Terms & Conditions

The following terms and conditions constitute a legally binding contract (this "Agreement") between you (“you” or “your”) and Host Color LLC or WhereIsTheWall (as defined below) that governs all use by you of the WhereIsTheWall.shop website (the “Website") and the services available on or at the Website (taken together with the use of the Website, the "Services"). If you live in North America or elsewhere, “WhereIsTheWall” or “Host Color” means Host Color LLC, a Delaware Limited Liability Company.

The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein. We also have other policies and procedures including, without limitation, Shipping, Return Policy, Privacy Policy and others.  Those policies contain additional terms and conditions, which apply to the Services and are part of this Agreement. YOUR USE OF THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THIS AGREEMENT. FURTHERMORE, BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THE WEBSITE, YOU ACCEPT AND ARE BOUND BY THIS AGREEMENT. If you do not agree to this Agreement, do not use the Website or any other Services.  

If you use our Services only for your personal use, you are considered a "User". If you use our Services to execute orders or deliver Products to third parties (including Customers), you are considered a "Merchant".

REGARDLESS IF YOU ARE A USER OR MERCHANT, SECTION 17 OF THIS AGREEMENT REQUIRES THAT ALL DISPUTES (AS DEFINED BELOW) ARISING FROM OR RELATING TO THIS AGREEMENT BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN BY JURY TRIAL OR CLASS ACTIONS, EXCEPT AS OTHERWISE PROVIDED BY SECTION 17. IF YOUR COUNTRY OF RESIDENCE IS IN THE EUROPEAN ECONOMIC AREA THIS APPLIES TO ANY ACTION YOU MAY WANT TO BRING AGAINST WHEREISTHEWALL IN THE UNITED STATES.

Access & Membership

In order to enjoy all of WhereIsTheWall benefits, you may register your account and become a Member (“Registered Member”). Membership requires that you register on the Website (including by truthfully filling out all required personal information). You may opt out of marketing and promotional activities, including emails. You may cancel your membership at any time by canceling it online on the Website. To complete registration, you shall provide a name, surname, email address and password. You may never use another user's WhereIsTheWall account without permission from that user. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify WhereIsTheWall.shop immediately of any breach of security or unauthorized use of your account. Although WhereIsTheWall will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of WhereIsTheWall and others due to such unauthorized use.

WhereIsTheWall.shop may change, suspend or discontinue the Services, Products, fees, charges, terms at any time, including the availability of any feature or content, but without affecting orders for European Economic Area Users which WhereIsTheWall has already confirmed. WhereIsTheWall.shop may also impose limits on certain features and Services or restrict the User's access to parts or all of the Services without notice or liability. If you are an individual (rather than an organization or entity), then you certify to WhereIsTheWall.shop that you are at least 18 years of age. If you are using the Services on behalf of an organization or entity then you certify that you are legally authorized and permitted to bind such organization or entity to this Agreement and use the Services. Notwithstanding the aforementioned, you agree to take full responsibility for your selection and use of the Services. This Agreement is void where prohibited by law, and the right to access or use the Services is revoked in such jurisdictions.

Modifications

Without affecting orders for European Economic Area Users which WhereIstheWall.shop has already confirmed that WhereIstheWall (Host Color LLC) reserves the right, at its sole discretion, to modify this Agreement and its terms, as well as the fees and other charges for our Services, at any time.  All such modifications will become effective immediately after WhereIstheWall posts them on the Website. You shall be responsible for reviewing and becoming familiar with all such modifications, and you agree to review the terms of this Agreement each time you access or use the Site so that you are aware of any modifications made to this Agreement.  Use of the Website and other Services by you after WhereIstheWall posts the modifications on the Website constitutes your acceptance of the terms and conditions of this Agreement, as modified. If you do not agree to the modified terms, you are not authorized to access or use the Website or other Services, and you must send WhereIstheWall a written notification, including via email (and your WhereIstheWall.shop account will be deleted), to close your account within 30 days of notice.

Content

WhereIsTheWall respects intellectual property rights and follows intellectual property laws. We are committed to following appropriate legal procedures to remove infringing content from our Website. We are committed to to remove infringing content from our Website. WhereIsTheWall will try to accommodate and not interfere with standard technical measures used by copyright owners to identify and protect their works.

DMCA Cooperation: WhereIsTheWall’s copyright infringement notice and Content removal policies and procedures are intended to comply with the requirements and obligations of service providers under the Digital Millennium Copyright Act (DMCA). To the extent any requirements and obligations of service providers under the DMCA change or are different than set forth herein, WhereIsTheWall’s Terms & Conditions may likewise change in accordance with the DMCA requirements and obligations of service providers.

Use of Services

We grant you a limited, non-exclusive, non-transferable, and revocable license to use our Services, subject to this Agreement and the following restrictions in particular:

Don’t Use Our Services to Break the Law. You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal, and international laws that may apply to you or WhereIstheWall. You agree not to use the Services: (i) to impersonate or attempt to impersonate WhereIstheWall, any other WhereIstheWall Party (as defined below), or any other person or entity; or (ii) for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content or otherwise. The following are collectively referred to as the “WhereIstheWall Parties”: (a) WhereIstheWall, (b) WhereIstheWall’s subsidiaries, affiliated companies, and joint ventures, and (c) the officers, directors, members, managers, equity holders, agents, and employees of WhereIstheWall and its subsidiaries, affiliated companies, and joint ventures.

Don’t Try to Harm Our Systems. You agree not to interfere with or try to disrupt our Services, for example by distributing a virus or other harmful computer code into our platforms, third party services, or other programs or systems our clients may use to promote their Products. You agree not to use the Services: (i) to send, knowingly receive, upload, download, use, or re-use any material which does not comply with this Agreement; or (ii) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm any WhereIstheWall Party or expose any of them to liability. You agree that WhereIstheWall reserves the right to audit our platforms (systems) to ensure integrity and compliance with this Agreement, at the sole discretion of WhereIstheWall.

Follow Brand Guidelines. The name “WhereIstheWall”, our iconography, phrases, logos, and designs that we use in connection with the Products or Services we provide are trademarks, service marks, or trade dress of WhereIstheWall in the US, European Union, and all other countries, that are used for proprietary purposes at our sole discretion. Except as expressly provided in this Agreement, WhereIstheWall does not grant you any rights to use its trademarks, service marks, or trade dress. You may state in connection with the Services or Products provided by WhereIstheWall that WhereIstheWall provided such Services or Products. If you use any of our trademarks in reference to our Products or Services, you must include a statement attributing that trademark to us. You must not use any of our trademarks: (i) in or as the whole or part of your own trademarks; (ii) in connection with activities, Products or Services which are not ours; (iii) in a manner which may be confusing, misleading or deceptive; or (iv) in a manner that disparages us or our information, Products or Services (including the Website). WhereIstheWall reserves the right to request you to immediately remove any such misused iconography, phrases, logos, and designs at our sole discretion.

Communication Methods. WhereIstheWall will provide you with certain legal information in writing. By using our Website, you’re agreeing to our communication methods which describe how we provide that information to you. This simply means that we reserve the right to send you information electronically (by email, etc.) instead of mailing you paper copies (it’s better for the environment).

Digital Items. Digital items (like mockups, templates, images and other design assets) and texts created in connection with the Products and/or Services we offer and their intellectual property rights belong exclusively to WhereIstheWall.  Digital items and any results may only be used in connection with the advertising, promoting, offering and sale of WhereIstheWall’s Products and may not be used for other purposes or in conjunction with products from other manufacturers.

Content & Services

Our Website may contain links to third-party websites or services that we don’t own or control (for example, links to Facebook, Twitter, and Pinterest and other websites). You may also need to use a product or service of one of our subcontractors or other third parties in order to use some of our Services (like a compatible mobile device to use our mobile apps). When you access these third-party services, you do so at your own risk. The third parties may require you to accept their own terms of use. WhereIsTheWall is not a party to those agreements; they are solely between you and the third party.  You agree that WhereIsTheWall will not be liable to you in any way for your use of these third party services.

WhereIsTheWall is dedicated to making our Services the best they can be, but we’re not perfect and sometimes things can go wrong. You understand that our Services are provided “as is,” with all faults and without any kind of warranty (express or implied), except for the warranties provided with respect to Products in Section 6 below. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE EXPRESSLY DISCLAIMING ANY AND ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, WITH RESPECT TO OUR SERVICES, EXCEPT FOR THE WARRANTIES PROVIDED WITH RESPECT TO PRODUCTS IN SECTION 6 BELOW. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. We do not guarantee that:

  • the Services will be secure or available at any particular time or location – WhereIsTheWall shall not be liable for any delays, interruptions or loss of data in connection with the use of our Website and Services;
  • any errors for which WhereIsTheWall is responsible will be corrected;
  • the Services will always be free of viruses or other harmful materials; or
  • the results of using the Services will meet your expectations. 

You use the Services solely at your own risk.

LIABILITY LIMITS. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER WHEREISTHEWALL NOR ANY OTHER WHEREISTHEWALL PARTY SHALL BE LIABLE TO YOU OR YOUR CUSTOMERS FOR ANY LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS, SERVICES OR THIS AGREEMENT, REGARDLESS OF (I) WHETHER ANY OF THE FOREGOING DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF INCURRING ANY OF THE FOREGOING DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) ANY SPECIFIC CIRCUMSTANCES OF YOU AND/OR YOUR CUSTOMER.  THE LIABILITY OF THE WHEREISTHEWALL PARTIES WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS  THAT YOU HAVE PURCHASED OR USED THROUGH THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Limited Warranty on Products

Does not apply to Users residing in the European Economic Area.

Limited Warranty. We warrant that, at the time of delivery of a Product to a our Customer, the Product will not be materially defective or damaged (the “Limited Warranty”).  

Who May Use This Warranty? WheIsTheWall extends the Limited Warranty only to our Customers. All Limited Warranty coverage terminates if any of our Members or Guest Customers sells or otherwise transfers a Product.

What Does This Warranty Not Cover? This Limited Warranty does not cover any damage to or defect in a Product caused by any of the following: (a) you or third parties; (b) any improper handling (including during shipping), use or storage of the Product; (c) any failure to follow any Product instructions; (d) any modifications to the Product; (e) any unauthorized repair to the Product; or (f) any external causes such as accidents, fire, flood, “acts of God” or other actions or events beyond our reasonable control; or (g) any costs or expenses related to the loss of use of the Product or any other costs or expenses not covered by this Limited Warranty. This Limited Warranty does not cover any items supplied by third parties, size exchanges or buyer’s remorse.

Finally, as noted elsewhere in this Agreement, we unfortunately cannot guarantee that the colors and details in our website images are 100% accurate representations of a Product, and sizes might in some cases be approximate.  Accordingly, this Limited Warranty does not cover such matters.  

What Is The Period Of Coverage? This limited warranty starts on the date of the delivery of the Product to our Customers and lasts for thirty (30) days (the “Warranty Period”).

What Are Your Remedies Under This Warranty?  With respect to any materially defective or damaged Product, we will, in our sole discretion, either: (a) replace such Product (or the defective or damaged part of the Product) free of charge, or (b) refund the purchase price paid to us by the User or the Merchant along with the shipping fees corresponding to the defective or damaged Products. 

How Do You Obtain Warranty Service? Promptly following delivery of a Product, you will inspect the Product. If a Product is materially defective (including any error by WheIsTheWall in printing) or damaged upon receipt, or if you received the wrong Product, then in order to be eligible for service under this Limited Warranty, you must submit a claim within the Warranty Period in compliance with our Return Policy.  If you are a Merchant, your Customer should contact you regarding any defective or damaged Product and with respect to any delivery of the wrong Product.   

LIMITATION OF LIABILITY. THE REMEDIES DESCRIBED IN THIS SECTION 6 ARE YOUR SOLE AND EXCLUSIVE REMEDIES (AND OUR ENTIRE LIABILITY) FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY FOR A DEFECTIVE OR DAMAGED PRODUCT SHALL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT RECEIVED BY US FOR THE PRODUCT, NOR SHALL WE UNDER ANY CIRCUMSTANCES, TO THE FULLEST EXTENT PERMITTED BY LAW, BE LIABLE FOR ANY LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES OR LOSSES ARISING OUT OF OUR PRODUCTS, REGARDLESS OF (I) WHETHER ANY OF THE FOREGOING DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF INCURRING ANY OF THE FOREGOING DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) ANY SPECIFIC CIRCUMSTANCES OF YOU AND/OR YOUR CUSTOMER.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES WITH RESPECT TO OUR PRODUCTS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THE WARRANTY PERIOD. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Your rights in the case of lack of conformity

If you are a User residing in the European Economic Area, the legal guarantees established by Directive 1999/44/EC on consumer sales and guarantees below apply to the sale of our products. Consequently, you have the right, free of charge, to get the products repaired (or replaced) within the limits provided by the law, or, in case of failure of one of the remedies above to have an appropriate reduction in the price of the products, or the contract cancelled. Delivery costs for returning the product to be repaired or replaced under this clause shall be borne by WhereIsTheWall, as well as any costs related to the delivery to you of the repaired or replaced product.

Responsibility of Site members and visitors

Violation of this Agreement or any other rules will result in the termination of your WhereIsTheWall account.

WhereIsTheWall and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available via the Services. Without limiting the foregoing, WhereIsTheWall and its designees shall have the right to remove, block, and disable any Content. You agree that you must evaluate and to the extent permitted by law bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by WhereIsTheWall or submitted to WhereIsTheWall, including without limitation information in WhereIsTheWall collaborations, posts and in all other parts of the WhereIsTheWall Services.

Without limiting other remedies, we may limit, suspend or terminate our Services and your account, prohibit access to our Website, delay, remove, block, or disable hosted Content, and take technical and legal steps to keep you off the Website if we think that you are creating problems, causing possible legal liabilities, breaching this Agreement, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for extended periods of time. You are responsible for providing WhereIsTheWall with accurate and truthful information (including but not limited to your name and surname if you are a User or retail price if you are a Merchant). If you have provided WhereIsTheWall with inaccurate or false information, (a) you shall be liable to WhereIsTheWall for damages and losses (including but not limited to taxes) arising out of such inaccurate or false information, (b) you shall reimburse such damages and losses (including but not limited to taxes) to WhereIsTheWall, and (c) WhereIsTheWall shall have the right to charge you for such damages and losses (including but not limited to taxes) and otherwise limit or suspend your access to the Services.

Payments and fees

You may choose to save your billing information to use it for all future orders and charges associated with WhereIsTheWall Products. In such case, you also acknowledge and agree that this information will be stored and processed by third party PCI DSS compliant service providers.

When you order a Product, or use a Service that has a fee, you will be charged, and you agree to pay, the fees in effect at the time the order is placed. We may change our fees from time to time (for example, when we have holiday sales, offer you a discount of base product prices, etc.). We may choose to temporarily change the fees for our Services for promotional events or new Products and Services, and such changes are effective when we post the temporary promotional event or new Product on the Website or inform you individually. The sale will be submitted for processing and you will be charged as soon as you confirm it. You may then receive an email from us.

By placing an order through the Website, you are confirming that you are legally entitled to use the means of payment tendered and, in the case of card payments, that you are either the cardholder or have the cardholder's express permission to utilize the card to effect payment. In case of an unauthorized use of a payment method, you will be personally liable for, and shall reimburse WhereIsTheWall for damages resulting from such unauthorized use.

With regard to payment methods, you represent to WhereIsTheWall that (i) the billing information you supply to us is true, correct, and complete and (ii) to the best of your knowledge, charges incurred by you will be honored by your financial institution (including but not limited to credit card company) or payment service provider.

If you make any return which does not comply with our return policies (which are described on the Website), you will reimburse WhereIsTheWall for its losses, which consist of fulfillment costs and chargeback handling fees (up to $25 USD per chargeback).

We may refuse to process a transaction for any reason or refuse to sell and/or to provide Services to anyone at any time at our sole discretion. We will not be liable to you or any third party by reason of refusing or suspending any transaction after processing has begun.

Unless stated otherwise, you may choose currency from the options available at the Site in which all fees and payments will be quoted. You are responsible for paying all fees, payments and applicable taxes associated with our Site and Services. After receiving your order you may receive an email from us with the details and description of the Products ordered. Payment of the total price plus taxes and delivery must be made in full before the dispatch of your Products.

WhereIsTheWall at its sole discretion may offer you various discounts, as well as change, suspend or discontinue them at any time. You may find more information about the available discounts at the Website, in the marketing and promotional emails or via other channels or events WhereIsTheWall may use or participate in.

Taxes

Aside from the limited circumstances set out below, you are responsible for (and shall charge) all applicable taxes, such as but not limited to sales taxes, VAT, GST and others, and duties associated with the Products (if and as applicable).

In some states in the US and countries, WhereIsTheWall may collect the applicable taxes from you as the seller and pay this to the relevant tax authority (if and as applicable).

In certain cases you are required to provide a valid exemption certificate such as Resale certificate, VAT ID or ABN.

Shipping

Once you have confirmed your order, it might not be possible to edit or cancel it. If you want to change some parameters, Customer addresses, etc., please check whether such an option is available in your account. We are not bound to make such modifications to your order, but we will do our best on a case-by-case basis. 

The risk of loss of, damage to and title for Products pass to you upon our delivery to the carrier. It shall be your (if you are a User) or your Customer's (if you are a Merchant) responsibility to file any claim with a carrier for a lost shipment if carrier tracking indicates that the Product was delivered. In such case WhereIstheWall will not make any refunds and will not resend the Product. For Users in the European Economic Area the risk of loss of, damage to and title for Products will pass to you when you or a third party indicated by you has acquired the physical possession of the Products.

If carrier tracking indicates that a Product was lost in transit, you or your Customer may make a written claim for replacement of (or credit to the Member’s account for) the lost Product in compliance with WhereIstheWall’s Return Policy. For Products lost in transit, all claims must be submitted no later than 30 days after the estimated delivery date.  All such claims are subject to WhereIsTheWall investigation and sole discretion.

Description of products

While many component parts of our Products are standard, all Products available for purchase are described on their specific page on our Website. We always try to represent each design as accurately as possible via photography and copy points provided by designers, artists or photographers.

We have a policy of continuous Product development so we can provide you with what we consider the best design combined with best performance, and thus reserve the right to amend the specifications of Products, their price, packaging, and any Service associated at any time, without prior notice. Before ordering, we invite you to have a close look at the Product description and design.

We use our best efforts to provide you with the best images and descriptions, but unfortunately cannot guarantee that colors and details in website images are 100% accurate representations of the product, and sizes might in some cases be approximate.

Sometimes during the manufacturing process Products can be damaged. Obviously we won’t knowingly ship damaged items to you (your Customers), but these damaged items can still be used for charitable purposes. WhereIsTheWall reserves the right to donate all damaged items with full or partial designs to charity and you hereby waive your right to collect royalties or other fees regarding damaged Products that are donated.

Purchase of products

Your order is purchase of a Product for which you have paid the applicable fee and/or other charges that we have accepted and received. Any Products in the same order which we have not accepted do not form part of that contract.  We may choose not to accept any orders in our sole discretion.

Orders are placed and received exclusively via the Website. Before ordering from us, it is your responsibility to check and determine full ability to receive the Products. Correct name of the recipient, delivery address and postal code/zip code, up-to-date telephone number, and email address are absolutely necessary to ensure successful delivery of Products.

All information asked on the checkout page must be filled in precisely and accurately. WhereIstheWall will not be responsible for missed delivery because of a wrong or misspelled recipient name or surname, delivery address or an inappropriate phone number. Should you like to ask for a change in the delivery address, phone number, or any other special requirements, please contact WhereIsTheWall.

Delivery

We deliver to most places in the world. You shall cover delivery costs. Delivery prices are additional to the Product’s price and may vary depending on delivery location and/or sort of Products, and additional charges may be added to the order for remote or difficult to access locations that require special attention. Flat rate delivery charges are shown on our checkout page; however, we reserve the right to advise you of any additional delivery charges that apply to your specific delivery address.

Some Products are packaged and shipped separately. We cannot guarantee delivery dates and to the extent permitted by law accept no responsibility, apart from advising you of any known delay, for Products that are delivered after the estimated delivery date. Average time for delivery may be shown on the Site. It is only an average estimation, and some delivery can take longer, or alternatively be delivered much faster. All delivery estimates given at the time of placing and confirming order can be subject to change. In any case, we will do our best to contact you and advise you of all changes. We try our best to make Product delivery as simple as possible.

Ownership of the Products will only pass to you/Customer after we receive full payment of all sums due in respect of the Products, including delivery charges and taxes, and deliver the Products to the carrier. 

We make no guarantees with respect to any collaboration we undertake with you, including any collaboration with respect to Services, Products (including new Products) or any integration with a vendor platform.

Release

To the fullest extent permitted by law you release us and all other WhereIsTheWall Parties from any and all claims and demands, as well as any and all damages, losses, liabilities, judgments, costs, reasonable attorneys' fees, and other expenses incurred or suffered by any WhereIsTheWall Party, of every kind and nature, known and unknown, relating to or arising out of any right, claim, or matter (a) which is disclaimed by WhereIsTheWall (or for which WhereIsTheWall provides no guarantees) under this Agreement, or (b) for which WhereIstheWall is otherwise indemnified or released by you under this Agreement.

Indemnity

To the fullest extent permitted by law you will defend, indemnify, and hold WhereIstheWall and the other WhereIstheWall Parties harmless from any claim or demand made by any third party (including, but not limited to, your Customer), as well as any and all damages, losses, liabilities, judgments, costs, reasonable attorneys' fees, and other expenses of every kind and nature, known and unknown, incurred or suffered by the WhereIstheWall Parties, relating to or arising out of (a) your breach of this Agreement, (b) your use (or misuse) of our Services, (c) your Content, (d) the infringement by your Content or your account of someone else’s intellectual property or other rights, (d) your violation of any law or the rights of a third party, or (e) if you are a Merchant, any claims related to products or items sold by you through our Services, including claims for misrepresentations by you to your Customers and claims for physical injury or property damage by any of your products or items that are warehoused for you by WhereIstheWall.  We reserve the right to handle our legal defense however we see fit, even if you are indemnifying us, in which case you agree to cooperate with us so we can execute our strategy.

Governing Law

This Agreement, and all disputes and claims arising out of or in connection with this Agreement or its subject matter or formation including non-contractual disputes and claims, are governed by the laws of the State of Delaware, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live or are located but if you are an User living in the European Economic Area or Switzerland the laws of the Republic of Bulgaria will apply to any dispute arising out of or relating to this Agreement. Notwithstanding the aforementioned, nothing in this Agreement, including the aforementioned choice of law provision, affects your rights as an User living in the European Economic Area or Switzerland to rely on any mandatory provisions of the law of the country in which you are resident.

For Users in the European Union: Alternatively, you can contact the consumer centre in your country or you can decide to access the platform for alternative extra-judicial resolution of disputes provided by the European Commission.

ARBITRATION AND JURY TRIAL WAIVER

"Disputes” means all disputes and claims arising out of or in connection with this Agreement or its subject matter or formation including non-contractual disputes and claims, excluding only claims under the Limited Warranty and claims brought by Users living in the European Economic Area or Switzerland against WhereIstheWall in European Economic Area. All Disputes shall be finally settled by final and binding arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (“Commercial Rules”) in effect at that time. The Rules are deemed to be incorporated by reference into this Agreement. As of the date of this Agreement you can find them here or by calling the AAA at 1–800–778–7879. The Federal Arbitration Act applies to this Agreement.  The arbitration shall be administered by the AAA and shall be conducted by a sole arbitrator selected in accordance with the Commercial Rules unless otherwise mutually agreed by the parties. Unless WhereIstheWall and you agree otherwise, any arbitration hearings will take place in Wilmington, Delaware, except that, for Users, any arbitration hearings will take place in the county of your residence. Judgment on any arbitration award may be entered and enforced by any court that has jurisdiction to do so. Any arbitration will take place on an individual basis and neither the arbitrator nor AAA are empowered to conduct a class arbitration, class action or to resolve claims of more than a single claimant in anything other than a single proceeding, unless both parties consent. You and WhereIstheWall acknowledge that AAA may conclude that the Consumer Arbitration Rules or the Rules for the International Centre for Dispute Resolution may be more appropriate in certain cases. You and WhereIstheWall agree to abide by the decision of the AAA as to the applicable rules in cases where a party may assert that the Commercial Rules are not appropriate. 

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND WHEREISTHEWALL KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND ABSOLUTELY WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ANY AND ALL DISPUTES (AS DEFINED ABOVE). THIS JURY TRIAL WAIVER IS INTENTIONALLY MADE AS YOU AND WHEREISTHEWALL WOULD PREFER TO RESOLVE ALL DISPUTES (AS DEFINED ABOVE) AS PROVIDED BY THIS SECTION 17. THIS JURY TRIAL WAIVER IS A MATERIAL INDUCEMENT TO ENTERING INTO THIS AGREEMENT. FURTHERMORE, YOU AND WHEREISTHEWALL KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND ABSOLUTELY WAIVE ALL RIGHTS TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION OR OTHER FORM OF JOINT DISPUTE RESOLUTION WITH OTHER PARTIES.

Notwithstanding the foregoing, you may instead assert your claim in any Dispute in "small claims" court if you provide us with written notice of your intention to do so before any claim is submitted to arbitration and provided that (a) your claim qualifies, (b) your claim remains in such court, and (c) your claim remains on an individual, non-representative, and non-class basis.

Also, notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. 

You and WhereIstheWall shall each bear 50% of all fees and expenses of the AAA and the arbitrator except as otherwise provided by the Commercial Rules (or, if applicable, the Consumer Arbitration Rules or the Rules for the International Centre for Dispute Resolution). The arbitrator may award such fees and expenses of the AAA and the arbitrator as well as other expenses and reasonable attorneys’ fees to a prevailing party consistent with the provisions of the Commercial Rules (or, if applicable, the Consumer Arbitration Rules or the Rules for the International Centre for Dispute Resolution).

Privacy and Personal Data Processing

WhereIstheWall collects your personal data to provide our Services. We are committed to protecting your personal data and privacy and our Privacy Policy details and explains how we are processing Site visitor and User personal information. By accepting this Agreement, you are also accepting and acknowledging our Privacy Policy.

If you are a Merchant and provide us with your end-user personal data, our Data Processing Terms, which are incorporated in this Agreement by reference, apply.

General

No agency, partnership, joint venture, employee-employer, franchisor-franchisee relationship, etc. is intended or created by this Agreement.

WhereIsTheWall will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in WhereIsTheWall performance under this Agreement when such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, such as any fire; flood; earthquake; governmental action; war, invasion or hostilities; national emergency; explosion; terrorist threat or act; riot or other civil unrest; insurrection; epidemic; lockout, strike or other labor dispute (whether or not relating to our workforce); inability or delay in obtaining supplies; telecommunication breakdown; or power outage.

You represent that you have all necessary permits to grant us with Customer’s personal data to fulfill this Agreement.

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In our sole discretion, we may assign this Agreement upon notice to you. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

WhereIstheWall reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. If you are a User in the European Economic Area and such transfer or assignment may reduce you guarantees under this Agreement, then WhereIsTheWall will ask for you permission beforehand.

If you have any questions about this Agreement, please email us at support at whereisthewall.shop.