Try it ART L.L.C. – Rental Agreement
These rental terms and conditions (“Rental Terms”) constitute a legal agreement between you (“You” or “Your”) and Try it ART LLC (“Try it ART,” “we,” “us,” or “our”). These Rental Terms establish the terms and conditions under which you may rent art (each a “Product”) and receive related services (“Services”) from Try it ART via our website at www.tryitart.com (the “Site”).
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THESE RENTAL TERMS. BY CLICKING ON THE “I ACCEPT” BUTTON OR ORDERING ANY PRODUCTS, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO THESE RENTAL TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE RENTAL TERMS, DO NOT CLICK THE “I ACCEPT” BUTTON AND YOU WILL NOT BE PERMITTED TO RENT THE PRODUCTS.
1. GENERAL; RENTAL NOT PURCHASE; ADULT AGREEMENT REQUIRED.
You agree and acknowledge that You are renting the Products and that ownership of, and title to, the Products remains with either the artist or Try it ART, as applicable, at all times unless and until a purchase of the Product is completed. Our Products may only be rented by adults over eighteen years old using a credit card or other approved payment method. We may, and currently do, limit the number of Products that can be rented by You at any given time in our sole discretion.
2. RENTAL FEES; CREDIT CARD AUTHORIZATIONS.
The rental fee for a Product (“Rental Fee”) will be the rental fee, insurance charges (if applicable) and delivery charges (if applicable) listed on the Site in connection with Your rental of the Products. Upon Your order to rent a Product, You hereby authorize us to charge Your credit card for the Rental Fee at our convenience but within thirty (30) days of credit card authorization. In addition, at the time of Your rental order of a Product, You hereby authorize Try it ART to charge Your credit card for the entire then-current retail value of that Product set forth on the Website, plus sales taxes (“Retail Value”), provided that we will only change Your credit card such Retail Value in the circumstances set forth in Section 4 below. Rental Fees exclude all federal, state and local taxes, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by You directly or, if paid by Try it ART, shall be remitted by You to Try it ART in connection with Your order for the rental. We also reserve the right to collect deposits for certain Products in our sole discretion.
We will assume that You are enjoying a Product unless we hear otherwise from You, so You agree that we may automatically renew your rental on a month-to-month basis and automatically charge You the Rental Fees for such renewal using the credit card associated with Your rental at the beginning of each month.
3. OUR COMMITMENTS TO YOU.
a. Delivery to You. We will deliver the Products You requested within 30 days of Your order, unless we inform You in connection with Your order that the specific Product is not available. Our liability to You for failure to deliver the Product as ordered is limited to the timely delivery of the Product as ordered or a refund of the Rental Fee or Purchase Price as determined by us. See Section 5(b) below.
b. Color Reproduction. We make efforts to display our products and their colors as accurately as possible, but Products may appear different in color and texture than the photos displayed on our Website. The Products will be professionally evaluated in our sole discretion for any damage prior to delivery, which will be recorded by Try it ART.
c. Returns. With delivery of the Product, we will provide contact information to be used to arrange for the return transportation of the Product after the rental period. Either You or Try it ART can request that the Product be returned to us at any time by notifying the other party. The Product will be picked up, or return packaging will be provided, within 30 days of notification at no additional fee to You. You will be responsible for all Rental Fees accrued up until the date the Product is returned to us.
d. Purchases: If You at any time decide to purchase a Product you are renting and Try it ART or the artist, as applicable, accepts your offer to purchase the Product, Try it ART will deliver to You a signed Certificate of Authenticity upon receipt of payment from You of the Retail Value of the Product, and title to such Product shall pass to You pursuant to Section 4(d).
e. Services. On the Site, we may offer various Services to assist You in selecting a Product. Our Services are provided “AS IS” without any guarantee as to results.
4. YOUR COMMITMENTS TO US; PAYMENT OF RETAIL VALUE.
a. Receipt of the Products. Risk of loss for any Product that You rent from us transfers to You upon the earlier of delivery of such Product by us to you or to a common carrier or other delivery service. You acknowledge that a Secure Shipping Address (defined below) is highly required. A “Secure Shipping Address” is a location where an individual can physically receive Product(s) upon delivery. Try it ART does not bear liability for any Products left unattended upon and after delivery to the address You specify when You place Your rental order. Furthermore, You acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which You, and not Try it ART, will be responsible.
b. Use of the Products. You agree to treat each Product with great care, as if it was borrowed from Your close friends or family. You are responsible for loss or damage to the Products due to theft, mysterious disappearance, fire, major stains or any other cause, including any alterations or modifications to a Product, other than ordinary wear and tear like minor scratches and/or minor damage to frames and/or damage to hanging devices (which shall also be deemed to be “normal wear and tear” as used herein). If You return a Product that is different from the Product we provided to You, including any Product that we, in our sole discretion, consider damaged beyond normal wear and tear, then You agree that we shall charge You, and You shall pay, the lesser of (a) the price for repairing the Product, as determined in our discretion, and (b) the Retail Value for the Product at the time such Product is returned.
c. Continued Rental. You agree to continued payment of the Rental Fee on a monthly basis until You notify Try it ART of Your Rental termination and the Product is returned to Try it ART, or You notify Try it ART of your decision to purchase the Product and Try it ART receives payment from you of the Retail Value for such Product. Upon notification of a Rental termination, You agree to make the Product available for pick-up by Try it ART within 15 days.
d. Payment of Retail Value. We will not charge You an amount greater than the Retail Value at the time of damage for any charges arising under this Section 4, excluding collection costs. If You elect to purchase any Product that You are currently renting, Your notification to us of Your desire to purchase such Product shall constitute an offer to purchase such Product., as described in the Terms. If we accept Your offer, You agree to pay us the full Retail Value for such Product and, upon our receipt of Your payment, title to such Product shall pass to You pursuant to the Terms and these Rental Terms. For the avoidance of doubt, any Rental Fees that You have paid us will not apply to the purchase price or other amounts You owe to us pursuant to this Section 4. If You pay us the full Retail Value under this Section 4, including but not limited to payments for any damage to the Product under Section 4(b), and You still possess the Product, the Product is Yours to keep, on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this Section 4(d) shall not apply to the Rental Fee, which is charged separately from, and in addition to, any charges for the Retail Value pursuant to this Section 4.
e. Collections. If You do not pay the amounts You owe to us when due, then we will need to institute collection procedures. You agree to pay our costs of collection, including without limitation reasonable attorneys’ fees, if You do not pay amounts owed hereunder when due. Any amounts not paid when due shall bear interest at the lower of the rate of 1.5% per month or the maximum rate permitted by law.
f. Removal. We reserve the right to terminate Your right to rent Products from us at any time in the event of Your breach of these Rental Terms or for no reason or any other reason in our sole discretion.
5. DETAILS ON OUR COMMITMENT TO YOU.
a. Limited Warranty. We use reasonable efforts to ensure that the Products are the original work of the stated artist. The foregoing warranty and the limited warranties in Section 3 apply only to You, may be acted upon only by You, and may not be assigned, sold or transferred to any third party. No other warranties are granted other than as set forth in this Section 5(a) and in Section 3. Our warranty herein shall not apply to any matters arising from violation of Your commitments set forth in Section 4 of these Rental Terms.
b. Remedies. Your sole and exclusive remedy and Try it ART’s sole and exclusive liability for a breach of Try it ART’s limited warranty shall be, at Try it ART’s option, for Try it ART to use commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of Your Rental Fee (excluding insurance fees, if applicable, and delivery charges).
c. Disclaimers. THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT) WITH RESPECT TO THE PRODUCTS, THE SERVICES RELATED THERETO OR THE USE OR RESULTS OF THE PRODUCTS OR SERVICES.
6. LIMITATION OF LIABILITY.
a. No Indirect Damages. IN NO EVENT SHALL TRY IT ART (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS OR LOSS OF USE DAMAGES, ARISING OUT OF THE SITE OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF TRY IT ART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
b. Limited Direct Damages. TRY IT ART’S (AND ITS SUPPLIERS’ AND LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF ANY PRODUCTS OR YOUR USE OF THE SITE OR THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE APPLICABLE RENTAL FEES PAID BY YOU FOR THE APPLICABLE PRODUCT AND/OR SERVICE.
c. Use of Results at Your Risk. YOU ASSUME SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES OF YOU OR ANY THIRD PARTY ARISING FROM USE OF THE SITE, THE SERVICES OR ANY PRODUCT.
7. MODIFICATION AND NOTIFICATION OF CHANGES.
Changes. We reserve the right to change the terms of these Rental Terms, including the Rental Fees associated with any Product you are currently renting, at any time and any such changes will apply to the rental of any Products after the date of such change. Any changes affecting a Product you are currently renting will take effect 30 days after we provide you notice of such change by sending an email to the email address you have provided to us.
a. Governing Law. These Rental Terms are governed by the federal laws of the United States and the laws of the State of California, excluding its choice of laws principles. The rights and obligations of the parties under these Rental Terms shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sales of Goods, as amended. You agree that, by entering into these Rental Terms, to the extent permitted by applicable law, You and Try it ART are waiving the right to a trial by jury.
d. No Waiver. If any part of these Rental Terms is held invalid, illegal or unenforceable, such part will be construed consistent with applicable law. The remaining provisions of these Rental Terms will remain in full force and effect. Any delay or failure to require performance of any provision by Try it ART will not constitute a waiver of any of Try it ART’s rights and will not impede Try it ART’s ability to enforce that or any other provision in the future.
e. Survival. Notwithstanding any other provisions of these Rental Terms, or any general legal principles to the contrary, any provision of these Rental Terms that imposes or contemplates continuing obligations on a party will survive the expiration or termination of these Rental Terms.
f. Force Majeure. Try it ART shall not be liable for failure to perform any of its obligations hereunder by reason that are beyond its reasonable control, including, without limitation, fire, earthquake, interruptions in supply, other natural disasters, war, embargo, riot or acts of terrorism.
Try it ART L.L.C.
720-302 Bair Island Road
Redwood City, California 94063