Terms and conditions
Last Updated: June 27, 2016
Thanks for using the Mercartto Inc. (“Mercartto”, “we”, “us”) website, a platform which provides an online service to allow users to find, price, and purchase artwork on a global basis. This document sets forth the terms and conditions that apply to our use of the Site (as defined below). By using or accessing the site and/or the Services (as defined below), whether manually or by automated means, you agree to these Terms (as defined below). If you have any questions or concerns, please do not hesitate to contact us.
The Site provides an interactive online service operated on the World Wide Web of the Internet (the “Web”), and mobile phones offering access to various content through the Site (“Content”).
“Services” include, but are not limited to, any service we make available to or perform for you through the Site.
Changes to this Agreement
We may revise these Terms from time to time and the most current version will always be posted to our website. If a revision is, in our sole discretion, material we will notify you and confirm your acceptance of the new terms. By continuing to access or use the Site and Services, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, please stop using the Site and/or Services.
General Use and Site License
License. Mercartto grants you a limited, non-exclusive license to access and use the Site for your own personal, non-commercial purposes. This includes the right to view Content available on the Site. This license is personal to you and may not be assigned or sublicensed to anyone else.
Age of Use. If you are not 18 years of age or older, you are not authorized to use the Site and Services.
Sole Responsibility. You are solely responsible for your interactions with other users of the Site and Services. We reserve the right, but are under no obligation, to monitor disputes between you and other users
Hardware. You agree that you are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this Site and/or Services and all charges related thereto. We shall not be liable for any damages to your or any user’s equipment, or for any data charges resulting from the use of this Site.
Rules for Incoming Payment
With respect to any purchase made on or through the Site and/or Services, you agree that: (i) you will not use an invalid or unauthorised credit or debit card or other payment method; (ii) you are solely responsible for identifying and selecting the product or service you wish to purchase; and (iii) your payment will be charged to the credit or debit card or other payment method you use.
You understand you will be responsible for paying all fees and applicable taxes associated with using the Services. You will be responsible for paying any duty, taxes, or brokerage fees applicable to the purchases that you make using the Services (“Taxes”).
Payment Gateway. The Site does not process payment, any purchases will be through our affiliates.
Accurate Information; Registration and Passwords; URLs
Accurate Information. In consideration of your use of the Site and Services, you agree to: (a) provide accurate information as prompted on the Site or through the Services; and (b) maintain and update such information to keep it accurate. If you provide any information that is inaccurate, or Mercartto has reasonable grounds to suspect that such information is inaccurate, Mercartto may suspend or terminate your use of the Services and/or the Site and/or decline to permit your continued use of the Site and/or the Services and future access to the Site and/or the Services.
Registration. To access certain parts of the Site or Services, you may be required to open an online account with Mercartto, in which case you will have to create a username and password and to provide registration information, including your first and last name, and a valid e-mail address.
You may not use as a username the name of another person or entity that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
You may use credentials from, including but not limited to a third party intermediary such as Facebook (“Login Partner”) to access certain features of the Site and Services. By using credentials from a Login Partner, you agree that you will not (i) use the credentials of another person with the intent to impersonate that person; or (ii) use credentials subject to the rights of any person without authorization. You are responsible for maintaining the confidentiality of your credentials from the Login Partner and are responsible for all activities (whether by you or by others) that occur under your credentials. You will notify us immediately of any unauthorized use of your password or account or any other breach of security. Mercartto assumes no liability for any loss or damage arising from any unauthorized use of your credentials by a third party.
If you are a business, government, or non-profit entity, the person whose e-mail address is associated with the account at the time of registration must have the authority to bind you to this Agreement.
Security. You are responsible for maintaining the confidentiality of your password and are solely responsible for all activities resulting from the use of your password and conducted through your Mercartto account. You must immediately notify Mercartto upon becoming aware of any unauthorized access or any other security breach to the Site or the Services and do everything possible to mitigate the unauthorized access or security breach (including preserving any evidence and notifying appropriate authorities). You are solely responsible for securing your password. Mercartto will not be liable for any loss or damage arising from unauthorised access of your account resulting from the failure to secure your password.
As a condition to using the Site and/or Services, you promise not to use the Site and/or Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably foreseen to have been intended by Mercartto. By way of example, and not as a limitation, you agree not to use the Site and/or Services:
- in any way that is false, inaccurate or misleading;
- in any way that is fraudulent or otherwise involves the sale of illegal or stolen goods;
- to collect and use product listings, descriptions or images;
- to abuse, harass, threaten, impersonate or intimidate any person;
- to post or transmit, or cause to be posted or transmitted, any Content that is libellous, defamatory, obscene, pornographic, abusive, offensive, profane, violent or that infringes any copyright or other right of any person;
- for any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction in which you use the Services;
- to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any user;
- to reverse engineer, decompile or disassemble the site, or to convert into human readable form any of the contents of this site not intended to be so read, including but not limited to using or directly viewing the underlying code for the site except as interpreted and displayed in a web browser;
- to create or transmit unwanted ‘spam’ to any person or any URL;
- to violate or attempt to violate the security of the Site and/or Services;
- to post copyrighted Content which doesn’t belong to you, with the exception of blog content, in which case you may post such Content with explicit mention of the author’s name and a link to the source of the Content;
- with the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes or might impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iii) bypass any measures we may use to prevent or restrict access to the Site;
- to promote or sell Content of the Site;
- to sell any products or services other than those which can reasonably be described as a piece of artwork;
- to advertise or perform any commercial, religious, political or non-commercial solicitation other than the solicitation for the sale of artwork, including, but not limited to, the solicitation of users of this Site to become users of other on- or offline services directly or indirectly competitive or potentially competitive with Mercartto;
- to interfere with or attempt to interfere with the proper working of the Site and/or Services;
- to sell or otherwise transfer your profile;
- sell goods or services via the Site which you do not deliver or which are not available;
- to interfere in any way with the business of any other user of the Site; or
- in any other way that violates these Terms.
Mercartto shall have the right, but no obligation, to monitor the content on the Site and/or Services to determine compliance with these Terms and any other operating rules we establish. Mercartto shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted to the Site or Services. Notwithstanding this right, you shall remain solely responsible for the content of your messages and any User Generated Content (as defined below). Mercartto neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement on the Site and/or Services, whether it is provided by Mercartto, our employees, or a third party.
Under no circumstances will Mercartto be liable for any loss or damage of any kind caused by reliance on information obtained through the Site or Services. Mercartto is not responsible for any offensive, defamatory, obscene or other posting made through the Site and/or Services. We reserve the right at all times to disclose any information we believe necessary to satisfy any law, regulation or governmental request, or to refuse to post or to remove any information or materials, in whole or in part, that in Mercartto’s sole discretion is inappropriate, objectionable or in violation of these Terms.
Any user who feels that Content is objectionable is encouraged to contact us immediately by email to firstname.lastname@example.org. We have the ability to remove objectionable Content and we will make every effort to do so, within a reasonable time frame, if we determine that removal is necessary. This is a manual process, however, so please realize that we may not be able to remove or edit particular messages immediately.
Neither Mercartto nor any third party content provider shall assume or have any liability for any action or inaction by Mercartto or any third party content provider with respect to any conduct, communication or posting on the Site and/or Services.
Ownership of User Generated Content
You retain ownership of any content you submit to the Site or through the Services (“User Generated Content”). However, by submitting your User Generated Content to Mercartto, you hereby grant Mercartto the following worldwide, royalty-free, non-exclusive, sub-licensable and transferable rights and licences:
· to host, cache, store, archive, index, crawl, create algorithms based thereon, modify or transcode your User Generated Content to appropriate media formats, standards or mediums as part of the services Mercartto provides;
· to use, distribute, reproduce, modify, remix, excerpt, adapt, prepare derivative works of, publicly perform and publicly display your User Generated Content on the Site, including without limitation, in connection with any distribution or syndication arrangement thereof with third parties or third party sites, in any media format or medium and through any media channels; and
· to use your User Generated Content for advertising, promotional or commercial purposes, including without limitation, the right to publicly display, perform, reproduce and distribute your User Generated Content in any media format or medium and through any media channels.
By submitting User Generated Content for inclusion on the Site or through the Services, you also grant the following use of and rights to your User Generated Content to others: (i) the non-exclusive licence to access your User Generated Content through the Site or Services; (ii) if permitted, the ability for users to rate, review and comment on your User Generated Content; (iii) if permitted, the ability for users to send and distribute your User Generated Content; and (iv) the non-exclusive licence to users to use, reproduce, distribute, remix, prepare derivative works and compilations of, display and perform your User Generated Content as permitted through the functionality of the Site and Services and under these Terms. Please keep in mind though that even if you delete your User Generated Content from the Site or Services, it may still exist in back-up copies or copies made by third parties prior to deletion.
User’s Representations and Warranties. For each piece of User Generated Content you submit, you represent and warrant that (i) you have the right to submit the Content to the Site and grant the licenses set forth above; (ii) Mercartto will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the Content complies with this Agreement and all applicable laws.
Identity / Know Your Customer
You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity. You must, at our request, (i) provide further information to us, which may include your date of birth and other information that will allow us to reasonably identify you; (ii) take steps to confirm ownership of your email address or financial instruments; or (iii) verify your information against third party databases or through other sources.
We reserve the right to close, suspend, or limit access to your account, the Site or Services in the event that we are unable to obtain or verify to our satisfaction the information which we request under this section.
User Goods and Services
Upon purchasing goods or services (“Seller Goods”) provided by another user of Mercartto (the “Seller”), and the seller’s acceptance or such purchase, you and the Seller will be deemed to have entered into a contract under which the Seller agrees to deliver the Seller Goods and you agree to purchase the Seller Goods (a “User Contract”), pursuant to the terms of this Agreement and any other contractual provisions accepted by both you and the Seller, to the extent not inconsistent with this Agreement, related to the Seller Goods. While Mercartto may charge fees associated with the Seller’s Services, you acknowledge that the User Contract is between you and the Seller.
You agree not to disclose, when offering Seller Services via the Site or when seeking Seller Services via the Site, personal details such as your full name, street number, phone number or email address in any description of the Seller Services or in any public communication on the Site.
If a Seller updates a Seller Goods after it has been posted on the Site or removes the Seller Goods from the Site, then all offers for that Seller Goods will be automatically rejected and the offer process will restart, as applicable.
You are solely responsible for ensuring that you comply with your obligations to other users. If you do not, you may become liable to that user. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances, and regulations relevant to you in any uses you make of the Services.
If another user breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract.
Depending on their jurisdiction, you and a Seller may have rights under statutory warranties that cannot lawfully be excluded. Nothing in this Agreement is intended to override a right that by applicable law may not be excluded.
You acknowledge that any relationship between you and a Seller or another user is that of an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between users.
User’s Representations and Warranties. For each Seller’s Goods you submit for sale on the Site, you represent and warrant that (i) you have the right to submit the Seller’s Goods to the Site for sale and to complete a sale transaction involving the Seller’s Goods; (ii) Mercartto will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the offer for sale and/or sale of the Seller’s Goods does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the offer for sale and/or sale of the Seller’s Goods complies with this Agreement and all applicable laws.
Mercartto may terminate or suspend any and all Services and/or your user account immediately, without prior notice or liability, including without limitation if you breach the Terms. Upon termination of your account, your licence will be revoked and your right to use the Site and/or Services will immediately cease. If you wish to terminate your Mercartto account, you may simply discontinue using the Site and/or Services. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
For greater certainty, any obligation on your part to pay a fee to Mercartto or its payment partner pursuant to these Terms or any other agreement between you and Mercartto shall survive termination or suspension, whether by you or Mercartto. Any fee so payable will remain payable and your failure to pay such fee within a reasonable time shall be deemed to constitute a breach of your agreement with Mercartto and may result in legal action.
Furthermore, your failure to pay any such fee shall be a ground for termination of your account.
Content that you have shared with others on the Site and/or Services may still be available after the termination of your account. It is your responsibility to remove your User Generated Content from your account prior to termination. Upon termination of your account Mercartto may remove all Content posted to your account. Seller’s Goods offered for sale by you on the Site will be removed on termination of your account.
The Site and/or Services may provide, or third parties may provide, links to other World Wide Websites or resources. Because Mercartto has no control over such sites and resources, you acknowledge and agree that Mercartto is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Mercartto 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 or goods or services available on or through any such site or resource.
Intellectual Property Rights
Unless you are advised otherwise, everything you see or read on the Site and/or Services is subject to copyright, trade mark or other forms of legal protection owned by or licensed by third parties to Mercartto. Content may not be used except as provided in these Terms or in the text of the Site and/or Services without the written permission of Mercartto.
Images displayed on the Site and/or Services are either the property of, or used with permission by, Mercartto. Use of these images by you, or anyone authorized by you, is prohibited unless specifically permitted by these Terms or specific permission provided elsewhere on the Site. Any unauthorized use of such images or other Content may violate the law.
The trade-marks and logos (collectively the “Trade-marks”) displayed on the Site and/or Services are registered and unregistered Trade-marks. Nothing contained in the Site and/or Services gives you permission to use these Trade-marks, and your use of the Trade-marks is strictly prohibited. Mercartto reserves the right to enforce its intellectual property rights where applicable.
Intellectual Property Complaints
Mercartto may use reasonable efforts to investigate notices of alleged infringement and will take appropriate action under applicable intellectual property law and these Terms where it believes an infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating user accounts and access to the Site or Services.
Please note that you may be held accountable for damages (including costs and legal fees) for misrepresenting that any Content is infringing your copyright.
Release and Indemnity
You hereby expressly and irrevocably release and forever discharge Mercartto, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the Site and the Services, including, but not limited to, any liability which arises directly or indirectly out of a User Contract.
In no event shall Mercartto be liable under contract, tort, strict liability, negligence or other legal theory with respect to the Site, the Services or any Content (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, (ii) to provide substitute goods or services (however arising), or (iii) for any direct damages in excess of (in the aggregate) one hundred Canadian dollars (CDN$100).
Disclaimer of Warranties
THIS SITE, ITS CONTENT, AND ANY ASSOCIATED SERVICES ARE PROVIDED BY MERCARTTO ON AN “AS IS” AND “AS AVAILABLE” BASIS. MERCARTTO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE, TO THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THIS SITE, OR TO THE FUNCTIONALITY OF ANY SERVICES ASSOCIATED THEREWITH. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MERCARTTO DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF WORKMANLIKE EFFORT, OF SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, OR OF NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE. FURTHER, MERCARTTO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THIS SITE AND/OR ITS CONTENTS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. MERCARTTO IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOGRAPHY OR ANY OTHER CONTENTS ON THIS SITE.
BY USING SITE, YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE, INCLUDING YOUR USE OF ANY AND ALL ASSOCIATED CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, AND ANY ASSOCIATED SERVICES IS SOLELY AT YOUR OWN RISK. MERCARTTO DOES NOT WARRANT OR GUARANTEE THAT ITS SITE OR SERVERS OR E-MAILS SENT BY OR ON BEHALF OF MERCARTTO ARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. FURTHER, MERCARTTO DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED AND ERROR-FREE OPERATION OF ITS SITE, NOR THAT ALL COMMUNICATIONS BETWEEN YOU AND MERCARTTO, OR BETWEEN YOU AND ANY OTHER USER OF THE SITE, WILL BE SECURE FROM ACCESS OR INTERFERENCE BY THIRD PARTIES.
The Security of the Site
Mercartto maintains reasonable safeguards and personnel policies that are designed to guard the Site, the Services, our systems and our sellers’, customers’, business partners’ and others’ information. For example, for the security of your online visit to the Site, Mercartto may make use of firewall barriers, encryption techniques and/or authentication procedures.
Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. As a result, while Mercartto strives to protect your information, it cannot ensure or warrant the security of any Content you transmit to us, and you do so at your own risk. In the event of a breach of the confidentiality or security of your personal information, Mercartto will notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using the email address you provided to us when you registered with the Site.
When you visit the Site, use the Services or send emails to Mercartto, you are communicating with us electronically. You consent to receive communications from Mercartto electronically, including “push” notifications if you have consented to receiving such “push” notifications. Mercartto may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that Mercartto provides to you electronically satisfy any legal requirement that such communications be in writing.
Site is for Use in Canada
The Site and Services are intended for users located in Canada. If you are a non-Canadian user of Site, by visiting the Site, using the Services and/or providing Mercartto with any User Generated Content specifically or Content generally, you agree to comply with all federal and provincial Canadian laws governing the Site, the Services, online conduct and acceptable Content and User Generated Content. You further agree to comply with all applicable laws regarding the transmission of data exported from Canada or the country in which you reside.
Conflict with Other Agreements
These Terms are in addition to, and do not nullify, any other agreement between you and Mercartto or any other applicable terms and conditions found on the Site. In the case of any direct conflict between these Terms and any other agreement between you and Mercartto, the provisions of such other agreement shall prevail but only to the extent applicable to the conflicting provisions. You agree to comply with all rules or restrictions that are posted on the Site. Notwithstanding the above, when you use a third-party affiliate’s payment processor in order to make a payment, your use of that service is governed by their respective user agreements.
Resolution of Disputes
Disputes with Mercartto: All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall be mediated pursuant to the Arbitration Act, 1991. The place of mediation shall be Toronto, Ontario. The language of the mediation shall be English.
Disputes with Users or Third Parties: In the event a dispute arises between you and another user or a third party, Mercartto encourages you to contact the user or third party to resolve the dispute amicably. Mercartto is under no obligation to resolve disputes between users or between any user and an outside party. You may choose to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
You agree that if you are dissatisfied with the Site or any Services offered in connection with the Site, if you do not agree with any part of these Terms, or if you have any other dispute or claim with or against Mercartto concerning your use of the Site or access to the Services or otherwise to do with these Terms, your sole and exclusive remedy is to discontinue using the Site and any Services offered in connection with the Site.
No agency, partnership, joint venture, or employment is created as a result of the Terms and you have no authority of any kind to bind Mercartto in any respect whatsoever. The failure of any party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Mercartto shall not be liable for any failure to perform its obligations hereunder, where such failure results from any cause beyond Mercartto’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). Mercartto may transfer, assign or delegate the Terms and its rights and obligations without consent.
Any of these Terms which by its nature should survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability, shall survive termination and continue in full force and effect except to the extent expressly set out in these Terms.
The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms and any such invalid or unenforceable term shall be deemed to be severable.
Governing Law and Language
These Terms are made under and governed by and are to be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario.
All notices or other correspondence to Mercartto under this Agreement must be sent to the following electronic mail address for such purpose: email@example.com.
If you have any questions about this Agreement or if you wish to report breaches of this Agreement, please contact us at firstname.lastname@example.org.