User Agreement & Conditions of Sale
Welcome to the Wiscasset Bay Gallery website. The purchase of a work of art is an important transaction – it brings beautiful art into your life to see and to enjoy and to own – and like any commercial transaction, is governed by law. If what follows seems legalistic, well, it was written in the language of the law.
The website, wiscassetbaygallery.com (the “Site”), is owned and operated by the Wiscasset Bay Gallery, Inc, (dba Wiscasset Bay Gallery) a Maine corporation (“Wiscasset Bay Gallery” “Gallery” “Us” or “We”). These terms and conditions (“Terms”) govern your (“User” or “You”) use of and conduct on the Site. Should you purchase any item(s) on the Site, the conditions of sale beginning, principally, at Clause 4 (referred to as the “Conditions of Sale”) shall govern your transaction as prospective purchaser and buyer (collectively, “Buyer” or “You”).
1. The Site.
The Site provides an online marketplace for us to offer works of art to prospective Buyers and is governed by this User Agreement and the Conditions of Sale.
3. Eligibility to Use the Site.
Users must be 18 years of age or older to use this Site.
CONDITIONS OF SALE
4. Relationship of the Parties.
(a) The Gallery is responsible for accurately describing and pricing the Items it is offering for sale and for delivering the Items to you in accordance with the arrangements made between you and the Gallery.
(b) The Buyer is solely responsible for determining the value, condition and authenticity of the Items being purchased and to pay the purchase price to the Gallery, including shipping of the item(s) purchased as we further define in subsequent paragraphs.
5. Items Available on the Site.
(a) All Items displayed on the Site are offered for sale subject to availability.
(b) The Site is designed to provide the Buyer access to Items as the gallery presents them.
6. The Sale Process.
(a) When you identify an Item for purchase, please submit the necessary valid payment information to the Gallery for payment of the Purchase Price. The “Purchase Price” is defined as the price agreed to between you and the Gallery and includes: (i) the final, agreed upon price of the Item (the “Purchase Price”); (ii) any applicable shipping fees; and (iii) Maine sales tax if applicable. By paying for the work of art, you irrevocably agree to pay the Purchase Price and the Gallery agrees to sell the Item for the Purchase Price to you.
(b) The sale takes place between you and the Gallery when the Gallery provides to you a confirmation of sale (“Order Confirmation”). At this point, a binding contract between the Gallery and you with respect to the sale and purchase of the Item is created.
(c) Notwithstanding anything to the contrary contained herein, in the event of an error by us as to availability of the Item, or any other error on our part with respect to an “Order Confirmation” or the operation of the Site, we reserve the right in our sole and absolute discretion to rescind the “Order Confirmation” and rescind the purchase of the Item without penalty to any party.
(d) Due to the nature of the internet, occasional glitches, service interruptions or mistakes may cause unintended inaccuracies to appear on the Site. The Gallery has the right to correct any inaccuracies or mistakes and to void any purchase of an Item that displays an inaccurate price or description once brought to our attention.
7. Payment for Purchased Items.
(a) Immediately upon receipt of the Order Confirmation, you shall remit an amount equal to the full amount (100%) of the Purchase Price.
(b) You hereby irrevocably authorize the Gallery upon “Order Confirmation” to charge your credit card or other payment methods for an amount equal to the Purchase Price.
8. Taxes and Duties.
You are entirely responsible for paying all applicable sales and use taxes, VAT, export and/or import taxes and duties and all transactional taxes or levies related to each Item purchased (collectively, “Taxes”). You must determine, pay, collect, remit and report to the appropriate taxing authority the correct amount of all export and/or import taxes or duties payable upon export of the Item outside of the United States, it is your sole responsibility to establish and/or document any applicable exemption from Taxes.
The Gallery will arrange for packaging, shipping and insurance and shall provide shipping information including the name of the freight carrier, the complete cost of shipment from the Gallery in Wiscasset, Maine to your designated receiving address. You and the Gallery shall mutually agree on shipment terms and you shall prepay all shipment costs.
10. Import/Export Restrictions.
(a) Some Items offered for sale on the Site may require cultural, customs and/or permits for export from the United States and/or import into your country. Items may also be subject to a right of the country from which they are exported to purchase the Items from you the Buyer. The Gallery makes no representation, gives any warranty or shall have any liability to you in respect of the requirement for, or the availability, or issuance of valid export or import permits or the existence or exercise of preemption rights to purchase by governmental or regulatory authorities anywhere.
(b) If the listing of any Item on the Gallery’s Site states that the Item requires a special permit, or if such requirement is disclosed after the Order Confirmation but before the shipper picks up the Item, or if the Buyer first learns that an export permit is required after the Item has been picked up by the shipper, and the Gallery is unable to obtain the export permit within thirty (30) days after the letter of confirmation of the sale or disclosure of the requirement for the export permit, then the Buyer may rescind the sale of such Item by giving written notice to the Gallery within seven (7) business days after expiration of the applicable thirty (30) day period. In no event shall the Buyer be entitled to rescind a sale more than ninety (90) days after the date of the sale.
(c) If the sale is rescinded, the Buyer shall return the Item to the Gallery at the Buyer’s cost unless otherwise agreed. Upon such return, the Gallery shall return to the Buyer the Total Purchase Price. This limited right of rescission is not assignable and belongs solely to the Buyer of record.
11. Transfer of Title/Risk of Loss.
(a) The Wiscasset Bay Gallery guarantees the Gallery (i) is the sole owner of such Item, or is duly authorized by the owner to sell the Item; and (ii) will convey good and marketable title of such Item to the Buyer following payment of the Purchase Price for the Item free and clear of any ownership claims by third parties.
(b) Risk of loss and title for such Item passes to the Buyer upon the Buyer’s receipt of the Item.
12. Sales are “As-Is”.
(a) All Items displayed on the Site are sold “As-Is”, “With All Faults”.
(b) Any agreement between you and the Gallery shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
(c) The provisions of the Commercial Agents Directive (86/653/EC) as implemented in any European jurisdiction (for example, in the UK via the Commercial Agents Regulations 1993) are expressly excluded from these Terms and our agreement. By placing orders via the Site, Buyers select and purchase goods solely of their own initiative.
13. Expert Review.
If you purchase an Item based in whole or in part on its stated provenance, designer or creator, you may at your option and at your own cost arrange with the Gallery to have your selected expert review the Item prior to purchase. Selection of the expert is your sole responsibility. Any arrangements for inspection shall be made between you and the Gallery. You expressly acknowledge that your use and/or reliance on any expert is at your own risk and cost.
14. Remedies for Non-payment.
(a) If for any reason you cancel payment made by credit card or any other means following receipt of the Order Confirmation, or you otherwise fail to make any payment with respect to the Purchase Price (“Default”), then you shall remain liable to the Gallery for the Purchase Price in full, as well as any additional costs related to the sale of the Item, including but not limited to applicable taxes, storage and handling fees and any incurred costs or fees associated with collection of any amount due to the Gallery including but not limited to legal fees and costs related to currency fluctuations.
(b) Without limitation to any other provision of these Terms, in addition to any other remedies at law or equity, the Gallery reserves the right, at its election, to retain any and all payments paid by you prior to Default with respect to the Item as liquidated damages, and to cancel the sale of the Item without any further obligation to you.
15. Right of Cancellation. [European Union]
(a) This subsection applies where: (i) the EU Consumer Rights Directive (2011/83/EU) as implemented into national law in the various EU jurisdictions, applies to a consumer based in the European Union (“EU Consumer”); and (ii) none of the express exclusions set forth below apply. Where this subsection applies, the EU Consumer has the right to cancel its order without giving reason within 14 days from the day on which the EU Consumer or its designated recipient receives an Item (“Cancellation Period”). The EU Consumer must inform the Gallery of its decision to cancel the order in writing (including by email to email@example.com) within this period. The Gallery will refund all payments received from the EU Consumer for the Items purchased and the EU Consumer shall incur no fee as a result of such refund. Any refund may be withheld until the Gallery has received the Items back from the EU Consumer. The EU Consumer must send back the Item following the instructions of the Gallery (but in all cases the EU Consumer will be given at least fourteen (14) days to return the Item from the date of cancellation), and the EU Consumer will be required to bear the cost of returning any Item to the Gallery. The Gallery may make a deduction from the refund for loss in value of the Item returned due to the EU Consumer’s handling of the Items beyond what is necessary to establish the nature, characteristics and functioning of the Item.
(b) To exercise this right of cancellation, an EU Consumer must send written notice during the Cancellation Period to EU Consumer Rights, Wiscasset Bay Gallery Inc, PO Box 309, Wiscasset, ME 04578 or email us at firstname.lastname@example.org with the subject line “EU Consumer Rights.” The notice should state your name, residential address, contact details and email address, invoice number, Item Number, date of delivery to your possession, and that you wish to exercise the EU Consumer Rights Directive right of cancellation.
16. Refusal of Transaction.
The Gallery reserves the right to withdraw any Item from the Site, to amend any content on the Site, or to refuse service to anyone at any time in its sole discretion. The Gallery will not be liable to any User or Buyer or any other third party because it has withdrawn any Item from the Site, amended any of the content or denied access to the Site.
17. Copyright. Notice-and-Take-Down Procedures.
(a) The Gallery will publish on the Site various text, pictures, images, audio recordings, and video that have appropriate license for publication.
(b) The Gallery responds to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act (DMCA). If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Gallery with the following written information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your name, address, telephone number, and email address; (v) 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; and (vi) 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. We can be reached as follows: Wiscasset Bay Gallery Inc, PO Box 309, Wiscasset, ME 04578. If you become aware that material appears on this site in violation of a copyright please notify us by mail at the aforementioned address or by email us at email@example.com. We maintain a log of DMCA notices, act on same, and have adopted and implemented a policy.
18. Proprietary Rights.
(a) The Gallery is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
(b) Except as otherwise provided herein, use of the Site does not grant you a license to use any Content, features or materials you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by the Gallery. If you make use of the Site, other that as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site.
(c) The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.
(d) Product names, logos, designs, titles, graphics, words or phrases may be protected under law as the trademarks, service marks or trade names of the Gallery.
(e) Without our prior written permission, you agree not to display or use our trademarks, service marks, trade names, other copyrightable material or any other intellectual property in any manner.
(f) All images created or produced or modified by the Gallery are the sole property of the Gallery. The Gallery may use any such images to promote the Site or for any other purpose at any time without restriction.
19. Third Party Sites.
(a) Users may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by the Gallery in any way and the Gallery or its agents or employees are not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply our endorsement of, or association with, the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall we be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that website’s administrator or webmaster.
(b) Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
20. Consent to Processing.
(b) We control and operate the Site from our offices in the United States of America, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in locations outside the United States. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
(c) Users agree to comply with all applicable laws, rules and regulations in connection with their use of the Site. The Site may be used only for lawful purposes and in a lawful manner. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside as well as the restrictions on import or export of Items from the United States to your country.
21. Site Unavailability.
(a) You acknowledge that temporary interruptions in the availability of the Site may occur from time to time as normal events.
(b) We may decide to cease making available the Site or any portion of the Site at any time and for any reason. Under no circumstances will the Gallery be held liable for any damages due to such interruptions or lack of availability.
22. Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or relating to these Terms, or its breach, which cannot be resolved between the parties through reasonable negotiation shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Rules. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other party.
(b) The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with these Terms. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. The arbitrator shall render the award in writing and will include the findings of fact and conclusion of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing party (should there be one) in any such arbitration.
(c) Waiver of Jury Trial; Individual Basis; Equitable Relief. The parties surrender and waive the right to submit any dispute to a court or jury, or to appeal to a higher court. The parties agree to arbitration on an individual basis. Where enforceable, neither party shall be entitled to join or consolidate claims by or against the Gallery, or arbitrate any claim as a class representative, class member or in a private attorney general capacity. Unless both parties agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims, and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Site Users or the Gallery If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
(d) Notwithstanding the foregoing, nothing in these Terms shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient.
(e) The place of arbitration shall be Portland, Maine, USA, and the proceedings shall be conducted in the English language. These Terms shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall follow the law and judicial precedents that a United States District Judge would apply to the dispute.
23. Choice of Law.
These Terms, and any dispute arising therefrom, shall be governed by and in accordance with the laws of the State of Maine without regard to conflicts of law.
Any notices shall be given by postal mail addressed to the Wiscasset Bay Gallery, Inc, PO Box 309, Wiscasset, ME 04578.
25. General Information.
If any provision of these Terms is deemed unlawful, void or for any reason unenforceable, such provision(s) will be deemed severable from the rest of the Terms and will not affect the validity and enforceability of the rest of the Terms. Failure of the Gallery to exercise any rights or remedies will not constitute a waiver of any rights or remedies available to the Gallery under these Terms or at law. These Terms represent the entire agreement between Users and the Gallery and supersede and replace any other agreement between the parties including but not limited to any previous Terms as they may have applied between Users and the Gallery. Paragraph headings are for convenience only and not for interpretation of these Terms.
26. Contact Us.
To contact us with any questions or concerns in connection with these Terms, or the Site, please write to us at: Wiscasset Bay Gallery Inc, PO Box 309, Wiscasset, ME 04578.
27. Effective Date.
These Terms are effective as of May 1, 2021.