TERMS OF SERVICE

Effective Date: August 6, 2022

This website is owned and operated by Kathryn Trively (d/b/a Trively Art), LLC, a Texas limited liability company (“Trively,” “us,” “we,” and “our”). These Terms of Service (“Terms”) contains the terms and conditions that govern your (“you” or “your”) use of our websites, www.trivelyart.com and the products and services offered on the website (the “Website”). Use of this Website constitutes your acceptance of and agreement to these Terms. If you do not agree to be bound by these Terms, please promptly exit the Website. Please also consult our Privacy Policy for a description of our data collection practices and privacy policies. Additionally, specific pages on the Website may set out additional policies, terms, and conditions, all of which are incorporated by this reference into these Terms.

THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND TRIVELY WILL BE RESOLVED BY BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution and Arbitration for full details.

Our Website and Services

Trively provides a number of Internet-based services through the Website (collectively, the “Services”). One such service enables users to purchase products and original pieces of art created by the artist, including without limitation, customized art pieces (collectively, “Products”). Please see the special terms below for custom orders and wholesale orders of the Products. We may offer a number of additional services on the Website, such as galleries, message boards and newsletters, which may change from time to time.

All pages within this Website and any material made available for download are the property of Trively, or its licensors or suppliers, as applicable. The Website is protected by United States and international copyright and trademark laws. The contents of the Website, including, without limitation, the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Website (collectively, “Content”) may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized or approved in these Terms or in writing by Trively. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, the Content, or other proprietary information (including images, text, page layout, or form) without our written consent.

Use of the Website and Services

Use of the Services is restricted to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The Services are not intended for children under the age of 13.

You must comply with all of the terms and conditions of these Terms, the applicable agreements and policies referred to in these Terms, and all applicable laws, regulations, and rules when you use the Services and the Website.

You are prohibited from violating or attempting to violate the security of the Website, including, without limitation, (i) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (ii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization; or (iii) accessing or using the Website or any portion thereof without authorization in violation of these Terms or in violation of applicable law. You may not collect or use information contained on the Website for any prohibited purpose, to compete with us, to create derivative works based on the Content of the Website, or download or copy the Website (other than page caching).

In the event access to the Website or a portion thereof requires establishing an account with a username and password (the “Protected Areas”), you agree to access Protected Areas using only your account as provided to you by Trively. You agree to protect the confidentiality of your username and password, and not to share or disclose your username or password to any third party. You agree that you are fully responsible for all activity occurring under your account. Your access to the Website may be restricted or revoked by us at any time with or without cause.

We accept all major credit cards issued by U.S. banks and all transactions are in U.S. Dollars. If you purchase any Products or Services, you agree to do so in accordance with instructions provided on the Website, and agree to comply with any additional terms that may be provided. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our fraud avoidance department. We may also require additional verification or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order.

Subject to fulfillment of all applicable terms and conditions of these Terms, when you make a purchase of Products on the Website, you shall immediately pay the total amount due, comprised of the total purchase price of the Product(s) and all applicable taxes and service or shipping fees, if any. By making a credit card purchase, you irrevocably waive any charge-back rights you may otherwise have under the applicable cardholder agreement or otherwise.

If your order is canceled after your credit card (or other payment account) has been charged, we will credit your account in the amount of the charge. You represent and warrant that if you are making online payments that (i) any credit card, debit card, and bank account information you supply is true, correct, and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued or you are authorized to make a purchase or other transaction with the card.

You may only use the Website and Services as expressly permitted by Trively. You agree to not cause harm to the Website or Services. Specifically, but not by way of limitation, you may not: (i) interfere with the Website or Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile, or disassemble any technology used to provide the Services; (iii) use a robot, spider, or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet “search engine”, hit counters, or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Services; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain our name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the Services; (viii) deep-link to any feature or content on the Website, bypass our security, robot exclusion headers, or other; or (viii) assist or encourage any third party in engaging in any activity prohibited by these Terms.

Accuracy and Integrity of Information; Products and Cancellations

Although we attempt to ensure the integrity and accurateness of this Website, we make no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Website, Services, or Content. It is possible that the Website could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Website by third parties. In the event that an inaccuracy arises, please inform us so that it can be corrected. Information contained on the Website may be changed or updated without notice. Additionally, we shall have no responsibility or liability for information or Content posted to the Website from any third party not affiliated with Trively.

We have made significant efforts to accurately display the images of our Products, including the artist’s works, that appear on the Website and the Content. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate, and the actual colors may differ from the photos on the Website.

All of the Products (i.e., the artist’s work) are original and signed and dated by the artist. Small imperfections add to the uniqueness of the work. However, we will assemble the Products as free from dust and bubbles as is reasonably practicable. It is, however, not possible to eliminate all dust or bubbles due to the use of epoxy resin, and there may be small bubbles or an accumulation of dust on the pieces resulting from the drying process.

CARE: Please avoid direct sunlight on the Products to preserve the integrity and clarity of the resin. Do not use cleaning products on the resin; clean the works with warm water and microfiber cloth. Please do not try to remove the miniature shoes from the resin. We intend that the miniature shoes remain attached to the canvas. They are not to be chewed or consumed orally.

In the event a Product or Service is listed at an incorrect price due to typographical error, we shall have the right to refuse or cancel any orders placed for the Product or Service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit or debit card account for the amount of the canceled order.

We reserve the right to modify the organization, structure, or “look and feel” of the Website or Services, and may change, suspend, or discontinue any aspect of the Website or Services at any time without any liability to you or any third party. We shall have complete and exclusive discretion over the features, functions, prices, and other terms and conditions on which the Website and Services are offered to you.

Modifications and Severability

We may make changes to these Terms from time to time without prior notice. We will notify you of any material changes by sending you an email or posting a notice on the home page of the Website. If we make any changes to the Terms, you must review the new Terms carefully to make sure you understand our practices and procedures. Your continued use of the Website following posting of a change notice or new Terms on the Website will constitute binding acceptance of the changes. If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, then any such offending term or condition shall be deemed severable and shall not affect the validity and enforceability of any of the remaining Terms.

Feedback and Other Submissions

When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications, or any other information (“Submissions”), you grant us permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that we will have no obligation to keep any Submissions confidential. You will not bring a claim against us based on “moral rights” or the like arising from our use of a Submission.

Custom Orders; Wholesale Orders

Custom Orders

With respect to custom orders, we will send you a proof of the Product, and you will need to approve the proof of the custom Product prior to the artist commencing any work on the custom order. Once the custom piece is completed and shipped to you, the custom work cannot be returned to us and is deemed final. For custom orders over $600.00, you are required to pay a 50% deposit prior to the commencement of work on the customized Product, and once the customized Product is completed, you will be required to pay the remaining 50% of the purchase price before shipment to you. We will ship the customized Product to you once the piece has been paid for in full. If we do not hear from you about payment and delivery of the customized Product for thirty (30) days after we notify you of completion, we will put the customized Product on our Website and make it available to the general public. All custom orders are deemed final.

Wholesale Orders

If you are making wholesale purchases of our Products, you will be required to pay for all shipping costs. We do not buy back any unused inventory. If any of the art pieces are damaged during shipment, we will replace them free of charge, but only if you notify us within fifteen (15) days of receipt of the damaged piece. Please note that all wholesale orders are priced based on the estimated size and number of rows for the piece, and the final Product may vary from the initial estimate; as such, the final price for the order is subject to change based on the final configuration of the Product.

Export Laws

Any and all Products available for purchase or license on the Website are subject to the export control laws and regulations of the United States and any other countries, as applicable. In purchasing any of the Products, you agree not to dispose through export, re-export, trans-shipment, or otherwise, of any Product purchased or licensed from or through Trively, except in accordance with all applicable export control laws and regulations

Shipping

All items purchased through this Website are made pursuant to a shipment contract. Title and risk of loss for all Products ordered by you shall pass to you on our delivery to the applicable shipping carrier or U.S. mail service. We reserve the right to ship partial orders. We are not responsible for any damages caused by shippers or common carriers, but will replace a damaged Product free of charge if you notify us within fifteen (15) days of receipt of the damaged piece.

Taxes

You are responsible for paying all sales, use, GST, VAT or other taxes or charges imposed by law that may be imposed in connection with the sale of the Products that we are required to collect under applicable law and shall indemnify, defend and hold harmless (including reasonable attorneys’ costs and fees) Trively from costs associated with any failure to do so.

Representations and Warranties

You represent and warrant to Trively (i) that you have the full power and authority to enter into and perform under these Terms, (ii) the execution and performance of your obligations under these Terms does not constitute a breach of or conflict with any other agreement by which you are bound, and (iii) these Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions.

You represent and warrant to Trively that, in your use of the Website and Services, (i) you will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other legal right of any third party; (ii) you will comply with all applicable laws, rules, and regulations; (iii) there are no claims, demands, or any form of litigation pending, or to the best of your knowledge, threatened against you with respect to any of the Submissions; (iv) Trively will not be required to make any payments to any third party in connection with its use of the Submissions; (v) the use of any instructions, formulae, recommendations, or the like contained in the Submission will not cause injury to any third party; and (vi) the Submissions do not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.

Indemnification

You agree to indemnify and hold us, Trively, and our representatives, agents, affiliates, directors, officers, members, managers, and shareholders (the “Parties”) harmless from and against any damage, loss, and expense (including, without limitation, attorneys’ fees, expenses, and costs) incurred in connection with any third-party claim, demand, or action (“Claim”) brought against any of the Parties (i) alleging that you have breached any provision of these Terms or any applicable laws, rules, or regulations through any act or omission, (ii) arising out of any User Generated Content you post or allow to be posted to the Website or any Submissions, or (iii) arising out of your use or access of the Website, or access by anyone accessing the Website using your account.

For any indemnification under this Section, Trively will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Trively’ express written permission.

Disclaimers and Exclusions

TRIVELY PROVIDES THE WEBSITE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TRIVELY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, SERVICES, OR ITS USE: (I) WILL BE UNINTERRUPTED; (II) WILL BE FREE OF INACCURACIES OR ERRORS; (III) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. TRIVELY MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. TRIVELY DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE WEBSITE.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE, WEBSITE-RELATED SERVICES, AND LINKED WEBSITES. TRIVELY DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.

WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD, AND DISTRIBUTED BY TRIVELY ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

Limitation of Liability

TRIVELY AND ANY THIRD PARTIES MENTIONED ON THE WEBSITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, SERVICES, CONTENT, OR INFORMATION CONTAINED WITHIN THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE WEBSITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF TRIVELY TO YOU WITH RESPECT TO YOUR USE OF THIS WEBSITE IS $100.00 (ONE HUNDRED DOLLARS).

Notices

All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail; (ii) nationally-recognized overnight courier; or (iii) electronic mail. If we provide notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (a) if by delivery by U.S. mail, seven (7) business days after dispatch, (b) if by nationally-recognized overnight courier, on the date receipt is confirmed by such courier service, or (c) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.

We disclaim any responsibility or liability for copyrighted materials posted on the Website or through our Services. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below:

Dispute Resolution and Arbitration

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. If you have a concern about your purchase or any other issue, please contact us. We have found that this is the most effective way to resolve any potential disputes or disagreements and strongly encourage you to contact us as soon as possible. In the unlikely event that Trively is unable to resolve a complaint you may have to your satisfaction, then you and Trively each agree to be bound by these dispute resolution procedures.

You and Trively each agree that any dispute, claim, or controversy arising out of or relating in any way to your use of the Website, your ordering of Products or Services from Trively through the Website, by phone, or through third-party websites offering Trively Products or Services shall be determined by binding arbitration.

BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO BRING AN ACTION IN COURT OR BEFORE AN ADMINISTRATIVE AGENCY. ARBITRATION IS MORE INFORMAL THAN COURT OR ADMINISTRATIVE PROCEEDINGS. ARBITRATION USES A NEUTRAL ARBITRATOR TO DECIDE A DISPUTE INSTEAD OF A JUDGE OR JURY. AN ARBITRATOR’S AWARD IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES). AN ARBITRATOR IS ALSO BOUND BY THESE TERMS TO THE SAME EXTENT AS A COURT.

WE EACH ALSO AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS OF ANY NATURE OR IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THIS MEANS THAT YOU MAY NOT BRING A CLAIM ON BEHALF OF A CLASS OR ANY PERSON OTHER THAN YOURSELF. UNLESS OTHERWISE AGREED IN WRITING BY BOTH YOU AND TRIVELY, AN ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT CONDUCT ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD RELIEF OTHER THAN ON AN INDIVIDUAL BASIS.

To begin an arbitration proceeding, you must send a demand to the American Arbitration Association (“AAA”) describing your claim and serve a copy of the demand on our registered agent. The arbitration will be conducted by the AAA under its Commercial Arbitration Rules and Mediation Procedures in Austin, Texas, and for disputes arising from or related to the purchase of products or services for personal or household use the AAA’s Consumer Arbitration Rules will apply. AAA and the arbitrator will determine the appropriate rules that may apply as from time to time amended. The AAA’s rules and the form for filing an arbitration claim are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Trively will reimburse those fees (but not any attorney’s fees) for arbitration claims seeking less than $10,000, unless the arbitrator determines your claims are frivolous. Additionally, Trively will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed upon location. The arbitrator shall be bound by these Terms.

As an alternative to arbitration, you may elect to submit a claim to a small claims court if the claim qualifies, but any filing or other fees will be your responsibility.

If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial, unless such waiver is unenforceable. This means that any claim in court would be decided by a judge, not a jury.

We also each agree that you or Trively may bring suit in court to seek temporary provisional relief such as to enjoin infringement or other misuse of intellectual property rights.

Governing Law

THIS AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE TERMS AND ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, PRODUCTS AND SERVICES ORDERED OR PURCHASED THROUGH THE WEBSITE. IN THE ABSENCE OF APPLICABLE FEDERAL LAW, THEN THE INTERNAL LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES) WILL GOVERN.

Other Terms

No agency, partnership, joint venture, or employment relationship is established as a result of these Terms. These Terms, in addition to other written agreements you may enter into with Trively, are the entire agreement and understanding between you and us regarding the purchase of any Product and supersedes all prior or contemporary communications whether digital, oral or written. If any term or condition of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, that term or condition will be limited or removed to the minimum extent necessary so that these Terms will otherwise remain fully valid and enforceable. Our failure to enforce or exercise any rights established by these Terms will not constitute a waiver of any such rights or any other rights under this Agreement.

Terms of Service