Terms of Use

Terms of Use

Please read these Terms of Use (the “Agreement”) carefully. Your use of the Site (as defined below) constitutes your agreement to this Agreement.

This Agreement is between you and Nikki Martinkovic LLC (“NM,” “we,” “us”) concerning your use of the website currently located at nikkimartinkovic.com (together with shop.nikkimartinkovic.com, any successor site(s) and all services available through those sites, the “Site”).

1. Acceptance of Terms. We make this Site available subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. You are subject to any additional posted guidelines, rules, terms and conditions applicable to particular services that may be available at the Site, which are hereby incorporated by reference into this Agreement.

We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site, with or without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, content, feature or product offered through the Site. Your continued use of the Site after such changes will indicate your acceptance of such changes.

2. Jurisdictional Issues. The Site is controlled and operated by NM from the United States, and isn’t intended to subject NM to the laws or jurisdiction of any state, country or territory other than that of the United States. NM doesn’t represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

3. Descriptions of Our Prints. Although we take care to make sure the Site accurately describes and depicts our prints, there may be differences between the image of a print on the Site and the actual print due to variations inherent in image quality, limits of resolution or color reproduction on your device or other reasons. Accordingly, if you have any questions about a print, please contact us at info@nikkimartinkovic.com before you order.

4. Prices and Sales Tax. Our prices are shown in US dollars, exclusive of taxes and shipping costs. We may modify our prices at any time without prior notice. You’ll be charged the price displayed when you place your order, provided that we may reject or cancel your order for any reason, including, without limitation, if the item ordered isn’t available, is incorrectly priced or is incorrectly described. We will collect applicable state and local sales taxes on any order to which they apply.

5. Orders. When you’ve finished shopping, a page will be displayed featuring images of the items in your cart, unit price and the total amount owed for your order. Please check this information carefully to make sure it’s accurate before you confirm the order. You can check and correct any input errors in your order until you submit it to us by clicking the “Place Order” button on the checkout page. After you click on the “Place Order” button, your order will be submitted for processing and you may not change or cancel the order. After placing an order, you will receive an e-mail from us acknowledging that we have received your order and providing you with an order number.

6. Payment. We may either collect payment through the Site or by e-mailing you an invoice. If we collect payment through the Site, payment is due then, and otherwise payment is due upon your receipt of an invoice from NM. If we e-mail you an invoice, you must pay within 30 days of receiving such invoice. When you place your order, we may ask you for information relevant to your payment and shipping, including without limitation your name, company, address, phone number, e-mail address, credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY PAYMENT OR OTHER TRANSACTION. By submitting such information, you grant us the right to provide such information to third parties for purposes of completing payment initiated by you or on your behalf. We may require verification of such information before we accept your order. We aren’t responsible if your card issuer declines to authorize payment for any reason. If you pay for your order through the Site, your credit card will be charged when you place your order. We may allow you to store your credit card information with us to facilitate future purchases, subject to our Privacy Policy. Each order is expressly conditioned on acceptance of this Agreement. If you engage in fraud, for example, by using fake or stolen credit cards, we may also report you to the appropriate authorities. ALL SALES ARE FINAL, AND NO RETURNS, REFUNDS OR EXCHANGES WILL BE PERMITTED.

7. Rights in Prints.

a. Ownership and Assignment. Except as expressly provided herein, NM retains all right, title and interest in and to any prints displayed or made available on or through the Site, and NM grants no rights or licenses to you or any third party by implication, estoppel or otherwise. Subject to our receipt of payment in full for any prints that you order (“Purchased Prints”), NM hereby irrevocably and unconditionally assigns to you, all of NM’s right, title, and interest in and to the Purchased Prints, including, without limitation, the right to bring all claims for past, present, and future infringement, misappropriation, or other violation of rights in the Purchased Prints, including all rights to receive and recover all profits and damages accruing from an infringement, misappropriation, or other violation as well as the right to grant releases for past infringements. Promptly after we’ve received payment in full for any prints that you’ve ordered, we will e-mail you high-resolution images of such Purchased Prints.

b. Further Assurances. NM will take all actions and execute all documents as you may reasonably request and at your expense to: (i) effectuate the above transfer to you of the Purchased Prints and the vesting of complete and exclusive ownership therein; and (ii) provide you with evidence of your rights in the Purchased Prints in any judicial or other proceedings in respect of the Purchased Prints, including for revocation of any of NM’s rights therein.

8. Rules of Conduct. While using the Site you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Site. You agree not to:

· Post, transmit, or otherwise make available, through or in connection with the Site:

o Any material that would give rise to criminal or civil liability.

o Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.

· Use the Site for any fraudulent or unlawful purpose.

· Use the Site to defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site.

· Impersonate any person or entity, including without limitation any representative of NM; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make.

· Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.

· Restrict or inhibit any other person from using the Site (including without limitation by hacking or defacing any portion of the Site).

· Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.

· Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site.

· Remove any copyright, trademark or other proprietary rights notice from the Site or from materials originating from the Site.

· Frame or mirror any part of the Site without our express prior written consent.

· Create a database by systematically downloading and storing Site content.

· Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without our express prior written consent. Notwithstanding the foregoing, NM grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. NM reserves the right to revoke these exceptions either generally or in specific cases.

Additionally, you acknowledge and agree that you (and not NM) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and paying all charges related thereto.

9. Registration; User Names and Passwords. You may need to register to use all or part of the Site or to purchase prints. You represent and warrant that all information that you submit in connection with such registration and any purchases is complete and accurate. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not NM, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account.

10. Feedback. Unless we expressly agree otherwise in writing, if you provide us with any ideas, proposals, suggestions or materials (“Input”), whether related to the Site or otherwise, you hereby acknowledge and agree that (a) your provision of any Input is gratuitous, unsolicited and without restriction and doesn’t place us under any fiduciary or other obligation; (b) any Input isn’t confidential and we have no confidentiality obligations with respect to such Input; and (c) to the extent permitted under applicable law, any Input will become our sole property. Without limiting the foregoing, you hereby grant to us a world-wide, royalty-free, fully paid-up, exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Input, in any format or media now known or hereafter developed, and you hereby represent and warrant that you have all necessary rights to grant the foregoing license. We may use Input for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Input.

11. Accuracy of Information. We attempt to ensure that information provided on or in connection with this Site is complete, accurate and current. Despite our efforts, such information may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of such information.

12. Our Proprietary Rights. Except as provided in Section 7(a) (Ownership and Assignment) above, the information and materials made available through the Site are and shall remain the property of NM and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as we permit you to access and use the Site, you may view one copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as we expressly authorize in advance in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site. For the avoidance of doubt, you shall not upload or transmit any of our materials to any other website or service for any purpose, nor shall you use, reproduce, distribute, or display any of our materials in connection with any other website, software, or service for any purpose.

Trade names, trademarks and service marks of NM include without limitation, NIKKI MARTINKOVIC and any associated logos. All trademarks and service marks on the Site not owned by NM are the property of their respective owners. The trade names, trademarks and service marks owned by NM, whether registered or unregistered, may not be used in connection with any print or service that isn’t ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

13. Links. The Site may provide links to other web sites and online resources. Because we have no control over such sites and resources, you acknowledge and agree that NM and its employees, officers, directors, shareholders, agents, representatives, licensors, suppliers and service providers (collectively, including NM, the “NM Entities”) aren’t responsible for the availability of such external sites or resources, and the NM Entities neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. Other web sites may provide links to the Site with or without our authorization. You acknowledge and agree that we don’t endorse such sites, and isn’t and shall not be responsible or liable for any links from those sites to the Site, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.

YOU AGREE THAT YOUR USE OF THIRD-PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

We have the right, at any time and in our sole discretion, to block links to the Site through technological or other means without prior notice.

14. Disclaimer of Warranties. THE SITE AND ANY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITE. THE NM ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES) OBTAINED THROUGH THE SITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.

15. Limitation of Liability. WE WON’T BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, WE WON’T BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY NM OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, THAT YOU’VE PAID US IN THE YEAR BEFORE YOUR CLAIM ACCRUED.

IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we don’t guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third-party alteration to the Site, please contact us at info@nikkimartinkovic.com with a description of the material(s) at issue and the URL or location on the Site where such material(s) appear.

16. Indemnity. You agree to defend, indemnify and hold us harmless, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all payments); and/or (b) your violation of this Agreement.

17. Termination. This Agreement is effective until terminated. We may, in our sole discretion, terminate your access to or use of the Site, at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice, and that we may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that we won’t be liable to you or any third party for any termination of your access to the Site or to any such information or files, and won’t be required to make such information or files available to you after any such termination. Sections 2, 10 through 19 and 23 shall survive any expiration or termination of this Agreement.

18. Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, USA without regard to any conflicts of law principles that would result in the application of the law of another jurisdiction.

19. Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, whether sounding in contract, tort, statute or any other legal theory, or the breach, termination or invalidity of this Agreement, shall be finally settled by binding arbitration (“Arbitration”) administered by the American Arbitration Association and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force before one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be in Hamilton County, Ohio, USA. The Arbitration proceedings shall be confidential and in English. The award rendered by the arbitrator(s) shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable. Any Arbitration brought in connection with this Agreement will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No Arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. To the extent allowed under applicable law, you and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding. You are giving up your right to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations.

20. Contact Us. If you have any questions regarding the meaning or application of this Agreement, please direct such questions to info@nikkimartinkovic.com. Please note that e-mail communications won’t necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.

21. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact us by writing to Nikki Martinkovic LLC 12 W. 37th Street, Suite, 911, New York, NY 10018 or by calling us at (646) 397-9064. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

22. Ability to Enter Into This Agreement. By using the Site, you affirm that you are of legal age to enter into this Agreement.

23. Miscellaneous. This Agreement doesn’t, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and NM. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and won’t affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This, together with all policies referred to herein, is the entire Agreement between you and NM relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and NM relating to such subject matter. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in our discretion. The Site may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. NM won’t be responsible for failures to fulfill any obligations due to causes beyond its control.