AVAULTE PURCHASER TERMS AND CONDITIONS

Updated April 8 2019

 

Avaulte, LLC (“Avaulte”, “we “ or “our”) provides a service for selling and purchasing original works of art  (the “Services”) through our website, accessible at www.avaulte.com (the “site”) Please read carefully the following terms and conditions (“Terms”) and our Privacy Policy, which may be found at www.avaulte.com/privacy and which is incorporated by reference to these Terms. These Terms govern your access to and use of the Site and Services, and constitutes a binding legal agreement between you and Avaulte.

 

Certain areas of the Site and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Site or for specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site or Services.

 

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY SELLING OR PURCHASING A WORK ON OR THROUGH THE SITE OR SERVICES OR BY POSTING ANY CONTENT ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

 

Modification

 

Avaulte reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms at any time without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date”. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.

 

Eligibility

 

The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 18 or older.

 

Account Registration

 

In order to have a work listed on the Site or to make a purchase through the Site, you must first submit your work by completing our submission process. During the submission process you will be required to provide certain information. You agree to provide accurate, current and complete information during the submission process and to update such information to keep it accurate, current and complete. Avaulte reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify Avaulte of any unauthorized use of your Account.

 

Privacy

 

See Avaulte’s Privacy Policy at www.Avaulte.com/privacy for information and notices concerning Avaulte’s collection and use of your personal information.

 

Purchaser Terms and Conditions

 

Purchases of Original Works of Art

 

As a buyer, you may purchase original Works of Art that are listed by other Avaulte Artists on the Site. When you purchase such an Original Work of Art through the Site and Services, you are purchasing the work from Avaulte and not from the Avaulte Artist identified on the listing for such work. Prices for Original Works of Art will be specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges or applicable Taxes (defined below), if any, of which you are responsible and which will be separately identified on your receipt. Avaulte will collect your billing and shipping information and process your payment. Buyer identified on the listing of the Original Work of Art will ship the purchased work directly to you. The terms and conditions of Avaulte’s then-current Return Policy apply to any Original Works of Art that you purchase through the Site and Services.

 

Order Cancellations

 

Avaulte reserves the right to cancel any order for an Original Work of Art placed via the Site and Services if Avaulte determines, in it sole discretion, that the item is not priced correctly, out of stock, discontinued, or otherwise unavailable at the price listed via the Site and Services. If Avaulte cancels an order placed via the Site and Services, Avaulte will send you an email confirmation of such cancellation and you will not be charged for your order.

 

Terms for Purchasers

 

Transaction Restrictions

 

If you are a buyer and desire to purchase an Original Work of Art for which another Avaulte Artist has submitted a listing, you may not purchase such Original Work of Art from such Avaulte Artist independent of the Site and Services.

 

Taxes

 

All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Site, are stated in U.S. dollars and do not include any sales, use, value added (“VAT”), goods and services (“GST”) or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (“collectively “Taxes”).

 

If you are a purchaser of Original Works of Art, you acknowledge that Avaulte will add Taxes to the amounts charged, as a separate charge, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.

 

Color

 

You understand and agree that Avaulte uses commercially reasonable efforts to display the colors of Original Works of Art accurately via the Site and Services. However, because individual computer monitors may display colors differently, Avaulte is not responsible for the color accuracy of an Original Works of Art on the Site and Services, and disclaims liability in this regard.

 

Feedback

 

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at customerservice@avaulte.com.  You acknowledge and agree that all Feedback is exclusive property of Avaulte and you hereby irrevocably assign to Avaulte and agree to irrevocably assign to Avaulte all of your right, title and interest in and to all Feedback, including without limitation all worldwide patent rights, copyrights, trade secrets rights, and other proprietary or intellectual property rights therein. At Avaulte’s request and expense, you will execute documents and take such further acts as Avaulte may reasonably request to assist Avaulte to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback.

 

General Prohibitions

 

You agree not to do any of the following:

 

  • Attempt to access or search the Site, Services, Avaulte Content from the Site or the App, Member Content from the Site, Services or App through the use of any engine, software, tool agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Avaulte;

  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Avaulte, or any of Avaulte’s providers or any other third party (including another user) to protect the Site, Services, Avaulte Content or Member Content;

  • Post, upload, publish, submit, or transmit, any text, graphics, images, software, music, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy: (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability: (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) harms minors in anyway; or (viii) promotes illegal or harmful activities or substances;

  • Access, tamper with, or use non-public areas of the Site, Avaulte’s computer systems, or the technical delivery systems of Avaulte providers;

  • Use, display, mirror or frame the Site, or any individual element within the Site, Avaulte’s name, any Avaulte trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Avaulte’s express written consent;

  • Attempt to probe, scan, or test the vulnerability of any Avaulte system or network or breach any security or authentication measures;

  • Use any meta tags or other hidden text or metadata utilizing an Avaulte trademark, logo, URL or product name without Avaulte’s express consent;

  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

  • Use the Site, Services, Avaulte Content or Member Content for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by the Terms

  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Avaulte Content or Member Content  

  • Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;

  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;

  • Violate any applicable law or regulation;

  • Encourage or enable any other individual to do any of the foregoing.

 

Avaulte will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Avaulte may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Avaulte has no obligation to monitor your access to or use of the Site or Services or to remove any Member Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Avaulte reserves the right, any time and without prior notice, to remove or disable access to any Member Content, listings for Original Works of Art, Avaulte Content or any other text, graphics, images, software, music audio, video, information or other content or material that Avaulte, at it sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Site or Services.

 

Ownership

 

The Site, Services and Avaulte Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Avaulte and its licensors exclusively own all right, title, and interest in and to the Site, Services and Avaulte Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Service or Avaulte Content.

 

Copyright Policy

 

Avaulte respects copyright law and expects its users to do the same. It is Avaulte’s policy to terminate in appropriate circumstances of Member or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

 

Links

 

The Site may contain links to third-party websites or resources. You acknowledge and agree that Avaulte is not responsible or liable for (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Avaulte of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources

 

Termination and Account Cancellation

 

If you breach any of these Terms, Avaulte will have the right to suspend or disable your Account or terminate the Terms, at its sole discretion and without prior notice to you. Avaulte reserves the right to revoke your access to and use of the Site, Services, Avaulte Content and Member content at any time, without cause. In the event Avaulte terminates these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Account at any time by sending an email to customerservice@avaulte.com.

 

Disclaimers

 

THE SITE, SERVICES, Avaulte CONTENT AND MEMBER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSLY OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Avaulte EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Avaulte MAKES NO WARRANTY THAT THE SITE, SERVICES, Avaulte CONTENT OR MEMBER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Avaulte MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULLNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICE

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AVAULTE OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, AVAULTE DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SITE OR SERVICES, NOR DOES AVAULTE MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES. Avaulte MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET IN PERSON.

 

Indemnity

 

You agree to defend, indemnify, and hold Avaulte, its officers, directors, employees and agent harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with your access to or use of the Site, Services, Avaulte Content or Member Content, or your violation of these Terms.

 

Limitation of Liability

 

You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site, Services, Avaulte Content and Member Content remains with you. Neither Avaulte, nor any other party involved in creating, producing, or delivering the Site, Services, Avaulte Content or Member Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from use of or inability to use the Site, Services, Avaulte Content or Member Content, or from any communications, interactions or meetings with other Members or users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Avaulte has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.

 

In no event will Avaulte’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, Avaulte Content or Member Content exceed: (i) If you are a Member who has sold Original Works of Art, the total payments made or credited to you by Avaulte for the sale of your Original Works of Art during the three (3) month period preceding the date a claim for liability arises under these Terms; and (ii) if you are a Member who has purchased Original Works of Art, the total payment that you made to Avaulte for the Original Works of Art are subject of claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Avaulte and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

 

Proprietary Rights Notices

 

All trademarks, service marks, logos, trade names and any other proprietary designations of Avaulte used herein are trademarks or registered trademarks of Avaulte. Any other trademarks, service marks, logos, trade names, and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

 

Controlling Law and Jurisdiction

 

These Terms and any action related to thereto will be governed by the laws of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to subject matter of these Terms will be the state and federal courts located in the Southern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

 

Entire Agreement

 

These Terms constitute the entire and exclusive understanding and agreement between Avaulte and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings of agreements between Avaulte and you regarding the Site and Services.

 

Assignment

 

You may not assign or transfer these Terms, by operation of law or otherwise, without Avaulte’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Avaulte may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of parties, their successors and permitted assigns.

 

Notices

 

Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Avaulte via email (in each case to the address that you provide or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

 

General

 

The failure of Avaulte to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Avaulte. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

Contacting Avaulte

 

If you have any questions about these Terms please contact Avaulte at customerservice@avaulte.com