Terms Of Use - Great American Art

WEBSITE TERMS AND CONDITIONS OF USE

This website and/or its mobile applications (“Site”) is owned and operated by The Great American Picture Company, Inc. and/or its subsidiaries or affiliates (“GAPCO”). These Website Terms and Conditions of Use (“Terms of Use”) apply to your use of this Site. Any membership you may establish on the Site and/or the purchase or use of any products or services (“Services”) available through this Site, including the uploading and displaying of your photography or artwork (“Visual Content”, are governed by these Terms of Use as posted on the relevant GAPCO website.

Throughout the Site, the terms “we,” “us” and “our” refer to GAPCO. GAPCO offers this Site, including all information, tools and services available on this Site, to you, the user, conditioned upon your acceptance of these Terms of Use. Your acceptance and continued use of this Site constitute your agreement to abide by these Terms of Use. If you do not wish to be bound by these Terms of Use, please do not accept them and discontinue your use of this Site.

1. Acceptance of Terms

By using the Site, you are agreeing, on behalf of yourself and those you represent, to comply with and be legally bound by these Terms as well as our privacy policy and all applicable laws. If you, for yourself or on the behalf of those you represent do not agree to any provision of these terms, you must, for yourself and on the behalf of any such person(s), discontinue the registration process, discontinue your use of the services, and if you are already registered, cancel your account.

2. Modification of Terms
GAPCO reserves the right, at its sole discretion, to modify or replace the Terms at any time. If the alterations constitute a material change to the Terms, GAPCO will notify you by posting an announcement on the Site. What constitutes a material change will be determined at GAPCO’s sole discretion. You may not amend or modify these Terms of Use under any circumstances. You are responsible for reviewing and becoming familiar with any such modifications. Using any Service or viewing or uploading any Visual Content constitutes your acceptance of the Terms as modified. In addition, when using particular features of the Site, you are subject to any posted guidelines, terms or rules applicable to such Services.

Your access to and use of the Site and our Services may be interrupted from time to time as a result of equipment malfunction, updating, maintenance or repair of the Site or any other reason within or outside of our control. GAPCO reserves the right to suspend or discontinue the availability of the Site, any Service and to remove any Visual Content at any time at its sole discretion and without prior notice. GAPCO may also impose limits on certain features and Services or restrict your access to parts of or all of the Site and the Services without notice or liability. The Site should not be used or relied upon for storage of your Visual Content and you are directed to retain your own copies of all Visual Content posted on the Site.

3. Data Integrity
You represent that all of the information, data and other materials you provide on this Site or to GAPCO through any other means are true, accurate, current and complete. You are responsible for updating and correcting the information you have provided on this Site, as appropriate.

4. Privacy Notice
A copy of the Privacy Notice that applies to the collection, use, disclosure and other processing of personal information on this Site is located at http://greatamericanart.com/privacy-policy/. You consent to any personal information we obtain about you (either via this Site, by email, telephone or any other means) being collected, stored and processed in accordance with the terms of the Privacy Notice. We may update the Privacy Notice from time to time in our sole discretion and post an updated version of the notice at the website address provided above. You are responsible for reviewing and becoming familiar with any such modifications. Using any the Site and Service or viewing or uploading any Visual Content constitutes your acceptance of the Terms as modified.

5. How We Use Your Personal Data
GAPCO utilizes Hyperwallet payment services to deliver payments to you. Such payment services are subject to the Hyperwallet Terms of Service and the Hyperwallet Privacy Policy.

6. License and Site Access
All content available through this Site (including, without limitation, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof) is the exclusive property of and owned by GAPCO, its licensors or its content providers, and is protected by copyright, trademark and other applicable U.S. and foreign laws.
GAPCO grants you a limited license to access and make personal use of this Site. Unless indicated to the contrary, you may access, copy, download and print the content available on this Site for your personal, non-commercial use, provided you do not modify or delete any copyright, trademark or other proprietary notices that appear in the content. GAPCO or its licensors or content providers retain full and complete title to the content available on the Site, including all associated intellectual property rights, and provide this content to you under a license that is revocable at any time in GAPCO’s sole discretion. GAPCO strictly prohibits any other use of any content available through the Site, including but not limited to:

any downloading, copying or other use of the content or the Site for purposes competitive to GAPCO or for the benefit of another vendor or any third party;
any caching, unauthorized linking to the Site or the framing of any content available on the Site;
any modification, distribution, transmission, performance, broadcast, publication, uploading, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any content, products or services obtained from the Site that you do not have a right to make available (such as the intellectual property of another party);
any uploading, posting or transmitting of any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer;
using any hardware or software intended to surreptitiously intercept or otherwise obtain any information (such as system data or personal information) from the Site (including, but not limited to, the use of any “scraping” or other data mining techniques, robots or similar data gathering and extraction tools); or
any action that imposes or may impose (in GAPCO’s sole discretion) an unreasonable or disproportionately large load on GAPCO’s infrastructure, or damage or interfere with the proper working of our infrastructure.

You are responsible for obtaining access to the Site, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Site. You may not bypass any measures that have been implemented to prevent or restrict access to this Site. Any unauthorized access to the Site by you (including any such access or use that involves in any way an account you may establish on the Site or any device you may use to access the Site) shall terminate the permission or license granted to you by GAPCO.

GAPCO reserves the right to refuse or cancel any person’s registration for this Site, remove any person from this Site and prohibit any person from using this Site for any reason whatsoever, and to limit or terminate your access to or use of the Site at any time without notice. GAPCO neither warrants nor represents that your use of the content available on this Site will not infringe rights of third parties not affiliated with GAPCO. Termination of your access or use will not waive or affect any other right or relief to which GAPCO may be entitled, at law or in equity.

7. Registration
As a condition to using the Site and Services, you are required to open an account with GAPCO and select a password and username, and to provide registration information. The registration information you provide must be accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your access to the Site and Services, by either terminating your email access or your account. Any personal information that you provide to GAPCO is governed by the GAPCO Privacy Policy.

You may not use as a username, the name of another person, or entity, or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

You are responsible for protecting your login credentials, including any password. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your login credentials. If you have any reason to believe or become aware of any loss, theft or unauthorized use of your login credentials, notify GAPCO immediately. GAPCO may assume that any communications we receive from your email or other address, or communications that are associated with your login credentials or your account on this Site, have been made by you unless we receive notice indicating otherwise.

Services are available to authorized representatives of legal entities and to individuals who are either at least 18 years old to register for Services through GAPCO.The Services are for use by a) individuals who own Visual Content; b) entities that represent owners of Visual Content including but not limited to galleries, agents, representatives, distributors other market intermediaries; and c) individuals and entities seeking to license Visual Content. If you are the owner of the Visual Content, but not the creator, you are not allowed to upload content for the purposes of self-advertising. The Visual Content selected for use on the Site is at the sole discretion of GAPCO.

8. User Conduct:

All Visual Content posted or otherwise submitted to the Site, is the sole responsibility of the account holder from which such Communications originate and you acknowledge and agree that you, and not GAPCO, are entirely responsible for all Visual Content that you post, or otherwise submit to the Site. GAPCO does not control user submitted Visual Content and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Site you may be exposed to Content that is offensive, indecent or objectionable.

As a condition of use, you promise not to use the Site or Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by GAPCO. By way of example, and not as a limitation, you agree not to use the Services:

To abuse, harass, threaten, impersonate or intimidate any person;
To post or transmit, or cause to be posted or transmitted, any Content that is libelous, defamatory, obscene, pornographic, abusive, offensive, profane, or that infringes any copyright or other right of any person;
To communicate with GAPCO representatives or other users in an abusive or offensive manner;

For any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction where you use the Services;
To post or transmit, or cause to be posted or transmitted, any Communication designed or intended to obtain password, account, or private information from any GAPCO user;
To create or transmit unwanted ‘spam’ to any person or any URL;
To create multiple accounts for the purpose of voting for or against users’ Visual Content;
To post copyrighted Content that does not belong to you, unless you are commenting on Visual Content in Blogs, where you may post such Content subject to providing appropriate attribution to the copyright owner and a link to the source of the Content;
With the exception of accessing RSS feeds, you agree not to use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass any measures we may use to prevent or restrict access to the Site;
To advertise to, or solicit, any user to buy or sell any third party products or services, or to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
To promote or sell Visual Content of another person unless you are expressly authorized to do so; or
To sell, assign or otherwise transfer your profile.

To report a suspected abuse of the Site or a breach of the Terms see section 10: Copyright complaints.

If the Services or Site are used in a manner that violates the Terms in any way, GAPCO may, at its sole discretion, suspend or terminate your account, disable your access to the Site and/or take any steps that it deems appropriate to address the situation.

9. Visual Content You Submit
You acknowledge that you are responsible for any content you may submit through the Site, including the legality, reliability, appropriateness, originality and copyright of any such content. You may not upload to, distribute or otherwise publish through this Site any content that:

is confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to, any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. or foreign laws;
may contain software viruses or malware;
contains advertisements or solicitations of any kind, or other commercial content;
is designed to impersonate others;
contains personal information (such as messages that include phone numbers, payment card numbers, account numbers, or addresses), except where we expressly ask you to provide such information;
contains messages by non-spokesperson employees of GAPCO purporting to speak on behalf of GAPCO or containing confidential information or expressing opinions concerning GAPCO;
contains messages that offer unauthorized downloads of any copyrighted, confidential or private information;
contains multiple messages placed within individual folders by the same user restating the same point;
contains chain letters of any kind; or
contains identical (or substantially similar) messages to multiple recipients advertising any product or service, expressing a political or other similar message, or any other type of unsolicited commercial message; this prohibition includes, but is not limited to, (a) using the invitation functionality that may be available on the Site to send messages to people who do not know you or who are unlikely to recognize you as a known contact; (b) using the Site to connect to people who do not know you and then sending unsolicited promotional messages to those direct connections without their permission; or (c) sending messages to distribution lists, newsgroup aliases or group aliases.

You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. Some features that may be available on this Site require registration. By registering, you agree to provide true, accurate, current and complete information about yourself.

With respect to any content you submit or make available through the Site (other than personal information, which is handled in accordance with the Privacy Notice, you grant GAPCO a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such content or any part of such content, in any media. You hereby represent, warrant and covenant that any content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant such a license to GAPCO.

10. Copyright Complaints
GAPCO respects the intellectual property rights of others. It is our policy to respond promptly to any claim that Content posted on the Site infringes the copyright or other intellectual property rights (“Infringement”) of any person. GAPCO will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property laws and these Terms where it believes an Infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating accounts and access to the Site.

The Digital Millennium Copyright Act 17 U.S.C. Section 512 (“DMCA”) provides a legal procedure by which you can request that GAPCO take-down your copyrighted work(s) appearing on the Website without your permission. This procedure requires that You send a written DMCA Notice of Alleged Infringement (“Infringement Notice”), as specified under the DMCA and as set forth below, to our designated agent for notice of copyright infringement (“Designated Agent”). If You are a copyright owner, or are authorized to act on behalf of a copyright owner, and You believe that copyrights are being infringed upon in connection with any content (“Content”) dis- played on the Website, please contact our Designated Agent in writing with the information set forth in the Infringement Notice Content section below, as follows:

Philip A. Nicolosi

Phil Nicolosi Law, P.C.

6735 Vistagreen Way, Suite 210

Rockford, IL 61107

(815)314-0022

dmca@philnicolosilaw.com

Please send your Infringement Notice by email to: dmca@philnicolosilaw.com.

Please use the following subject line: “Notice of Infringement.”

This Policy follows the procedures provided in the DMCA, which prescribes a notice and take- down procedure, subject to the registered user’s right to submit a counter-notification claiming lawful use of any disabled Content. In the event any of the provisions in our policy conflict with any applicable requirements under the DMCA then the requirements under the DMCA shall supersede and control and the hereby incorporated into this policy by reference. If we are notified of any claimed copyright infringement, or otherwise become aware of facts and circumstances from which infringement is apparent, we will respond expeditiously by removing the Content or disabling access to the Content that is the subject of the alleged infringing activity.

Infringement Notice Content: If You believe that any Content appearing on this Website constitutes copyright infringement, you must submit the following information to us in writing consistent with the DMCA: 1) an electronic or physical signature of any person authorized to act on behalf of the owner of the protected interest; 2) a brief description of the copyrighted work that You claim has or is being infringed upon; 3) a description of the location on the Website where any allegedly infringing Content may appear, including the URLs of web pages and/or hyper- links; 4) Your address, telephone number, and email address; 5) a statement by You stating that You have a good faith belief that the infringing use is unauthorized; 6) a statement by You, under penalty of perjury, that the information contained in any notice to us pursuant to this Policy is accurate and that affirms that You are the copyright owner, or that You are authorized to act on behalf of the copyright owner(s).

Disputing Claims of Infringement: You may protest any alleged claim of infringement pursuant to any DMCA by submitting a counter-notification as described below. Anyone who has posted Content that allegedly infringes a copyright may send our Designated Agent a counter notice pursuant to Sections 512(g)(2) and 512(g)(3) of the DMCA. When our Designated Agent receives your counter notice, the Designated Agent may, in its/his/her sole discretion, reinstate the alleged infringing materials not less than 10 nor more than 14 calendar days after it receives the counter-notification, unless our Designated Agent receives notice from the claimant that they have filed a legal action to restrain the allegedly infringing activity. In some cases, where the infringement is done knowingly, we reserve the right, in our sole discretion, to terminate the user account of any user who has submitted/posted infringing Content. This decision will be based upon the facts and circumstances surrounding each instance of infringement. We will comply with the appropriate provisions of the DMCA in the event a counter-notification is received by our Designated Agent.

In order to send a proper Counter-Notification, You must send a written notification to our Designated Agent including the following information:

Identification of any Content that has been removed or to which access has been disabled on our Website and the location which the Content appeared before it was removed or access to it was disabled;
State, under penalty of perjury, that You have a good faith belief that the Content was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
Provide your name, address, telephone number, and, if available, email address;
State that You consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or, if your address is outside of the United States, for any judicial district in which You may be found, and You will accept service of process from the complaining party who notified us of the alleged infringement or an agent of such person.

False or Misleading Notices: We shall determine the sole manner in which we decide to treat any non-compliant notices in whatever manner appears to be reasonable given the facts and circumstances presented. Any claimant or user who submits a DMCA Notice, Counter-Notification or any other notice which contains any false or materially misleading information will automatically forfeit any rights under this Policy and such notice shall be considered null and void by us. Notice to our Website Users: Pursuant to our Content Submission Policy, you are required to use only lawfully-acquired creative works as Content and your user account on this Website may be disabled and/or terminated upon receipt of any Infringement Notice that indicates that infringing material has been submitted or posted by You. However, You are afforded the opportunity to provide a response to any alleged claims of infringement, as set forth above. We will reinstate any allegedly infringing Content and/or reinstate access to your account on this Web- site within a reasonable amount of time in the event we determine that reinstatement of the Content is warranted pursuant to the terms of this Policy.

Repeat Infringers: If any of our Website users violate this Policy or our Content Submission Policy more than once, such users’ account/membership will be subject to immediate termination. If you believe that any user of this Website is a repeat infringer, please contact our Designated Agent and provide information sufficient for us to verify that the account holder or sub- scriber is a repeat infringer.

Merits of Claims of Infringement: You acknowledge and understand that we and/or our Designated Agent are not responsible for determining the merits of any claims of infringement of the Content submitted on this Website. We do not make any determinations based upon our interpretation of any relevant copyright or trademark laws or otherwise. We only respond to any claims of infringement according to the DMCA and according to this Policy as a “service provider” within the meaning of the DMCA. Any determination to take down or reinstate any alleged infringing Content is strictly based upon the procedures set forth in this Policy only.

Trademark/Service Mark Policy If You believe that any Content appearing on this Website constitutes trademark or service mark infringement, you must provide us with the same information in writing consistent with our DMCA Policy set forth above, except that all copyright information shall relate to the trademark or service mark instead.

You agree that, in the event we receive a written “Cease and Desist” letter or other demand (“Notice”) alleging that any Content You have posted to this Website infringes upon, dilutes, tarnishes or otherwise violates the trademark/service mark rights of any third parties, we may in our sole discretion, remove or disable access to such Content until we receives either:

Written confirmation from the party sending such Notice that the Notice is withdrawn or has been resolved; or
You submit sufficient evidence to satisfactorily rebut the allegations contained in such Demand, the adequacy of such evidence to be determined by us in our sole discretion and which we may reject for any reason without penalty or liability to You. In order for us to accept such rebuttal, You expressly acknowledge and agree that such rebuttal shall include:
1. The information set forth in our DMCA Policy above for a valid Counter-Notification, except that all copyright information shall relate to the trademark/service mark instead; and
2. An express, irrevocable and binding obligation pursuant to which You shall indemnify, defend and hold us harmless from any damages, costs, or expenses that we may incur, in any manner whatsoever, arising out of or in connection with the disputed Content and/or our restoration thereof.

As a condition of being permitted to post Content onto our Website, You acknowledge and agree that:

We are not under any obligation to restore access to any Content even if You provide a rebuttal and that the determination of sufficiency of any` evidence provided in a rebuttal shall be at our sole discretion;
You expressly waive and disclaim any claim or potential claim against us related to or arising out of our removal of or disabling of access to any Content in response to a No- tice, including without limitation any claim for lost revenue, lost profits and/or expenses. and,
The procedures of the DMCA apply only to copyrighted materials and expressly exclude any other form of Intellectual property rights, including any rights in trademarks, service marks and/or trade names and that the foregoing process is intended only to provide a convenient mechanism for addressing such disputes and does not, and shall not be construed, as imposing upon us any of the obligations imposed under the DMCA whatsoever

11.Links

This Site may contain links to other websites or resources that are operated by third parties not affiliated with GAPCO. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. Inclusion of links to other sites or resources should not be viewed as an endorsement of the content of linked sites or resources. Different terms and conditions and privacy policies may apply to your use of any linked sites or resources. GAPCO is not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any such content, products or services available on or through any such linked site or resource.

Disclaimers

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF USE OR THE TERMS OF SERVICE, OR REQUIRED BY APPLICABLE LAW, GAPCO MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF GAPCO MEMBERSHIP, ANY CONTENT ON THE SITES, OR ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE GAPCO SITES, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE AND/OR FOR USE OF THE GAPCO MEMBERSHIP, COMMUNICATIONS WITH THIRD PARTIES, AND PURCHASE AND USE OF THE PRODUCTS AND SERVICES AVAILABLE THROUGH THE GAPCO SITE. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR MEMBERSHIP AND/OR USE OF THE SITE MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE FO THE SITE IS AT YOUR OWN RISK AND THAT THE SITE IS MADE AVAILABLE TO YOU AT NO CHARGE. RECOGNIZING SUCH, YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, CONSUMER PROTECTION LAW), NEITHER GAPCO NOR ITS LICENSORS, SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO (1) THIS SITE, OR ANY OTHER SITE OR RESOURCE YOU ACCESS THROUGH A LINK FROM THIS SITE; (2) ANY ACTION WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; (3) YOUR GAPCO MEMBERSHIP; (4) ANY PRODUCTS OR SERVICES MADE AVAILABLE OR PURCHASED THROUGH THE GAPCO SITE, INCLUDING ANY DAMAGES OR INJURY ARISING FROM ANY USE OF SUCH PRODUCTS OR SERVICES; (5) ANY DELAY OR INABILITY TO USE THE SITE OR ANY INFORMATION, PRODUCTS OR SERVICES ADVERTISED IN OR OBTAINED THROUGH THE SITE; (6) THE MODIFICATION, REMOVAL OR DELETION OF ANY CONTENT SUBMITTED OR POSTED ON THE SITE; OR (7) ANY USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF GAPCO HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE OR RESOURCE. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, LOSS OF PROFITWS BY YOU, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER GAPCO NOR ITS LICENSORS, SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE. YOUR REMEDY FOR ANY OF THE ABOVE CLAIMS OR ANY DISPUTE WITH GAPCO IS TO DISCONTINUE YOUR USE OF THE SITE. YOU AND GAPCO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Except as otherwise provided by law, neither GAPCO nor any of its affiliates, parents, subsidiaries, authorized distributors, directors, shareholders, employees, or agents shall be liable for any loss, injury, claim, liability, or damage of any kind resulting from your use of the Site or the Services. GAPCO shall not be liable for any special, direct, indirect, incidental, punitive, or consequential damages of any kind whatso ever (including, without limitation, attorney’s fees) in any way due to, resulting from, or arising in connection with the use of or inability to use the Site or Services. To the extent the foregoing limitation of liability is prohibited or fails of its essential purpose, GAPCO’s sole obligation to you for damages shall be limited to US$100.00.You and GAPCO agree that any proceedings to resolve or litigate any dispute arising hereunder will be conducted solely on an individual bases, and that you will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you act or propose to act in a representative capacity. You further agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of GAPCO and all parties to any such proceeding.

Indemnities

You hereby expressly and irrevocably release and forever discharge GAPCO, its affiliated and associated companies and its authorized distributors, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the Site and the Services.

You hereby agree to indemnify and hold harmless GAPCO, its affiliated and associated companies and its authorized distributors, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of (i) a breach of these Terms, (ii) Content posted on the Site, (iii) the use of the Services, by you or any person using your account or GAPCO Username and password, (iv) the licensing or use of your Visual Content, or (v) any violation of any rights of a third party. GAPCO reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

You will indemnify and hold harmless GAPCO from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by GAPCO and such parties, and shall defend GAPCO and such parties against any and all claims arising out of (1) your breach of these Terms and Use; (2) your breach of the Terms of Service; (3) fraud you commit, or your intentional misconduct or gross negligence; or (4) your violation of any applicable U.S. or foreign law or the rights of a third party. GAPCO will control the defense of any claim to which this indemnity may apply, and in any event, you shall not settle any claim without the prior written approval of GAPCO.

Electronic Communications

When you use the Site or send emails to GAPCO, you are communicating with GAPCO electronically. You consent to receive electronically any communications related to your use of this Site. GAPCO will communicate with you by email or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from GAPCO intended for receipt by a customer shall be deemed delivered and effective when sent to the email address you provide on the GAPCO site.

Trademarks and Copyrights

The trademarks, logos and service marks (“Marks”) displayed on the Site are the property of GAPCO or its licensors or content providers, or other parties. Users or any parties acting on their behalf are prohibited from using any Marks for any purpose including, but not limited to use as meta tags on other pages or sites without the written permission of GAPCO or such third party which may own the Marks. You may not use frames or utilize framing techniques or technology to enclose any content included on the Site without GAPCO’s express written consent. Further, you may not utilize any Site content in any meta tags or any other “hidden text” techniques or technologies without GAPCO’s express written consent. All content (including any software programs) available on or through the Site is protected by copyright, trademark and other applicable U.S. and foreign laws.GAPCO may update this contact information from time to time without notice to you. We will post the current contact information on this Site.

Survival of Terms after Agreement Ends

Notwithstanding any other provisions of these Terms of Use, or any general legal principles to the contrary, any provision of these Terms of Use that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Terms of Use.

Force Majeure

GAPCO shall be excused from performance under these Terms of Use or the Terms of Service, to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of GAPCO. In the event that GAPCO is temporarily unable to ship to you a purchased item because of such an event, GAPCO will give you the option of deferring shipment or receiving a refund of your charges.

General

These Terms constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. Any rule of construction stating that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. If one or more of the provisions herein is held invalid, illegal or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. Any inconsistency between these Terms in English and these Terms in any other language shall, to the fullest extent permitted by applicable law, be resolved by reference to the English version. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any prior, subsequent or other default or breach. Terms shall be governed by and construed in accordance with the laws of the United States of America, as applicable without regard to conflicts of laws principles. The United Nations Convention on the International Sale of Goods does not apply and is expressly excluded.

Any controversies or disputes arising out of or relating to these Terms shall be resolved by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association or of the International Center for Dispute Resolution to be held in one of the following jurisdictions (whichever is closest to you): [New York, New York; San Francisco, California; or Toronto, Canada]. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of these Terms. The arbitration proceeding shall be conducted in English and all documentation shall be presented and filed in English. The arbitrator shall not have the authority to modify any provision of these Terms or to award punitive damages. The arbitrator shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under these Terms. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events, or occurrences giving rise to the claim. If any of the provisions set forth in these Terms of Use of the Terms of Service are deemed invalid, void, or for any reason unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the unenforceable condition shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions of these Terms of Use or the Terms of Service. Section headings are for reference purposes only and do not limit the scope or extent of such section. These Terms of Use or the Terms of Service and the relationship between you and GAPCO will be governed by the laws of the State of Massachusetts without regard to its conflict of law provisions.

If a dispute arises under these Terms of Use or the Terms of Service between you and GAPCO, such dispute shall be resolved by final and binding arbitration administered by the National Arbitration Forum or the American Arbitration Association, under their rules for consumer arbitrations. The venue for all disputes arising under these Terms of Use shall be the State of Massachusetts. All disputes in arbitration will be handled solely between the named parties, and not on any representative or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU WILL NOT HAVE ACCESS TO A COURT OR TO A JURY TRIAL. Notwithstanding any other provision of these Terms of Use or the Terms of Service, GAPCO may resort to court action for injunctive relief at any time. The failure of GAPCO to act with respect to a breach of these Terms of Use or the Terms of Service by you or others does not waive GAPCO’s right to act with respect to subsequent or similar breaches. If any content on this Site, or your use of the Site, is contrary to the laws of the place where you are when you access it, the Site is not intended for you, and we ask you not to use the Site. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.GAPCO does not guarantee it will take action against all breaches of these Terms of Use or the Terms of Service. Except as otherwise expressly provided in these Terms of Use or the Terms of Service, there shall be no third-party beneficiaries to these Terms of Use of the Terms of Service.

Assignment

You may not assign these Terms of Use or the Terms of Service (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of GAPCO, which may be withheld at GAPCO’s sole discretion. Any attempted assignment that does not comply with these Terms of Use or the Terms of Service shall be null and void. GAPCO may assign these Terms of Use or the Terms of Service, in whole or in part, to any third party in its sole discretion.

Entire Agreement and Admissibility

These Terms of Use constitute the entire agreement and understanding between you and GAPCO with respect to the subject matter thereof and supersede all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to such subject matter. In some instances, both of these Terms of Use and a separate document that provides additional conditions may apply to a service or product offered via this Site (“Additional Terms”). To the extent there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. A printed version of these Terms of Use shall be admissible in judicial or administrative proceedings based on or relating to use of this site to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Termination
GAPCO may terminate or suspend any and all Services and/or your GAPCO account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your GAPCO account, you may simply discontinue using the Services. All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership and rights provisions and warranties, warranty disclaimers, indemnity and limitations of liability.

It is your responsibility to remove all Visual Content from your account prior to termination. Upon termination of your account, GAPCO will automatically remove all Visual Content posted to your account.

23. Warranty Disclaimer

You use the Site and the Services at your own risk. The Site and the Services are provided on an “as is, as available” basis. GAPCO expressly disclaims all warranties, including the warranties of merchantability, title, fitness for a particular purpose and non-infringement. GAPCO disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or in any way related to (A) any errors in or omissions from this site and the services, including, but not limited to, technical inaccuracies and typographical error, (B) third party communications, (C) any third party websites or content directly or indirectly accessed through links in the site, including but not limited to any errors or omissions, (D) the unavailability of all or any part of the Site or the Services, (E) your use of the Site or the Services, or (F) your use of any equipment or software in connection with the Site or the Services. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF USE OR THE TERMS OF SERVICE, OR REQUIRED BY APPLICABLE LAW, GAPCO MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF GAPCO MEMBERSHIP, ANY CONTENT ON THE SITES, OR ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE GAPCO SITES, AS WELL AS WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.

How to Contact Us
If you have any questions or comments about these Terms of Use or this Site, please contact us by email at info@greatamericanart.com. You may also write to us at:

Justin Mettlach
Great American Art
23 Norfolk Ave
South Easton, MA 02375