THE W GALLERY, LLC
2. Amendments. Company reserves the right, in its sole discretion, to change, modify, supplement, terminate or otherwise amend all or any part of this Agreement (collectively called “Amendments”) at any time, effective immediately upon notice published on the Site. Your continued use of the Site constitutes your binding acceptance of such Amendments. You agree to review this Agreement frequently to become aware of such Amendments and to ensure your compliance with them. All Amendments are hereby incorporated into this Agreement by this reference. IF AT ANY TIME THIS AGREEMENT IS NO LONGER ACCEPTABLE TO YOU, THEN YOU MUST IMMEDIATELY CEASE ALL USE OF THE SITE.
3. Changes to Site. You acknowledge and agree that Company reserves the right, at any time, without notice: (a) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; and (b) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
5. Terms of Sale Policy. Company’s Terms of Sale Policy (TSP), which is incorporated herein by reference, governs your rights and obligations with respect to your purchases from this Site, including important limitations and exclusions. By placing an order on this Site, you expressly acknowledge that you have read, understand and agree to the TSP and the fact that the same applies to your order(s). Any questions not addressed in the TSP should be sent to email@example.com.
6. Electronic Communications. You consent to receive communications from us electronically. Company will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that Company provides to you electronically satisfy any legal requirement that such communications be in writing. Company may, but is not obligated to monitor or review any areas on the Site where users transmit or post communications and the content of any such communications. The Company may edit or remove content on the Site in its sole discretion at any time. However, Company will have no liability related to the content of any such communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise.
7. Links to Other Sites. This Site may contain links to other independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under Company’s control and Company is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
8. Equipment. You are solely responsible for obtaining and maintaining all telephone, communications, computer hardware and other equipment needed for access to and use of the Site and all charges arising from or relating thereto.
9. Void Where Prohibited. Company administers and operates the Site from its location in Cleveland, Ohio. Although the Site is accessible worldwide, not all features and products provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. If you choose to access the Site from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable laws. Any offer for any feature or product made on the Site is void where prohibited.
10. Ownership, Copyright and Trademarks. You acknowledge and agree that all content available on or accessed through the Site, including without limitation, all materials, documents, data, information, statements, images, photographs, illustrations, audio and video clips, text, graphics, links, digital downloads, user interfaces, icons, software, trademarks, service marks, logos, designs, titles, words, phrases, source code, object code and underlying operational instructions and statements are the property of Company and/or related third party and are protected by U.S. and international copyright and trademark laws (collectively called the "Content"). The compilation of the Content on the Site (meaning the collection, arrangement, assembly, look and feel) is also the exclusive property of Company and also protected by U.S. and international copyright and trademark laws. ALL RIGHTS ARE RESERVED IN CONNECTION WITH THE SITE AND ITS CONTENT. You agree to comply with all applicable copyright and intellectual property laws and regulations and any additional copyright notices, information, or restrictions contained in any Content. You understand and agree that you do not acquire any ownership rights by accessing or downloading any of the Content and you may not store electronically any portion of any Content. You are responsible for complying with all applicable laws, rules, and regulations regarding your use of any such downloaded Content.
11. Your Use of Site and Content. You may only use the Site and its Content for your personal, noncommercial purposed. You may not use the Site and/or its Content for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of Company or others. In no case shall you: (a) use and/or re-publish the Site or its Content; (b) copy, modify, publish, upload, transmit, transfer or sell, resell, reproduce, republish, create derivative works from, distribute, perform, display, post, distribute or in any way exploit the Site or its Content, in whole or in part; (c) interrupt or attempt to interrupt the operation of this Site in any way; (d) upload any viruses, worms, Trojan horses, or other forms of harmful computer code, or otherwise engage in conduct deemed disruptive to the ordinary operation of the Site; (e) place any Site Content on a network; or (f) frame, link, associate with advertisements or commercially exploit this Site.
12. Disclaimers. Company attempts to be as accurate as possible, but Company does not represent, guarantee or warrant that the Site and its Content are accurate, complete, reliable, current, or error-free. Company does not represent, guarantee or warrant that the Site and your use of the Site will be free from technical inaccuracies, typographical errors, interruptions, interferences, viruses, attacks, corruptions, defects, omissions, deletions, delays or failures in operations or transmissions, and/or theft, destruction, unauthorized access or security intrusions by any person or entity and Company expressly disclaims any liability relating thereto. Any feedback you provide at this Site will be deemed to be non-confidential and Company will be free to use the same on an unrestricted basis. You are not authorized to post on or transmit to the Site any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law. If you do so, you agree to assume all claims, costs, losses, expenses, damages and liabilities caused by such activity and will indemnify, defend and hold Company harmless from and against the same.
13. No Warranties. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE AND PURCHASE OF ANY PRODUCTS FROM OR ON THE SITE ARE AT YOUR SOLE RISK. THE SITE, ITS CONTENTS AND ALL PRODUCTS MADE AVAILABLE THROUGH THE SITE, TO THE GREATEST EXTENT PERMITTED BY LAW, ARE PROVIDED AND/OR SOLD TO YOU BY COMPANY "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF PRODUCT COMPATABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION AND YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY AND/OR SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
14. Limitation of Liability. YOU EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES SHALL COMPANY OR ANY OF ITS SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, CONTRACTORS, INSURERS, VENDORS, SUPPLIERS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DIRECT OR INDIRECT PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR OTHER LOSS OR DAMAGE, OF ANY KIND OR NATURE WHATSOEVER, WHETHER GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOOD WILL, INCOME OR DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL INJURY, ARISING OUT OF OR RELATED IN ANY WAY TO YOUR USE OR INABILITY TO USE THE SITE, ITS CONTENT AND/OR ANY PRODUCT HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, COMPANY IS FOUND TO BE LIABLE FOR ANY DAMAGE OR LOSS UNDER THIS AGREEMENT, THEN COMPANY’S TOTAL LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ALL DAMAGES SHALL NOT EXCEED FIFTY DOLLARS ($50.00). YOU AGREE THAT THE COMPANY WOULD NOT PROVIDE THE SITE ABSENT THE FOREGOING LIMITATIONS AND THE SAME WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF COMPANY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
15. Breach of Agreement and Indemnity. If you breach this Agreement, Company may, in its sole discretion and without prior notice, terminate and/or block your access to the Site, without liability to you or any third party. You acknowledge that your breach of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to Company, for which monetary damages would be inadequate and therefore, you consent to Company obtaining any injunctive or equitable relief that Company deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Company may have at law or in equity. You further agree to defend, indemnify and hold Company (which term includes its shareholders, members, managers, directors, officers, employees, agents, representatives, attorneys, contractors, insurers, vendors, suppliers, successors and assigns) harmless from and against any and all demands, liabilities, costs, losses, damages, expenses, attorneys’ fees and claims arising out of or related in any way to your access to or use of this Site, its Content and/or breach of this Agreement. You also agree that Company will be entitled to recover from you, and you agree to pay, all costs, losses, damages, expenses and attorneys fees incurred by Company as a result of or connected in any way with your breach, in addition to any other relief granted to Company.
16. Copyright Infringement Claims. Company does not knowingly permit anyone to post materials on this Site where such posting would violate copyright or other applicable law, including the Digital Millennium Copyright Act, including 17 USC § 512 ("DMCA"). Pursuant DMCA, notifications of claimed copyright infringement should be sent by U.S. Mail postage prepaid to The W Gallery, LLC at 530 Euclid Avenue #41, Cleveland, Ohio 44115 or by email at firstname.lastname@example.org (please include "Notice of Infringement" in the subject line). ALL INQUIRIES NOT RELEVANT TO OR NOT COMPLYING WITH THE PROCEDURE BELOW WILL RECEIVE NO RESPONSE. Company will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying with the DMCA, Company will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company the following information:
- a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on this Site;
- your address, telephone number, email address and all other information reasonably sufficient to permit Company to contact you;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner, or authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
17. Miscellaneous. This Agreement constitutes the entire agreement between you and Company and governs your use of the Site, superseding any prior agreements between you and Company. The provisions of the Agreement are severable, and if any one or more provision is found by a court of competent jurisdiction to be invalid, illegal or judicially unenforceable, in whole or in part, that provision will be removed from the Agreement (or reformed as permitted) and the remaining provisions will continue in full force and effect. Company's failure to exercise or enforce any right or provision in this Agreement will not constitute a waiver of such provision, nor prevent any exercise or enforcement thereafter of the same or other right or provision. Company will not be responsible for failures to fulfill any obligations due to causes beyond its control. No Company employee or agent has the authority to vary this Agreement or any other Company policies, in whole or in part. This Agreement is binding on you, your heirs and representatives and will inure to the benefit of Company and its successors and assigns. Except as set forth herein, this Agreement shall not benefit or create any right or cause of action in or on behalf of any third party. This Agreement may not be assigned by you without the prior written consent of Company. Your promises and obligations contained in Sections 10 through 15 will be construed as agreements independent of any other provision of this Agreement and will survive the termination of this Agreement for any reason.
18. Governing Law. All disputes, claims or controversies arising out of this Agreement, or the validity or performance of this Agreement (collectively referred to as the "Litigation") shall be governed by and construed and enforced in accordance with the laws of the State of Ohio without regard to any conflict of laws principles. You and Company hereby: (a) irrevocably and unconditionally consent to submit to the sole and exclusive jurisdiction of the federal or state courts located in Cuyahoga County, Ohio for the Litigation, (b) waive any objection to such venue/jurisdiction, and (c) agree not to plead or claim that the Litigation has been brought in any inconvenient forum or that there are indispensable parties to the Litigation that are not subject to such venue/jurisdiction. Nothing herein will prohibit the parties from settling their disputes in any forum as they may mutually agree, including binding or non-binding mediation or arbitration.
19. Notices. Any notices to be given to Company pursuant to this Agreement may be given by U.S. mail to The W Gallery, LLC, 530 Euclid Avenue #41, Cleveland, Ohio 44115. Any notices to be given to you pursuant to this Agreement will be sent to the email address you provide to Company and will be deemed given 24 hours after the email is sent, unless Company is notified that the email address is invalid. Alternatively, Company may give you notice by certified mail, postage prepaid, to the address you provide to Company, if an address was supplied. In such case, notice shall be deemed given 3 days after the date of mailing.
© 2015, The W Gallery, LLC 530 Euclid Avenue #41, Cleveland, Ohio 44115 (216) 352-3249