TERMS OF SALE or LICENSE |
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This document contains many important provisions that affect your rights and obligations. This Terms of Sale or License Agreement (the "Agreement") governs the terms and conditions for purchase of goods and services and the license of images which Customers of Partridge Garcia Group, Inc. obtain through the web site located at www.DrPriscilla.com (the “Site”). In the event of any inconsistency between this Agreement and the Site Terms of Use Agreement (both of which are incorporated into this Agreement by reference), the terms of this Agreement shall govern. 1. Definition of Terms In this Agreement: (i) "you" or the "Customer" means you or, if you are accepting on behalf of your employer or account entity, then "you" and "Customer" mean that employer or entity and affiliates; (ii) "PGGI" or "we" means Partridge Garcia Group, Inc., operator of the Site; and (iii) "Content" means any image or in any media displayed or purchased via the Site, together with any accompanying material. 2. Copyright Notice All Content on the Site is owned by PGGI. All products sold and Content licensed via the Site are protected by United States and International copyright laws and may not be reproduced or used in any manner without the express written permission of PGGI. 3. Payment You agree to pay for the goods and shipping of goods you ordered via the Site. You agree to pay a license fee for obtaining the right to use Content downloadable ("Downloadable Products") via the Site. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement. Prices for existing Artwork and Self-Help products and shipping are shown on the Site’s product pages and provided on the electronic invoice generated in the Site store shopping cart. Should you wish to commission SodaPop a.k.a. Priscilla Partridge de Garcia to create new watercolor image, please contact us via email or telephone at +1 (805) 985-1697. 4. Shipped Products Restrictions of Use You may not reproduce, modify, adapt, translate, or create derivative works based on Self-Help products and artwork images created by Divine SodaPop, a.k.a.., Dr. Priscilla Partridge de Garcia, contained in Giclees, Stationery and other Gift products purchased through this Site without express written permission of Dr. Priscilla Partridge de Garcia. 5. Downloadable Products Restrictions of Use (a) Permitted uses of Licensed Content. Downloadable Products contain proprietary Content that is the property of PGGI. PGGI, grants you, a non-exclusive right to use and display an electronic copy of the Content on a single computer (i.e. with a single CPU) at a single location. Licensor reserves all rights not expressly granted to you herein. PGGI retains all title and ownership of the Content, regardless of the form or media in or on which the original and other copies may exist. The License is not a sale of the Content. Subject to the restrictions described under Prohibited Uses in Section 5(b) below, the following are “Permitted Uses” of Content:
(b) Prohibited Uses of Licensed Content. You may not do anything with the Content that is not expressly permitted in Section 5(a) above or permitted by an Extended License. Prohibited Uses include, but are not limited to the following:
(c) Any use of the Content that is not a Permitted Use shall constitute infringement of copyright. (d) If there is any doubt that a proposed use is a Permitted Use, you should contact Partridge Garcia Group, Inc.'s Customer Relations for guidance. 6. Excess Reproduction Run of Licensed Images In the event you contravene subparagraph 5(b)(12) above without purchasing a License, you further agree to notify PGGI in the event that you (or a combination of you and others involved with you) reproduce the Content, or an element of the Content in excess of 250,000 times. Such disclosure notice must be sent to PGGI each and every month after which the Content, or an element of the Content, has been reproduced in aggregate over the term of this Agreement in excess of 250,000 times. Each such notice must contain the number of reproductions made in any particular month, provided however the first such notice will only be require disclosure of those reproductions which are in excess of 250,000. PGGI shall invoice you for the fees associated with such excess use and you agree to pay such invoice within 30 days of receipt. 7. Risk Of Loss All items purchased from DrPriscilla.com are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery of goods to the carrier. 8. Return Rights If your order should damaged, please pack item(s) for return in the original package and include the completed Return Instructions form which you will find on the back of the Packing List included with your order and ship to us within 10 days of receipt. Be sure to specify the reason for the return and what action you would like us to take: replacement or refund. We strongly encourage you to return your item via a traceable method. 9. Disclaimer We are not liable for any financial damage (including but not limited to the cost of any replacement purchase) that may occur because of non-timely arrival or any lack of availability or conformity of the product. 10. Term of Agreement This Agreement is effective until it is terminated. 11. Termination of Agreement (a) You can terminate this Agreement by destroying the Content and any Permitted Derivative Works, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from PGGI if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to PGGI in writing that you have complied with these requirements. (b) Upon notice from PGGI, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which PGGI may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your Customers, printers or ISPs do likewise. PGGI shall provide you with replacement Content (which shall be determined by PGGI in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement. 12. Representations and Warranties (a) PGGI warrants that: (i) your use of the Content in accordance with this Agreement and in the form delivered by PGGI will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained. (b) Other than as expressly provided in Section 12(a), the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to the implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. PGGI does not represent or warrant that the content will meet your requirements or error free. The entire risk as to the quality and performance of the content is with you. Should the content prove defective, you (and not PGGI) assume the entire risk and cost of all necessary corrections. In particular and without limiting the generality of the foregoing, if you are downloading content, except as expressly provided in Section 12(a), PGGI makes no representation or warranty respecting such content whatsoever, whether as to ownership, technical or legal compliance, or otherwise. (c) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction. 13. Indemnification and Limitation of Liability (a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement, and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 12(a) above, PGGI shall, subject to the terms of Sections 13(b), (c), (d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 12(a) above. The foregoing states PGGI’s entire indemnification obligation under this Agreement. (b) The indemnification set out in Section 13(a) above is conditioned on your prompt notification in writing to PGGI of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with PGGI in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. PGGI shall not be liable for legal fees and other costs incurred prior to the notice of the claim. (c) In no event shall PGGI or any of its affiliates or content providers or their respective directors, officers, employees, shareholders, partners or agents be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this agreement, including without limitation your use of, reliance upon, access to, or exploitation of the content, or any part thereof, or any rights granted to you hereunder, even if we have been advised of the possibility of such damages, whether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise. No action, regardless of form or nature, arising out of this agreement may be brought by or on behalf of you more than two (2) years after the cause of action first arose. (d) Notwithstanding anything else in this agreement, the total maximum aggregate liability of PGGI under this agreement and any other agreement under which you have purchased or licensed the same content, regardless of dimension, media, use or exploitation of any or all of the content in any manner whatsoever and the obligation of PGGI under Section 12(a) shall be limited to an aggregate of ten thousand ($10,000) us dollars. For greater clarity, PGGI’s liability to you in respect of the content shall not exceed ten thousand ($10,000) us dollars regardless of the number of times that you license the same content from PGGI. (e) Certain jurisdictions do not allow for the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. 14. Your Indemnification You agree to indemnify, defend and hold PGGI, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “PGGI Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and Customer basis) incurred by any PGGI Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement. 15. General Provisions (a) In the event PGGI determines, in its sole discretion, that you have violated these Terms, PGGI shall have the right to immediately terminate your account, rescind use rights of Content licensed, cancel sales of undelivered items purchased, and/or pursue any other remedies available to it under applicable law. (b) PGGI’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. (c) This Agreement is personal to you and is not assignable by you without PGGI’s prior written consent. PGGI may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms. (d) This Agreement, and the respective rights and obligations of the parties hereto, shall be governed under the laws of the State of California and the federal laws of the United States applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be the commercial arbitration rules of the American Arbitration Association. The arbitration shall take place in the County of Ventura, State of California, and shall be conducted in the English language. (e) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision. 16. Contact If you have concerns relating to this Agreement, please contact Partridge Garcia Group, Inc. by email at service@DrPriscilla.com or via phone at +1 (805) 987-1697. 17. Acknowledgement By selecting the box in front of the "I agree to these Terms and Conditions" statement at the bottom of the Site store shopping cart order confirmation webpage which links to this Agreement, you signify your acceptance of the Agreement and agree to be bound to these terms of sale ("Terms") and to comply with all applicable laws and regulations. If you are accepting on behalf of your employer or the entity that is identified as the account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not complete the transaction. |
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