TERMS AND CONDITIONS
Use of the Site
The Site, including all of its contents, such as text, images, and the HTML used to generate the pages ("Materials"), are our property or that of our suppliers, partners, or licensors and are protected by patent, trademark and/or copyright under Australian and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from this Site in whole or in part, for any public or commercial purpose without our specific written permission. We grant you a personal, non-exclusive, non-transferable license to access the Site and to use the information and services contained here.
Your Account and Access
Copyright Infringement. Notice and Take Down Procedures.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright manager the following written information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
If you become aware that material appears on this site in violation of a copyright, please notify us by email at: firstname.lastname@example.org
Rules and Limits on and Modifications to the Site
We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, products, data, text, music, sound, photographs, graphics, video, messages or other materials ("Content"), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
Specific Prohibited Uses
The Site may be used only for lawful purposes by individuals using authorized services of Berry Art. You are responsible for your own communications, including (when available) the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Berry Art specifically prohibits any use of the Site, and requires all users to agree not to use the Site, for any of the following:
Posting any information which is incomplete, false, inaccurate or not your own;
Impersonating another person;
Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or which fails to comply with accepted Internet protocol;
Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
Posting material that infringes on any other intellectual property, privacy or publicity right of another;
Transmitting or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of Australian export control laws;
Attempting to interfere in any way with the Site's or Berry Art's networks or network security, or attempting to use the Site's service to gain unauthorized access to any other computer system.
Abusing special discounts, awards or incentives offered by Berry Art. Unless otherwise specified, only one offer is value per person, maximum two per household.
Violations of system or network security may result in civil or criminal liability. We will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
Accessing data not intended for you or logging into a server or account which you are not authorized to access;
Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
Attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus, worm, Trojan Horse or other harmful code to the Site, overloading, "flooding", "mailbombing" or "crashing"; or sending unsolicited e-mail, including promotions and/or advertising of products or services, or
Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
User Submitted Content
You are responsible for any User Content you post or send to the site administrators or to the site. By "User Content" we mean any content you post to the site, which may include reviews, comments, image uploading, captions, participating in forums, curating or creating art collections and other such features that allow you to add content to the site. We are not responsible for the personally identifiable or other information you choose to submit as User Content and we reserve the right to remove any User Content generated by any user at our sole discretion. You understand that once you post User Content, your content becomes public. We are not responsible for keeping any User Content confidential so if you do not want anyone to read or see that content, do not submit or post it to the Site.
If you submit content as a registered artist you must ensure that any and all works have been created by you and are not in any way, shape or form the works of other individuals.
If we allow you to upload User Content, you may not:
Provide User Content that you do not have the right to submit, unless you have the owner's permission; this includes material covered by someone else's copyright, patent, trade secret, privacy, publicity, or any other proprietary right;
forge headers or manipulate other identifiers in order to disguise the origin of any User Content you provide;
provide any User Content that contains lies, falsehoods or misrepresentations that could damage us or anyone else;
provide User Content that is illegal, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourage conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
impersonate anyone else or lie about your affiliation with another person or entity in your User Content;
use meta tags or any other "hidden text" utilizing any of our or our suppliers' product names or trademarks in your User Content; or
provide User Content which disparage us or our vendors, partners, contractors, galleries, artists, institutions, distributers, representatives and affiliates.
Except as otherwise specifically provided, if you post content or submit material to the Site, you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate these Terms or any law or regulation; and the content will not cause injury to any person or entity. We have the right but not the obligation to monitor and edit or remove any activity or content. User Content comes from a variety of sources. We do not endorse, or support any views, opinions, recommendations, or advice that may be in User Content, nor do we vouch for its accuracy or its reliability, usefulness, safety or intellectual property rights of any User Content. We take no responsibility and assume no liability for any User Content posted by you or any third party.
We control and operate the Site from our offices in Australia, and all information is processed within Australia. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree to comply with all applicable laws, rules and regulations in connection with your use of the Site. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from Australia or the country in which you reside.
As between you and Berry Art (or other company whose marks appear on the Site), Berry Art (or the respective company/ partnership) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or materials you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by Berry Art. If you make use of the Site, other that as provided herein, in doing so you may violate copyright and other laws of Australia, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site.
The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.
Product names, logos, designs, titles, graphics, words or phrases may be protected under law as the trademarks, service marks or trade names of Berry Art, or other entities. Such trademarks, service marks and trade names may be registered in Australia and internationally.
Without our prior written permission, you agree not to display or use our trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner.
Links from and to the Site
You may be able to link to third party websites ("Linked Sites") from the Site. Linked Sites are not, however, reviewed, controlled or examined by us in any way and we are not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply our endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall we be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site's administrator or Webmaster. We reserve the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users.
Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
You agree to defend, indemnify and hold Berry Art, its directors, officers, employees, agents, vendors, partners, contractors, galleries, artists, institutions, distributers, representatives and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, in any way arising from, related to or in connection with your use of the Site, your violation of any law, your violation of the Terms or the posting or transmission of any User Content, or materials on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right. You agree to cooperate as fully as reasonably required in the defense of any claim. Your indemnification obligation will survive the termination of these Terms and your use of the Site.
Disclaimer and Warranties
You understand and agree that:
The site, including, without limitation, all content, function, materials and services is provided "as is," without warranty of any kind, either express or implied, including, without limitation, any warranty for information, data, data processing services or uninterrupted access, any warranties concerning the availability, accuracy, completeness, usefulness, or content of information, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose. Company does not warrant that the site or the function, content or services made available thereby will be timely, secure, uninterrupted or error free, or that defects will be corrected. Berry art makes no warranty that the site will meet users' expectations or requirements. No advice, results or information, or materials whether oral or written, obtained by you through the site shall create any warranty not expressly made herein. If you are dissatisfied with the site, your sole remedy is to discontinue using the site.
Any material downloaded or otherwise obtained through the use of the site is done at your own discretion and risk and that you will be solely responsible for any damage that results from the download of any such material.
Berry art does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on or through the site. Berry art is not a party to, and does not monitor, any transaction between users and third parties without the direct involvement of company.
Limitation of Liability
In no event shall berry art, its affiliates or any of their respective directors, officers, employees, agents, partners, subsidiaries, divisions, successors, suppliers, distributors, affiliates vendors, contractors, galleries, artists, institutions, representatives or content or service providers be liable for any indirect, special, incidental, consequential, exemplary or punitive damages arising from or directly or indirectly related to the use of, or the inability to use, the site or the content, materials and function related thereto, including, without limitation, loss of revenue, or anticipated profits, or lost business, data or sales, or cost of substitute services, even if company or its representative or such individual has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability so some of the above limitations may not apply to you. In no event shall the total liability of berry art to you for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from the terms or your use of the site exceed, in the aggregate, $100.00. Without limiting the foregoing, in no event shall berry art or its respective officers directors, employees, agents, successors, subsidiaries, divisions, distributors, suppliers, affiliates or third parties providing information on this site have any liability for any damages or losses arising out of or otherwise incurred in connection with the loss of any data or information contained in your account or otherwise stored by or on behalf berry art.
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise and services available through the Site.
You agree that the laws of the state of Western Australia, excluding its conflicts-of-law rules, shall govern these Terms. Please note that your use of the Site may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for resolving any claim or dispute with Berry Art relating in any way to your use of the Site resides in the state and federal courts of Western Australia, and you further agree and expressly consent to the exercise of personal jurisdiction in the state and federal courts of Western Australia. In addition, you expressly waive any right to a jury trial in any legal proceeding against Berry Art its parent, subsidiaries, divisions, or affiliates or their respective officers, directors, employees, agents, or successors under or related to these Terms. Any claim or cause of action you have with respect to use of the Site must be commenced within one (1) year after the claim arises.
Consent to Processing
By providing any personal information to the Site, all users, including without limitation users in the European Union, fully understand and unambiguously consent to the collection and processing of such information in Australia.
Any inquiries concerning these Terms should be directed to us at the address below.
Berry Art and its partners strive for complete accuracy in description and pricing of the products on the Site. However, due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause inaccuracies to appear on the Site. Berry Art has the right to void any purchases that display an inaccurate price. If the displayed price is higher than the actual price, you may be refunded the overcharge. If the displayed price is less than the actual price, Berry Art will void the purchase and attempt to contact you via either phone or email to inquire if you would like the item for the correct price.
You acknowledge that temporary interruptions in the availability of the Site may occur from time to time as normal events. Also, we may decide to cease making available the Site or any portion of the Site at any time and for any reason. Under no circumstances will Berry Art or its suppliers be held liable for any damages due to such interruptions or lack of availability.
Notices to you may be made via either email or regular mail. The Site may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you on the Site.
To contact us with any questions or concerns in connection with this Agreement or the Site, or to provide any notice under this Agreement to us please go to Contact Us or write to us at:
106 Forrest Street, South Perth WA 6151
The Terms constitute the entire agreement between you and Berry Art and govern your use of the Site, superseding any prior agreements between you and Berry Art. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.
You agree that no joint venture, partnership, employment, or agency relationship exists between Berry Art and you as a result of this Agreement or your use of the Site.
Any claim or cause of action you may have with respect to Berry Art or the Site must be commenced within one (1) year after the claim or cause of action arose.
Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You may not assign the Terms or any of your rights or obligations under the Terms without our express written consent.
The Terms inure to the benefit of Berry Art' successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.
© Copyright 2019 by Berry Art All rights reserved.