Terms & Conditions
The following terms and conditions (the “Terms and Conditions”) sets forth the standards for your use of the website, www.yellowhibiscusgallery.com (the “Site”) operated by Yellow Hibiscus LLC (“Yellow Hibiscus” or “we” or “us”). We maintain the Site in order to provide buyers and sellers of fine art, antiques, collectibles, photographs and sculptures a platform to exhibit, view, list, offer for sale, sell, and purchase property. By accessing, using, browsing, or buying on the Site, you (“Seller” or “Buyer” or “you”) agree to accept and agree to be bound by these terms and conditions. If you do not agree to the terms and conditions of this agreement (“Agreement”), you should immediately stop using the Site.
Your use of the Site does not grant you any right, title, interest or ownership in any content, software, code, data, or materials that you may access on the Site. If you use the Site, you acknowledge and agree that as it pertains to you and Yellow Hibiscus, Yellow Hibiscus, solely and exclusively, owns all rights, title, interest and ownership of all the content (including but not limited to audio, images, photographs, illustrations, text, graphics, logos, button icons, other visuals, video, and copy), software, code, data, the look and feel, design and organization of the Site, and the compilation of the content, code, data and materials on the Site, including but not limited to any copyrights, trademark rights, patent rights, database rights, trade secrets, moral rights (including the rights of authorship and attribution and subsequent modification), sui generis rights and other intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) belongs to Yellow Hibiscus.
We grant you a limited license to use the Site for personal use only. You agree to comply with all applicable laws, statutes and regulations regarding the use of the Site. You may access and view the content on the Site on your computer or other Internet compatible devices, including mobile devices and tablets. You may also make single copies or prints of the content on the Site for your personal use only.
You cannot resell or make any commercial use of this Site, commercially distribute, publish or exploit the Site, or any content, software, code, data or materials on the Site, without Yellow Hibiscus’ or the applicable rights holder’s express prior written approval. With the exception of the license granted in Section 2, you cannot:
- modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of this Site not intended to be so read (this includes using or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser);
- copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any of the contents of this Site (including any trademarks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; and
- download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, software, code, data or materials on the Site.
We reserve the right to aggressively enforce our intellectual property rights to the fullest extent of the law, up to and including seeking criminal sanctions.
By using the Site and the various services and features offered on or through the Site, you warrant and agree that you will not:
- impersonate any person or entity, whether actual or fictitious, or misrepresent your affiliation with any other person or entity;
- insert your own or a third party's advertising, branding or other promotional content into any of the Site’s content, materials or services, or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes;
- attempt to gain unauthorized access to other computer systems through the Site;
- engage in spidering, “screen scraping,” “database scraping,” harvesting of catalogue information, e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of catalogue items or information, users or other information from or through the Site or the services offered on or through the Site, including without limitation any information residing on any server or database connected to the Site or the services offered on or through the Site;
- obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means;
- use the Site or the services made available on or through the Site in any manner with the intent to interrupt, damage, disable, overburden, or impair the Site or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests;
- use the Site or the Site’s services or features in violation of Yellow Hibiscus’ or any third party’s intellectual property or other proprietary or legal rights; or
- use the Site or the Site’s services in violation of any applicable law.
You further agree that you will not attempt (or encourage or support any one else’s attempt) to engage in any of the prohibited activities or to circumvent, reverse engineer, decrypt, disassemble, decompile or otherwise alter or interfere with the Site or the Site’s services, or any content therein, or make unauthorized use thereof. You agree that you will not use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain, use or access, or attempt to obtain, use or access, any materials or information through any means not intentionally made publicly available or provided for through the Site.
TRADEMARKS AND COPY RIGHTS
TRADEMARKS: Whether registered or not, all trademarks, trade names, service marks, and logos (collectively “Trademarks”) that appear on or are displayed on the Site or in the content available through the Site are proprietary to Yellow Hibiscus, or their respective owners. You may not use, display, reproduce, remove or otherwise modify the Trademarks without the prior written consent of Yellow Hibiscus. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license, or right to use, any Trademark displayed on the Site without our express written permission or that of other third party rights holder. If you submit any images of artwork for sale on the Site, you warrant and represent that you own all rights, including but not limited to all Trademark rights and copyright, in and to the images. Additionally, you agree to indemnify and hold Yellow Hibiscus harmless from any claims or demands, including attorneys’ fees and costs, arising out of our use of the image you submitted to us in the event that you do not own all rights in and to the images or that Yellow Hibiscus’ use of any of the images as permitted under this Terms and Conditions infringes or otherwise violates the rights of any third party.
COPYRIGHTS: The content of the Site such as text, graphics, images, images of people, places and/or products, audio, video, data, coding, scripts, computer programs and other materials, are protected by United States and International copyright laws, and are owned or controlled by Yellow Hibiscus or by third parties that have licensed their materials to Yellow Hibiscus. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may not sell, prepare derivative works based on, or modify the contents and materials (including, without limitation, preparation of summaries of the material or “thumbnails” of any images therein), or reproduce, publicly display, publicly perform, distribute, or otherwise use the material in any way for any public or commercial purpose. The use of the material or any portion thereof on any other Sites, or in any publication, database, catalog or compilation, or in a networked computer environment for any purpose other than personal browsing of the Site without our express prior written approval is strictly prohibited. With respect to any copy you make of the materials within the scope of the limited license granted herein, you must retain therein, unmodified and un-obscured, any and all copyright and other proprietary notices contained in the original materials. Some of the materials may contain digital “watermarks” to indicate their source and ownership. You agree not to attempt to remove, deactivate, reverse engineer, modify, tamper with or obscure any such watermarks. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at email@example.com.
THIRD PARTY SITES
If you repost any of our content or materials to the web (including but not limited to any social media site, blogging site, or website), you must include a link to our Site and the page on which the content or material appears. Additionally, you may also be able to link from the Site to third party web sites and third party web sites may link to the Site (“Linked Sites”). You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through the Linked Sites, even if they are owned or operated by affiliates of ours. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such web sites or the information, content, products, services, advertising, code or other materials presented on or through such web sites. Any reliance on the contents of a third party web site is done at your own risk and you assume all responsibilities and consequences resulting from such reliance. Under no circumstances will we be liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods or services available on any other site.
When you visit the Site, or send us e-mails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
RIGHT TO MONITOR AND EDITORIAL CONTROL
Yellow Hibiscus reserves the right, but does not have an obligation, to monitor and/or review all information and materials posted to the Site or through the Site’s services or features by users. Furthermore, We are not responsible for any such information and materials posted by our users. Yellow Hibiscus also reserves the right at all times to disclose any information posted to the Site as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in our sole discretion are objectionable or in violation of these Terms and Conditions, Yellow Hibiscus’ policies or applicable law. We may also impose limits or restrict your access to part or all of the Site without notice or penalty if we believe you are in breach of the guidelines set forth in this paragraph, our Terms and Conditions or applicable law, or for any other reason without notice or incurring any liability for such an action. Additionally, We reserve the right to modify or discontinue the Site without notice to you.
ORDERS FOR PRODUCTS AND SERVICES
We may make certain items available for purchase on the Website to visitors and registrants. You may only order products if you are 18 years old or older. You agree to pay in full the prices for any purchases you make either by credit/debit card concurrent with your online order or by other payment means acceptable to us. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us. Unless otherwise stated, all prices on the Site are in U.S. Dollars.
You, the buyer, will be required to pay any applicable sales, use, GST, VAT or any other taxes upon the purchase price. Note that Yellow Hibiscus is required to collect sales tax for property sold or delivered in New York State.
PACKING AND SHIPPING
All products purchased from the Site are made pursuant to a shipment contract. We will only process the transaction after receiving full payment of the purchase price in good funds from the buyer. The buyer shall be responsible for all packing and shipping costs for the purchased property. We are not responsible for the acts or omissions of the carriers or packers of purchased property, whether or not recommended by us. Packing and handling of purchased property is at the entire risk of the buyer.
We respect the intellectual property rights of others, and require that the people who use our Site do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to Yellow Hibiscus’ Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), and provide us with the following information:
- Enough information for Yellow Hibiscus to contact you regarding your complaint, including your name, address, telephone number, and email address;
- Sufficient detail of the copyrighted material(s) and/or work(s) that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Attn: Yaw A. Darkwa, esq.
You agree to defend, indemnify and hold Yellow Hibiscus, any of its affiliates and or related entities, and their directors, officers, employees and agents harmless from any and all claims, liabilities, costs, losses (including without limitation consequential and indirect losses) and expenses, including attorneys' fees, arising in any way from your use of the Site or the services therein, your placement or transmission of any message, content, information, software or other materials through the Site, or your fraudulent or deceptive acts or omissions, or breach or violation of the law (including infringement of any intellectual property or other right of any person or entity) or of these Terms and Conditions.
DISCLAIMER OF WARRANTIES
The Site, including without limitation, all services, content and materials, is provided on an “As Is” and “As Available” basis. Yellow Hibiscus does not make any representations or warranties of any kind, whether express or implied regarding the use or the results of the Site in terms of its usefulness, correctness, accuracy, reliability, uptime or uninterrupted access. Yellow Hibiscus disclaims all warranties with regard to the information provided, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement, and any implied warranty arising from course of dealing or usage of trade. Yellow Hibiscus does not assume responsibility, and shall not be liable for any damages to, or viruses that may infect your computer, equipment or other property on account of your access to, use of or, browsing of the Site, or your downloading of any materials, data, text, images, videos, audio or software from the Site. If you are dissatisfied with the Site, your sole remedy is and will be to discontinue using the Site. WITHOUT LIMITATION OF THE ABOVE, YELLOW HIBISCUS AND ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITE, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH YELLOW HIBISCUS OR ITS AGENTS.
LIMITATION OF LIABILITY
IN NO EVENT SHALL YELLOW HIBISCUS, ITS AFFILIATES OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE, WHETHER IN AN ACTION BASED ON A CONTRACT INDEMNIFICATION, OBLIGATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE SITE, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO YELLOW HIBISCUS FOR YOUR USE OF THE SITE OR PURCHASE OF PRODUCTS VIA THE SITE.
INTERNATIONAL LAWS/LOCAL STANDARDS
Yellow Hibiscus makes no representation that materials on this website are appropriate or lawful for use or access in all locations. Persons who choose to access to the Site from countries or territories where such access is illegal or prohibited, do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Furthermore, our databases connected with the Site are located in the United States. By posting to the Site or sending us your data, you consent to their transfer to and from, and storage within the United States.
Yellow Hibiscus may terminate, change, suspend, add to or discontinue any aspect of the Site or the Site’s services at any time, in our sole discretion, and without liability to any user. Yellow Hibiscus may restrict, suspend or terminate your use of or access to the Site and/or its services if we believe you are in breach of or are attempting to breach our Terms and Conditions or applicable law, or for any other reason without notice or liability (including, for example, if we learn that you have provided us with false or misleading information, or interfered with other users or the administration of the Site or its services). We reserve the right to terminate the Site’s use privileges of users who are repeat infringers of intellectual property rights.
CHANGES TO TERMS AND CONDITIONS AND THE SITE
Yellow Hibiscus reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms and Conditions, in whole or in part, at any time. We will post the revised version of our Terms and Conditions on this Site. Changes in the Terms and Conditions will be effective when posted. Your continued use of the Site and/or its Services after any changes to the Terms and Conditions are posted will be considered acceptance of those changes.
If any provision of the Terms and Conditions shall be held or deemed invalid, illegal, void, or for any reason unenforceable by a court of competent jurisdiction, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition.
The Site is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the Site. Any person who provides their personal information through the Site represents to us that they are 13 years of age or older. We offer the Site and its services only to those who may lawfully enter into and form contracts under applicable law. For example, minors are not allowed to buy catalogues or perform other transactions on the Site.
The Terms and Conditions and the relationship between you and us shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. You agree that any cause of action that may arise under the Terms and Conditions shall be commenced and be heard in the appropriate court in the State of New York, County of Westchester. You agree to submit to the personal and exclusive jurisdiction of the courts located within Westchester County in the State of New York. Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. Any waiver of any provision of the Terms and Conditions by Yellow Hibiscus must be made in writing and signed by an authorized representative of Yellow Hibiscus specifically referencing these Terms and Conditions and the provision to be waived. Headings used in these Terms and Conditions are for convenience only and are not to be relied upon. These Terms and Conditions will inure to the benefit of, and are intended to be enforceable by, Yellow Hibiscus, its successors, assigns and licensees.
The Terms and Conditions constitute the entire agreement between you and Yellow Hibiscus with respect to the Site, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Site. A printed version of the Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We reserve any and all rights not expressly granted herein.
Last Modified: October 15, 2016