Terms of Use
Last updated: February 24, 2012
Terms Of Use
Gallerist maintains this website (the “Site”) as an online art selling and buying service (“Service”). The following terms and conditions (“Terms of Use”) describe the terms on which Gallerist offers you access to our Site. Please read these Terms of Use carefully before using the Site or Service.
Scope
Before you may become a member of Gallerist, you must read and accept all of the terms in, and linked to, the Terms of Use and the Privacy Policy. If you do not agree to comply with this agreement, please do not use the Site. Your use of the Site signifies your acceptance of this agreement. We strongly recommend that, as you read the Terms of Use, you also access and read the linked information. By accepting the Terms of Use, you agree that the Terms of Use and Privacy Policy will apply whenever you use Gallerist sites or services, or when you use the tools we make available to interact with Gallerist sites and services. We may restrict, suspend or terminate your use of or access to the Site if we believe you are in breach of or are attempting to breach our Terms of Use or applicable law, or for any other reason without notice or liability.
Changes to Terms of Use
We reserve the right, at our sole discretion, to change, modify, add or remove any portion of these Terms of Use, in whole or in part, at any time. When we do, we will post the revised version on this Site and revise the “last updated” date at the top of the Terms of Use. Changes in the Terms of Use will be effective when posted. Your continued use of the Site and/or the services offered on or through the Site after any changes to the Terms of Use are posted will be considered acceptance of those changes. However, no revisions to these Terms of Use will apply to any dispute between you and Gallerist that arose prior to the date of such revision.
Copyright / Trademark Compliance & Complaints
We do not reproduce or create any products that we offer on the Site. We honor the intellectual property rights of others and ask you to do the same. Our intellectual property policy is to (a) remove material that we believe in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property rights of a third party by being made available through the Site, and (b) remove any content posted to the Site or by “repeat infringers.” We consider a “repeat infringer” to be any user that has uploaded content to the Site and/or Service and for whom we have received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such content. We have discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon our own determination.
If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to our Designated Agent at info@gallerist.com. Your Notification of Claimed Infringement must include: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed; (2) identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works; (3) identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; (5) a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) 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. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Notification of Claimed Infringement.
If you receive a notification from us that material you made available on or through our Site has been the subject of a Notification of Claimed Infringement, you will have the right to provide us a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to our Designated Agent as specified above, and include substantially the following information: (1) your physical or electronic signature; (2) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (3) a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (4) your name, address, and telephone number, and a statement that you consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided the applicable Notification of Claimed Infringement or an agent of such person. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification.
Restrictions
This Site is owned and operated by Gallerist, Inc. Any modification of any material from this Site or use for any other purpose is a violation of our copyright and other proprietary rights. Use of any such material from this Site on any other website or computer environment is prohibited.
In using the Site, you agree to not: (1) upload or post any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or that can cause harm or delay to the Site or computers of any kind; (2) upload or post any content that infringes any patent, trademark, copyright or other proprietary rights of any party; (3) create a false identity or impersonate another person or entity in any way; (4) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise); (5) restrict, discourage or inhibit any person from using the Site, disclose confidential or proprietary information about any buyer or seller using the Site or obtained from the Site without the consent of such person or entity or collect information about users of the Site; (6) undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Site or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Site, or by law, or otherwise attempt to use or access any portion of the Site other than as intended by Gallerist; (7) gain unauthorized access to the Site, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Site; (8) change or delete any information provided by any user of the Site unless you have the express permission of such user; (9) reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Site, use of the Site, access to the Site or content obtained through the Site, for any purpose other than expressly permitted by these Terms of Use , including, by way of example and not limitation, by (i) copying, caching, recording, compiling, or reformatting any information obtained from the Site for commercial purposes in any fashion whatsoever, including, by way of example and not limitation, the pricing information of sellers or the transaction prices agreed to between buyers and sellers, or (ii) framing, embedding and/or passing off information obtained from the Site in such a manner as to present the information as originating from a source other than the Site; (10) use any scraper, spider, robot or other automated means of any kind to access the Site, except and solely to the extent permitted by these Terms of Use and the features of the Site, deep-link to any feature or content on the Site, bypass any robot exclusion headers or other measures Gallerist may use to prevent or restrict access to the Site; or (11) assist or permit any persons in engaging in any of the activities described above.
You acknowledge that we do not pre-screen content, and that we have the right, but not the obligation, in our sole discretion, to refuse or move any content that is uploaded or posted on the Site. We have the right to remove any content that violates the Terms of Use or is otherwise objectionable.
WE DO NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT POSTED BY OTHER USERS OR ENDORSE ANY OPINIONS EXPRESSED BY USERS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON MATERIAL POSTED BY OTHER USERS WILL BE AT YOUR OWN RISK.
Changes to Site and Services
We may terminate, change, suspend, add to or discontinue any aspect of the Site or the Site's programs, policies, products and services at any time, in our sole discretion, without notice and without liability to any user.
Eligibility
Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18). If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our Site.
PLEASE BE AWARE THAT CERTAIN AREAS ON GALLERIST MAY CONTAIN ADULT OR MATURE CONTENT. YOU MUST BE AT LEAST 18 YEARS OF AGE TO ACCESS AND VIEW SUCH AREAS.
Registration Obligations
In consideration of your use of the Site, you agree to provide true, accurate, and complete information about yourself as prompted by the registration form and maintain and promptly update your registration data to keep it accurate, current and complete. If you provide any information that is untrue, inaccurate, or incomplete, or Gallerist has reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, Gallerist has the right to suspend or terminate your account and refuse any and all current or future use of Gallerist.
Privacy
Except as provided in our Privacy Policy (insert link), we will not sell or disclose Personal Data (as defined in our Privacy Policy) to third parties without your explicit consent. We view protection of users' privacy as a very important community principle. Gallerist stores and processes Personal Data on computers located in the United States that are implement physical as well as technological security protections.
Listing and Selling
Listing: Each seller is required to fully endorse and agree to the following guidelines concerning the sales transaction of an item sold on Gallerist.
- Seller agrees to deliver the art unless the buyer of such item fails to make payment.
- Seller agrees to fully disclose all shipping information to the buyer and to not misrepresent shipping costs or the departure location of the shipped item.
- Seller agrees to truthfully disclose the state and country in which seller is located and to not misrepresent applicable laws governing sales tax. Seller is responsible for collection and remittance of all applicable sales taxes, export duties, etc..
- Seller agrees not to use brand names, the names of public figures, or misleading or inappropriate aliases for his/her screen name.
- Seller agrees not to include brand names or other keywords in the title or description that may affect the keyword searches for the Site.
- Seller agrees not to use profanity in any description when submitting art to Gallerist.
- Seller agrees not to sell, exhibit, trade, produce, or advertise any unauthorized reproduction or copy of any work of art
- Seller agrees to pay Gallerist a commission on any sales of artwork posted on Gallerist to buyers who learn of such work through Gallerist in accordance with the terms of its listing agreement with Gallerist.
Portfolio Policies:
All sellers are urged to outline portfolio policies for their Gallerist shop. These policies may include, for example, shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All portfolio policies must comply with our published policies. Sellers are responsible for enforcing their own reasonable portfolio policies. We reserve the right to request that a seller modify its portfolio policy.
Binding Sale:
All sales are binding. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance, with seven (7) days of seller’s confirmation. The seller is obligated to respond to buyer with 48 hours of purchase and to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller's listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity.
Fees:
The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and insurance fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees.
International Trading:
Buyers and sellers are responsible for making sure that all transactions are lawful in both the country of the buyer and the country of the seller and comply with any applicable import/export laws. Sellers are responsible for paying any applicable taxes, duties or quotas in their home country connection with their sale of artwork, and buyers are responsible for paying any applicable taxes, duties, or quotas in their home country in connection with their purchase of artwork.
California Transactions:
If the seller or buyer reside in the state of California, the seller hereby represents, warrants and covenants that he or she will comply with the provisions of California Civil Code Section 986.
License
We do not claim ownership of content you upload, post or make available on the Site. However, with respect to art, photos, or graphics you submit to us, you grant us a world-wide, royalty free, sublicensable (through multiple tiers) and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content on the Site. This license exists only for as long as you elect to continue to include such content on the Site and will terminate at the time you remove such content from the Site.
In addition, with respect to content other than art, photos or graphics you submit to us, you grant us a world-wide, royalty free, sublicensable (through multiple tiers), non-exclusive, perpetual, and irrevocable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such content (in whole or in part) and to incorporate such content into other works in any format or medium now known or later developed.
For the convenience of sellers, we may offer catalogs of stock images, descriptions and product specifications that are provided by third parties (including our users). You may use catalog content solely in connection with your listings during the time your listings are on the Site.
While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree not to hold our catalog content providers or us responsible for inaccuracies in catalogs. If you choose to include catalog content in your listings, you continue to be fully responsible for your listings and for ensuring that your listings are accurate, do not include misleading information, and comply with the Terms of Use and all Gallerist policies. The catalogs may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included with the catalogs or create any derivative works based on catalog content (other than by including them in your listings).
Resolution of Disputes
We are not a party in the actual transaction between a seller and buyer and thus will not be involved in resolving any dispute between participants related to transactions conducted through the Site. You will settle any disputes you have with a seller or buyer, as applicable, directly with such seller or buyer, and will not hold Gallerist responsible for or involve Gallerist with any efforts to settle such a dispute. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
Disclaimers
A user who uses or makes decisions based on information contained in this Site does so at his or her own risk. We cannot and do not appraise the value or price of your art. The sales price of your art has been established by you, the owner, and Gallerist has made no representations as to the sales price that you may receive. Although your art will be exposed to potential buyers as a result of Gallerist, we do not have a specific buyer at the present time. Gallerist is not affiliated with any third party organization, and is not an art broker, so you will be negotiating directly with the potential buyer for the sales price. You acknowledge and agree that Gallerist has made no representations as to the period of time that it will take to sell your art, the success rate of our website, or the sales price that you may receive. The marketing period and sales price is determined by market conditions, and the type of art you desire to sell. Because we are an art listing company, and are not involved in the sale, or the negotiation for sale, we are unable to provide you with any statistics on the percentage of artwork posted on the Site that is sold as a result of our Site.
We cannot guarantee continuous or secure access to the Site, services or tools, and operation of the Site, services or tools may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions. We are not liable for any loss of money, goodwill or reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of your use of or your inability to use the Site, services and tools.
We do not transfer legal ownership of property from the seller to the buyer and we are not involved in the actual transaction between buyers and sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of users’ content or listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction or return an item.
INFORMATION CONTAINED IN THIS SITE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GALLERIST DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS IN THIS SITE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GALLERIST DISCLAIMS LIABILITY FOR AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE INTERPRETATION OR RESULTS OF THE USE OF MATERIALS IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply.
Release and Limitation of Liability
YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST GALLERIST WITH RESPECT TO ANY INFORMATION, MATERIALS, MERCHANDISE OR SERVICE OBTAINED ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF A SELLER TO DELIVER ARTWORK OF THE QUALITY, QUANTITY OR DESCRIPTION SET FORTH IN A PURCHASE ORDER OR OTHER AGREEMENT, WHETHER ORAL OR WRITTEN, ENTERED INTO BETWEEN A BUYER OR SELLER, AS THE CASE MAY BE.
UNDER NO CIRCUMSTANCES WILL GALLERIST BE LIABLE IN ANY WAY FOR ANY DAMAGES, DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, ARISING FROM OR IN CONNECTION WITH ANY INFORMATION, MATERIALS, MERCHANDISE OR SERVICE OBTAINED THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SELECTION, PURCHASE, ACQUISITION OR RECEIPT OF ANY INFORMATION, MATERIALS, MERCHANDISE OR SERVICE PROVIDED ON OR THROUGH THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE TOTAL FEES YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (B) $100.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Indemnity
YOU AGREE TO INDEMNIFY AND HOLD GALLERIST AND (AS APPLICABLE) GALLERIST'S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO (1) YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, (2) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY, OR (3) YOUR PURCHASE OR RECEIPT OF ANY INFORMATION, MATERIALS, MERCHANDISE, OR SERVICES ON OR THROUGH THE SITE. NOTWITHSTANDING THE FOREGOING, GALLERIST RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO DEFEND GALLERIST IF GALLERIST, IN ITS REASONABLE DISCRETION, CONCLUDES THAT YOU ARE NOT ADEQUATELY PROTECTING GALLERIST’S INTERESTS OR ARE INCAPABLE OF PROTECTING GALLERIST’S INTERESTS, AND YOU AGREE TO COOPERATE WITH GALLERIST’S DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER FOR WHICH YOU ARE OBLIGATED TO INDEMNIFY GALLERIST OR THAT REQUIRES AN ADMISSION BY OR JUDGMENT AGAINST GALLERIST WITHOUT OUR PRIOR WRITTEN CONSENT. GALLERIST WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION OR PROCEEDING UPON BECOMING AWARE OF IT.
Choice of Law and Severability
This agreement shall be governed by and enforced in accordance with the laws of the State of New York. If a court of competent jurisdiction finds any part of this agreement void or unenforceable, the remainder should be enforced and the court should use its authority to amend it in order to fulfill the stated purposes of this agreement to the fullest extent permitted by law.
Notices
Except as explicitly stated otherwise, any notices shall be given by email to Gallerist at info@gallerist.com, Attn: Legal Department or, in your case, to the email address you provide to us during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Gallerist during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
Copyright Notice
Copyright 2011 by Gallerist, Inc. All the text, graphics, audio, design, software, and other works are the copyrighted works of Gallerist, Inc. All Rights Reserved. Any redistribution or reproduction of any materials herein is strictly prohibited.