TERMS OF SALE / TERMS AND CONDITIONS / PURCHASE AGREEMENT
1. NOTICE OF CONTRACT THE FOLLOWING DOCUMENT IS A CONTRACT BETWEEN YOU AND BIG ART NOW. BY MARKING THE “I AGREE” BOX AND CLICKING “SUBMIT” AT THE END OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT.
BY CLICKING “CANCEL,” YOU ARE INDICATING THAT YOU DO NOT WISH TO BE BOUND BY THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT AND DO NOT WISH TO COMPLETE YOUR PURCHASE.
2. BIG ART NOW is pleased that You have decided to purchase products offered on the BIG ART NOW website. We want You to know that we take great pride in the quality of our products at BIG ART NOW.
With that in mind, we want to ensure that You are aware of Your rights related to purchasing products offered on the BIG ART NOW website. Accordingly, BIG ART NOW has created the following terms, conditions and disclaimers, which are binding and material terms of this agreement.
3.1 BIG ART NOW has its principal place of business located at 1109 Okeechobee Road, Suite 23, West Palm Beach, Florida 33401.
3.2 “CUSTOMER,” “You,” and “Your” refer to:
3.2.1 The natural person using this website, regardless of whether he or she is acting in his or her individual capacity, or as the agent for any other natural person or business entity; and
3.2.2 The natural person who is the principal of any electronic agent(s) using this website, regardless of the number of layers of electronic agency that may exist between the natural person principal and the electronic agent(s) using this website.
3.3 In this Agreement, BIG ART NOW and You may sometimes be referred to collectively as the “PARTIES.” Where this Agreement uses the term “PARTIES,” it intends both You and BIG ART NOW.
4. GENERAL TERMS AND CONDITIONS
4.1 Entire Agreement
This Agreement is the entire agreement between You (the CUSTOMER) and BIG ART NOW, and supersedes any prior or previous agreements between You, the CUSTOMER, and BIG ART NOW, with respect to the subject matter of this Agreement; provided, however, that You agree that You shall be subject to any additional terms and conditions of which BIG ART NOW notifies You from time to time and that may apply when You are purchasing products or services of any kind or nature.
4.2 Revisions to this Agreement
4.2.1 You may not revise any of the terms of this Agreement without express prior authorization and written agreement signed by a duly authorized Officer or Manager of BIG ART NOW.
4.2.2 BIG ART NOW serves a variety of customers, retailers, and distributors, and cannot negotiate separate contracts with each of its customers. BIG ART NOW is able to offer competitive pricing and billing by using standard Terms of Service contracts for all of its customers.
5. REPRESENTATIONS AND WARRANTIES
5.1 YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD.
5.2 You represent and warrant that You are a citizen or a lawful resident of the United States of America or of Canada.
5.3 You represent and warrant that You have the authority necessary to execute this Agreement and bind You to this Agreement.
5.4 You represent that You have provided BIG ART NOW with accurate, complete, and updated contact information. You acknowledge and agree that Your providing incorrect contact information shall constitute a breach of this Agreement, and may result in immediate termination of this Agreement and subject You to civil and/or criminal liability. You further acknowledge that it is a federal and state criminal offense to purchase any product from BIG ART NOW by fraudulent means.
6. CHARGES, TAXES, PAYMENT
6.1 Charge and Tax Policies
6.1.1 The rates and charges for products, services, or information available from BIG ART NOW or from any third party whose products, services, or information are available and accessible through BIG ART NOW’s website, as well as the methods of payment shall be those posted on the BIG ART NOW website, as amended or revised from time to time. We cannot confirm the final price of an item until You complete Your order. Despite our best efforts, a small number of the items shown on the website may be mispriced as a result of price changes that are implemented at or about the time of Your visit to the website. If an item’s correct price is higher than our stated price, Your sole recourse is immediate cancellation of Your order.
6.1.2 If Your chosen payment method for BIG ART NOW’s service is by credit, charge, or debit card, or third-party payment service, and BIG ART NOW has not received payment from the card issuer or its agents, You agree to pay all amounts due upon demand by BIG ART NOW.
6.1.3 Your card issuer’s agreement governs Your use of Your designated payment card in connection with the BIG ART NOW website, and You must refer to such agreement and not this Agreement with respect to Your rights and duties as a cardholder.
6.1.4 Your agreement with any other third-party payment service governs Your use of that third-party payment service in connection with the BIG ART NOW website, and You must refer to such agreement and not this Agreement with respect to Your rights and duties as a party to the agreement with the third-party payment service.
6.1.5 Upon written request, BIG ART NOW will provide You with a written statement of charges. Unless You notify BIG ART NOW of any discrepancies within ninety (90) days after they first appear on the written account statement, they will be deemed acceptable by You for all purposes, including resolution of inquiries made by Your card issuer, bank, or third-party payment service.
6.1.6 You release BIG ART NOW from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to BIG ART NOW within 90 days after its publication to Your account.
6.1.7 Items shipped to destinations in the states of Florida and Texas are subject to sales tax. No sales tax is charged when purchasing gift certificates. However, purchases paid for with gift certificates may be subject to tax.
6.2 Your Responsibility for Charges
6.2.1 You shall be responsible for all charges and taxes resulting from Your use of the BIG ART NOW website and the use of the BIG ART NOW website by any other person who uses Your user name and password, regardless of whether You have actually authorized such charges.
6.2.2 If You misplace Your user name or password or both, or suspect that someone else may be using them without Your authorization, You agree that You will notify BIG ART NOW immediately. Failure to notify BIG ART NOW may result in Your being liable for unauthorized charges.
6.3 Failure to Make Timely Payment
6.3.1 BIG ART NOW reserves the right to withhold delivery of products purchased by You from the BIG ART NOW website for any amounts past due. Amounts past due include, but are not limited to, charges that have been denied by the credit card provided for Your purchase.
6.3.2 Accounts that are past due or in default are subject to an interest charge of 1.5% per month on the outstanding balance.
6.3.3 Checks that are dishonored for any reason are subject to a collection fee of $50.00 per dishonored check, and Your account and access to the BIG ART NOW website service may be suspended until You have paid in full all amounts You owe to BIG ART NOW. Any order paid by check will not be processed or shipped until funds clear.
6.3.4 In the event BIG ART NOW utilizes an attorney at law to collect any unpaid amounts from You, You shall be responsible for the payment of all of BIG ART NOW’s attorneys’ fees and costs, in addition to any penalties allowed under applicable law, in the collection of those sums.
6.4.1 All sales are final. If you have any questions or concerns regarding your shipment, please notify us upon receipt of your merchandise. Claims must be made in writing within 5 business days. Goods can only be returned for credit upon authorization by BIG ART NOW. If the return is accepted, the credit will be placed “On Account” only.
6.5 Paragraph removed.
6.6 Products Damaged During Shipping to You
6.6.1 In the event that merchandise is damaged during shipment, please notify us within 24 hours. All claims must originate with you and be filed with the shipping or delivery service within 24 hours.
6.7 Limitations on Use of the BIG ART NOW website
In any given 24-hour period, the number of purchases and the aggregate monetary value of the purchases You may make from the BIG ART NOW website are limited. These limits may vary from time to time, and are posted here. BIG ART NOW reserves the right to change these limits at any time without notice and that BIG ART NOW shall not be liable to You in any manner, for any reason, under any legal theory as a result of changing such limits. You further agree that You will not exceed or attempt to exceed these limits.
7. Intellectual Property Rights
7.1 You agree not to digitize, modify, publish, transmit, reproduce (except as provided below), create derivative works from, distribute, perform, display, create collective works or compilations, or in any way exploit, any of the content, in whole or in part, contained in the products You are purchasing from the BIG ART NOW website; provided that if BIG ART NOW applies no specific restrictions directly or indirectly in relation to a particular item of Content, You may make use of such materials, including copyrighted material, provided that:
7.1.1 Your use does not violate the United States Copyright Act; and
7.1.2 You agree to comply with all the terms and conditions of BIG ART NOW’s Copyright Notice and Policy, as amended or revised from time to time, and available here.
7.2 Third persons not parties to this Agreement (for example artists) shall retain all rights they have to intellectual property rights to content they own and which they enjoy by law. You agree not to infringe upon any such rights and agree to defend, hold harmless, and indemnify BIG ART NOW from any infringement You cause to the rights of any third party in any intellectual property rights that may result from Your use of BIG ART NOW’s website.
8. Your Duties Under this Agreement.
8.1 Compliance with Agreement
You agree to abide by and perform all the terms and conditions of this Agreement at all times.
8.2 Compliance with Applicable Laws
8.2.1 You agree to abide by and to follow all applicable laws in using the BIG ART NOW website and, to the extent allowed by law, You agree to defend, hold harmless, and indemnify BIG ART NOW from any damages caused by Your violation of any applicable laws.
8.2.2 You acknowledge that purchasing products from the BIG ART NOW website may not be legal in certain countries. If You access or use the BIG ART NOW website outside the United States of America, You do so at Your own risk and are responsible for compliance with the laws of the jurisdiction in which or from which You access or use the BIG ART NOW website.
8.2.3 You may not use the BIG ART NOW website or any products or services You purchase using the BIG ART NOW website for any unlawful purpose.
8.3. Refraining from Certain Activities
You further agree that You will not impersonate any person living or dead, organization, business, or other entity, or use any name or communicate under any false name that You are not authorized to use or attempt to do any of the activities in connection with Your use of the BIG ART NOW website to purchase BIG ART NOW products.
8.4 Attempting to Circumvent or Bypass System Security Measures
8.4.1 You agree not to obstruct or attempt to obstruct the systems identification procedures or to forge communications of any form.
8.4.2 You agree not to attempt to cause, or actually cause, any disruption of service on the BIG ART NOW website or any other network or any server housing the BIG ART NOW website, including but not limited to malicious traffic generation, attempted or actual violation of any security system in place on the Internet and its resources, inserting or injecting into the BIG ART NOW website or any other network or any server housing the BIG ART NOW website any virus, cancelbot, worm, logic bomb, Trojan horse, spyware, adware, malware, or other harmful contents or components, or to engage in or attempt to engage in any unauthorized access to any computer or resource on the Internet.
8.4.3 You agree not to abuse or attempt to abuse the system and resources of the BIG ART NOW website in any manner.
8.4.4 You agree not to violate or attempt to violate the security of the authentication and accounting procedures of the BIG ART NOW website.
8.4.5 You agree not to attempt to or actually undermine, hinder, damage, or disrupt the hardware, software, or security of the BIG ART NOW website or any of its various components.
9. DISCLAIMER OF WARRANTIES
9.1 YOU EXPRESSLY AGREE THAT YOUR USE OF THE BIG ART NOW WEBSITE FOR THE PURCHASE OF BIG ART NOW PRODUCTS OR SERVICES IS AT YOUR SOLE RISK, AND THAT YOU VOLUNTARILY ASSUME THAT RISK. THE BIG ART NOW WEBSITE AND ALL OF ITS COMPONENTS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.
9.2 BIG ART NOW’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO USE OF THE BIG ART NOW WEBSITE FOR PURCHASES OF PRODUCTS FROM BIG ART NOW, AS WELL AS BIG ART NOW’S LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT ARE LIMITED SOLELY TO THE AMOUNTS YOU HAVE PAID TO BIG ART NOW. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, BIG ART NOW’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
9.3 ALL PRODUCTS PURCHASED THROUGH THE BIG ART NOW WEBSITE ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
9.4 NO ADVICE OR INFORMATION GIVEN BY BIG ART NOW, ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OF ANY KIND. THIS INCLUDES THE LISTED PRODUCT PRICE.
9.5 By Your agreeing to this disclaimer, You are indicating that You will not for any reason take any legal action against BIG ART NOW, its parents, its subsidiaries, its members, its partners, its joint venturers, its affiliates, its suppliers, its licensors, its contractors, or their respective agents or employees with respect to any matter covered by the aforementioned disclaimers.
9.6 Further, You are also agreeing that if any portion of this disclaimer is found by a court of competent jurisdiction to be unconscionable, inapplicable, or void, only that portion of this disclaimer will be stricken and the remaining portions shall be valid and binding and in full force and effect.
9.7 BIG ART NOW does not warrant that product descriptions or other content of the website are 100% accurate, complete, reliable, current or error-free. If a product offered by BIG ART NOW and purchased by You is not as described, Your sole remedy is pursuant to the refunds procedures and policies set forth in Sections 6.4 and 6.5 of this Agreement.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED.
10. THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE BIG ART NOW WEBSITE AND ITS SERVER MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. BIG ART NOW AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT, SERVICES, INFORMATION, AND/OR THE PROGRAMS DESCRIBED HEREIN OR ACCESSIBLE FROM BIG ART NOW’S WEBSITE AT ANY TIME.
11. Limitation of Liability
11.1 IN NO EVENT SHALL BIG ART NOW, ITS PARENTS, ITS SUBSIDIARIES, ITS MEMBERS, ITS PARTNERS, ITS JOINT VENTURERS, ITS AFFILIATES, ITS SUPPLIERS, ITS LICENSORS, ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES BE HELD LIABLE FOR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, ATTORNEYS’ FEES OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY KIND OF DAMAGES WHATSOEVER, EVEN IF BIG ART NOW OR ANY OF THE OTHER PERSONS OR ENTITIES IDENTIFIED IN THIS PARAGRAPH HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY OF RECOVERY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, PRODUCTS, AND MATERIALS AVAILABLE FROM THE BIG ART NOW WEBSITE.
11.2 BIG ART NOW is not liable for any financial damage (including but not limited to the cost of any replacement purchase) that may occur because of untimely arrival or any lack of availability or conformity of products purchased using the BIG ART NOW website.
12. Indemnification of BIG ART NOW by CUSTOMER
12.1 Upon request of BIG ART NOW, You agree to defend, indemnify, and hold harmless BIG ART NOW, its parents, its subsidiaries, its members, its partners, its joint venturers, its affiliates, its suppliers, its licensors, its licensees, its agents, its contractors, or their respective agents and employees, and all their respective heirs, successors, and assigns from all liabilities, claims, losses, judgments, damages, and expenses, including, without limitation, attorney’s fees and costs of litigation arising from breach of this Agreement by use of, or in connection with, the transmission by or through Your account of any content or communications.
12.2. BIG ART NOW reserves the right, at its own expense and at its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You hereunder, and in such event, You shall have no further obligation to provide indemnification for such matter.
12.3. You shall promptly notify BIG ART NOW in writing of any claim arising or potentially arising under this indemnity.
13.1 In connection with any litigation arising out of this contract, the prevailing party shall be entitled to recover all costs incurred including reasonable attorney fees at the appellate level.
14. Consent to Jurisdiction; Venue; Choice of Law
The PARTIES agree to and accept that jurisdiction and venue for litigation of any dispute between the PARTIES in relation to this Agreement, or the breach thereof shall be in Florida with the venue of Palm Beach County. For all purposes, this Agreement shall be deemed to have been made within the State of Florida. This Agreement shall be governed by the laws of the United States of America and the laws of the State of Florida, without regard to choice of law and conflicts of law rules, and BIG ART NOW and You each submit to the exclusive jurisdiction of the District Court for the Southern District of Florida, Palm Beach County.
15. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA) OR ANY SUCCESSOR MODEL ACT THAT IS SUBSTANTIALLY SIMILAR TO THE APPROVED DRAFT OF UCITA APPROVED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (NCCUSL) ON OR ABOUT AUGUST 4, 1999, OR ANY STATE LAW THAT IS SUBSTANTIALLY SIMILAR TO THE AFOREMENTIONED MODEL UCITA OR SUCCESSOR LAWS, SHALL APPLY TO ANY TRANSACTION OR ANY PART OF ANY TRANSACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF ANY STATE IN WHICH UCITA MAY HAVE BEEN ENACTED AT THE TIME SUCH TRANSACTION OR ANY PART OF SUCH TRANSACTION PURSUANT TO THIS AGREEMENT SHALL HAVE OCCURRED.
16. Force Majeure
The BIG ART NOW shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, cyberattacks, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications or wireless service or connection to any telecommunications or wireless service, or any cause beyond the reasonable control of BIG ART NOW.
17. Notices Pursuant to this Agreement
17.1 You may notify BIG ART NOW by regular first class mail or by e-mail.
17.2 BIG ART NOW will notify You by email at the most current email address You have provided to BIG ART NOW of any notices BIG ART NOW is required to provide to You under this Agreement. You explicitly agree to receive all such notices by email. You are solely responsible for ensuring that BIG ART NOW has Your most current email address, and BIG ART NOW shall not be responsible for any lost, misdirected, bounced, forwarded, or undeliverable email BIG ART NOW sends to the most current email address You have provided to BIG ART NOW.
18. Severability of Terms of this Agreement
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
19. No Waiver of Provisions of this Agreement
BIG ART NOW’s failure to insist upon or enforce strict performance of any provisions of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between You and BIG ART NOW nor any trade practice shall act to modify any provision of this Agreement.
20. Limitation of Actions Arising Under this Agreement
Any cause of action or dispute You may have with respect to BIG ART NOW’s performance or alleged non-performance of this Agreement must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred.
Please ensure your order is correct before submitting your payment.
BY MARKING THE “I AGREE” BOX AND CLICKING “SUBMIT,” YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT. YOUR PAYMENT WILL BE MADE UPON SUBMISSION.