TERMS AND CONDITIONS
Last updated September 22, 2015
These Terms and Conditions govern and control your access and use of our Site and Services, and assemble a binding legal agreement between you and Up&Coming.
Up&Coming reserves and retains the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. We will post the modification on the Site and update the “Last Updated Date” every time we modify these Terms and Conditions. Continuous access or use of the Site or Services after our modification with last updated date posted on the Site, indicate that you agree to be bound by the modified Terms. If you do not agree to the modified Terms, your only recourse is to cease using the Site and Services.
The Site and Services are intended solely for people aged 18 or older, who have not been suspended or removed by Up&Coming for any reason. By accessing or using the Site you represent and warrant that you are 18 or older.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR PURCHASING A WORK ON OR THROUGH THE SITE OR SERVICES, YOU ARE SIGNIFYING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms and Conditions on behalf of your company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
ACCOUNT REGISTRATION, ACCESS, CANCELLATION AND TERMINATION
You must create an account (“Account”) and complete our registration process so as to make a purchase of art work through the Site. During the registration process you voluntarily enter certain personal information into your account. You will become a “Member” with username and password upon the completion of the registration. You agree to provide and update accurate, truthful, current and complete information during the registration process. Up&Coming reserves the right to disable, suspend or terminate your Account and refuse service, without prior notice to you if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete or found violating the Terms and Conditions. Up&Coming reserves the rights to revoke your access to and use of the site, services, Up&Coming Content and member content at any time, with or without cause. You are responsible for safeguarding your account by not disclosing the password to any third party and take sole responsibility for any activities or actions under your Account. You agree to immediately notify Up&Coming of any unauthorized use of your Account. You may cancel your Account at any time by sending an email to [email protected]
PURCHASER TERMS AND CONDITIONS
Purchases of Original Works of Art and Printed works
You may purchase Original Works of Art listed on “upandcoming.gallery” as a member. Prices for Original Works of Art will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges, if any, for which you are responsible and which will be separately identified on your receipt. Up&Coming will collect your billing and shipping information, process your payment and then ship the purchased work to you. The terms and conditions of Up&Coming’s then-current Return Policy apply to any Original Works of Art that you purchase through the Site and Services.
Up&Coming reserves the right to cancel any order for an Original Work of Art or Printed Work on the site if Up&Coming determines, in its sole discretion that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed via the Site and Services. If Up&Coming cancels an order placed via the Site and Services, Up&Coming will send you an email confirmation of such cancellation and you will not be charged for your order.
Color You understand and agree that Up&Coming uses commercially reasonable and acceptable efforts to display the colors of Original Works of Art, Digital Works and Printed Works accurately. However, Up&Coming is not responsible for the color accuracy of any Original Works of Art, Digital Works or Printed Works displayed on upandcoming.gallery, because different individual computer monitors display colors differently, and disclaims all liability in this regard.
VAT and DUTY
Up&Coming is fully owned by iWasThere Ltd. based in Hong Kong, therefore no VAT will be applicable on top of the sales price for sales outside Hong Kong.
Please take into account that import taxes, duties and customs of some countries may be charged once the package reaches the destination country. These charges are determined by the local customs of the destination country.
The payment of these fees and taxes are the exclusive responsibility of the receptor. For further details please check with your local customs office.
You agree not to do any of the following:
- Use, display, mirror or frame the Site, or any individual element within the Site, Up&Coming’s name, any iWasThere Ltd trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Up&Coming’s express written consent;
- Access, tamper with, or use non-public areas of the Site, Up&Coming’s computer systems, or the technical delivery systems of Up&Coming’s providers;
- Attempt to probe, scan or test the vulnerability of any Up&Coming system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Up&Coming or any of Up&Coming’s providers or any other third party (including another user) to protect the Site, Services, Up&Coming Content or Member Content;
- Attempt to access or search the Site, Services, Up&Coming Content or Member Content or download Up&Coming Content or Member Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Up&Coming or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Up&Coming trademark, logo URL or product name without Up&Coming’s express written consent;
- Use the Site, Services, Up&Coming Content or Member Content for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Up&Coming Content or Member Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Up&Coming Content or Member Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
- Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Up&Coming will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Up&Coming may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Up&Coming has no obligation to monitor your access to or use of the Site or Services or to remove any Member Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Up&Coming reserves the right, at any time and without prior notice, to remove or disable access to any Member Content, Up&Coming Content or any other text, graphics, images, software, music, audio, video, information or other content or material that Up&Coming, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Site or Services.
SWEEPSTAKES, CONTESTS AND PROMOTIONS
Up&Coming may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Site and Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Site and Services, as they may contain additional important information about Up&Coming’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of any Official Rules conflict with these Terms, the terms and conditions of the Official Rules will control.
Up&Coming and/or iWasThere Ltd is the owner or authorized user of any copyright, trademark, service mark, titles and the content or information and all associated intellectual property rights on and of the site, unless otherwise indicated. The use of site does not grant you a license to any content, information. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Up&Coming Content, except with our prior written permission.
Up&Coming respects copyright law and expects its users to do the same. Up&Coming will terminate Members or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders in appropriate circumstances.
The Site may contain links to third-party websites or resources, which are not reviewed, controlled or examined in anyway by Up&Coming. Up&Coming is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, availability, advertising, information, use of user information, products, or services on or available from such websites or resources directly and indirectly. Links to such websites or resources do not imply any endorsement by Up&Coming of such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources and agree to direct any concerns to that site’s administrator or Webmaster. Up&Coming reserve the exclusive right, at its sole discretion, to add, change, decline or remove any links from the Site without notice.
DISCLAIMERS OF WARRANTIES
THE SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, FUNCTION, MATERIALS, UP&COMING CONTENT AND MEMBER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, UP&COMING EXPLICITLY DISCLAIMS ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. UP&COMING MAKES NO WARRANTY THAT THE SITE, SERVICES, UP&COMING CONTENT OR MEMBER CONTENT WILL MEET USERS’ EXPECTATIONS AND REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UP&COMING MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE AVAILABILITY, ACCURACY, TIMELINESS, TRUTHFULNESS, USEFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR RESULTS OR INFORMATION OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UP&COMING OR THROUGH THE SITE OR SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS OR INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, UP&COMING DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SITE OR SERVICES, NOR DOES UP&COMING MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SITE OR SERVICES. UP&COMING MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES. UP&COMING DOES NOT ENDORSE WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SITE. UP&COMING IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES WITHOUT THE DIRECT INVOLVEMENT OF COMPANY. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SITE OR SERVICES OR ANY THIRD PARTIES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Up&Coming and iWasThere Ltd, its officers, directors, employees and agents, vendors, partners, contractors, galleries, artists, institutions, distributers, representatives and affiliates harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, Up&Coming Content or Member Content, or your violation of these Terms. You agree to cooperate as fully as reasonably required in the defense of any claim. Your indemnification obligation will survive the termination of these Terms and conditions and your use of the Site.
LIMITATION OF LIABILITY
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site, Services, Up&Coming Content and Member Content remains with you. Neither iWasThere Ltd, Up&Coming nor any other party involved in creating, producing, or delivering the Site, Services, Up&Coming Content or Member Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, Up&Coming Content or Member Content, or from any communications, interactions or meetings with other Members or users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Up&Coming has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Up&Coming’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, Up&Coming Content or Member Content exceed: (i) if you are a Member who has purchased Original Works of Art or Printed Works, the total payments that you made to Up&Coming for the Original Works of Art and/or Printed Works that are the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Up&Coming and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of Up&Coming used herein are trademarks or registered trademarks of Up&Coming and/or iWasThere Ltd. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. 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.
CONTROLLING LAW AND JURISDICTION
These Terms and any action related there to will be governed by the laws of Hong Kong without regard to its conflict of law’s provisions. Please note that your use of the Site may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the federal courts located in Hong Kong and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Up&Coming and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Up&Coming and you regarding the Site and Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Up&Coming’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Up&Coming may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Up&Coming via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The Terms constitute the entire agreement between you and Up&Coming and govern your use of the Site, superseding any prior agreements between you and Up&Coming. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.
The failure of Up&Coming to exercise or enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Up&Coming. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
All rights of industrial or intellectual property in this website and those of its contents (including images, titles and texts) belong to Up&Coming/iWasThere Ltd.
Users may consult and use all contents in this website for their sole personal use. Diffusion is expressly forbidden in any form and for any purpose without the owner’s previous consent.
Up&Coming/iWasThere Ltd. reserves the right to initiate legal proceedings against any natural or legal person failing to comply with the aforementioned conditions or misusing the contents in this website Or Any Other Information That Might Appear Therein.
We sell original works of art and utilize digital images of works of art commercially through our website at www.upandcoming.gallery.
If you have any questions about these Terms, please contact Up&Coming at [email protected]
Up&Coming obtains the details of clients with the consent of the interested people or from sources accessible to the public, where applicable.
The details provided by the users shall be solely used for the purposes described in the registration form and determined by each user.
In accordance with the provisions in Protection of Personal Data, users registered in this site may at any time opt out of receiving communication from Up&Coming, by sending an e-mail to [email protected] with the subject UNSUBSCRIBE.
As used in this policy, the terms “using” and “processing” information include using cookies on a computer, subjecting the information to statistical or other analysis and using or handling information in any way, including, but not limited to collecting, storing, evaluating, modifying, deleting, using, combining, disclosing and transferring information within our organization or among our affiliates within Hong Kong or internationally.
Information Collection and Use: Personally Identifiable Information
- In the course of using the Site and Services, you may provide us with personally identifiable information, which refers to information that identifies you personally would enable someone to contact you directly or describes your relationship with Up&Coming (“Personal Information”). Personal Information includes, but is not limited to, your name, date of birth, phone number, credit card or other billing information, email address, postal address and other preferences you choose to provide us. We use your Personal Information primarily to provide and improve the Site and Services and to respond to your inquiries and process and complete your transactions.
- We may also request you to provide certain information, such as your personal preferences, which is typically considered as “Non-Identifying Information” because it cannot by itself be used to contact or identify you.
- We use your Personal Information (in some cases, in conjunction with your Non-Identifying Information) primarily to provide and improve the Services, to process and complete your orders and respond to your inquiries.
- Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified. But, the same items of information are considered Non-Identifying Information when they are taken alone or combined only with other non-Identifying information (for example, your age). We may combine your Personal Information with Non-Identifying Information and aggregate it with information collected from other Up&Coming users to attempt to provide you with a better experience, to improve the quality and value of the Site and Services and to analyze and understand how our Site and Services are used.
- We also use your Personal Information to contact you with Up&Coming, marketing or promotional materials and other information that may be of interest to you. Please follow the unsubscribe instructions provided in any of the communications or contact us through the Contact Us page or the email address indicated at the end of this policy, if you decide at any time that you no longer wish to receive such communications from us.
Log Data. When you visit the Site, whether as a Member or a non-registered user just browsing (any of these, an “Up and Coming User”), our servers automatically record information that your browser sends whenever you visit a website (“Log Data”). This Log Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type or the webpage you were visiting before you came to our Site, pages of our Site that you visit, the time spent on those pages, information you search for on our Site, access times and dates, ads you click on during your use of the Site, your viewing preferences, bookmark habits and other statistics. We use this information to monitor and analyze use of the Site and for the Site’s technical administration, to increase our Site’s functionality and user-friendliness and to better tailor the Site to our visitors’ needs. For example, some of this information is collected so that when you visit the Site again, it will recognize you and serve advertisements and other information appropriate to your interests. We also use this information to verify that visitors to the Site meet the criteria required to process their requests.
MAKING PURCHASES VIA THE SITE
If you purchase a work via the Site, we request certain Personal Information from you. You must provide contact information such as first and last name, address, city, email and phone number and financial information such as credit card type, credit card number, expiration date and CVV2. We use this information for billing and remittance purposes and to fulfill your orders, as applicable. If we have trouble processing an order, we will contact you.
INFORMATION SHARING AND DISCLOSURE
Up&Coming Members. When you register for the Site and create an Account, your Personal Information (including, but not limited to, your name) will be publicly viewable via the Site. We recommend that you guard your sensitive information and we encourage you to think carefully about what information you post via the Site.
Aggregate Information and Non-Identifying Information. We may share aggregated information that does not include Personal Information and we may otherwise disclose Non-Identifying Information and Log Data with third parties for industry analysis, demographic profiling and other purposes. Any aggregated information shared in these contexts will not contain your Personal Information.
Service Providers. We may employ third party companies and individuals to help facilitate our Services, to provide our Services on our behalf, to perform Site-related services (e.g., without limitation, payment processing, billing and shipping services, maintenance services, database management, web analytics and improvement of the Site’s features) or to assist us in analyzing the usage of our Site and Services. These third parties have access to your Personal Information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.
Compliance with Laws and Law Enforcement. Up&Coming cooperates with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose any information about you to government or law enforcement officials or private parties as in our sole discretion. we believe it is necessary and appropriate to respond to claims and legal process (including but not limited to subpoenas), to protect the property and rights of Up&Coming or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, any illegal, unethical or legally actionable activity.
Business Transfers. Up&Coming may sell, transfer or otherwise share some or all of its assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
CHANGING OR DELETING YOUR INFORMATION
To completely delete all the provided Personal Information for Up&Coming, you must contact us at [email protected]. If you completely delete all such information, your account may be deactivated. We may retain an archived copy of your records as required by law or for legitimate business purposes.
The security of your Personal Information is important to Up&Coming. But remember that no 100% secure method of transmission over the Internet or electronic storage exists. When you enter sensitive information (such as credit card number) via the Site, we encrypt that information using secure socket layer technology (SSL). In some cases, we also encrypt sensitive information where it is stored on our systems.
We will make any legally required disclosures of any breach of the security, confidentiality, or integrity of your unencrypted electronically stored “personal data” (as defined in applicable state statutes on security breach notification) to you via email or notable posting on this Site in the most expedient time possible and without unreasonable delay, insofar as consistent with (i) the legitimate needs of law enforcement or (ii) any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.
OUR POLICY TOWARD CHILDREN
This Site is not directed to children under 18 and we do not knowingly collect personally identifiable information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us at [email protected]. If we become aware that a child under 13 has provided us with Personal Information, we will delete such information from our files.
LINKS TO OTHER SITES
Our Site may contain links to other websites. If you choose to visit an advertiser by “clicking on” a banner ad or other type of advertisement, or click on another third party link, you will be directed to that third party’s website. We do not perform control over third party websites. These other websites may place their own cookies or other files on your computer to collect data or solicit personal information from you. These other sites adapt different rules regarding the use or disclosure of the personal information you submit to them. The fact that we link to a website or present a banner ad or other type of advertisement is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices.
Notification of Copyright Infringement
Up&Coming respects the intellectual property rights of others and expects its users to do the same.
It is Up&Coming’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.