ART HABIT

TERMS OF USE

This Terms of Use Agreement (the “Agreement”), effective as of February 25, 2020 states the terms and conditions that govern the contractual agreement between Art Habit LLC, (the “Company”) and you (the “User”) who agrees to be bound by this Agreement in regard to the User’s access to www.shoparthabit.com (the “Site”), which is owned and operated by the Company.

The User should read the Terms of Use carefully before starting to use the Site. By using the Site, the User accepts and agrees to be bound and abide by these Terms of Use and our Privacy Policy, found at http://shoparthabit.com/privacy-policy/, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Site.

1. THE ART HABIT SERVICE. Through the Site, the Company provides its Users a venue through which they may connect with sellers of certain pieces of art that they may purchase through the Site (the “Service”). The User hereby acknowledges and agrees that the Site and the Service are exclusive property of the Company and the Company may offer access to such Site and the Service in any way it sees fit.

  1. 1.1. The Company provides a venue through which Users may connect to do business. The Company is merely a broker to any agreement between Users of the Site for any products or services. The Company does not own, take title to, have possession of, or sell the property listed, marketed, offered or sold on or in connection with our Services (whether online or offline). All property is offered for sale and sold directly from the seller to the buyer. The Company does not transfer, and is not responsible for transferring, legal ownership or physical possession of property from the seller to the buyer.
  2. 1.2. The Company does not endorse or make any representations or warranties of any kind, express or implied, with respect to: (i) Users’ listings on our Services, whether as to accuracy, completeness, truthfulness, reliability or otherwise; or (ii) any property listed, marketed, offered or sold (whether online or offline) by any User and/or third party, whether as to quality, size, condition, description, provenance, attribution, authenticity, legality, merchantability, fitness for a particular purpose, or otherwise. No statement made by any User about any property (whether orally, in writing, on our Services or otherwise) will be considered a representation, warranty, or assumption of liability of any kind by the Company.
  3. 1.3. The Company reservesthe right, at any time in its sole discretion, to refuse to list, de-list, or delay or suspend listing of any property via the Services. The Company will not be liable to any User for doing so.
  4. 1.4. Users are encouraged to independently settle disputes. Any such disputes must be handled between the Parties as the Company is not party to any agreement reached between Users.
  5. 1.5. Users must enter into an Online Gallery and Representation Agreement to sell products through through our Services. These Terms apply to Users who are sellers, but these Terms alone do not give any User permission to use our Services as a seller. Any conflict between this Terms of Use and the Online Gallery and Representation Agreement shall be controlled by the terms of the Online Gallery and Representation Agreement.
  6. 1.6. The Company may require any User to provide additional information at its discretion to allow any transaction to move forward and/or any User to utilize the Service.
  7. 1.7. The User is responsible for paying all sales, use, or other taxes or charges imposed by law which may be imposed in connection with regard to any transaction through the Service and shall indemnify, defend and hold harmless (including reasonable attorneys’ fees) the Company from costs associated with any failure to do so.

2. ELIGIBILITY/GENERAL RESTRICTIONS. The User’s limited license to access and make personal use of the Site is contingent on the following:

  1. 2.1. The User must be at least 18 years of age;
  2. 2.2. The User must provide information (personal and otherwise) that is truthful to the best of the User’s knowledge and in the event any such information changes, the User shall notify the Company of any such change within a reasonable amount of time;
  3. 2.3. The User shall not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Site. The User will not take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure. The User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy any content from the Site without the prior express consent from an authorized Company representative, unless such use is by a search engine employed to direct Internet users to the Site;
  4. 2.4. The User shall not reproduce, duplicate, copy, sell, resell, visited, or otherwise exploit for any commercial purpose without express written consent of the Company;
  5. 2.5. The User shall not use any of the Content or the Services for any unlawful or harmful purposes; and 2.6. Any unauthorized use automatically terminates the permission or license granted by the Company.

3. MODIFICATION. The Company has the right at any time or from time to time to modify or amend this Agreement. Should the Company choose to modify this Agreement the Site will display such changes, which will be the User’s only notification of any such change. Any use of the Site or the Service by the User after such notification shall constitute the User’s acceptance of the modified or amended terms. No modification to this Agreement made by the User shall be binding upon the Company.

4. INTELLECTUAL PROPERTY. The Site holds the Content, which is the property of the Company or its content suppliers and protected by international copyright laws. The Site may contain or reference trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes or other proprietary rights belonging to Company and/or other parties. No license to or right in any such trademarks, patents, copyrighted materials, trade secrets, technologies, products, processes and other proprietary rights of Company and/or other parties is granted to or conferred upon the User and the user may not utilize such Content by any manner aside from viewing such Content according to the license granted herein. Prohibited uses of such content without the written consent of the Company include (but are not limited to):

  1. 4.1. Removing, altering, bypassing, avoiding, interfering with, or circumventing any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms;
  2. 4.2. Copying, downloading, stream capturing, reproducing, duplicating, archiving, distributing, uploading, publishing, modifying, translating, broadcasting, performing, displaying, selling, transmitting or retransmitting the Content; and
  3. 4.3. Creating, recreating, distributing or advertising an index of any significant portion of the Content.

5. DMCA PROCEDURE FOR ALLEGEDLY INFRINGING CONTENT. To notify the Company of any copyright-infringing content, please contact us at support@shoparthabit.com with the following information in accordance with the Digital Millennium Copyright Act:

  • Identification of the allegedly copyright-infringing material
  • Identifying of the allegedly infringed-upon work and the copyright-holder of said work
  • Information reasonably sufficient for Company to contact you
  • A statement that you have a good faith belief that use of the material in the manner complaint of is not authorized by the copyright owner, its agent, or the law • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Your physical or electronic signature.

Our designated Copyright Agent to receive DMCA Notices is: ______

If you fail to comply with all the requirements of Section 512(c)(3) of the DMCA including your physical or electronic signature, your DMCA notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

6. USE OF THE CONTENT. The User agrees and acknowledges that it will not use the the Services in any way that is illegal, violates the rights of the Company or any third party, or disrupts any User’s enjoyment of the Site and/or Services.

7. USER ACCOUNT. The User may register to the Site with an account in order to make use of certain functions and/or the Service (the “User Account”). The User is responsible for maintaining the confidentiality of the username and password that the User designates during the registration process, and the User is fully responsible for all activities that occur under the User Account. The Company may reclaim or repurpose any User Account on our Services, at any time at our sole discretion, for any reason, including if we believe it is necessary to comply with the rights of a third party. The User agrees to: (i) immediately notify the Company of any unauthorized use of the User Account or any other breach of security, and (ii) ensure that the User exits from the User Account at the end of each session. The Company will not be liable for any loss or damage arising from the User’s failure to comply with this provision. The User should use particular caution when accessing the User Account from a public or shared computer to ensure that others are not able to view or record the User Account’s username and password and/or other personal information. The Company reserves the right to terminate or suspend any User’s User Account and/or access to the Site and the Service if the Company determines (in its sole discretion) that any such User has violated this Agreement. Note that no refunds will be given in the event your access to the Site and/or Services are terminated due to a violation of this Agreement or other policies.

8. BILLING; REFUNDS. By signing up for a User Account and entering into a transaction through the Service, the User is expressly agreeing to the billing policies and amounts described on the  page elsewhere on the Site. All products must be fully insured by the shipping carrier while in transit from the seller to the buyer. If there is any damage to the purchased artwork, the Company must be informed within forty-eight (48) hours by email detailing the damages and the buyer must provide photos of the damages. If the damages are deemed substantial, the artwork may be returned (shipping costs paid by buyer) for a full refund within fourteen (14) days. If the buyer wishes to return an artwork due to other reasons not related to damages (general dissatisfaction), the buyer must submit an email request and ship the artwork back fully insured to the given address. If the artwork is received back in good condition, refund will be processed by the same method of payment within fourteen (14) days. The Company is not obligated under any circumstance to, but may in its sole discretion, credit the User’s account for additional use of the Site or Services/offer refunds of amounts paid.

9. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE, THE CONTENT, ANY SERVICE OFFERED BY THE COMPANY, ANY USER POST MADE ON THE SITE; OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY INTERACTION BETWEEN USERS AND/OR TRANSACTION BETWEEN USERS; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, OR THE SERVICE; AND/OR (F) ANY PRODUCT PURCHASED VIA THE SERVICE. WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.

10. DISCLAIMER OF WARRANTIES. THIS SITE, THE CONTENT, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS SITE AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY PRODUCT PURCHASED THROUGH THE SERVICE; (B) THAT THE SITE, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS AND/OR EXPECTATIONS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE SITE, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS SITE, THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

11. INDEMNIFICATION. The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees, owners, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Site or any Service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Site or any Service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; or (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Site or the Service. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by the User, in which case the User agrees to cooperate as fully as reasonably required by the Company in conducting such defense. In any case, the User agrees not to settle any such matter without the Company’s prior written consent. The User’s indemnification and defense obligations provided in these Terms of Use will survive these Terms of Use and your use of the Service.

12. THIRD PARTY LINKS. There are links on the Site that lead to third party websites, including those of the Company’s social media pages (e.g., Facebook and Instagram). THE COMPANY IS NOT RESPONSIBLE FOR THE PRIVACY POLICIES OF THOSE SITES OR THE COOKIES THOSE WEBSITES USE. IN ADDITION, BECAUSE THE COMPANY HAS NO CONTROL OVER SUCH WEBSITES AND RESOURCES, THE USER ACKNOWLEDGES AND AGREES THAT THE COMPANY IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEBSITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES.

13. COMMUNICATIONS. The Company shall be free to reproduce, use, disclose, and distribute any and all communication conducted with Company through the Site including but not limited to feedback, questions, comments, suggestions and the like (the “Communications”). The User shall have no right of confidentiality in the Communications and the Company shall have no obligation to protect the Communications from disclosure. The Company shall be free to use any ideas, concepts, know-how, content or techniques contained in the Communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.

14. ERRORS AND OMISSIONS. The Site may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by the Company. The Company shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor any order affected by such inaccuracies. The Company reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Site, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.

15. PRODUCTS AND SERVICES. The Site may contain information about products and services offered by the Company, not all of which are available in every location. Any reference to a Company product or service on the Site does not imply that such product or service is or will be available in the User’s location. Furthermore, the Company may alter what Content is available to Users at any time in its sole discretion, including (but not limited to) removing certain Content from access at any time.

16. NOTICE. The User consents to receive communications from the Company electronically, and you agree that we may communicate with you by posting notices via our Site and/or by email. The User agrees that all agreements, notices, disclosures and other communications that the Company provides to the User electronically satisfies any legal requirement that such communications be in writing. The User agrees that all notices the Company provides to the User by email will be considered received by the User on the day that the Company sends them. If the User registers for a User Account or otherwise provides the Company with an email address, the User agreesthat the Company is not responsible for any automatic filtering that the User or the User’s network provider may apply to any email that we send to the email address you provided. If at any time the User would like to withdraw its consent to receive emails, the User may use the “unsubscribe” button on the email, or contact the Company at support@shoparthabit.com to do so. However it is understood and agreed by you that if you withdraw consent, you may not be able to participate in all Services offered.

17. INTERNATIONAL USE. The Company does not represent that all content, materials and services on the Site are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Those who do access content, materials and services from such locations act on their own initiative and the Company is not responsible for such Users’ compliance with local laws or other applicable laws. The User shall not access the foregoing where prohibited by law.

18. NOTICE TO USERS IN CALIFORNIA. Under California Civil Code Section 1789.3, users of the Service from California are entitled to notice of the contact information for The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: It may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

19. FORCE MAJEURE. In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended.

20. VENUE; ARBITRATION. This Agreement and the interpretation of the terms herein shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflict of laws. The User irrevocably submits to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. Except for a misuse or infringement of the Company’s intellectual property, any and all disputes, controversies and claims arising out of or relating to this Agreement, or concerning the respective rights or obligations of the Parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator pursuant to the Commercial Rules then in effect of the American Arbitration Association. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The Parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any party in such arbitration.

21. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.