Desirable Objects Gallery Buyer Agreement
Before you may register as a buyer to shop on our Site www.desirableobjectsgallery.com (the “Site”), you must read and accept all of the sections below, as amended from time to time (collectively, the “Agreement”). This Agreement is immediately effective for current Buyers and upon acceptance by new Buyers. As used herein, “Seller” shall mean any party who opens a shop on the Site, and “Buyer” shall mean any party who registers with the Site to shop online.
1. Our Authority. We have the sole authority and discretion to operate and maintain the site. Accordingly, we reserve the right to remove any item, picture, or posting from our Site at any time for any reason, without notice to any Buyer. We are under no obligation to remove or change any item, picture, or posting from our Site at any Buyer’s request and any such requests shall be resolved at our sole discretion. In transacting with Sellers, Buyer is solely responsible for exercising the principle of “buyer beware” just as Buyer would in any real marketplace. We are not responsible for addressing or assisting with any disputes between or complaints about any Buyers or between Buyers and Sellers. In the event of a concern, claim or dispute, Buyers shall communicate directly with the other party in resolving such concern, claim or dispute.
In the event we receive complaints about a Buyer, we will investigate the complaint at our sole discretion and direct the Buyer to respond to the other party directly. We reserve the right to refuse service to anyone, to reject any Buyer membership applications, and to discontinue existing service at any time. We also reserve the right to assist Sellers in blocking any Buyer from purchasing items from Seller’s shop, to cancel Buyer’s membership and deny access to our Site of any Buyer, due to Buyer’s unprofessional conduct or practices, Seller complaints, and other reasons which we consider, at our sole discretion, to be disruptive to the business and reputation of our Site.
2. Buyer Representations and Covenants. By using our services you represent to us that (a) you are not a minor under applicable laws and you have the authority to enter into legal contracts; (b) the information you have provided us during the registration process and thereafter is to the best of your knowledge complete, truthful and accurate. By continuing to access the Site, you also agree that you will:
Deal with each Seller in good faith, and refrain from contracting (via completing a Purchase Order) with any Seller for items that you have no intention to purchase.
Abide by the payment terms and terms of sale, and comply with the policies of each Seller as well as the policies posted on the Site.
Promptly pay any monies that are owed by you to any Seller, especially after taking possession of an item.
You agree that you will not:
Interfere with the business of any Seller, or post false, inaccurate, misleading, defamatory, or libelous content about any Seller, Buyer, Desirable Objects Gallery.
Utilize, copy, modify, distribute, or harvest content, including photographs, from the Site for use elsewhere without obtaining advance permission.
Engage in any disruptive technology-related practices such as spamming, hacking, improper harvesting and use of user information, or distributing viruses or any technology that may harm the Site or any Seller or Buyer.
Engage in any unruly, disruptive, unprofessional, or offensive conduct while using our Site, communicating with our personnel, or with any Seller or Buyer.
Violate any laws, third party rights, or any of our policies posted on the Site.
We may, at our sole discretion, with immediate effect and without notice, terminate this Agreement, restrict or terminate your access to the Site and to any Seller, upon your breach of any of the above representations and covenants.
3. Release of Claims. Our Site acts as the venue for Sellers to conduct sales and for Buyers to purchase Seller’s items. We are not involved in the actual transaction between Buyers and Sellers. In the event you have a dispute with another Buyer or with a Seller, you hereby release Desirable Objects GalleryDesirable Objects Gallery. (and our directors, officers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
4. Intellectual Property Rights. This Agreement does not grant you any intellectual property rights in our trade name, trademarks, logos, the Site, and any content developed by us, which shall remain our intellectual property.
5. Content License. When you provide us with content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right to exercise the copyright, publicity and database rights (but no other rights) you have in the content, in any media known now or in the future.
6. Termination. This Agreement is terminable at any time by any party. If you terminate this Agreement, you agree to no longer access or use our Site as a Buyer.
7. Limitation of Liability. You will not hold us responsible for the actions or inactions of any Buyer or any Seller on the Site. You acknowledge that we are not involved in the actual transaction between Buyers and Sellers and that we have no control over and do not guarantee the quality, safety, authenticity, value, or legality of the items advertised on the Site by Sellers, the ability of the Sellers to sell the items, the ability of Buyers to pay for the items, or that a transaction would actually be consummated.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE OUR SITE AND SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall our total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the purchase price you have paid Seller for the item(s) in dispute. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
8. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF OUR SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. OUR SITE AND SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO OUR SITE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF OUR SITE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN OUR SITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SITE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DESIRABLE OBJECTS GALLERY LANE OR A ESIRABLE OBJECTS GALLERY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. WE DO NOT PROVIDE ANY WARRANTIES OR GUARANTEES OF ANY KIND WITH RESPECT TO ANY ITEMS YOU PURCHASE FROM ANY SELLER, AND EXCEPT AS STATED IN OUR RETURN POLICY ON THE SITE, WE DO NOT PROVIDE ANY REMEDIES TO ANY BUYERS WITH RESPECT TO ANY SUCH ITEM.
9. Indemnification. You will indemnify and hold us (and our officers, directors, agents, and employees) harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or any rights of a third party.
10. No Agency. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
11. Governing Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within Australia between Australian residents, without regard for conflict of laws principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
12. Venue. The parties agree that any claim or dispute that arises under this Agreement shall be resolved by a court located in San Francisco County, California, except as otherwise agreed by the parties. The parties agree to submit to the personal jurisdiction of the courts located within Melbourne, Australia for the purpose of litigating all such claims or disputes.
13. Notices. Unless specifically provided otherwise, all notices under this Agreement may provided via email or ordinary first class U.S. mail at the sending party’s election. Email notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice sent by mail shall be deemed given three (3) days after the date of mailing. Our address for notices is: Desirable Objects Gallery., 75a Tucker Road Bentleigh, Victoria, Australia, Attn: Legal Department: email: firstname.lastname@example.org. Notices from us to you shall be sent to the email address you provided to us during your registration process. Notices from us to you which we choose to send via ordinary first class U.S. mail shall be sent to the address you provided during the registration process.
14. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the use of our Site and services hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, whether oral or written, with the exception of any additional terms and conditions you are required to accept if you choose to use any of our additional services.
15. Additional Policies. In addition to this Agreement, there are other policies governing the buying and selling and general user experience that we post on our Site under “Help” (collectively, “Policies”). Our Policies may be changed from time to time and such changes take effect when we post them on the Site. We will not notify you when we amend any Policies. When using particular services on the Site, you are subject to any posted Policies applicable to services you use through the Site, which may be posted from time to time. You agree to observe and act in accordance with the Policies during the term of this Agreement. In the event you fail to do so, you agree to promptly correct your action when notified by us.
16. Amendments. We may amend this Agreement at any time at our sole discretion by posting the amendment(s) on our Site. You will be notified of the fact that this Agreement has been amended when you next log on to our Site and be asked to accept the new amendments before you can proceed further.
17. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Melbourne, Australia before one (1) arbitrator which shall be appointed. The arbitration shall be administered by JAMS. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. The arbitrator may also award monetary damages, punitive damages, injunctive relief, rescission, restitution, costs and attorneys fees. The arbitration award shall be final and binding.
18. Survival. The following sections shall survive the termination of this Agreement: Sections 2 through 20.
19. Headings. Headings are for reference purposes only and do not limit the extent or scope of the corresponding Section.
20. Waiver. The failure to act with respect to a breach by the other party or by others does not waive a party’s right to act with respect to subsequent or similar breaches.