These rental terms and conditions (“Rental Terms”) constitute a legal agreement between you (“You” or “Your”) and GetArtUp, Inc., with corporate offices at 836 Capp Street, San Francisco C.A. 94110 (“GetArtUp,” “we,” “us,” or “our”). These Rental Terms establish the terms and conditions under which You may rent art (each a “Product”) and receive related services (“Services”) from GetArtUp via our website at www.getartup.com (the “Site”).
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THESE RENTAL TERMS. BY CLICKING ON THE “I ACCEPT” BUTTON OR ORDERING ANY PRODUCTS, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE RENTAL TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE RENTAL TERMS, DO NOT CLICK THE “I ACCEPT” BUTTON AND YOU WILL NOT BE PERMITTED TO RENT THE PRODUCTS.
We will assume that You are enjoying a Product unless we hear otherwise from You, so You agree that we may automatically renew your rental on a month-to-month basis and automatically charge You the Rental Fees for such renewal using the credit card associated with Your rental at the beginning of each month.
a. Delivery to You. We will deliver the Products You requested within 30 days of Your order, unless we inform You in connection with Your order that the specific Product is not available. Our liability to You for failure to deliver the Product as ordered is limited to the timely delivery of the Product as ordered or a refund of the Rental Fee or Purchase Price as determined by us. See Section 5(b) below.
b. Color Reproduction. We make efforts to display our products and their colors as accurately as possible, but Products may appear different in color and texture than the photos displayed on our Website. The Products will be professionally evaluated in our sole discretion for any damage prior to delivery, which will be recorded by GetArtUp.
c. Returns. With delivery of the Product, we will provide contact information to be used to arrange for the return transportation of the Product after the rental period. Either You or GetArtUp can request that the Product be returned to us at any time by notifying the other party. The Product will be picked up, or return packaging will be provided, within 30 days of notification at no additional fee to You. You will be responsible for all Rental Fees accrued up until the date the Product is returned to us.
d. Purchases: If You at any time decide to purchase a Product you are renting and GetArtUp or the artist, as applicable, accepts your offer to purchase the Product, GetArtUp will deliver to You a signed Certificate of Authenticity upon receipt of payment from You of the Retail Value of the Product, and title to such Product shall pass to You pursuant to Section 4(d).
e. Services. On the Site, we may offer various Services to assist You in selecting a Product. Our Services are provided “AS IS” without any guarantee as to results.
f. Right of First Refusal. In the event you are the current renter of a Product and an offer to purchase such Product is made, we agree to use reasonable efforts to offer you the opportunity to purchase such Product at the offered price, under our standard terms and conditions. We will use reasonable efforts to hold this right of first refusal open for three days if the artist of the Product so permits us, but we cannot guarantee that we can offer you this right. If you decline to purchase the Product or we cannot offer you this right of first refusal, you agree to make the Product available for pick-up by us or to return the Product to us using the return packaging that we provide to You as soon as possible, and in all cases within 15 days of our notification to you that an offer to purchase such Product has been made. We will not be liable to You or to any third party in the event we or a third party sells a Product currently in Your possession.
a. Receipt of the Products. Risk of loss for any Product that You rent from us transfers to You upon the earlier of delivery of such Product by us to you or to a common carrier or other delivery service. You acknowledge that a Secure Shipping Address (defined below) is highly recommended. A “Secure Shipping Address” is a location where an individual can physically receive Product(s) upon delivery. GetArtUp does not bear liability for any Products left unattended upon and after delivery to the address You specify when You place Your rental order. Furthermore, You acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which You, and not GetArtUp, will be responsible.
b. Use of the Products. You agree to treat each Product with great care, as if it was borrowed from Your close friends or family. You are responsible for loss or damage to the Products due to theft, mysterious disappearance, fire, major stains or any other cause, including any alterations or modifications to a Product, other than ordinary wear and tear; provided that you will not be responsible for scratches, minor damage to frames, damage to hanging devices, small tears and other minor damage covered by any insurance You paid for with Your rental of the applicable Product (which shall also be deemed to be “normal wear and tear” as used herein). If You return a Product that is different from the Product we provided to You, including any Product that we, in our sole discretion, consider damaged beyond normal wear and tear, then You agree that we shall charge You, and You shall pay, the lesser of (a) the price for repairing the Product, as determined in our discretion, and (b) the Retail Value for the Product at the time such Product is returned.
c. Continued Rental. You agree to continued payment of the Rental Fee on a monthly basis until You notify GetArtUp of Your Rental termination and the Product is returned to GetArtUp, or You notify GetArtUp of your decision to purchase the Product and GetArtUp receives payment from you of the Retail Value for such Product. Upon notification of a Rental termination, You agree to make the Product available for pick-up by GetArtUp within 15 days.
d. Payment of Retail Value. We will not charge You an amount greater than the Retail Value at the time of damage for any charges arising under this Section 4, excluding collection costs. If You elect to purchase any Product that You are currently renting, Your notification to us of Your desire to purchase such Product shall constitute an offer to purchase such Product, as described in the Terms. If we accept Your offer, You agree to pay us the full Retail Value for such Product and, upon our receipt of Your payment, title to such Product shall pass to You pursuant to the Terms and these Rental Terms. For the avoidance of doubt, any Rental Fees that You have paid us will not apply to the purchase price or other amounts You owe to us pursuant to this Section 4. If You pay us the full Retail Value under this Section 4, including but not limited to payments for any damage to the Product under Section 4(b), and You still possess the Product, the Product is Yours to keep, on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this Section 4(d) shall not apply to the Rental Fee, which is charged separately from, and in addition to, any charges for the Retail Value pursuant to this Section 4.
e. Collections. If You do not pay the amounts You owe to us when due, then we will need to institute collection procedures. You agree to pay our costs of collection, including without limitation reasonable attorneys’ fees, if You do not pay amounts owed hereunder when due. Any amounts not paid when due shall bear interest at the lower of the rate of 1.5% per month or the maximum rate permitted by law.
f. Removal. We reserve the right to terminate Your right to rent Products from us at any time in the event of Your breach of these Rental Terms or for no reason or any other reason in our sole discretion.
a. Limited Warranty. We use reasonable efforts to ensure that the Products are the original work of the stated artist. The foregoing warranty and the limited warranties in Section 3 apply only to You, may be acted upon only by You, and may not be assigned, sold or transferred to any third party. No other warranties are granted other than as set forth in this Section 5(a) and in Section 3. Our warranty herein shall not apply to any matters arising from violation of Your commitments set forth in Section 4 of these Rental Terms.
b. Remedies. Your sole and exclusive remedy and GetArtUp’s sole and exclusive liability for a breach of GetArtUp’s limited warranty shall be, at GetArtUp’s option, for GetArtUp to use commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of Your Rental Fee (excluding insurance fees, if applicable, and delivery charges).
c. Disclaimers. THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT) WITH RESPECT TO THE PRODUCTS, THE SERVICES RELATED THERETO OR THE USE OR RESULTS OF THE PRODUCTS OR SERVICES.
a. No Indirect Damages. IN NO EVENT SHALL GETARTUP (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS OR LOSS OF USE DAMAGES, ARISING OUT OF THE SITE OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF GETARTUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
b. Limited Direct Damages. GETARTUP’S (AND ITS SUPPLIERS’ AND LICENSORS') AGGREGATE LIABILITY ARISING OUT OF ANY PRODUCTS OR YOUR USE OF THE SITE OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE APPLICABLE RENTAL FEES PAID BY YOU FOR THE APPLICABLE PRODUCT AND/OR SERVICE.
c. Use of Results at Your Risk. YOU ASSUME SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES OF YOU OR ANY THIRD PARTY ARISING FROM USE OF THE SITE, THE SERVICES OR ANY PRODUCT.
a. Changes. We reserve the right to change the terms of these Rental Terms, including the Rental Fees associated with any Product you are currently renting, at any time and any such changes will apply to the rental of any Products after the date of such change. Any changes affecting a Product you are currently renting will take effect 30 days after we provide you notice of such change by sending an email to the email address you have provided to us.
a. Governing Law. These Rental Terms are governed by the federal laws of the United States and the laws of the State of California, excluding its choice of laws principles. The rights and obligations of the parties under these Rental Terms shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sales of Goods, as amended. You agree that, by entering into these Rental Terms, to the extent permitted by applicable law, You and GetArtUp are waiving the right to a trial by jury.
d. No Waiver. If any part of these Rental Terms is held invalid, illegal or unenforceable, such part will be construed consistent with applicable law. The remaining provisions of these Rental Terms will remain in full force and effect. Any delay or failure to require performance of any provision by GetArtUp will not constitute a waiver of any of GetArtUp’s rights and will not impede GetArtUp’s ability to enforce that or any other provision in the future.
e. Survival. Notwithstanding any other provisions of these Rental Terms, or any general legal principles to the contrary, any provision of these Rental Terms that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Rental Terms.
f. Force Majeure. GetArtUp shall not be liable for failure to perform any of its obligations hereunder by reason that are beyond its reasonable control, including, without limitation, fire, earthquake, interruptions in supply, other natural disasters, war, embargo, riot or acts of terrorism.