Terms & Conditions
Welcome to the RAREculture, Inc. (“RAREculture”) Web site located at www. RAREculture.com (the “Site”). The following terms and conditions (the “Terms”) govern your use of this Site. By accessing, viewing, or using the content, material, or services available on or through the Site, whether as an end user or an artist selling merchandise on the Site, you indicate that you have read and understand these Terms, that you agree to them and intend to be legally bound by them. If you do not agree to these Terms, you are not granted permission to use the Site and must exit immediately. If you are under the age of 18, you are not permitted to make any purchases through the Site. In all events, if you are under the age of 13, you do not have permission to use this Site for any purpose.
The artists and designers whose merchandise is sold on the Site will attempt to provide purchasers with merchandise that conforms to the image and description of the merchandise on the Site; however, please be aware that most merchandise sold on the Site is handmade, so that each is unique and inevitably will vary to some degree. The artists and designers will do their best to replicate the item ordered, but no two products will ever be exact — this is what makes our collection RARE.
YOU UNDERSTAND THAT ALL PRODUCTS, SERVICES AND INFORMATION THAT YOU MAY HAVE ACCESS TO AS PART OF, OR THROUGH YOUR USE OF, THE SITE ARE THE SOLE RESPONSIBILITY OF THE PERSON FROM WHICH SUCH PRODUCTS, SERVICES AND INFORMATION ORIGINATED. Without limiting anything herein, RAREculture makes no representations or warranties, and disclaims all representations and warranties, products, services and information on, in and made available through the Site, including merchantability, safety or quality.
1. Registration. You are free to browse the Site without registering or creating an account; however, if you wish to make a purchase through the Site or access features of the Site that are available only to registered users, you will have to register and create a user account. Regardless of whether you register and create an account, your use of the Site for any purpose constitutes your acceptance of, and agreement to, these Terms. As part of the registration process, you must click to agree to these Terms, and will then be asked to select a user name and password. You may be required to provide RAREculture with certain information about yourself including some types of personally identifying information such as your email and your location. You are fully responsible for your account, including use of the account by any third party and maintaining the confidentiality of your password. You may terminate your account at any time by contacting us through our contact page. If you are an artist or designer and would like to submit your merchandise for sale on the Site, please visit our Artist Submission Page — in order to submit your merchandise, you will be required to register as an artist, create an artist account, and accept the Artist Submission Agreement.
2. Proprietary Rights. As between any user and RAREculture, RAREculture owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components, audio clips, video clips, software and software concepts and documentation and other material on, in or made available through the Site (“Site Material”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material. All Site Material is protected pursuant to United States copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between any user and RAREculture, all names, trademarks, service marks, certification marks, symbols, slogans or logos appearing on the Site are proprietary to RAREculture or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site, other than the right to use the Site in accordance with these Terms.
3. Purchases from Site Artist.
(a) Artists selling merchandise on the Site are not employees, agents, independent contractors, subcontractors, consultants or involved in any employment relationship with RAREculture. RAREculture is not an agent of any artist (except for the limited purpose of collecting payment from purchasers of merchandise on the Site).
(b) Artists selling Merchandise on the Site are individuals or entities who sell certain custom, handmade or personal items, or other merchandise to the public through the Site. RAREculture’s policy is to screen and approve all merchandise that is offered for sale on the Site to ensure a high-end, professional Site-user experience, however, please understand that RAREculture cannot make any guarantees or warranties about the merchandise because (i) RAREculture’s screening and approval process part relies in part upon representations made by the artist about the merchandise, (ii) RAREculture is not the manufacturer of any merchandise, (iii) RAREculture does not test the merchandise, and (iv) RAREculture may not be able to inspect every item of merchandise prior to shipment. Please be advised that all orders are subject to the Artist’s production capabilities. RAREculture will assist in your assessment of merchandise by answering your questions about the merchandise to the best of its ability, based on information obtained from the artist and, if necessary, will forward your questions to the artist for a response.
(c) Your interaction, through the Site, with any registered users or artists selling merchandise on the Site, including payment and delivery of products or services, and any other terms, conditions, warranties or representations associated with such dealings, is solely between you and such user or artist. If you make a purchase through the Site, the purchase and sale will constitute an agreement between you and the independent artist and shall not be a contract between you and RAREculture, although RAREculture will process your payment for the transaction pursuant to its agreement with the artist and will facilitate all communication between you and the artist. The terms of that contract will be the terms stated in the listing of the merchandise on the Site. RAREculture does not transfer legal ownership of goods from the artist to any purchaser and RAREculture cannot ensure that an artist will actually complete a transaction. If you have a dispute with an artist relating to any purchase made through the Site, RAREculture will use reasonable efforts to facilitate communication between you and the artist in an effort to resolve the dispute, but RAREculture will have no responsibility for any conduct by or inaction of any artist in connection with that dispute. RAREculture is not responsible for, and expressly disclaims any liability for assisting artists or users of the Site with regard to such disputes and RAREculture will not make judgments regarding legal issues or claims.
(d) In addition to the purchase price for any merchandise purchased through the Site, you will be responsible for the cost of shipping and handling, shipping insurance. taxes, customs and landing fees, and other similar fees and taxes. The listing for the particular merchandise on RAREculture will include a description of the shipping options and estimated costs, but actual costs may vary.
4. Payment. By purchasing products posted on the Site, you represent that you are eighteen (18) years of age or older. Payment for each purchase may be made in the manner described on the Site with respect to the particular merchandise (which in most cases will include, at a minimum, payment by most major credit cards). Your credit card is charged at the time your order is placed. When ordering please note that production and delivery times vary; is included in the product description. You are responsible for all charges incurred under your account, whether made by you or another person using your account. If for any reason RAREculture does not receive payment for a purchase, RAREculture may take action at law and/or in equity to collect said payment, including without limitation: (a) immediately suspending or terminating your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against you for the breach of these Terms. You are also responsible for paying any governmental taxes imposed in connection with use of the Site, including sales, use or excise taxes (excluding any taxes on RAREculture’s net income). To the extent that RAREculture is obligated to collect such taxes, the applicable tax will be added to your billing account.
(a) Except as stated herein, all payments for merchandise purchased through the Site are non-refundable.
(b) Users may cancel an order made through the Site only within the first twenty-four (24) hours after the order was placed. After that, orders may not be canceled.
(c) RAREculture’s policy is not to accept returns or issue refunds or exchanges because we stand behind the integrity and craftsmanship of our artists, designers and merchandise. That said, within the first seven (7) days after your receipt of merchandise purchased through RAREculture (other than custom-commissioned merchandise, see (e) below) we will be happy to discuss any concerns you have about your purchase and work with you in an effort to address those concerns. RAREculture reserves the right to determine, in its sole discretion, whether the particular circumstances warrant a return, exchange, and/or refund. Returning an item because it is not quite what you had envisioned is not allowed —most merchandise sold on the Site is handmade, so that each is unique and inevitably will vary to some degree. If the item you receive is not the item you ordered, however, or if the item is defective, please let us know within the first seven (7) days and we will contact the artist promptly to correct the error.
(d) RAREculture is not responsible for normal everyday wear and tear.
(e) Due to the availability of shipping insurance, absent exceptional circumstances, RAREculture generally will not authorize returns based on damage to merchandise during shipment, so you should be sure to purchase shipping insurance when placing your order. Please contact RAREculture within forty-eight (48) hours of your receipt of any merchandise damaged during shipping and we will be happy to assist you in filing your claim with the shipper. Be sure to keep all the original packaging, so that the shipper’s insurance adjuster can inspect it if necessary.
(f) Items that are custom-commissioned (i.e., where the artist begins production only upon receiving the order) generally will not be subject to return, exchange or refund for any reason.
(g) In all events, the purchaser will be responsible for all costs associated with any returns, refunds, or exchanges (such as repackaging costs, shipping & handling, shipping insurance, etc.).
6. Unauthorized Activities. You agree that you will not use the Site for (a) any illegal or unauthorized purposes that violate any laws (including import, export and copyright laws); (b) modifying, adapting or hacking into the Site or for modifying another website so as to falsely imply that it is associated with RAREculture; (c) uploading, posting, hosting, or transmitting unsolicited email, SMSs, “spam” messages, worms or viruses or any code of a destructive nature; (d) contacting any other user of the Site who has requested not to be contacted; (e) stalking or harassing anyone; (f) posting non-local or otherwise irrelevant User Content (as defined below) or otherwise imposing an unreasonable or excessively great amount of User Content on the Site; or (g) attempting to gain unauthorized access to RAREculture’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site. You further agree not to modify, distribute, copy, exchange, disseminate, archive, reproduce, transmit, publicly display, publicly perform, broadcast, retransmit, publish by hard copy or electronic means, adapt, edit, compile or create derivative works of the Site Material or otherwise use the Site Material in any way for any purpose without prior written approval from RAREculture. You may not frame, capture, harvest, collect, or create hypertext or other links or connections to any part of the Site or Site Materials without RAREculture’s prior written consent. You may not use the Site to direct purchasers to another online selling venue in order to purchase the same items as listed on the Site, including posting direct links or the necessary information to locate other online venues, as such activity would constitute avoidance of applicable fees. You acknowledge and agree that the unauthorized use of the Site Material could cause irreparable harm to RAREculture and that in the event of such unauthorized use, RAREculture shall be entitled to an injunction in addition to any other remedies available at law or in equity.
7. Materials Submitted to the Site. The Site may allow you to contribute content, information, text, files, graphics, personal listings, messages, ratings, postings, and other materials and information for access, use, and commentary by other users to the Site (“User Content”). Failure to comply with these Terms, or with any of RAREculture’s published policies, may result in immediate removal of any User Content. By posting User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Site and all other persons and entities will not (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) impersonate any person or entity or falsely state or otherwise imply an affiliate with a person or entity or is generally false, deceptive, misleading, deceitful, misinformative or constitutes a “bait and switch”; (e) be obscene, child pornographic, or indecent; (f) violate any community or Internet standard; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information, or that facilitate or enable such or that are intended to do any of the foregoing; (h) constitute misappropriation of any trade secret or know-how; or (i) constitute disclosure of any confidential information owned by any third party.
Upon your submission of User Content or other material or information to RAREculture, you grant RAREculture a worldwide, perpetual, non-terminable, irrevocable, transferable, license to access, use, distribute, perform, reproduce, display, modify, create derivative works based upon, and sublicense, and to permit others to access, use, distribute, perform, reproduce, display, modify and create derivative works based upon the User Content, all without any compensation to you whatsoever. RAREculture may refuse to post, and may remove any previously posted, User Content from the Site for any reason, including without limitation violation of any of the warranties provided in the preceding paragraph. RAREculture shall not be responsible for changes, modifications, or removal of any User Content that you submit to the Site. If you believe that any content or postings on the Site violate your intellectual property or other rights, please follow our Complaint Procedure in Section 14 of these Terms.
8. Third Party Web Sites and Content. The Site is available for informational purposes only. Parties other than RAREculture provide products, services or content on the Site, including the artists’ sales. Additionally, the Site contains links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. Use of the Site and the Site Materials and any other material or content on and made available through the Site is entirely at your own risk. RAREculture does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of third parties’ websites is at your own risk, and subject to the terms and conditions of such other websites. RAREculture does not endorse any product, service, or treatment provided on a third party website or advertised on the Site.
9. Privacy Statement. Any personal information that you provide to RAREculture on the Site is subject to our Privacy Statement. For more information, click here to view the Privacy Statement , which is incorporated into these Terms by reference, as if set forth fully herein. Please be advised that the confidentiality of any communication or material transmitted to RAREculture via the Site or Internet electronic mail cannot be guaranteed, including, for example, personal information such as your address or name. Alternatively, you may contact RAREculture by regular mail at [INSERT ADDRESS].
10. Disclaimer. RAREculture, its subsidiaries, and affiliates are not responsible for and do not guarantee the accuracy or completeness of any Site Material, User Content, products, services, links, advertisements or other items contained within the Site. RAREculture reserves the right to immediately remove any Site Material or User Content for any reason or for no reason. RAREculture cannot and does not review all communications or products made available on or through the Site, but, although not obligated to, may review, verify, make changes to or remove any User Content, Site Material, the Site or the products or services made available in connection with the Site, including registration information or profile information for a registered user or an artist, with or without notice in its sole discretion. You agree that you must evaluate and bear all risks associated with the use of Site Material or User Content and that you may not rely on such Site Material or User Content.
THE SITE, THE SITE MATERIALS, USER CONTENT, SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.” USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK.
RARECULTURE AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SITE, THE USER CONTENT, THE SITE MATERIALS, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEMS INTEGRATION, NON-INTERFERENCE, QUALITY, TITLE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS AND EFFORT WITH REGARD TO ANY AND ALL USER CONTENT, THE SITE, THE SITE MATERIALS, AND THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, IS WITH YOU.
11. LIABILITY. RARECULTURE AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SITE, THE USER CONTENT, THE SITE MATERIALS, THE SERVICES, PRODUCTS, INFORMATION AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR RARECULTURE HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF RARECULTURE AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH, BASED UPON, OR ARISING FROM THE SITE, USER CONTENT, THE SITE MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITE, OR THE SERVICES, PRODUCTS, INFORMATION OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE SITE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. If you are dissatisfied with the Site, or with any of these Terms, or feel RAREculture has breached these Terms, your sole and exclusive remedy is to discontinue using the Site.
12. Indemnification. You shall protect, defend, indemnify and hold harmless RAREculture and its affiliates, officer, directors, employees, advisors, representative,s, contractors, licensors, and representatives and agents (“Indemnified Persons ”) against any and all losses, costs, damages, fees, claims, causes of action, demands, or other liabilities (including attorney fees, costs of experts and other litigation costs ) (collectively, the “Claims”) incurred by or asserted against any of the Indemnified Persons by reason of or arising out of your use of the Site or services obtained through the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the User Content, the Site Materials, the services, products, information and other materials on, in and made available through the Site (except to the extent attributable to RAREculture), or any breach by you of these Terms. You may not settle any Claim without the prior written consent of RAREculture. RAREculture or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If RAREculture or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to RAREculture, subject to the right of RAREculture to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
13. Internet Security. RAREculture uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. RAREculture will use reasonable commercial efforts to minimize such disruption where it is within our reasonable control. You agree that we shall not be liable to you for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to RAREculture via the Site or the Internet, including, for example, personal information such as your name or address.
14. Complaint Procedures. If you believe that any content or postings on this Site violates your intellectual property or other rights, please fill out the complaint form on our contact page and send us a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.” RAREculture’s designated agent for receipt of notification of alleged copyright infringement, pursuant to the safe harbor provisions of the Digital Millenium Copyright Act, is RAREculture, attn: Dorothy Hemingway, [INSERT ADDRESS] or, by email to [copyright@RAREculture.com].
15. Changes to these Terms; Termination. RAREculture reserves the right at any time to modify, alter or update these Terms. Notice of any new or revised Terms, as well as the location of the new or revised statement, will be posted on the Site for at least twenty (20) days after the change. Your use of the Site following any changes means that you agree to follow and be bound by the terms as changed. Any change to these Terms shall be effective as to any visitor who has visited the Site before the change was made. It is the obligation of users visiting the Site before the change to learn of changes to the Terms since their last visit. RAREculture may suspend or terminate your account and/or your ability to use the Site or any services on the Site for failure to comply with these Terms, for providing RAREculture with untrue or inaccurate information about yourself, for infringement upon RAREculture proprietary rights, or for any other reason whatsoever or for no reason.
16. Governing Law and Jurisdiction. These Terms represent the entire agreement between you and RAREculture with respect to the subject matter hereof, and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. By accessing, viewing, or using the services, works, content, or materials on the Site, you consent and agree to (a) the exclusive jurisdiction of the federal and state courts located in New York City, New York; (b) accept service of process by personal delivery or mail; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.
17. Miscellaneous. The Site is controlled and operated from within the United States. Without limiting anything else, RAREculture makes no representation that the Site, Site Materials, User Content, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws. The waiver or failure of RAREculture to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
Dated: October 21, 2010