this site is void where prohibited.
J. All Prices, fees and other amounts referred to in the Terms and Conditions are stated in U.S. Dollars (USD). Buyer expressly acknowledges and accepts that Online prices include ONLY the Painting.
K. Domestic Shipping:
1. There is no charge for Shipping Paintings that are delivered within the Continental United States (the 48 States);
2. For purchases delivered in the U.S.A., Sales Tax will be calculated as a separate item at checkout;
(2.1) For Paintings delivered to Alaska and Hawaii, Delivery Terms are EXW (Ex Works) at Seller’s facility in, or near Atlanta, Georgia, U.S.A., on a date on a date within three (3) days of receiving notification from Seller that the Paintings are available for pickup. The pickup location shall be provided after Buyer’s full payment is received and the funds are cleared by Seller’s bank. EXW means that, from the moment the Paintings are available for pickup, Buyer assumes all costs and risks, including, but not limited to, loading onto the vehicle, shipping, handling, risk of damage or loss, insurance in the amount of the sale price, taxes, brokerage fees, clearance, main carriage, and all other charges that apply to, or are associated with, picking up the Paintings and delivering them to Buyer’s destination. Seller will notify Buyer when the Paintings are ready for pickup, and provide the weight and dimensions of Buyer’s package. Buyer understands and expressly acknowledges that Seller’s Purchase Price does not include any costs incurred after Buyer is notified the Paintings are ready for pickup. Seller requests Buyer pickup the package at a mutually-determined time within three (3) days of receiving such notification. Buyer will provide Seller with a duplicate copy of the original Shipping Label and Tracking Number; and
(2.2) There may be instances when Seller’s Paintings cannot ship to Buyer’s destination of choice. Notification will be given if this applies.
3. International Shipping: For all International Sales (to be delivered outside the U.S.A.), Buyer understands, acknowledges and expressly agrees to the following:
(3.1) Delivery terms are EXW (Ex Works) at the Seller’s facility in, or near Atlanta, Georgia, U.S.A. on a date within three (3) days of receiving notification from Seller that the Paintings are available for pickup. The pickup location shall be provided after Buyer’s full payment is received and the funds are cleared by Seller’s bank. EXW means that, from the moment the Paintings are available for pickup, Buyer assumes all costs and risks, including, but not necessarily limited to, loading onto the vehicle, shipping, handling, risk of damage or loss, insurance in the amount of the sale price, all sales, use and value added taxes (VAT), duties, goods and services tax (“GST”), customs fees, import and similar taxes and withholding taxes, tariffs, brokerage fees, export clearance, main carriage, and import, and all other charges that may apply to, or be associated with, picking up the Paintings from the Seller’s venue and delivering them to Buyer’s destination. Seller will notify Buyer when the Paintings are ready for pickup, and provide the weight and dimensions of Buyer’s package. Buyer understands and expressly acknowledges that Seller’s Purchase Price does not include any costs incurred after Buyer is notified the Paintings are ready for pickup. Buyer will pickup the package at a mutually-determined time within three (3) days of receiving such notification. Buyer will provide Seller with a duplicate copy of the original Shipping Label and Tracking Number;
(3.2) Buyer will fully cooperate with Seller in order for Seller to properly package the Paintings for customs purposes by promptly emailing Sales@GaylePrintz.com the following: all paperwork, customary written documentation and/or forms required under applicable international laws necessary to enable Buyer to fully comply with all legal obligations associated with pickup in the U.S.A. and delivery to Buyer. Buyer must carefully enter Buyer’s full name, the full address to which Buyer’s Paintings will be shipped, Buyer’s email contact, cellphone contact number with country code, VAT number, and all other information necessary for Seller to accurately complete all necessary international paperwork. Some of these forms will need to be included inside the package, but Seller will also supply such paperwork to Buyer. Buyer will provide Seller with a copy of Buyer’s Shipping Label and Tracking Number;
(3.3) There will be instances when Seller’s Paintings cannot ship to Buyer’s destination of choice outside of the U.S.; Notification will be given if this applies;
(3.4) Buyer understands and expressly acknowledges that Seller’s Purchase Price includes only the Painting. Seller’s Purchase Price does not include any costs incurred after Seller notifies Buyer that Buyer’s Paintings are ready for pickup; and,
(3.5) Buyer understands, warrants and expressly agrees that Seller assumes, and has, no responsibility for Purchases damaged or lost in Transit; That all sales are EXW, ExWorks, meaning that the Transfer of Risk to Buyer occurs when Seller places the Painting at Buyer’s disposal for Pickup from Seller’s location Atlanta, Georgia, U.S.A., for transfer to Buyer. Buyer understands that from that point on, Buyer is responsible for the Painting’s condition; Buyer will provide Buyer’s current phone number and address. Seller is unable to ship to a post office box. And Buyer is responsible for carefully entering everything correctly in the “Ship To” portion of Buyer’s Purchase: Buyer’s full name, the full address to which Buyer’s Paintings will be shipped and Buyer’s phone number with country code, email, and the like. Seller relies on this information to create the necessary documentation, and Seller not responsible for any events that might occur due to the inaccurate information.
SECTION 7: RETURN POLICY
Buyer understands, acknowledges, warrants and expressly agrees to the following:
A. Every Painting offered for sale on the Website is a Unique Item: a one-of-a-kind Painting created by the hand of Seller. Please Note that the because of the unique quality of the Paintings, Seller is exempt from the EU Directive on Consumer Rights and is not required to offer and/or accept returns;
B. Nonetheless, if Buyer is dissatisfied with a Painting Buyer purchased at the full price listed for sale on the Website (hereinafter “List Price”), and Buyer wants to return it for Gallery credit, Buyer must follow all steps outlined in the Terms of Return below;
C. CANCELLATION OF AN ORDER: Seller can only cancel an order that has not been prepared for shipment;
D. FINAL SALE: ALL Sale Items and Paintings sold below List Price are Final Sale;
E. TERMS OF RETURN: To return a Painting purchased at List Price, Buyer must strictly comply with ALL instructions listed in the Terms of Return contained herein. Buyer accepts, warrants, and agrees that purchases are made with the full knowledge that each instruction listed in the Terms of Return is material to full compliance with Seller’s Terms of Return and that, unless ALL Terms of Return are followed, the purchase of all paintings at List Price constitute a final sale and cannot be returned. Buyer has Fourteen (14) Calendar Days to Return a Painting purchased at List Price for Gallery Credit, Provided However that Buyer follows each of the following steps:
1. NOTICE REQUIRED: Within 72 hours of receiving Buyer’s List Price Painting, Buyer must email Sales@GaylePrintz.com notifying Seller to expect the return. Buyer accepts and agrees that if Seller does not receive written notice from Buyer within 72 Hours of Delivery, the Buyer’s Sale is Final;
2. PACKAGING: As a Condition Precedent to returning List Price Paintings, Paintings must be packaged in accordance with all of the following requirements:
(2.1) The Painting will first be completely wrapped in glassine paper;
(2.2) Corner Protectors will be placed over the glassine paper at each corner;
(2.3) The Painting will then be wrapped in two layers of bubble wrap, with the flat side of the bubble wrap against the Painting;
(2.4) The Painting must then be secured between two foam boards and placed in a crate or box (a “container”) ensuring no movement is possible;
(2.5) All original paperwork, including all Certificates of Authenticity, must be placed in the container above the foam board;
(2.6) Buyer will use heavy duty packing tape to encase the container and ensure the container, and all seams of the container, are completely free of all openings;
(2.7) Buyer shall prepay all packing fees, shipping fees, export fees, import fees, taxes, tariffs, duties, insurance in the amount of the purchase price, and all other fees incident to the paintings’ safe return Seller;
(2.8) Shipment must be arranged to be delivered Monday through Friday during business hours to the address provided to Buyer. Buyer will immediately inform Seller of the Tracking Number via email to Sales@GaylePrintz.com;
(2.9) In order to qualify for a Gallery Credit, returns must be received by Seller within fourteen (14) calendar days of the date of delivery to Buyer. Any Unapproved Delay is Considered a Breach of Seller’s Terms of Return and Will Preclude the issuance of a Gallery Credit; and,
(2.10) Buyer acknowledges and agrees that Seller must receive and inspect the return prior to issuing a Gallery Credit;
3. Upon Receiving Buyer’s Return, and verifying the Paintings are in the same condition they were when the Paintings were placed at Buyer’s disposal for Pickup from Seller’s location, Seller will issue a Gallery Credit to Buyer in the amount of the purchase price of the painting minus all original shipping, handling, delivery fees and out-of-pocket costs incurred by Seller on Buyer’s behalf;
4. Buyer understands and agrees that Seller cannot reimburse any fees incurred by Buyer associated with the initial delivery to Buyer and/or the subsequent return of the Painting(s) to Seller, including but not limited to the following: loading, shipping and handling costs, insurance costs, tariffs, import fees, export fees, VAT, Customs, Duties, GST, and the like. Therefore, if Buyer has not prepaid all such fees for the painting(s) returned, the costs of such fees will be deducted from the Gallery Credit issued to Buyer. Seller will deduct from Buyer’s Gallery Credit the amount of all out-of-pocket costs Seller incurs on Buyer’s behalf;
5. The Gallery Credit may only be used against purchase price of futurePaintings;
6. The Gallery Credit is non-transferable;
7. Buyer expressly understands and agrees that Seller cannot reimburse original or return shipping costs; and
8. Buyer acknowledges that Buyer has no right to a Gallery Credit or exchange if, upon receipt by Seller, the Painting(s) is not in its original condition or shows any sign of use, alteration, or damage. This determination, made in the sole discretion of the Seller, is final.
SECTION 8: THIRD-PARTY SERVICE PROVIDERS
A. If Buyer wish to purchase Paintings or use a service via the Services, Buyer may be asked by Seller to supply certain information relevant to Buyer’s purchase, including, without limitation, credit card number, expiration date, billing address, VAT ID, and shipping information. Buyer Represents and Warrants that Buyer has the legal right to use such credit cards or other payment means for such purchase. All such information will be treated by Seller in accordance with the Privacy Policy. Buyer grants Seller the right to provide such information to third parties in order to facilitate the completion of transactions initiated by Buyer or on Buyer’s behalf through the Services. Verification of information will be required prior to acceptance of all orders.
B. Should Buyer cancel Buyer’s Account, Buyer agrees to pay Seller all charges incurred by Buyer, or on Buyer’s behalf, through the Services, at the price(s) in effect when such charges were incurred. In addition, Buyer remains responsible for any and all costs associated with Buyer’s purchases, and Buyer agrees that such costs are not Seller’s responsibility.
SECTION 9: INDEMNITY
Buyer agrees to defend, indemnify, and hold Buyer, the Gallery, The Website, and their officers, affiliates, successors, assigns, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, legal and accounting fees, arising out of or in any way connected with Buyer’s access to purchase, purchase of Paintings or use of the Services, Content or Member Content, or otherwise arising out of, or connected to, Buyer’s violation of the Terms and Conditions. If Buyer is dissatisfied with the Services, does not agree to any of the provisions of the Terms and Conditions, or incurs any loss or damage of any kind in connection with the Services, Buyer’s sole and exclusive remedy is to discontinue accessing and using the services.
SECTION 10: LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
Buyer hereby understands, and expressly acknowledges, warrants, and agrees to the following:
A. That, to the maximum extent permitted by law, the entire risk arising out of Buyer’s access to, and use of, the Website, Services, Content and Member Content remains with Buyer. Neither Seller, nor any other party involved in creating, producing, or delivering the Services, Art Content, Member Content, and the like, will be liable for any incidental, special, exemplary or consequential damages, including lost profits, lost data, loss of goodwill, service interruption, computer damage, system failure, the cost of substitute Paintings or Services, or for any damages for personal or bodily injury or emotional distress arising out of, or in connection with, the Terms and Conditions, the Seller, or the use of, or inability to use, the Services, Website, Art Content, Member Content, or from any communications, interactions or meetings with Seller, other Members, users of the Services or any other persons with whom Buyer communicates or interacts as a result of Buyer’s use of the Website or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Seller has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed its essential purpose;
B. That, to the maximum extent permitted by law, in no event shall Seller, Seller’s heirs, assigns, affiliates, directors, officers, respective directors, officers, employees, contractors, representatives, consultants, agents, suppliers or licensors be liable to Buyer for direct, indirect, special, punitive, incidental, exemplary or consequential losses, or any other damages whatsoever (even if Seller has been previously advised of the possibility of such losses or damages), whether in any action under contract, tort, negligence, or any other theory, in any manner arising out, of or in connection with, the Paintings, the Website, the Gallery, or the access, use, inability to use, or performance of the Services including, without limitation, the input of personal and other information into the Services;
C. That, to the maximum extent permitted by law, the Services and all information, content services, and materials provided by, or available through the Services (whether provided by Seller, Buyer, other users, affiliates or third parties), including, without limitation, all material, text, images, photographs, graphics, videos, and links, are provided “AS IS” and “AS AVAILABLE” without warranties of any kind, express or implied.
D. That, to the maximum extent permitted by law, Seller does not guarantee the quality, completeness, timeliness, or availability of the Paintings or Services;
E. That, to the maximum extent permitted by law, Seller does not warrant that the Services will be uninterrupted, uncorrupted, or error-free, that any defects in the Services will be corrected, or that that the Services, or the servers making the Services available are free of viruses or other harmful conditions or components;
F. That, to the maximum extent permitted by law, Seller is not responsible for any errors on the Services;
G. That, to the maximum extent permitted by law, Seller expressly disclaims all representations and warranties, express or implied, of any kind whatsoever with respect to the Paintings, the Services, or links to any other third party providers including, but not limited to warranties of accuracy, merchantability, fitness for a particular purpose, compatibility with any standards or user requirements, and title, non-infringement, freedom from computer viruses, and implied warranties arising from course of dealing or course of performance;
H. That, to the maximum extent permitted by law, Seller shall have no responsibility for the timeliness, deletion, mis-delivery, or failure to store any user communication or user-generated material;
I. That, to the maximum extent permitted by law, Buyer agrees that Buyer’s use of the Services is at Buyer’s own risk and Buyer, alone, is responsible for any damage to Buyer’s computer hardware, software, systems and networks, and that any loss of data that results from the download of any information from the services, and for any other damage that may otherwise be incurred;
J. That, to the maximum extent permitted by law, Seller makes no representation that the Services are appropriate or available for use in locations other than the United States, and that If Buyer chooses to access the services from locations outside of the United States, Buyer does so at Buyer’s own risk, and Buyer is responsible for complying with applicable laws and regulations;
K. That, to the maximum extent permitted by law, no advice or information, oral or written, obtained by Buyer from Seller, or in any manner from the Services, creates any warranty express or implied;
L. That, to the maximum extent permitted by law, Painting colors, measurements, and weights are approximate only and may vary from the representation on the Services, and that these differences will not constitute a material defect in, or noncompliance of, the Painting or the Seller;
M. That, to the maximum extent permitted by law, Seller reserves the right to modify Painting offerings at any time, but Seller is not obligated to make any modifications to Paintings that have already been shipped; and
N. Buyer agrees that the Warranty Disclaimers and Limitations of Liability in the Terms and Conditions are fair and reasonable.
SECTION 11: LIQUIDATED DAMAGES AND RULES OF USING SERVICES
A. The parties expressly agree that, because it is difficult to determine appropriate damages in a case where someone accessing the Website infringes on Seller’s copyright, the Party Who Infringes (herein referred to as the “Infringing Party”) agrees to pay Seller Fifty Thousand Dollars ($50,000.00) per actionable infringement in Liquidated Damages. For example, should the actionable infringement involve misappropriation of the Seller’s digital rights, the Infringing Party must pay Seller Fifty Thousand Dollars ($50,000) in Liquidated Damages for every digital print created;
B. Buyer understands that the Website and Services are intended solely for use by persons who are 18 or older. By accessing or using the Website or Services, Buyer represents and warrants that Buyer is 18 or older, or that Buyer is the age of majority in Buyer’s state or province of residence and Buyer has given the Seller consent to allow Buyer’s minor dependents to use the Website and Services. Buyer agrees to take sole responsibility for activities or actions associated with the Website and under Buyer’s Account, whether or not Buyer has authorized such activities or actions;
C. In order to to make a purchase through the Services, (other than users who utilize the guest checkout option), Buyer must first create an account (“Account”) by completing Seller’s registration process. During the registration process Buyer is required to provide certain information, and establish a username and password. Upon completion of Seller’s registration process, or by utilizing Seller’s guest checkout option, Buyer will become a “Member.” Buyer agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete; for example if Buyer become VAT registered, such information must be updated in Buyer’s Account. Seller reserves the right to suspend or terminate Buyer’s Account if any information provided during, or after, registration proves to be inaccurate, outdated or incomplete. Buyer is responsible for safeguarding Buyer’s password. Buyer agrees not to disclose Buyer’s password to any third party, and Buyer expressly agrees to take sole responsibility for all activities or actions under Buyer’s Account, whether or not Buyer has authorized such activities or actions;
D. Buyer acknowledges and agrees that if Buyer breaches any of the Terms and Conditions, Seller, in Seller’s sole discretion, has the right to suspend or disable Buyer’s Account without prior notice to Buyer. Seller reserves the right to revoke Buyer’s access to and use of, the Services, Website Content, and Member Content at any time, with or without cause or notice. Should Buyer breach any of the Terms and Conditions, Buyer remains liable to Seller for any amounts due hereunder.
SECTION 12: LINKS AND SERVICES
Buyer understands that the Services may contain links to third-party websites or resources. Buyer acknowledges, warrants and expressly agrees to the following:
A. Under no circumstances is Seller responsible or liable for the availability or accuracy of such websites or resources;
B. Under no circumstances is Seller responsible or liable for the content, Paintings, or services on or available from such websites or resources;
C. That Links to such websites or resources do not imply any endorsement by Seller of such websites or resources, or the content, Paintings, or services available from such websites or resources. Buyer acknowledges sole responsibility for, and assumes all risk arising from, Buyer’s use of any such websites or resources;
D. To the extent that Buyer accesses the website through a Mobile device, Buyer’s wireless carrier’s standard charges, data rates and other fees apply. In addition, using certain Mobile Services may be prohibited or restricted by Buyer’s carrier, and not all Mobile Services may work with all carriers or devices;
E. By using Mobile Services, Seller may communicate with Buyer regarding the Website and other entities by SMS, MMS, text message, or other electronic means through Buyer’s mobile device for the purpose of providing the applicable service and Buyer understands that certain information about Buyer’s usage of the Mobile Services may be communicated to Seller;
F. Buyer’s use of the Services, mobile or otherwise, is subject to all applicable local, state, national and international laws and regulations. Buyer agrees to comply with all U.S. laws, local laws, and rules regarding online conduct and User-Generated Material (as defined below), and the transmission of technical data exported through the Services from the U.S. and/or the country in which Buyer resides;
G. Buyer also expressly covenants and agrees to the following:
1. Not to use the Services for illegal purposes;
2. Not to retrieve data or other content from the Services for purposes of creating or compiling that content for any purpose other than Buyer’s authorized use of the Services as permitted by the Terms and Conditions;
3. Not to submit false or misleading information via the Services including, but not limited to, misrepresenting Buyer’s affiliations with any institution or falsifying information in connection with Buyer’s use of the Service, or acting maliciously against Seller, the Website, Seller’s business, Seller’s other interests, or Seller’s reputation;
4. Not to impersonate or attempt to impersonate another user or person;
5. Not to sell or otherwise transfer Buyer’s Account;
6. Not to harass, annoy, intimidate, or threaten Seller or any employees, contractors, agents, or representatives engaged in providing the Services;
7. Not to commit any acts of infringement on Seller, the Website, the Services, with respect to Seller’s or the Services images, information, content or otherwise;
8. Not to engage in activities that aim to render the Website or Services inoperable or more difficult to use;
9. Not to copy any content, including Painting images and descriptions, for personal use, professional use, or publication. Doing so is legally actionable violation under the LIQUIDATED DAMAGES Clause of Section 11, Paragraph A above whereby each violation is assessed at Fifty Thousand Dollars ($50,000.00). For example, should the Infringing Party copy Painting images, Buyer must pay the Artist Fifty Thousand Dollars ($50,000) in Liquidated Damages for every image Buyer has copied;
10. Not to create or maintain content in connection with the Services for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Website and Services, including but not limited to linking to any commercial or other website from the Services;
11. Not to attempt to gain unauthorized access to other computer systems from or through the Services;
12. Not to interfere with another person’s or entity’s use or enjoyment of the Services;
13. Not to use the Services for chain letters, junk mail, spamming, or distribution lists;
14. Not to upload, post, or transmit viruses, Trojan horses, worms, time bombs, cancel-bots, malware, adware, or other harmful, disruptive or destructive files or computer programming routines, including those that may bring harm to Seller, or damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; and,
15. Not to disrupt, interfere with, or otherwise harm or violate the security of the Website or Services, system resources, accounts, passwords, servers or networks connected to or accessible through the Services, including Affiliate Program sites;
H. Buyer acknowledges, warrants, and agrees that any violations of this Section, and/or the previous and subsequent sections herein, are actionable under the LIQUIDATED DAMAGES Clause of Section 11, Paragraph A, whereby each violation is assessed at Fifty Thousand Dollars ($50,000.00);
I. Buyer also acknowledges, warrants and agrees that the consequences of some violations of this section, and/or the previous and subsequent sections herein, may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy. Accordingly, in the event Buyer violates any of those sections, Seller may seek immediate injunctive relief, without the need to post bond, prove damages, or meet any similar requirement, as well as seeking any other remedy available at law or at equity, and terminate Buyer’s access to the Services.
SECTION 13: PERSONAL INFORMATION
Buyer’s submission of personal information is governed by the Privacy Policy, incorporated herein by reference.
SECTION 14: INDEMNIFICATION
Buyer agrees to indemnify, defend and hold Seller harmless from any claim or demand, including reasonable attorneys’ and accounting fees, made by any third-party due to, or arising out of, Buyer’s breach of the Terms and Conditions and Buyer’s violation of any law or the rights of Seller and/or a third-party.
SECTION 15: TERMINATION
A. All obligations and liabilities of the parties shall survive the termination of this agreement for all purposes. In particular, the obligations and liabilities of the Buyer under the Liquidated Damages Clause herein shall survive the termination of this agreement for all purposes.
B. In general, the Terms and Conditions are effective unless, and until, terminated by either Buyer or Seller. Buyer may terminate the Terms and Conditions at any time by notifying Seller that Buyer no longer wishes to use the Services, or when Buyer cease using the Website. If, in Seller’s sole judgment, Buyer fails, or Seller suspects Buyer has failed, to comply with any term or provision of the Terms and Conditions, Seller may terminate this agreement at any time without notice, and Buyer will remain liable for all amounts due hereunder.
SECTION 16: DISPUTE RESOLUTION, CHOICE OF LAW, AND VENUE
A. It is Seller’s goal that the Paintings meet Buyer’s expectations, and Buyer is left feeling Seller provides excellent service. However, there may be instances when Buyer feels Seller has made a mistake or left Buyer disappointed. In those instances, Seller is committed to working with Buyer to reach a reasonable resolution; however, Seller can only do this if Seller knows about and understands Buyer’s concern. Therefore, in cases that do not fall under the exception of relief sought by Seller under the Liquidated Damages Clause of Section 11, Paragraph A hereof, Buyer warrants and agrees that Buyer will, as an initial matter, email Seller at Sales@GaylePrintz.com within three (3) days of receiving Buyer’s Painting(s) to describe the nature of Buyer’s dissatisfaction. It is Seller’s hope this will lead to a satisfactory resolution. But if, for some reason, Buyer’s issue is not resolved satisfactorily within thirty (30) days of Buyer’s email, Buyer acknowledges, warrants and expressly agrees to strictly comply with the following:
1. To begin a legal proceeding, Buyer agrees to inform Seller of all details of Buyer’s claim and intention to pursue legal action by emailing Seller at Sales@GaylePrintz.com detailing Buyer’s claim and suggesting a remedy. Such email must be sent to Seller with “Intention to Pursue Legal Action” in the subject line;
2. That regardless of any statute or law to the contrary, any claim of cause of action arising from, or related to, the Terms and Conditions must be filed in a court of competent jurisdiction in Fulton County, Georgia, U.S.A. within six (6) months after such claim or cause of action arose or will be forever barred;
3. The Terms and Conditions and any other agreements whereby Seller provides Buyer Paintings shall be governed by, and construed in accordance with, the laws the State of Georgia, U.S.A., without regard to conflict of law provisions;
4. Buyer expressly agrees that any claim or dispute must be resolved exclusively by a State or Federal Court located in Fulton County, Georgia, U.S.A.;
5. The Federal or State Court located in Fulton County, Georgia, U.S.A., will have exclusive authority to resolve all disputes relating to the interpretation, applicability, enforceability, or violation of the Terms and Conditions;
6. To the fullest extent permitted by applicable law, claims under the Terms and Conditions will be joined to any other claim including, but not limited to, any claim involving any other current or former Buyer, but no class, collective, and/or representative proceedings are permitted. In the event that this Class Action Waiver is deemed unenforceable with respect to any particular claim, that claim will be resolved in a court of competent jurisdiction in Fulton County, Georgia, U.S.A.;
7. Buyer covenants and agrees to give up Buyer’s right to a Trial by Jury: Buyer and Seller agree that any claim heard in a court of competent jurisdiction in Fulton County, Georgia, U.S.A., will be heard by a judge instead of a jury, except where a jury trial waiver is not permissible under applicable law. This shall be the sole and exclusive forum and remedy for any and all disputes and claims arising out of a transaction that cannot be resolved informally and that relates in any way to, or arises out of, Buyer’s purchase of Paintings, and Buyer’s violation of Buyer’s express agreement to abide by the Terms and Conditions as a condition precedent to Buyers purchase of Paintings and the use of third-party Services;
8. The language of the Court will be English;
9. Each party will have the right to use legal counsel in connection with a lawsuit;
10. Buyer covenants and agrees to reimburse Seller for all attorney’s fees, court costs, filing fees, travel costs, lodging costs, out of pocket expenses, administrative fees, and all other associated expenses;
11. Buyer understands and agrees that Seller is not responsible for reimbursing Buyer for any costs incurred by Buyer for legal counsel, court costs, filing fees, travel, lodging, administration fees, or other out-of-pocket costs or expenses; and,
12. The award of the Judge will be final and binding, and judgment may be entered upon it by any court in Fulton County, Georgia, having jurisdiction thereof.
B. The parties agree that all dispute resolution provisions contained in Section 16, Article A, also apply In cases that do fall under the exception of relief sought by Seller under the Liquidated Damages Clause of Section 11, Paragraph A hereof, and acknowledge the following:
1. That any such claims, will be pursued by Seller to the fullest extent permitted by law, in a court of competent jurisdiction in Fulton County, Georgia, U.S.A.; and
2. That, to the extent Buyer has, in any manner, infringed upon violated, or threatened to infringe upon or violate, Seller’s copyrights, trademark, trade secret, privacy or publicity rights, or is seeking to vindicate public rights, Buyer and Seller acknowledge that appropriate relief may be sought by Seller against Buyer and/or the applicable third party or parties under the Liquidated Damages Clause of Section 11, Paragraph A, hereof, in a court located in Fulton County, Georgia, U.S.A..
SECTION 17: GENERAL PROVISIONS
Notices:
Any notices or other communications permitted or required hereunder must be in writing and delivered by email to Sales@GaylePrintz.com.
Survival:
Any provisions of the Terms and Conditions that are intended to survive termination (including, without limitation, any provisions regarding indemnification, limitation of Seller’s liability, liquidated damages, and dispute resolution) will continue in effect beyond any termination of the Terms and Conditions or of Buyer’s access to or use of the Services.
No Waiver; Force Majeure:
Seller’s failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of said right or provision. Any waiver of any provision of the Terms and Conditions will be effective only if in writing and signed by Gayle Printz. Seller shall not be deemed to be in default of any provision of the Terms and Conditions, or for failure in performance resulting from acts or events beyond Seller’s reasonable control and arising without Seller’s fault or gross negligence, including, but not limited to, acts of God, civil or military authority, interruption of electric or telecommunication services, civil disturbances, pandemics, acts of war, political unrest, terrorism, strikes, fires, floods or other catastrophic events.
User Comments, Feedback And Other Submissions:
Buyer acknowledges, warrants and expressly agrees to the following:
A. If, at Seller’s request, Buyer sends certain specific submissions or without a request from Seller Buyer sends creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by post, or otherwise (collectively, “Comments”), Seller may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium Comments forwarded to Seller;
B. Seller is, and shall be, under no obligation to maintain Comments in confidence, pay compensation for Comments, and/or respond to Comments;
C. Buyer’s Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality, or other personal or proprietary right;
D. Buyer’s comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Website, Services, or any related website;
E. Buyer is solely responsible for Comments Buyer makes and the accuracy thereof;
F. Buyer shall not use a false e-mail address, pretend to be someone other than themselves, or otherwise mislead Seller or third-parties as to the origin of Comments;
G. Seller has no responsibility and assumes no liability for any Comments posted by Buyer or any third-party; and
H. Seller may, but has no obligation to, monitor, edit or remove content that Seller determines, in Seller’s sole discretion, is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or that violates any of Seller’s intellectual property rights or the Terms and Conditions.
Assignment:
A. Seller may assign Seller’s rights and delegate Seller’s duties under the Terms and Conditions at any time to any party without notice to Buyer.
B. Buyer may not assign the Terms and Conditions without Seller’s prior written consent.
Severability:
A. In the event that any provision of the Terms and Conditions is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from the Terms and Conditions.Such determination shall not affect the validity and enforceability of any other remaining provisions;
B. Seller shall have the right to investigate and prosecute violations of any of the Terms and Conditions to the fullest extent of the law, and Seller may involve and cooperate with law enforcement authorities in prosecuting users who violate the Terms and Conditions;
C. Buyer acknowledges that Seller has no obligation to monitor Buyer’s access to, or use of, the Website and Services or to remove any Member Content, but Seller does have the right to do so for the purposes of operating the Services, ensuring Buyer’s compliance with the Terms and Conditions and/or compliance with applicable law, court order, administrative agency, or other governmental body;
D. Seller reserves the right, at any time and without prior notice, to remove or disable access to any Member Content, listings for Paintings or Digital Works, Art Content, and any other text, graphics, images, software, music, audio, video, information or other content or material that Seller, in Seller’s sole discretion, considers to be objectionable, in violation of the Terms and Conditions, or otherwise harmful to the Services; and
E. Any rights not expressly granted herein are reserved.
Entire Agreement:
The Terms and Conditions constitute the entire and exclusive understanding and agreement between Buyer and Seller. They supersede and replace any and all prior oral or written understandings or agreements between Seller and Buyer regarding responsibilities with regard to the Paintings, the Website, and the Services of the Third-Party Service Providers.
If you have any questions about the Terms and Conditions, please contact Sales@GaylePrintz.com