Table of Contents
5. Pricing and Products
6. Promotional Offers & Gift Cards
8. User and Artist Submitted Materials
9. Rules Regarding Information and Other Content
10. General Rules of User Conduct
11. Mobile Application
13. Use of Products by Wallcore™
14. Modifications to and Discontinuance of the Site or Services
15. Third Party Content and Other Websites
16. Disclaimer of Warranties
17. Limitation of Liability
19. Procedure for Making Claims of Copyright Infringement
20. Electronic Communications
21. Trademarks & Copyright Notice
22. International Users
You may simply browse the Site, or you may register with Wallcore.com and create an “Account”. You do not have to have an Account to order Products. You must, however, only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
If you set up an Account, you are required to provide your name and email address and select a password (collectively, your “Account Information”), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your authorized representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms. In no event and under no circumstances will WallcoreTM be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of WallcoreTM under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your password. You may not use anyone else's Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity.
Procedures for Placing an Order: Unless otherwise specified on the Site, Orders through our Site are made through the following process:
a. When you place an Order on our Site for a specific Product(s), you will select your Products and provide your Payment information to WallcoreTM as set forth below. WallcoreTM will process your payment at the time that you place your Order.
b. The item that you wish to have framed is referred to herein as your “Artwork”. You may either send us a digital copy of your Artwork or the actual Artwork.
c. If you are providing WallcoreTM with a digital copy of your Artwork (the “Digital Artwork”), please upload the digital file of the Artwork to the Site. WallcoreTM will print such Artwork and frame such Artwork solely according to your specifications as set forth on the Site. Please note that WallcoreTM may choose to not complete your Order for any reason, including without limitation, if WallcoreTM believes that you do not have the proper ownership rights to reproduce the Digital Artwork. In such case, WallcoreTM will cancel your Order and refund any payments made by you.
d. If you are providing WallcoreTM with a non-digital copy of your Artwork, WallcoreTM will send you packaging material for you to package your Artwork and send such Artwork to WallcoreTM to be framed.
e. Upon your receipt of the packaging materials, please properly package your Artwork in accordance with the instructions set forth in such materials or as otherwise specified on the Site. Please send back to us your Artwork in such packaging Materials and in accordance with the delivery instructions provided to you by WallcoreTM. In the event that WallcoreTM has not received your Artwork within ninety (90) days of the date that you placed your Order, upon your written request, WallcoreTM will cancel your Order. Following such cancellation, WallcoreTM will refund the amount of your payment for such Order, less a $10.00 shipping and handling fee which will be retained by WallcoreTM.
f. Upon receipt of your Artwork, WallcoreTM will frame your Artwork using the Products set forth in your Order. In the event that WallcoreTM is not able to complete your Order for any reason, WallcoreTM will return to you your Artwork and refund any payments made by you.
g. Following completion of the framing of your Artwork, WallcoreTM will send to you your framed Artwork (the “Final Product”, which constitutes a Product under these Terms). The Products are subject to WallcoreTM’s then-current return policy, as posted on the Site.
Acceptance of Your Order: Your placement of an Order through our Site is an offer to purchase the Product(s) and/or Services ordered and we may accept your Order by processing your payment and shipping the Final Product(s). Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. No Order will be considered accepted by WallcoreTM until the Final Product(s) has been shipped to you. If some of the Products in your Order are temporarily out of stock, we will ship the available Products only and notify you of any Products that cannot be fulfilled. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your Order, without prior notice to you, to supply less than the quantity you ordered of any item. Your Order will be deemed accepted by WallcoreTM upon our delivery of the Final Products that you have ordered. We may require additional verifications or information before accepting any Order. All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when WallcoreTM provides the Product(s) to a common carrier.
Shipping of Orders: Any estimated shipping date provided by WallcoreTM is based on the date that WallcoreTM receives your Artwork from you, Product availability and payment processing time, and does not include transit time. WallcoreTM only ships currently to addresses in the United States.
5. Pricing & Products
6. Promotional Offers; Gift Cards
We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point. Only one promotional code may be used per transaction.
Wallcore™ gift cards and gift certificates ("Gift Cards") may only be redeemed toward the purchase of eligible goods and services provided by Wallcore™ on www.Wallcore.com. Purchases are deducted from the redeemer’s Gift Card balance. Any unused Gift Card balance will be placed in the redeemer’s Wallcore.com account. If a purchase exceeds the redeemer’s Gift Card balance, the remaining amount must be paid with another payment method. No fees apply to Gift Cards. Gift cards do not expire.
Gift Cards may not be redeemed for the purchase of products at any other website. Gift Cards cannot be used to purchase other gift cards. Gift Cards cannot be reloaded, resold, transferred for value or redeemed for cash, except to the extent required by law. Unused Gift Card balances in a Wallcore.com account may not be transferred to another Wallcore.com account.
The risk of loss and title for Gift Cards pass to the purchaser upon Wallcore™’s electronic transmission of the Gift Card to the purchaser or designated recipient, or Wallcore™’s delivery to the carrier, whichever is applicable. Wallcore™ is not responsible if any Gift Card is lost, stolen, destroyed or used without your permission.
We have the right to close customer accounts and bill alternative forms of payment if a fraudulently obtained Gift Card is redeemed and/or used to make purchases on Wallcore.com.
WALLCORE™ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND WALLCORE™’S SOLE LIABILITY, WILL BE THE REPLACEMENT OF SUCH GIFT CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
b. Third-Party Materials. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for WallcoreTM to monitor such materials and that you access these materials at your own risk.
8. User and Artist Submitted Materials
a. Any materials submitted by you to WallcoreTM, including, without limitation, your Artwork, photographs, images, text, graphics and other materials (collectively, "User Submitted Materials") are subject to the following terms and conditions. You will retain ownership of such User Submitted Materials, and you grant WALLCORETM and our designees a limited, non-exclusive, royalty-free, right and license, to use, reproduce, distribute, create derivative works of and publicly display such User Submitted Materials (i) to enable you to use the Service to create, produce and purchase Products, (ii) in connection with the production or provision of any Product or Service you request, (iii) to show you how your User Submitted Materials would appear in our Products or Services, and (iv) to enable WALLCORETM to provide the Products and Services. For example, when you place an Order for a Product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for framing, packaging and shipment. With respect to materials submitted by an Artist to WallcoreTM, including, without limitation, Artwork, photographs, images, text, graphics and other materials (collectively, "Artist Submitted Materials", and together with the User Submitted Materials, the “Submitted Materials”), the Artist retains ownership of all of such Artist Submitted Materials. WALLCORETM agrees that it will work individually with an Artist to obtain any rights to use, reproduce, distribute and publicly display Artist Submitted Materials on the Site or in other WALLCORETM marketing materials and solely with the consent of the Artist.
b. Please note that, while you retain ownership of your Submitted Materials, any template or layout in which you arrange or organize such Submitted Materials through tools and features made available through our Sites are not proprietary to you, and the rights to such template or layout will remain with us.
c. You represent and warrant that you own or otherwise possess all necessary rights with respect to the Submitted Materials, and that the Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Submitted Materials, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
d. You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in Submitted Materials to use such individual's likeness, for purposes of using and otherwise exploiting the Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual's name or address) with such Submitted Materials.
e. You agree that we may (but are not obligated to) filter any Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any Submitted Materials (including, without limitation, suspending processing and shipping of any Order relating to any User Submitted Materials) and/or disclose any Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable Products or Services, to enforce these Terms or to comply with legal obligations or governmental requests.
f. You agree to indemnify and hold us, our directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third-party users harmless from and against any and all claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys' fees) that arise directly or indirectly out of or from: (i) the Submitted Materials; and (ii) an actual or alleged infringement or violation of any third party’s rights with respect to such Submitted Materials.
g. You agree that you, not WallcoreTM, are responsible for all of Your Submitted Materials.
h. We may, in our sole discretion, determine whether Your Submitted Materials comply with such instructions and are satisfactory for use in our Services. Submitted Materials that violate these Terms may be removed from our Site; provided, however, that we have no obligation to remove Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal or non-removal of any Submitted Materials from our Site.
9. Rules Regarding Information and Other Content
When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call “Content.” You agree not to revise Content posted by others, and you represent and warrant that you will not use any Content in any manner or submit any Submitted Materials or other Content that:
- Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Violates the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
- Is false or inaccurate or becomes false or inaccurate at any time; Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
- Misrepresents your identity in any way;
- Contains any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Advocates or encourages any illegal activity; or
- Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
10. General Rules of User Conduct
It is our goal to make access to our Site and Services a good experience for all of our users. You agree not to, and represent and warrant that you will not, use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
- Conduct or promote any illegal activities while using the Site or Services; o Upload, distribute or print anything that may be harmful to minors;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
- Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
- Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Use the Site or Services to generate unsolicited email advertisements or spam; o Use the Site or Services to stalk, harass or harm another individual;
- Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
- Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
- Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
- Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
11. Mobile Application
License. Subject to your compliance with these Terms, WallcoreTM grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a mobile device that you own or control and to run such copy of the Application solely to access the Services for your own internal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an“Apple Sourced Application”) you will only use the Apple Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
a. App Store. You acknowledge and agree that the availability of the Application and the Services obtained through the Application may be dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these Terms are between you and WallcoreTM and not with the App Store. WallcoreTM, not the App Store, is solely responsible for the Services and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
b. Apple Sourced Applications. The following applies to any Apple Sourced Applications:
I. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Sourced Application.
II. In the event of any failure of the Apple Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Sourced Application. As between WallcoreTM and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of WallcoreTM.
III. You and WallcoreTM acknowledge that, as between WallcoreTM and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Sourced Application or your possession and use of the Apple Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
IV. You and WallcoreTM acknowledge that, in the event of any third-party claim that the Apple Sourced Application or your possession and use of that Apple Sourced Application infringes that third party’s intellectual property rights, as between WallcoreTM and Apple, WallcoreTM, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
V. You and WallcoreTM acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as related to your license of the Apple Sourced Application, and that, upon your acceptance of these Terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apple Sourced Application against you as a third party beneficiary thereof.
VI. Without limiting any other terms of these Terms, you must comply with all applicable third- party terms of agreement when using the Apple Sourced Application.
c. Open-Source Software. Certain software code incorporated into or distributed with the Application may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 11(a) and instead is separately licensed pursuant to the terms and conditions of their respective Open Source Software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
d. Third-Party Services. We may enable you to link your use of the Application with a valid account on a third-party content service such as Instagram (such service, a “Third-Party Service” and each such account, a “Third-Party Account”) by allowing WallcoreTM to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant WallcoreTM access to your Third-Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating WallcoreTM to pay any fees or making WallcoreTM subject to any usage limitations imposed by such third-party service providers. By granting WallcoreTM access to any Third- Party Accounts, you understand that WallcoreTM may access, make available and store (if applicable) any Content that you have provided to and/or stored in your Third-Party Account (“TPS Content”) so that it is available on and through the Application. Unless otherwise specified in the Terms, all TPS Content shall be considered to be Your Submitted Materials for all purposes of the Terms, including, without limitation, with respect to Section 8 above. You should note that a Third-Party Service may change or amend its guidelines and our access to it at any time, and we cannot guarantee that our Services will always include a connection to such Third Party Service.
In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to Products, the Site or the Services (collectively “Feedback”), you agree we may use the Feedback to modify our Products, Site and Services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with us, unless we have entered into a separate written agreement with you that provides otherwise.
13. Use of Products by Wallcore
From time to time, Wallcore™ may request your consent for Wallcore™, its affiliates and partners to use photographs and other reproductions of Products ordered by you or provided to you, including Products that contain your Submitted Materials, and other materials supplied by you to Wallcore™ in Wallcore™’s marketing materials, publicity and other materials and on the Site. In such event, Wallcore™ will seek your consent prior to such use. If you provide us with your consent, Wallcore™, its affiliates and partners will have a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of to use, reproduce, distribute, create derivative works of and publicly display, photographs and reproductions of such Products and other materials in all media existing now or created in the future to market our Products, Services and Site and for such other purposes as we may determine.
14. Modifications to and Discontinuance of the Site or Services
We reserve the right to modify or discontinue the Site or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services.
Continued access to the Site or Services following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
15. Third Party Content and Other Websites
16. Disclaimer of Warranties
17. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE PRODUCTS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD-PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD-PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES.
EXCEPT AS EXPRESSLY SET FORTH BELOW REGARDING LOST OR DAMAGED ARTWORK, OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE TOTAL AMOUNT OF THE ORDER GIVING RISE TO OUR LIABILITY.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances will we or our partners be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties. Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
LIMITED REMEDY FOR LOSS OR DAMAGE OF YOUR ARTWORK
As art lovers dedicated to protecting and preserving art, safeguarding ARTWORK is WALLCORE™’S priority. WALLCORE™ strives to make shipping your ORDER to us safe and secure. WALLCORE™’S packaging is designed to protect your ORDER against the standard shipping process, and WALLCORE™’S shipping partners allow you to track your ORDER from your door to WALLCORE™’S studio and back again.
Because WALLCORE™ knows that sometimes the value of your ARTWORK is not tied to its monetary value, your ARTWORK is covered both by formal insurance and WALLCORE™’S Art Care Guarantee (as described below).
If WALLCORE™ loses or damages YOUR ARTWORK, you acknowledge and agree that your sole and complete remedy for any such loss is as set forth below:
In the unlikely event that your ORDER is lost or damaged, WALLCORE™ will (i) if available, offer to replace your ARTWORK, or (ii) offer WALLCORE™’s payment to you in the amount of up to THREE HUNDRED DOLLARS ($300.00) (the “Art Care Guarantee”).
For ARTWORK valued at greater than $300, you will need to provide WALLCORE™ with proof of value that is reasonably acceptable to WALLCORE™, and in such case:
■ For ARTWORK with a value up to $ 1,000, WALLCORE™ will (at WALLCORE™’s option) replace the ARTWORK, if possible, or WALLCORE™ will reimburse you the value of the ARTWORK (based on the proof of value) within ten (10) business days of WALLCORE™’s receipt of the proof of value for YOUR ARTWORK.
■ For ARTWORK with a value exceeding $ 1,000 and up to $5,000, WALLCORE™ will (at WALLCORE™’s option) reimburse you the value of the ARTWORK (based on the proof of value) or replace the ARTWORK, each following the processing of the claim by WALLCORE™’s insurance company.
■ For ARTWORK with a value exceeding $5,000, please contact Customer Service for further details at support@ Wallcore.com.
PLEASE NOTE THAT WALLCORE™’S LIABILITY FOR ANY ARTWORK DAMAGED OR LOST WILL IN NO EVENT EXCEED THE AMOUNT OF WALLCORE™’S INSURANCE COVERAGE THAT EXTENDS TO SUCH ARTWORK.
You acknowledge and agree that the amounts set forth above and the Art Care Guarantee are a reasonable approximation of the damages that would be suffered by you from the loss of your ARTWORK, and that the amounts are not a penalty. Notwithstanding the foregoing, the Art Care Guarantee and the other remedies set forth above, along with any other quoted guarantees or warranties, only apply if YOU HAVE USED THE PACKAGING PROVIDED BY WALLCORE™ AND FOLLOWED WALLCORE™’S INSTRUCTIONS FOR PACKAGING.
19. Procedure for Making Claims of Copyright Infringement
While Wallcore™ is not obligated to review Your Submitted Materials for copyright infringement, Wallcore™ is committed to protecting copyrights and expect users of our Site and Applications to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Site or Applications infringes your copyright, you (or your agent) may send Wallcore™ a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Wallcore™ to locate the material on our Site and Applications; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Wallcore™ a counter-notice. Notices and counter-notices must meet the then- current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. DMCA notices and counter-notices regarding the Site and Application should be sent to:
Attn: Copyright Agent
25437 SE 212th St.
Maple Valley, WA 98038.
20. Electronic Communications
21. Trademarks and Copyright Notice
The trademarks, logos and service marks displayed on the Site are the property of Wallcore™ or its licensors. Unless otherwise specified, all information and screens appearing on this Site including all materials, documents, services, site design, text, graphics, logos, images and icons, as well as the selection and arrangement thereof, are the sole property of Wallcore, LLC dba Wallcore™, Copyright © 2019 Wallcore, LLC. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
22. International Users
This Site can be accessed from countries around the world and may contain references to services and Products that are not available in your country. These references do not imply that WallcoreTM intends to announce such services or Products in your country. The Site and Services are controlled and offered by WallcoreTM from its facilities in the United States of America. WallcoreTM makes no representations that the Site or the Products are available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below.
United Kingdom. A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Germany. Notwithstanding anything to the contrary in Section 17, WallcoreTM is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
a. Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WallcoreTM’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d. Small Dispute Resolution. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, WallcoreTM may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Washington law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Site and/or Services.
e. Other Disputes. Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
f. Alternative Dispute Resolution. YOU ARE THUS GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
g. Agreed Rules. You and WallcoreTM must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR WALLCORETM MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, WallcoreTM will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) WallcoreTM also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law; (9) the arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 17 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Washington law or United States federal law; (10) Notwithstanding the foregoing, either you or WallcoreTM may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Washington, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Washington for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate; (11) With the exception of the above prohibition of arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the prohibition of arbitration on a class or collective basis is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor WallcoreTM shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in the State of Washington. By using the Site and/or Services in any manner, you agree to the above arbitration provision. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
h. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Washington, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
i. Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English.
j. Export Control. You may not use, export, import, or transfer any Products or WallcoreTM materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Products or WallcoreTM materials, and any other applicable laws. In particular, but without limitation, the Products or WallcoreTM materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Products or WallcoreTM materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Products or WallcoreTM materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by WallcoreTM are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re¬export, or transfer WallcoreTM products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
k. Release. You hereby release the WallcoreTM Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Site and/or Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Site and/or Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”
l. Notice. Where WallcoreTM requires that you provide an e-mail address, you are responsible for providing WallcoreTM with your most current e-mail address. In the event that the last e-mail address you provided to WallcoreTM is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, WallcoreTM’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to WallcoreTM at the following address: support@Wallcore.com. Such notice shall be deemed given when received by WallcoreTM by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
m. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
n. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
o. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.