Terms of Service
We provide visitors to the Depicteur website (“Users”) with the opportunity to buy tangible-medium, hand-painted reproductions (“Reproductions”) of images (“User Images”) which they have previously posted on Instagram (or elsewhere like Facebook, Picasa, etc) or uploaded to our site from their own computers. The substrates onto which Reproductions are painted may include, but are in no way limited to, canvases (in various sizes) suitable for hanging and/or framing, etc., as we may approve and introduce from time to time, in our sole discretion.
Neither User Images nor any reproductions thereof reflect the opinions of Depicteur, and Depicteur does not endorse any user image or reproduction or take any responsibility or assume any liability for any user image or reproduction or for any loss or damage thereto.
User Images must adhere to each of the following requirements and can not:
Contain any Third Party Content (as defined below) unless you have the explicit prior written permission from the applicable third party to use such Third Party Content as contemplated herein;
Depict any child or minor nude or in a manner that is otherwise sexually explicit or suggestive; graphically, gratuitously or unnecessarily violent; or profane or pornographic;
Contain materials embodying the names, likenesses, images or other indicia identifying any person without the explicit prior written permission of such person;
Contain materials embodying the names, likenesses, images or other indicia identifying any celebrity or other public figure;
Be in violation of any law, or depict any materials or images that are in violation of any law;
Contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
Representations and Warranties:
You are solely responsible and liable for User Images. You represent and warrant that
(i) the name that you post to the Site or otherwise submit to us is your name or clearly and correctly identifies you;
I. Making an Order
To place an Order you will need to follow the Order procedure set out on the Site.
All Orders are subject to acceptance, by means of an Order Confirmation, by us and we are entitled to refuse any Order placed by you. The Order Confirmation will contain details of your Order, the Price and may contain an estimate of the delivery time for the Order. As long as we receive full payment, once we have sent your Order Confirmation we will start to process your Order and create your personalized Reproduction. You cannot cancel an order. If we are unable to fulfill an Order after accepting payment we may refund your money and cancel the contract which relates to the Reproduction in question.
Any times or dates stated for delivery are estimates only. We will make reasonable efforts to deliver Products within the time specified, but we do not accept liability for any failure to deliver within that time. You undertake that all details you provide to us for the purpose of purchasing Products via the Site will be correct. Our pricing is in part based on the number of subjects depicted in User Images and Reproductions of those User Images. Pricing may change if you inaccurately identify the number of subjects in a User Image during the ordering process. In the event of such an inaccuracy, Depicteur will contact you to discuss adjustments to pricing prior to completing your Order and creating your Reproduction. Any timelines for completion of your order will be suspended until contact is made and any inaccuracies are corrected.
II. Payment Terms
Terms of payment are within Depicteur's sole discretion, and unless otherwise agreed by Depicteur, payment must be received by Depicteur immediately.
Payment for Orders will be accepted only from sources approved by Depicteur from time to time.. Your order is subject to cancellation by Depicteur at any time, at Depicteur's sole discretion. All amounts due are payable in U.S. dollars. Any amount not paid when due may be subject to a finance charge of up to one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, on the unpaid balance due. You shall also be responsible for any expenses and/or fees (including but not limited to attorneys' fees), incurred by Depicteur in collecting past due amounts from you.
The place for the delivery of your Reproduction will be as shown on your Order and the normal method of delivery shall be regular postage.
We will attempt to process your Order and manufacture your Reproduction within the time period stated for each item. However manufacturing times may vary and any times quoted for the delivery of goods are indicative only. Time for delivery shall not be of the essence of these Terms of Service and we will not be liable for any loss or expenses which you may sustain as a result of any delay in the delivery of your Order.
A signature (or similar) for a delivery will constitute conclusive evidence that you have received your Order. If you can see any sign of damage to the exterior of the envelope or parcel containing a Product, please include a reference to the damage when signing for the delivery.
If you wrongfully fail to take delivery of the Order then we shall be under no obligation to refund the price. If delivery is refused or returned due to a defective address, you will be charged a re-delivery fee.
Complaints or claims must be notified to us within 60 days of receipt of Reproductions, or in the case of non-delivery, in a reasonable time after the Reproduction was expected to arrive.
IV. Risk and Property
Risk of damage or loss to a Reproduction and the related Order will pass to you upon delivery to the address you specified in your Order. Notwithstanding delivery and passing of the risk in the Order, property in the Order will not pass from us to you until we have received full payment of the Price and all other sums which are due, owing or payable by you to us in respect of the Order or any other Order between you and us.
Returns, refunds and rights of cancellation
You shall have the right to cancel an Order only in the following circumstances:
(a) If we have failed to deliver the Order within the time frame communicated to you during the Ordering process; or
(b) In the case of a defective Product at the earliest opportunity after you have discovered that the fault or defect (provided that you shall be deemed to have inspected the Product as soon as reasonably practicable after delivery and in no case longer than 14 days after receipt). No Reproduction/Order will be deemed “defective” based on the quality, color, technique, or other subjective or aesthetic measure. Whether a product is defective is dependent on actual damage or failure to meet objective characteristics detailed during the Order process such as size.
If an Order is cancelled under the conditions in (a) or (b) above, we shall be responsible for all sums paid (including initial and re-delivery charges (if any)) in respect of the Order in question.
Notice of wish to cancel must be made by email to firstname.lastname@example.org
You must return any Product to us in its original packaging (which you should retain for this purpose).
Nothing in this clause affects your statutory rights.
You hereby grant to Depicteur and its affiliates and agents a perpetual, worldwide, irrevocable, exclusive, sub-licensable, fully-paid, royalty-free license to use, redact, reproduce, publish, crop, adapt, edit, copy, modify, create derivative works of, publicly perform, publicly display, distribute and otherwise exploit User Images and Reproductions and all other intellectual property contained therein and all names, likenesses, images and other indicia identifying any person contained therein, alone or with other materials, in any medium now known or hereafter developed, for any, promotional, commercial or non-commercial purposes (including creative advertisements) in Depicteur's discretion, without any compensation paid to you and without further approval from you. You irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding User Images or Reproductions that you may have under any applicable law or under any legal theory.
VI. Proprietary Rights
Without limiting the generality of the foregoing paragraph, you shall not (i) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer any portion of the Site, including the Depicteur Content (including as a standalone product or in conjunction with other products); (ii) make copies of any portion of the Site; (iii) reverse engineer, decompile or disassemble any portion of the Site, or access any portion of the Site requiring an access code that you are not authorized to use; (iv) create derivative works of or from any portion of the Site; (v) incorporate any portion of the Site into any product or service; (vi) use any portion of the Site for commercial purposes; and (vii) remove, alter or obscure any copyright, trademark, trade name or other proprietary notice, legend, symbol or label that appears on any portion of the Site.
VII. Site Access
While we attempt to ensure that the Site is normally available 24 hours a day, we shall not be liable if for any reason the Site is unavailable at any time or for any period. Access to the Site may be suspended temporarily and without notice in the case of system failure, maintenance or repair, or for reasons beyond our control, or for any reason whatsoever.
VIII. Links and Third Party Websites
This Site contains links to websites operated by third parties that are not under our control (including Instagram and PayPal) and are provided to you for your convenience only. We make no warranties or representations whatsoever about any such websites which you may access through this Site or any services that they may provide. You agree that we are not liable in any way in relation to any transactions, dealings or arrangements (including without limitation buying any products or services) you carry out on any third party site.
We may remove the Site or cease the provision of any of the services available through the Site at any time in our sole discretion for any reason whatsoever.
We may terminate your access to the Site for any reason in our sole discretion at any time with or without notice, but without affecting your then-current Orders.
X. Data Protection and Privacy
While we attempt to ensure that the information contained on the Site (“Site Content) is correct and error-free, please note that we may make changes to the Site Content, or to any products, prices or fees described in it, at any time without notice. We do not warrant that the Site, any Site Content and any function of the Site will be uninterrupted or error-free.
We shall have no liability to you other than for direct loss or damage, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, and whether caused by our act or omission or that of our agents, directors, officers, shareholders, employees and subcontractors. Our aggregate liability in respect of during any individual Order shall be limited to the amount of the price for that Reproduction paid by you to us.
We, our agents, directors, officers, shareholders, employees and subcontractors will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise (a) for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption; or (b) for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising.
Nothing in these Terms of Service shall exclude or limit our liability for:
any loss suffered by you as a result of your reliance on any fraudulent misrepresentation made by us to you; or
any liability which cannot be excluded or limited under applicable law.
We shall not be liable for any loss, damage, costs or expenses (including loss of profit) arising directly or indirectly from any failure or delay in performing any obligation under these Terms of Service by reason of any event or circumstance outside our reasonable control, including, but not limited to, any strikes, industrial action, failure of power supplies or equipment, government action or Act of God.
You agree to defend, indemnify and hold Depicteur, its subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from User Images and any other content you submit, post, transmit, link to or otherwise make available on or through the Site, your use of the Site, your connection to the Site, your violation of these Terms, or your violation of any third party's rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy or similar rights. For avoidance of doubt, and without limitation, this Section (Indemnity) will survive the expiration or earlier termination of your account, your access to the Site, and/or these Terms, for any reason. Claims of Copyright or Intellectual Property Infringement: Depicteur has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site. Depicteur has adopted a policy that provides for the immediate suspension and/or termination of any Site User who is found to have infringed on the rights of Depicteur or of a third party, or otherwise violated any intellectual property laws or regulations. Depicteur's policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Depicteur to delete, edit, or disable the material in question, you must provide Depicteur with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Depicteur to locate the material; (d) information reasonably sufficient to permit Depicteur to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Depicteur's designated agent at:
XII. Entire Agreement
These Terms and any documents referenced herein constitute the entire agreement between you and Depicteur regarding their subject matter, and govern your use of the Site (including, without limitation, all purchases made through the Site), superseding any prior agreements between you and Depicteur (including, but not limited to, any prior versions of these Terms) with respect to the same subject matter. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of Depicteur.
XIII. Consent to Email Communications
You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
XIV. Assignment; Waiver
You may not assign these Terms or any rights granted herein. Depicteur may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Depicteur and its successors and assigns. The failure of Depicteur to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
XV. Governing Law; Venue; Disputes
These Terms are governed exclusively by the laws of the State of California, without reference to its conflicts of law principles, and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby submit to the exclusive personal jurisdiction of, and agree that any controversy, claim or legal proceeding with respect to or arising under these Terms shall be brought exclusively in, the state or federal courts located in Delaware. You further irrevocably consent to the service of process in any such action or proceeding by the delivery of a copy of such process to you at the address set forth in your Order form. The prevailing party in any claim or proceeding shall be entitled to reimbursement of court and reasonable attorneys', accountants' and experts' fees and costs. You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Depicteur that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Depicteur shall be entitled, without waiving any additional rights or remedies otherwise available to Depicteur at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction. You are solely responsible for your interactions with other Users of the Site. Company reserves the right, but has no obligation, to monitor disputes between you and other users of the Site. You agree that any claim or cause of action arising out of or related to the site, underlying products and/or services, or these terms must be filed within one (1) year after such claim or cause of action arose or be forever barred, notwithstanding any statute or law to the contrary.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
XVII. Legal Equivalency
These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained. Strikes, industrial action, failure of power supplies or equipment, government action or Act of God.