Terms Of Service Agreement for AlyssaPennerArtist.com
By clicking on the “Add to Bag” or “ Checkout” button, you (hereinafter: “Purchaser”) are consenting to become a party to this Agreement of Purchase and Sale of Original Canvas Painting (hereinafter: “the Artwork”) with Artist Alyssa Penner (hereinafter: “Seller”) and to be bound by all the terms included herein.
Subject of Agreement: The Purchaser wishes purchase an Artwork or to commission the Seller to create an Artwork. The Purchaser will receive the original handmade painting (oil/acrylic on canvas or drawing).
Online Samples of the Paintings: The Website has a gallery of digital photographic images that represent Artworks. The Purchaser who orders a commissioned Artwork, understands that because each Artwork is handmade, there will be no exact match between the online image and the final painting.
The Website Ordering Process: To order an Artwork, Purchaser fills in the Checkout Form, which is automatically displayed if the painting is available for sale. Then, Purchaser will be redirected to the secure payment page provided by Squareup.com  to complete the transaction. For alternative methods of payment Purchaser needs to contact Seller using online form on Website before placing an order.
Order Total: The “TOTAL” on the Order Form is defined as (a) the selling price for the Artwork, plus (b) sales, or any other taxes that Seller is required to collect pursuant to applicable law, plus (c) shipping costs, customs duties (if applicable) and insurance charges. Unless exempt by law, Seller may be required to pay sales tax, or other applicable tax. Seller is obligated to determine whether taxes apply for the Purchaser residing in Canada and is responsible to collect, remit and report any sales or use taxes arising from any transaction. The Purchaser may be subject to pay other tax in Purchaser’s domicile. It is the Purchaser’s responsibility to determine whether other taxes apply to the transactions and to report and remit the correct tax to the appropriate tax authority.
Packing and Shipping: Seller will be responsible for the cost of packing the Artwork, and the Purchaser will be responsible for the cost of shipping and insuring the Artwork while in transit to Purchaser or to shipping recipient if different than the Purchaser. The Artwork shall be shipped by Seller within 7 (seven) business days from the time of receipt of payment from the Purchaser, unless otherwise communicated to the Purchaser. Seller is not responsible for shipping delays or omissions caused by the carrier (Canada Post, USPS, UPS, FedEx, etc.).
Purchaser must check all deliveries upon arrival. If the Artwork is damaged, Purchaser must inform Seller immediately to arrange a refund, exchange or replacement.
Refund Policy: See the Return and refund page on the website for information.
Copyrights: Copyrights of the Artwork remains the property of Seller. Purchaser may not reproduce an image of the Artwork and may not, at any time, publish or submit for publication or reproduction any image of the Artwork to any third party including any internet website for any purpose.
Limitations of Guarantees: All Artworks offered on the Website are sold subject to the specific warranty and guarantee as to physical condition and title set forth. Other than as set forth in the specific warranty and guarantee, all Artworks are sold to Purchasers “AS IS,” and Seller makes no guarantees, warranties or representations, expressed or implied, to any Purchaser with respect to the Artwork, including without limitation its merchantability, fitness for a particular purpose, quality, importance, provenance, exhibitions, literature or historical relevance of the Artwork or otherwise. No statement anywhere, whether oral or written, shall be deemed such a guarantee, warranty or representation. Please note that Seller makes no representation or warranty as to whether the Purchaser acquires any reproduction rights or other intellectual property rights in the Artwork.
Sole Remedy: It is specifically understood and agreed that with respect to any of the representations or warranties set forth, the rescission of a sale and refund pursuant to this paragraph and General Terms and Conditions is the sole and exclusive remedy that is available to the Purchaser as a matter of law, or in equity. The Purchaser shall not be entitled to any incidental or consequential damages incurred or claimed.
Refusals: Seller may refuse to process a transaction for any reason or refuse service to anyone at any time in its sole discretion. Seller will not be liable to any Purchaser or third party by reason of Seller’s withdrawing any Artwork before the end of the sale period; removing, screening or editing any materials or content on the Website; refusing to process a transaction or unwinding or suspending any transaction after processing has begun.
Title; Risk of Loss: When Seller delivers the Artwork to the shipper for shipment to the Purchaser, title to the Artwork and risk of loss will pass to the Purchaser. If the Purchaser collects the Artwork from Seller or the Seller in person, title to the Artwork and risk of loss will pass to the Purchaser upon delivery to Purchaser.
Remedies for Purchaser’s Failure: If any applicable conditions of this Agreement are not complied within a timely manner by the Purchaser, in addition to other remedies available to Seller by law or in equity, including without limitation the right to hold the Purchaser liable for the Order Total, Seller may, at its option, cancel the sale and re-offer the Artwork on the Website or sell it privately.
Compliance with Laws: The Website may be used only for lawful purposes and in a lawful manner. Purchaser agrees to comply with all applicable laws, statutes and regulations regarding use of the Website and any transactions conducted on or through the Website.
Fraud: Purchaser may not purchase any Artworks under a false name or use an invalid or unauthorized credit card. Purchaser may not purchase orders under a false name, impersonate any participant. Such fraudulent conduct is a violation of federal and province and state laws. Fraudulent conduct may be reported to law enforcement authorities, and Seller will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
Monitoring: Seller has the right, but not the obligation, to monitor any activity and content associated with the Website. Seller may investigate any reported violation of the Website policies or complaints and take any action that it deems appropriate (which may include, but is not limited to, issuing warnings, suspending or terminating service, denying access and/or removing any materials on the Website).
Termination: Seller in its sole discretion, may terminate, without notice for any reason, the right of any user to purchase online or to access the Website.
Limited License: Seller grants a limited license to each user of the Website to make personal use of the Website only for purchasing on the Website. This license expressly excludes, without limitation, any resale or commercial use of the Website, making any derivative of the Website, the collection and use of participant e-mail addresses or other participant information, ratings or listings, or any data extraction or data mining whatsoever, including without limitation the reproduction of images found on the Website for any use other than viewing the property for the purpose of considering a purchase.
Privacy: Seller is committed to protecting Purchaser’s privacy. The Privacy Policy may be changed by Seller in the future. Purchaser should check the Privacy Policy frequently for changes. Notwithstanding any provision of the Privacy Policy, however, please note that (a) Seller may share any information concerning potentially fraudulent activities on the Website, and any other information it may obtain or possess regarding any user of the Website with its affiliates; (b) Seller reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties and (c) in order to cooperate with governmental requests, to protect Seller systems and customers or to ensure the integrity and operation of Seller’s business and systems, Seller may access and disclose any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content. In addition, each Purchaser acknowledges and agrees that Shipper will be provided with Purchaser’s name, city, state and telephone number, (and, if different, the telephone number for the shipping recipient) in order to arrange shipment. Unless otherwise authorized or consented to by Seller, Purchaser agrees not to use any information regarding other participants that is accessible from the Website or disclosed to Purchaser by Seller except to enter into and complete transactions on and through the Website. Without limiting the generality of the foregoing, Purchaser agrees not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy or otherwise objectionable conduct.
Disclaimer of Warranties: THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO THE WEBSITE, ANY PROPERTY OFFERED ON THE WEBSITE OR ANY TRANSACTIONS THAT MAY BE CONDUCTED ON OR THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; THAT THE WEBSITE WILL MEET PURCHASER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER. TO THE FULL EXTENT PERMISSABLE UNDER APPLICABLE LAW, Seller DISCLAIMS ANY AND ALL SUCH WARRANTIES.
Waiver of Claims: SELLER IS NOT RESPONSIBLE FOR THE DESCRIPTIONS OF ARTWORKS PROVIDED BY A SELLER. IF A DISPUTE ARISES REGARDING AN ARTWORK OR ITS DESCRIPTION, Purchaser RELEASES Seller, ITS AFFILIATES (AND EACH OF THEIR DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, CAUSES OF ACTION, LIABILITIES AND DAMAGES (WHETHER DIRECT, INIDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, REVENUES OR DATA), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE INABILITY TO USE THE WEBSITE OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE.
Ownership: All content included on the Website, such as text, graphics, logos, button icons, images, audio clips and software, is the property of Seller, its licensors, their affiliates, or other content suppliers and is protected by Canadian, U.S. and foreign copyright laws and international conventions. As between Purchaser and Seller, the compilation meaning the collection, arrangement and assembly) of all content on the Website is the exclusive property of Seller or its licensors and is protected by Canadian, U.S. and foreign copyright laws and international conventions. All software used on the Website is the property of Seller or its affiliates and their software suppliers and is protected by Canadian, U.S. and foreign copyright laws and international conventions. The content and software on the Website may be used as a shopping resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display or performance of the content on the Website, is strictly prohibited.
Notice of Intellectual Property Rights: Trademarks, service names, graphics, logos and other identifiers (“Trademarks”) noted on the Website with an ©, ® or ™ are the registered trademarks or trademarks respectively of Seller or its affiliates. No Trademark may be used in connection with any products or services without the express prior written approval of the owner of the applicable Trademark.
Applicable Law: This Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada applicable to agreements made and fully performed therein. It contains the entire understanding between the parties concerning its subject matter, and no modification is binding unless in writing and signed by the party to be bound.
Place of Contract: The contract between the Purchaser and Seller will be completed when the Purchaser has purchased the Artwork through the Website. The sale contract is therefore completed in the Province of Ontario, Canada.
Governing Language and Translations: English shall be the language of the Website, and all transactions occurring in connection with the Website, and all users waive any right to use and rely upon any other language or translations. This Agreement may be presented in languages other than English for the convenience of our users. All Users and Purchasers specifically agree that the English language version of this Agreement shall control in the event of any inconsistency between that version and any version presented in languages other than English.
Notices: To be effective, notices to Seller relating to this Agreement, the Website or any transaction conducted on or through the Website must be given in writing and must be sent by registered letter, receipted commercial courier, or electronically receipted facsimile transmission (acknowledged in like manner by the intended recipient) at the Sellers addresses (provided upon request).
Severability and Non Waiver: If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. Seller’s failure to exercise or forbearance from exercising any rights or remedies, or failure to enforce or forbearance from enforcing, the strict performance of any provision of this Agreement, will not constitute a waiver of Seller’s right to exercise such rights or remedies or enforce such provision or any other provisions of this Agreement in that or any other instance. Any waiver of any provision of this Agreement by Seller must be made in writing and signed by an authorized representative of Seller specifically referencing this Agreement and the provision to be waived.
Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.