Terms of service

Terms of Agreement

Last Updated: June 2023

 

Website and Digital Platform Usage

 

Welcome to modamaia.com (the "Website"), operated by Moda Maia, a Minnesota limited liability company, ("Moda Maia", "we", "our", or "us"). These Terms and Conditions of Use ("Terms") set forth the terms and conditions which govern your use of the Website and Moda Maia’s Social Media Platforms (collectively referred to under the “Website”). Please read this information carefully before using and working with Moda Maia.

USE OF THIS WEBSITE.

By using or interacting with Moda Maia through this Website or with any tools, websites, applications or other electronic destinations accessible through this Website or Moda Maia itself, you are agreeing to all of the provisions of these Terms and the Privacy Policy of Moda Maia located at the footer of the Website. If you choose to use tools, websites, applications or other electronic destinations you access through this Website, you should independently determine if you agree to their terms and conditions and privacy policies.

IF YOU DISAGREE WITH THESE TERMS, PLEASE DO NOT USE THIS WEBSITE.

UPDATED TERMS.

These Terms may be updated from time to time, at Moda Maia’s sole discretion. It is your responsibility, as the viewer, visitor, client or customer, to check these Terms regularly to see if any may have changed, and to alert Moda Maia if you do not agree with the changes that have been made.

 

Terms

These Terms are between Moda Maia and you for online usage. By using our Website, you are accepting these Terms.

MODA MAIA SERVICES

Moda Maia creates and sells original photographs and paintings mainly made with acrylics and mixed media.

ORDERS. By completing and submitting an electronic order form, you are making an offer to purchase Moda Maia’s services, namely, original photographs and paintings (the “Artwork”). Please note that the purchase will not be confirmed until we have authorization from your payment card issuer.

DEPOSIT. Your purchase is confirmed only upon your submission of an online purchase and when Moda Maia receives your non-refundable deposit, equal to 100% of the purchase cost. The deposit is due within 14 days of completing the purchase via our website. Any remaining balance is due upon retrieval of the Artwork. If payment is not received, Moda Maia reserves the right to withhold the Artwork or charge a late fee in the maximum amount allowed by law.

REFUNDS. Refunds will only be made if Moda Maia is not able to create and provide the Artwork. If that should happen, you agree that your sole remedy will be a return of the amount you have paid for the Artwork, if and only if, Moda Maia is not able to provide a suitable replacement by industry standards, at Moda Maia’s sole discretion. If Moda Maia is able to provide a suitable replacement, you agree to accept the order as fulfilled and understand that you are not entitled to any refund.

CHANGES. Any requests to alter the design of the Artwork must be made within 5 days of placing the order online. Changes may result in an increase in total cost, at Moda Maia’s sole discretion. Any additional charges incurred from a change will be invoiced and due with the final payment. You will not hold Moda Maia responsible if the outcome varies from your desired results.

 

ARTWORK LIMITED LICENSE

Subject to your strict compliance with these Terms and the Privacy Policy, and with Moda Maia’s express written consent, we grant you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to use your purchased Artwork, including designs, graphics, and images, within the scope of your business. This Limited Business License is limited to the specific use as needed for your business and shall not be used in any other manner, nor shall you distribute the Artwork to any third party in any other manner without Moda Maia’s express written consent. Should you use the Artwork within your business, you must provide attribution to Moda Maia at all times. You may not, under any circumstances, modify the Artwork.

 

LIMITATIONS OF OUR LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ABSENT THEIR WILLFUL OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL MODA MAIA, ITS AFFILIATES, OWNERS, EMPLOYEES, AGENTS AND INDEPENDENT CONTRACTORS (collectively “MODA MAIA PARTIES”) BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICES, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.IN ALL CIRCUMSTANCES, MODA MAIA PARTIES’ MAXIMUM COLLECTIVE LIABILITY TO YOU FOR DAMAGES FROM ANY AND ALL CAUSES, AND YOUR MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO $500.00 USD. ANY SUCH CLAIM MUST BE COMMENCED WITHIN SIX MONTHS OF THE FACTS GIVING RISE TO THE CLAIM OR A MINIMUM TIMEFRAME MANDATED BY STATUTE IF LONGER THAN SIX MONTHS.

 

NO WARRANTIES. MODA MAIA MAKES NO WARRANTIES REGARDING THE PERFORMANCE OR OPERATION OF THIS WEBSITE. MODA MAIA FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE INFORMATION, CONTENTS, MATERIALS, PROGRAMS, PRODUCTS, OR SERVICES THAT IT PROVIDES, INCLUDING ON OR THROUGH THIS WEBSITE. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, MODA MAIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

INTELLECTUAL PROPERTY

Our service contains but is not limited to: (i) materials and other items relating to Moda Maia and its services, and similar items from our licensors and other third parties, including content that constitutes copyrightable materials under the United States Copyright Act; and (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities including those of Moda Maia, our licensors and other third parties (collectively “Moda Maia Content”). All rights, titles, and interest in and to our services and Moda Maia Content is the sole property of Moda Maia or those who we’ve received permission from or have licensed to, and is protected by the various state and federal intellectual property and unfair competition rights and laws to the fullest extent possible. You should assume that any material, including our services, designs, digital content, related services, and other protectable assets of Moda Maia, whether contained on our Website or otherwise, are proprietary and either trademarked or copyrighted, whether at common law, federally or internationally. In the instance of perceived infringement, you agree to immediately cease and desist from your usage, and agree to injunctive relief as sought by Moda Maia. If you wish to use any of the information contained on the Website, please first contact Moda Maia at social@modamaia.com.

 

MODA MAIA CONTENT LIMITED LICENSE

Subject to your strict compliance with these Terms and the Privacy Policy, Moda Maia grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to view and display Moda Maia Content on your personal electronic devices. This, however, does not give you any ownership of, or any other interest in, any Moda Maia Content. Your unauthorized use of Moda Maia Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability.

 

SETTING UP AN ACCOUNT

Certain features of our services may require you to register for an account. When registering you agree to: (i) provide and maintain true, accurate, current, and complete information; (ii) protect and prevent unauthorized access to your account; and (iii) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. As the owner and operator of your account, you are solely responsible for all activities affecting us that occur under it, whether or not you authorized the activity. Moda Maia is not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.

 

PAYMENT PROCESSING

Please note that any payment terms presented to you are deemed part of these Terms.

You agree that you are responsible for all payments and taxes incurred hereunder. All purchases are secured through our Website, and thus we use a third-party payment processor to bill you. You acknowledge and agree that any credit card and related billing and payment information that you provide to us must be accurate and may be shared by us with companies who work on our behalf, such as our payment processor and/or credit agencies, for the purposes of effecting payment to us. The processing of payments will be subject to the terms, conditions and privacy policies of the payment processor in addition to these Terms. We are not responsible for error by the payment processor. You agree to pay us all charges at the prices then in effect in accordance with the applicable payment terms and you authorize us to charge your chosen payment provider.

 

RESTRICTIONS

You may not: (i) modify Moda Maia Content for your own or a third-party’s monetary gain; (ii) interfere with the proper operation of or any security measure used for Moda Maia Content; (iii) use Moda Maia Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (iv) otherwise violates these Terms.

 

USER CONTENT AND CONSENT

You acknowledge that you alone are entirely responsible for all information, reviews, photographs, video, messages, tags and/or other materials (collectively, “User Content”) that you upload, post, e-mail, transmit or otherwise make available reflecting our services.

You acknowledge that Moda Maia has no obligation to pre-screen User Content, although Moda Maia reserves the right in its sole discretion to pre-screen, refuse or remove any User Content of which it becomes aware. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content.

You grant Moda Maia a royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display User Content (in whole or in part) for any purpose, commencing on the date you made such User Content available, including promoting and marketing Moda Maia. You warrant that the holder of any worldwide intellectual property right, including moral rights, in the User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.

You shall not (and shall not permit any third party) either (a) take any action or (b) make available any User Content that, in Moda Maia’s sole discretion: (i) infringes on any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; or (iii) involves commercial activities and/or sales, contests, giveaways or sweepstakes, without Moda Maia’s prior written consent.

 

LINKS TO THIRD PARTY WEBSITES 

Our Website may contain links, banners, or advertisements that lead to other websites not subject to these Terms or our Privacy Policy. We encourage you to read each site’s policies to learn about how your information may be treated by other websites.

 

SECURITY

Our Website may only be used for lawful purposes.  Illegal activities, including but not limited to tampering with the Website, misrepresenting the identity of a user, or conducting fraudulent activities on the Website are prohibited.  You agree not to use any device, software or routine, or data to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website.

 

MODIFICATIONS

Any modification or amendment to these Terms requires the sole consent of Moda Maia and may be signified by a notice posted to the Website that the Terms have been updated or a new “last updated date” denoted at the top of these Terms. If there is a particular situation in which the Terms need to be modified for any one individual, the request will be considered for extraordinary circumstances only, and shall be emailed to social@modamaia.com; in such an instance, the parties may modify or amend these Terms by way of email, so long as all parties provide proper acknowledgment of receipt of the email and indicate their acceptance of the revised terms by way of an electronic signature in the following form: “/s/ Party Name”. Email modifications shall not become binding until all parties have complied with these requirements.

 

ELECTRONIC COMMUNICATIONS

Visiting modamaia.com or sending emails to Moda Maia constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and through or on the Website, satisfy any legal requirement that such communications be in writing.

 

PHOTOGRAPHIC RELEASE

By and in consideration for your use of our services, you irrevocably grant Moda Maia and its workers, contractors, agents and representatives all rights to use, reproduce, display, exhibit, publish, edit, distribute, and/or produce derivative works based on your image, likeness, and voice as recorded by any camera and/or on any video, audio, and/or other media (collectively, “Likeness”) worldwide, in perpetuity, without compensation, payment, or other additional consideration of any kind, for any lawful purpose, including without limitation for Moda Maia’s marketing and trade purposes. You agree that your Likeness may be used, reproduced, displayed, exhibited, published, edited, or distributed by Moda Maia at its sole discretion. You understand that your Likeness may be used in various publications, promotional or marketing materials, and/or social media, unrestricted by time or geographic area and you consent to such uses. You further understand and grant permission to Moda Maia and its agents and representatives to electronically display any Likeness of you on the Internet or in other public settings. You hereby waive the right to inspect or approve any and all materials in which your Likeness may appear. You further waive any right to royalties or other compensation arising or related to the use of your Likeness. This release applies to all photographic, audio, and/or video recordings that you create, relating to Moda Maia (or any third party). There is no time limit on the validity of this release nor is there any geographic limitation on where materials including your Likeness may be used, reproduced, displayed, exhibited, published, edited and/or distributed by or on behalf of Moda Maia.

 

INDEMNIFICATION

You agree to defend, indemnify and hold harmless Moda Maia Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your misuse of our service; (iii) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (iv) your violation of the rights of any third party, including any intellectual property, publicity, confidentiality, property or privacy right; (v) your use of a third party service; or (vi) any misrepresentation made by you. Moda Maia Parties reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Moda Maia Parties’ defense of any claim. You will not in any event settle any claim against Moda Maia Parties, without the prior written consent of Moda Maia.

 

WAIVER OF INJUNCTION OR OTHER EQUITABLE RELIEF

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICES, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY MODA MAIA OR A LICENSOR OF MODA MAIA FOR THE LICENSED CONTENT THAT MODA MAIA IS USING.

 

CONTROLLING LAW; JURISDICTION

The validity, construction and enforceability of these Terms shall be governed in all respects by the laws of the State of Minnesota, and the parties expressly agree that any dispute requiring resolution by a court shall be subject to the exclusive venue and jurisdiction of the state and federal courts serving Dakota County, Minnesota.

 

DISPUTE RESOLUTION

Any dispute or claim arising under or in any way related to these Terms, with the exception of recovery by Moda Maia of any unpaid amounts from you or Moda Maia seeking injunctive relief, shall be submitted to non-binding mediation prior to the commencement of any proceeding before a trier of fact. The parties to the dispute or claim agree to act in good faith to participate in mediation, and to identify a mutually acceptable mediator in Dakota County, Minnesota unless both parties agree to a different location. All parties to the mediation shall share equally in its cost. In the event that Moda Maia chooses or is forced to pursue any form of collections or legal action to enforce the Terms, you accept responsibility for all costs incurred in such dispute, including reasonable attorneys’ fees.

 

NO CLASS ACTIONS 

To the maximum extent permitted by law, you may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

 

NOTICES

Any notice or official communication between Moda Maia and you shall be via email, to the address you provided in your submission details and to our address at social@modamaia.com.

 

INTERPRETATION

You acknowledge and agree that these Terms, including waivers of liability, are intended to be as broad and inclusive as permitted by applicable law.

 

ASSIGNABILITY

Moda Maia alone may assign, directly or indirectly, all or part of its rights or obligations under these Terms without your consent. Nothing in these Terms, express or implied, will confer upon any person or entity not an authorized assignee to these Terms, or the legal representatives of such person or entity, any rights or remedies of any nature or kind whatsoever under or by reason of these Terms, except as expressly provided in herein.

 

SEVERABILITY

If any provision of these Terms shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of these Terms is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

 

WAIVER

The failure or delay by Moda Maia to enforce or exercise any provisions of these Terms shall not constitute or be deemed a waiver of such provision or any other provisions within these Terms.   Furthermore, any waiver or breach of any provision of these Terms shall not amount to a waiver of any other provision.

 

SURVIVAL

The provisions of these Terms which by their nature should survive termination of your use of our Services, including sections on Intellectual Property, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, and Waiver of Injunctive or Other Equitable Relief will survive.

 

RESERVATION OF RIGHTS

All rights not expressly granted to you are reserved by Moda Maia and its licensors and other third parties claiming through us. Any unauthorized use of the Moda Maia Content or service for any purpose is prohibited.

 

ENTIRE AGREEMENT

These Terms constitute the entire agreement between the parties and supersede all prior agreements whether oral or written concerning the subject matter of these Terms.

 

By using this Website or purchasing products or Services through this Website, you are agreeing to the Terms.