Terms and Conditions of Sale
Overview:
This website is operated by Joshua Thomas Smith Art, doing business as Joshua Thomas Smith Art. Throughout the site, the terms “we”, “us” and “our” refer to Joshua Thomas Smith Art. These Terms of Use (the “Terms”) describe the terms and conditions that apply to you use of this and other Joshua Thomas Smith Art websites, social media channels, as well as purchase of the purchase of Joshua Thomas Smith Art’s Physical print products (the “Physical Prints”) and digital print downloads (the “Digital Prints” and together with the Physical Prints, the “Prints”) and related services (collectively, the “Services”). Joshua Thomas Smith Art’s offer of its Prints on this site is made available to you, the user, conditioned upon you acceptance of all terms, conditions, policies and notices stated here, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. By accessing, using or interacting with the Services in any way, whether as a browser, vendor, customer, or merchant and /or contributor of content, you agree to be bound by these Terms. If you do not agree to all the terms and conditions of this agreement, then you may not purchase any Print or use any Services. If these Terms are considered an offer, acceptance is expressly limited to these Terms. Any new features or tools which are added to the current store shall also be subject to the Terms. You can review the most current version of the Terms at any time on this page. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our site. It is your responsibility to check this page periodically for changes. Your continued use of or access to the site following the posting of any changes constitutes acceptance of those changes. We recommend you review these Terms each time you purchase a Print or use the Services and that you print a copy of these Terms for your future reference. Our store is powered by Squarespace. They provide us with the online e-commerce platform that allows us to sell our Print products to you.
Section 1 – Representations regarding your use of the services – By placing an order for Prints through our site, you represent that : (i) you are at least the age of majority in your state of residence, or that you are the age of majority in your state of residence and you have given us your consent to allow any of your minor dependents to use this stie; (ii) you are legally capable of entering into binding contracts; (iii) you will not copy, distribute or share the Prints other than as allowed under these Terms; and (iv) you will not use our products for any illegal or unauthorized purpose or, in the use of these Services, violate any laws in you jurisdiction (including but not limited to copyright laws).
Section 2 – Personal Information – You do need to register with our site or with Squarespace to place an order for a Print; however, you will be required to provide certain information including certain personal and payment/billing details so that we can process your order. You agree that we may store, process and use personal data collected from you solely for the purposes of processing/fulfilling your order. We work with third parties that help us provide the Prints to you, including electronic fulfillment, credit card payment and collection companies, and they will also have access to your personal data to the extent necessary to help us process/fulfill your order. You agree to provide us with truthful, complete and accurate details. You further agree to provide us with your details only.
Section 3 – License to Use the Prints – All prints available through the site are owned or controlled by us and are protected by intellectual property rights. Any use of Prints purchased through the site is subject to these Terms and Conditions of Sale. Upon payment of the price for any Digital Print, we grant you a non-exclusive, non-transferable license to use the Digital Print consistent with these terms.
Section 4 – Availability and Delivery of Prints – All prints featured on our site are subject to availability. We reserve the right to change or remove a Print or other content on the site at any time without notice or liability to you or to any third party. For example, we may have obtained rights from third parties to make the Print available and , in the event we lose these rights, we may need to remove the Print from the site and make it unavailable for purchase. We reserve the right, but are not obligated, to limit the sales of our Prints to any person, geographic region or jurisdiction or to reject any order we receive. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Prints that we offer. All descriptions of Prints or product pricing are subject to change at any time without notice, in our sole discretion. We reserve the right to discontinue any Print offering at any time. Any offer for any product or service made on this site is void where prohibited.
Section 5 – Pricing and Payment Flow – We will determine in our discretion from time to time whether and which Prints are to be made available, on payment by you of the relevant price or in return for some other consideration (for example by signing up to our mailing list). Some Prints may be limited to certain sizes or may only be purchasable as either a Digital Print or Physical Print. Prices for Prints are liable to change at any time without notice, but changes will not affect orders in respect of which have already taken payment and made the download available. The price of any Print will be quoted on this site at the then current time, except in the case of obvious error. We will not accept any offers for Prints other than at the then-current price. Prints may be purchased individually or purchased as part of a larger order. We reserve the right to make certain Prints available only as part of a larger product offering. We use our best efforts to ensure the prices of Prints displayed on our site are correct. However, our site contains several Prints and it is always possible that, despite our best efforts, some of the Prints listed on our site may be incorrectly priced. If a Print’s correct price is higher than the price stated on our site ate the time you place your order and we have not yet taken payment and made the Print available for download in the case of Digital Prints, or otherwise fulfilled a Physical Print order, we will normally, at our discretion, either contact you for instructions before make the Digital Print available for download or fulfilling the Physical Print order (i.e., to confirm your order and that you wish to proceed at the correct price), or reject your order and notify you of such rejection. We are under no obligation to provide the Print to you at the incorrect (lower) price if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a pricing mistake. We reserve the right to withdraw from any contract for Prints in the case of obvious and unmistakable pricing errors. Note that, if you are downloading a Digital Print to a mobile device, some network/service providers may charge you an additional amount for this service. We recommend you contact your network/service provider to understand the nature and extent of any additional charges before electing to the download of a Digital Print to a mobile device. Note that overseas roaming charges may also apply.
Section 6 – Errors, Inaccuracies and Omissions - Occasionally there may be information on our site or in the Services that contains typographical errors, inaccuracies or omissions that may relate to Print product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Services or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information in the Services or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated.
Section 7 – Accuracy of Billing and Account Information - We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. By providing the details of a credit or debit card to be billed or payment account to be debited for payment of the price due, you confirm that you are authorized to purchase the Prints and that you are the holder of the relevant credit or debit card or of the relevant payment account or are expressly authorized to use such. All card payments and card holder details may be subject to validation checks by us and the card issuer. All credit/debit card holders are subject to validation checks and authorization by the card issuer. If the issuer of your card refuses to authorize payment, we will not accept your order and we will not be liable for any delay or non-delivery and we are not obliged to inform you of the reason for the refusal. We are not responsible for your card issuer or bank charging you as a result of our processing of your credit/debit card payment in accordance with your order. Should there be a problem with your payment, we will contact you to discuss the next steps.
Section 8 – Cancellations and Returns - You may not cancel an order by you for any download of a Digital Print once it has been made available for download by you. Each purchase of a download shall be deemed a final, non-exchangeable, non-refundable sale.
We take great care in providing our Prints. In the unlikely event of faults with, or damage to, the Physical Prints, or if you have received a faulty or incomplete Digital Print, please contact us at joshuatsmith@jtsmitty.com. We will assess such faulty or damaged Print if possible or, if there are continuing issues with the Print, we may issue you a refund. You must notify us within a reasonable period of time of download of the Digital Print or receipt of the Physical Print of any defects in or damage to the Print. If you fail to notify us within a reasonable time, we will have no liability to you. Notwithstanding the foregoing, you understand that your exclusive remedy and our sole obligation for a defective Print shall be that we will provide a replacement copy of a defective Print or repair or replace the same.
Please note that we cannot guarantee that the quality or design of any Print purchased by you will meet your expectations, and any failure to meet your expectations will not be considered a defect for purposes of this section. We have made every effort to display as accurately as possible the colors and images of our Prints. We cannot guarantee that your computer monitor's display of any color will be accurate.
Section 9 – User Generated Content - Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content (collectively “User Content”) that you (i) submit or post on any Joshua Thomas Smith Art website, on any of our blogs, social media accounts or through any tools or applications we may provide now or in the future for posting or sharing such content with us; or (ii) post or upload to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Tumblr and Pinterest, that identify or are associated with Joshua Thomas Smith Art and/or any Prints, including without limitation any social media posts that you have tagged with @joshuathomassmithart, @jtsmittyart, @uasmitty, #jtsmittyart, #joshuathomassmithart, or any other Joshua Thomas Smith Art brand hashtags, shall be deemed nonconfidential and nonproprietary. By submitting or posting any such User Content, you grant to Joshua Thomas Smith Art and its affiliates an unrestricted, irrevocable, royalty-free, perpetual, fully paid-up, non-exclusive, worldwide, sublicensable, transferable, worldwide license to copy, reproduce, publish, distribute, display, transmit, broadcast, host, translate, modify, reformat, create derivative works from, combine with other materials, alter, edit, archive, store, cache, use or otherwise exploit all or any portion of the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in Joshua Thomas Smith Art’s sole discretion, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to on its webpages, social media accounts, emails, newsletters, printed and electronic marketing materials, and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice or other obligation to you. You further grant Joshua Thomas Smith Art the right to use your social media account handle, username, real name, profile picture, image, likeness, caption, location or other identifying information included in or associated with any User Content.
You hereby represent and warrant that (i) you own or control any and all rights in and to your User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; (iv) Joshua Thomas Smith Art’s use of your User Content as described herein will not violate the rights of any third party or any law; and (v) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) include anyone’s identification documents, contact information or sensitive financial information or (e) contain computer viruses, worms or other harmful files. You hereby release, discharge and agree to hold Joshua Thomas Smith Art, its officers and employees, and any person acting on Joshua Thomas Smith Art’s behalf harmless from any liability related in any way to the Joshua Thomas Smith Art’s use of your User Content. You agree not to use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any User Content.
Section 10 – Violation of These Terms of Use – If you are in breach of, or we suspect you are in breach of, these Terms, then we may take any/all of the following actions:
- issue a warning to you;
- immediate, temporary or permanent withdrawal of your access to your account and/or the site; however, you will remain responsible for any outstanding payments to us for Digital Prints;
- legal action against you;
- disclosure of information to law enforcement authorities as we reasonably feel is necessary.
The responses described above are not limited and we may take any action we reasonably deem appropriate.
Section 11 – Disclaimer of Warranties; Limitations of Liability - We do not guarantee, represent or warrant that your use of our Services or access to our Print offerings will be uninterrupted, timely, secure or error-free.
We may make this site unavailable for indefinite periods of time or cancel the Services at any time, without notice to you. You agree you will have no claim against us, in respect of any decision to remove Prints from this site or any decision to suspend or terminate your access to this site or to Prints (including by way of purchase) through the site.
You expressly agree that your use of, or inability to use, the Services to purchase Prints is at your sole risk. The Services and all Prints delivered to you through the Services are (except as expressly stated by us) provided “as is” and “as available” for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement. In no case shall Joshua Thomas Smith Art, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Services or any Prints procured using the Services, or for any other claim related in any way to your use of the Services or any Prints, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Services or any content (or Print) posted, transmitted, or otherwise made available via the Services, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
Section 12 – Indemnification – You agree to indemnify, defend and hold harmless Joshua Thomas Smith Art and our affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of breach of these Terms or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
Section 13 – Written Communications – Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on our site. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communication that we provide to you electronically comply with any legal requirement that such communications be in writing.
Section 14 – Notices – All notices given by you to us must be given by email to joshuatsmith@jtsmitty.com. We will give notice to you at the email address you provide to us as part of the order process or your account registration. Notice will be deemed received and properly served immediately when posted on our site or 24 hours after an email is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an email, that such email was sent to, and received by, the specified email address of the addressee.
Section 15 – Events Outside Our Control - We will not be liable or responsible for any delay or failure to perform any of our obligations under these Terms that is caused by events outside our reasonable control (a “Force Majeure Event”), including, but not limited to, acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services.
Our performance under these Terms will be suspended for the period that the Force Majeure Event continues, and we will be entitled to a reasonable extension of time for the performance of our obligations under these Terms after notifying you of the nature of extent of such Event. We will use commercially reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which our obligations relating to the Digital Prints may be performed despite the Force Majeure Event.
Section 16 – Entire Agreement; Severability - The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms and any policies or operating rules posted by us on this site or in respect to the Services constitutes the entire agreement and understanding between you and us and govern your use of the Services and purchase of the Prints, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms).
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
Section 17 – Governing Law – These Terms and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the State of California.
Section 18 – Questions or Complaints? – If you have any queries at all regarding this site, the Prints featured on the site, or the Terms, please do not hesitate to contact us via e-mail at joshuatsmith@jtsmitty.com and we will be more than happy to assist you.
