Terms And Conditions For The Online Sale
Last Modified: 10th August 2022
These terms and conditions (these “Terms”) apply to the purchase and sale of products and services, through www.lottiefiles.com (collectively “Site”). These Terms are subject to change by Design Barn Inc. (referred to as “Designbarn”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the "Last Updated Date" referenced on the Site. You should review these Terms prior to purchasing any license and downloading any Contents, that are available through this Site. Your continued use of this Site to download and/or use Content, after the "Last Updated Date" will constitute your acceptance of and agreement to such changes. If you do not agree with any of the changes do not download or use any Content.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU, REGARDING ANY CONTENTS LICENSED TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY DOWNLOADING THE CONTENT FROM THIS SITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR DOWNLOAD THE CONTENT FROM THIS SITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH DESIGN BARN INC., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS SITE OR ANY OF THIS SITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
The terms “Content” as used herein, shall mean all contents available for license from our Site, including but not limited to images, animation, footages, drawing available for download from the Site.
Order Acceptance and Cancellation. You agree that your order is an offer to license, under these Terms, all Contents listed in your order. All orders must be accepted by us or we will not be obligated to license any Content to you. We may choose not to accept orders at our sole discretion.
License Grants. Designbarn and various contributors who provides Contents to us (“Contributors”) own all rights to the Contents. Subject to the terms and conditions of these Terms, Designbarn hereby grants you an ongoing, personal, non-exclusive, non-transferable, and non-sublicensable license, to use, reproduce, perform, display, transmit the Content. Except as granted herein, all rights to the Content are expressly reserved by Designbarn for itself and its Contributors.
Restrictions on the Use of Content. You may not a. Use Content other than as expressly provided by the license you purchased. b. Resell or transfer or share any Content except as expressly provided by the license you purchased. c. Use Content in a manner that infringe any third-party intellectual property rights. d. Use Content in a manner that would give rise to a claim of deceptive advertising or unfair competition. e. Use Content, or any part thereof, as a company logo, trademark or other indication of origin. f. Represent in anyway that the Content was created by you or a person other than the copyright holder(s) of the Content. g. Use Content in a pornographic, defamatory, deceptive context or in way that a reasonable person would find it offensive, libelous, obscene or illegal.
Representations and Warranties 5.1 We represent and warrant that: a. The Content in its original unaltered form and used in full compliance with this Terms and applicable law, do not infringe any third-party intellectual property rights. b. The Content in its original unaltered form and used in full compliance with this Terms and applicable law, do not violate any third parties’ right to privacy or publicity. c. The Content in its original unaltered form and used in full compliance with this Terms and applicable law, do not violate any US law, statute, ordinance or regulation. d. The Content in its original unaltered form and used in full compliance with this Terms and applicable law, will not be defamatory, libelous, pornographic, obscene or illegal. e. Our Content contributors have granted us all necessary rights in and to the Content to grant the rights set forth herein, as applicable.
5.2 You represent and warrant that: a. Except as provided herein, you will not sell, sublicense or otherwise transfer to anyone, the Content or the right to use the Content. b. You will take reasonable steps to prevent third parties from duplicating the Content.
5.3 Each Party has the full right, power, and authority to grant the rights and licenses granted hereunder, and to perform its obligations under these Terms;
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, (A) EACH PARTY HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) DESIGNBARN MAKES NO REPRESENTATION AND WARRANTY AS TO USE OF ANY NAME, TRADEMARK OR WORK OF ART DEPICTED IN THE CONTENT; (C) DESIGNBARN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Indemnification. 6.1 Subject to Limitation of Liability (Section 7) and provided You have not breached any Term, we shall indemnify, defend, and hold harmless, against all losses arising out of or resulting from any claim, suit, action, or proceeding (each, an "Action") by any third-party claim directly attributed to our breach of the express warranties and representations made in Section 5. We shall not be liable for any damages or costs or losses arising as a result of modifications made to the Content or due to the context in which you use the Content. Such indemnification is conditioned upon you notifying us in writing, of such claim or threatened claim, no later than five (5) days from the date you know or reasonably should have known of the claim or threatened claim. The notification must be emailed to [email protected] with a certified copy to Design Barn Inc, 7302 Royal Oaks, Pleasanton, CA 94566, Attention: Chief Financial Officer. You agree to cooperate with us in the defense of such claim.
6.2 You shall indemnify, defend, and hold harmless us against all Losses arising out of or resulting from any Action by a third party related to or arising out of your use of Content. You further agree to indemnify us for all costs and expenses that we incur in the event that you breach any of these Terms.
Limitation of Liability. WE HAVE BEEN GIVEN ASSURANCES OF THE CONTENT SALABILITY, MERCHANTIBILITY, AND COMPLIANCE FROM OUR CONTRIBUTORS. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES [LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE], ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE CONTENT YOU HAVE ORDERED THROUGH OUR SITE.
The limitation of liability set forth above shall only apply to the extent permitted by law.
Fees and Refunds. 8.1 Fees. You agree to pay fees as provided on the Site. 8.2 Refund. Except when required by law, all fees are non-refundable. You authorize us to charge you all subscription fees for the duration of the term agreed to at the time of purchase.
Customization or Derivative Work. If you customize the Content or create a derivative work based on the Content, all rights in and to such Content or image, shall be owned by us or our Contributors, subject to your use of the Content, pursuant to the terms set forth herein.
Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Governing Law and Jurisdiction. This Site is operated from the US. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of California.
Dispute Resolution and Binding Arbitration. 13.1 YOU AND DESIGNBARN ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
13.2 The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 13. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
13.3 You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR DESIGNBARN WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS/LICENSEES IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 14 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
No Waivers. The failure by us to 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 right or provision will be effective only if in writing and signed by a duly authorized representative of Designbarn.
No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
17.1 To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
17.2 To Us. To give us notice under these Terms, you must contact us as follows: (i) by email at [email protected]; or (ii) by personal delivery, overnight courier, or registered or certified mail to Design Barn Inc, 7302 Royal Oaks, Pleasanton, CA 94566, Attention: Chief Financial Officer. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
We may offer Services on a subscription fee (the “Subscription Fees”) basis according to the pricing and payment schedule available through the Website. You agree to pay the Subscription Fees and any other charges incurred in connection with your use of the Services (including any and all applicable taxes) at the rates in effect when the charges were incurred. [If your membership includes access to areas containing premium content or services, your access to such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas.]
All Subscription Fees will be charged automatically to your credit card or other payment method that we offer and you select (including third-party payment processing services, such as Stripe, PayPal, Circle, and other similar payment processing services). Each subscription term shall be for [one year], which term shall automatically renew unless you terminate your subscription [at least thirty (30) days] prior to the end of the then-current term. All payments are due in advance of the subscription term. If you cancel your [annual] membership, you may use your membership until the end of your then-current subscription term and your subscription will not be renewed after your then-current subscription term expires; however, you won’t be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current membership period. You may cancel your annual membership [through your account login] or by writing to us at [email protected] You hereby accept responsibility for all recurring charges made to your selected payment method prior to cancellation or termination. Your non-termination or continued use of the Service reaffirms that we are authorized to charge your selected payment method on the recurring basis to which you agreed at registration. We assume no responsibility or liability if your access to the Service fails to renew or otherwise expires because of outdated or incorrect payment information. WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU AFFIRMATIVELY CANCEL YOUR SUBSCRIPTION OR NOTIFY US THAT YOU WISH TO CHANGE YOUR PAYMENT METHOD INFORMATION. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
All fees and charges are nonrefundable. We may change the Subscription Fees then in effect, or add new fees or charges, by giving you notice in advance. If you want to use a different credit card or payment method than one previously provided or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Services using your user name and password without your authorization, you must contact us immediately. If you initiate a chargeback or otherwise reverse a payment made with your payment method, we may in our discretion terminate your account immediately. If we successfully dispute the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your subscription reinstated.