TERMS OF USE

 

Please read the following Terms of Use (“Terms”) carefully. They govern your use of Gifted Custom Art, LLC (“Gifted”) giftedcustomart.com website (the “Site”).  By using the Site, you acknowledge that you have read and understood all of the Terms, and you agree to be bound by these Terms.  If you do not agree to these Terms, please do not use the Site.

Gifted reserves the right to change the Terms under which the Site is offered in its sole and absolute discretion at any time without notice. It is your responsibility to review these Terms for any changes each time that you use the Site.  All changes to the Terms are effective from the date posted.

Use of the Site

The Site enables users to obtain information regarding Gifted and its services, purchase painting kits and other products, upload photographs, and otherwise interact with Gifted.  In your interactions with Gifted, you agree to provide accurate information regarding your identity, your contact information, and any other information requested by Gifted.  If you are under thirteen (13) years of age, you may use the Site only with the express permission and involvement of your parent or guardian.  

Gifted grants you a limited license to access and make personal use of this Site.  However, you may not download or modify the Site, or any portion of the Site, except with express written consent of Gifted.  This Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Gifted.

You may use the Site only for legal and appropriate uses. Gifted reserves the right to make changes to the Site at any time and without notice. Your access to and use of the Site are completely at the discretion of Gifted, and your access to and use of the Site may be blocked, suspended, or terminated without prior notice at any time for any reason or for no reason, including, without limitation, for any violation of the following rules:

  • You must comply with all state, federal, and/or international laws, rules, policies and/or licenses governing communications while using the Site, and with all applicable copyright, trademark, or other intellectual property rights laws.
  • You may not interfere or attempt to interfere with the Site or another person’s use of the Site by use of any program, script, command, device, software, routine, or otherwise.
  • You may not attempt to gain unauthorized access to any portion or feature of the Site, by hacking, password “mining” or any other illegitimate means.
  • You may not embed any page of the Site in “frames” running from other websites.
  • You may not mirror the Site on any other website or server.
  • You may not remove any copyright, trademark or other proprietary rights notices contained in or on the Site.
  • You may not transmit any worms, Trojan Horses, viruses, defects, or any items of a destructive nature.
  • You may not use automated means (such as harvesting bots, robots, spiders, or scrapers) to access the Site.

Photos that You Upload to the Site

Gifted allows users of the Site to upload photographs that Gifted will transform into line drawings (collectively, the “Drawings”) to be incorporated into a painting kit or canvas (collectively, the “Products”).  By submitting photographs to Gifted (collectively, “Your Photos”), you expressly agree and represent as follows with regard to Your Photos:

 

  • You own all right, title and interest in Your Photos and/or have sufficient rights in Your Photos to allow Gifted to create the Drawings based on Your Photos;

 

  • Your Photos and the Drawings will not infringe any party’s intellectual property rights;

 

  • Your Photos and the Drawings will not be libelous or defamatory of any party;  

 

  • Your Photos and the Drawings will not violate the privacy rights of any party; and  

 

  • Your Photos and the Drawings will not be obscene, pornographic, lewd, lascivious, violent, or otherwise objectionable to Gifted.

 

You hereby expressly grant Gifted a license to use Your Photos to create the Drawings, as well as in promotional materials for Gifted.  If your likeness, photograph, or other rights of publicity appear in Your Photos, you hereby grant to Gifted a license to use your rights of publicity in connection with the Drawings and promotional materials.  Further, if a third party’s rights of publicity appear in Your Photos, you represent  and warrant to Gifted that you have secured and hereby grant to Gifted a license to use such third party’s rights of publicity to the same extent as your own rights of publicity.  

 

Gifted shall own all right, title and interest in the Drawings, including all copyrights and other intellectual property rights related to the Drawings.  As the owner of the Drawings, Gifted shall be permitted to use the Drawings as it sees fit.  In particular, Gifted may use the Drawings in promotional materials for its services, make copies of the Drawings, and otherwise exploit the Drawings for any purpose whatsoever.

 

Payment

The Site enables you to purchase Products using a credit card.  By providing Gifted with your credit card information, you agree to allow Gifted to charge the card for the amount quoted.  In the event you have any dispute in the amount charged to your credit card, you will need to raise such a dispute by emailing Gifted at areceivable@giftedcustomart.com within forty-five (45) days of Gifted charging your credit card. In the event you do not raise any dispute within such forty-five (45) days, the charges will be deemed final and you hereby explicitly waive any right to dispute such charges. Gifted shall review such a dispute and determine in its sole discretion as to whether an error needs to be corrected or whether the charges were correct. Gifted shall respond to you with its decision and its decision shall be deemed final. In the event Gifted determines a dispute is valid, Gifted shall refund or credit your credit card for the appropriate amount and such refund or credit will be your sole and exclusive remedy for such dispute.

Product Purchases

The Site’s online store enables users to order Products.  While Gifted strives to provide accurate Product and pricing information, pricing or typographical errors may occur. Gifted cannot confirm the price of a Product until after you order. In the event that a Product is listed at an incorrect price or with incorrect information due to an error in pricing or Product information, Gifted shall have the right, at its sole discretion, to refuse or cancel any orders placed for that Product. In the event that a Product is mispriced, Gifted may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation.

 

Gifted ships Products purchased through the Site via USPS, UPS, and/or FedEx. Shipping costs are determined by quantity and types of Products purchased and shipping address, as determined by the appropriate shipping carrier.  Gifted requires approximately fourteen days to process orders.  

 

Because of the customized nature of the Products purchased through the Sites, orders cannot be cancelled after the relevant Product has been created by Gifted, nor will refunds be provided or returns permitted.  

 

Copyrights and Trademarks

Except as otherwise noted herein or otherwise on the Site, all information, documentation, and other content posted on this Site are the property of Gifted, its affiliates, and/or its licensors. The graphics, icons, and overall appearance of this Site are the property of Gifted. The posting of information, documentation, and other content does not constitute a waiver of any of Gifted’s, an affiliate’s, and/or a third party licensor’s proprietary rights in such information, documentation, and other content (such as, but not limited to, copyrights or trademarks) or a transfer of any such rights to you or any third party. The information, documentation, and other content posted on this Site are protected by U.S. and international copyright laws, both as individual works and as collections. You may not sell, republish, frame in another webpage, or use on another website, any of the information, documentation, and other content, or any portion thereof, posted in or on this Site without the prior written consent of Gifted. You may view, print, copy, and download portions of the information, documentation, and other content of this Site solely in connection with your use of the Site, and solely for your own individual, internal, non-commercial use or records. Gifted and its affiliates reserve the right to revoke this authorization at any time.

The GIFTED trademark and other names of Gifted’s products and services referenced herein are trademarks of Gifted.  All other products, services, and company names mentioned herein are the trademarks of their respective owners.

Links

This Site may contain links to other external sites. The links are provided “as is.” You should be aware that you use them at your own risk. Gifted does not endorse, and Gifted is not liable for any content, products, services, software or other materials available on such other sites, even if a page or pages of the other sites are framed with a page of this Site. Gifted is not responsible for the privacy practices or the content of other sites. For your protection, please refer to the terms of service and privacy policies of the respective sites. You acknowledge, understand and agree that Gifted shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such other sites. Gifted shall not be liable for any errors or delays in the content, goods or services available on such other sites, or for any actions taken or not taken in reliance thereon.

Indemnification

You agree to indemnify, defend and hold harmless Gifted, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs, relating to or arising from: (a) any violation of this Agreement by you; or (b) Your Photos, the Drawings and/or any other materials that you post to the Site.  Gifted will have sole control of the defense of any such damage or claim.

 

Disclaimer of Warranties

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  GIFTED DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR FREE, OR VIRUS FREE, OR THAT THE SITE OR PRODUCTS WILL MEET YOUR REQUIREMENTS.  INFORMATION OBTAINED THROUGH THE SITE HAS NOT BEEN VERIFIED, AND GIFTED DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT SUCH INFORMATION IS ACCURATE, COMPLETE, RELIABLE, OR OTHERWISE VALID.  

GIFTED DISCLAIMS ALL WARRANTIES RELATING TO THE SITE AND THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE.  

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK.  YOU ACKNOWLEDGE THAT INFORMATION TRANSMITTED THROUGH THE INTERNET IS NEVER COMPLETELY SECURE.  NEITHER GIFTED, NOR ANY OF GIFTED’S EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, OR LICENSORS (COLLECTIVELY, “GIFTED ASSOCIATES”) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS’ FEES, OR FOR LOST DATA OR LOST PROFIT, ARISING OUT OF YOUR USE OF THE SITE OR INABILITY TO GAIN ACCESS TO OR USE THE SITE OR OUT OF ANY BREACH OF ANY WARRANTY, EVEN IF GIFTED OR A GIFTED ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.  

 

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT GIFTED’S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO GIFTED IN THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF ANY SUCH CLAIM.   

 

THE SITE IS CONTROLLED, OPERATED AND ADMINISTERED BY GIFTED FROM ITS OFFICES WITHIN THE UNITED STATES.  GIFTED MAKES NO WARRANTY OR REPRESENTATION THAT MATERIAL AVAILABLE THROUGH THE SITE IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES.  IF YOU ACCESS THE SITE FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, AND GIFTED ACCEPTS NO RESPONSIBILITY FOR SUCH ACCESS.

 

YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL DISCLAIMERS IN THESE TERMS AND THE PROVISIONS OF THESE TERMS REFLECT A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN GIFTED AND YOU.

Privacy Policy

Gifted respects and is committed to your privacy.  Please review Gifted’s Privacy Policy, which also governs your visit to Site, to understand Gifted’s practices.

Miscellaneous

The laws of the State of Indiana shall govern the validity, performance, enforcement, interpretation and any other aspect of these Terms, without regard to principles of conflicts of laws thereunder. The parties agree to submit to the exclusive jurisdiction and venue of the courts of Marion County, Indiana for any action arising out of these Terms.  

You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity.  The failure of Gifted to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.

Gifted shall have the right to assign these Terms and to sublicense any and all of its rights under these Terms. These Terms, including any documents referenced herein and any additional operating rules as posted on the Site, represent the entire understanding between you and Gifted regarding your relationship with Gifted and your use of the Site. These Terms supersede all previous written or oral agreements between you and Gifted with respect to such subject matter. Notwithstanding any provision of these Terms, Gifted has available all remedies at law or equity to enforce these Terms.