(1) The individual(s) or entity requesting the provision of Services (which may include Advertising Services) (buyers, sellers and/or users, as the context requires, or “you”, “your”, etc.); and
(2) Art Gallery SW Ltd, a company registered under number 11100993, whose registered office is at 10 Moor View Close, Sidmouth, Devon EX10 9UP (“we, “us”, “our”, etc.).
1.3. For the purposes of paragraphs 8, 11 to 13 and 16, references to the Site shall include and incorporate any social media or other external resource/website to which we have subscribed or that is otherwise controlled by us and references in each sub-paragraph of those paragraphs to Content shall include Content published or appearing on any of those resources/websites.
“Advertising Services” means the online publication of a Listing, as more particularly defined in paragraph 3.9.
“Artwork” means and includes paintings, drawings, photography, prints, sculptures, ceramics and hand-made jewellery (this is not an exhaustive list).
“Content” means written information and/or other media including, without limit, photographs, images, text, designs, graphics, logos, video, media files and other materials.
“Intellectual Property Rights” means all rights in the nature of intellectual property including, without limitation, all copyright, design rights, trade marks, logos, get-up and similar, in content, media, publications or otherwise.
“Listing” means any listing that we make available to the public through the Site, in relation to a Sale Item, in fulfilment of an Advertising Contract and “Listings” means more than one of them.
“Online” means publication in any form on the world-wide-web, including on the Site.
“Sale Item” has the meaning given to that term in paragraph 3.1.
“Services” means the services as provided by us, from time to time.
3.1. artgallerysw.co.uk is an online marketplace designed uniquely for artists; our service is the online marketplace that we provide for use of both buyers and sellers; you acknowledge that we do not hold any of the items included for sale in listings on our Site (“Artwork” and/or “Sale Items”) and that the legal contract confirming a sale is between the seller and the buyer of any such item.
3.2. We provide a facility to upload Sale Items through our Site, allowing a potential buyer to view and indicate their intention to purchase that item or those items from a seller; our service is the provision of the online marketplace, not the conclusion of sale/purchase transactions directly, which you accept and acknowledge.
3.3. By appointing us to sell your Artwork you are agreeing to let us use the image(s) of, or other Intellectual Property Rights concerning, your Sale Items in the manner that we, in our sole discretion consider best to promote your items on the Site, to include via social media and in the printed press. Our use in this way will solely be for the purpose of advertising for sale with a view to selling your Artwork.
3.4. Please be aware that Artwork can only be sold or offered for sale through the Site which has been signed by the artist and which is sent with a certificate of authenticity.
3.5. When setting the price of Artwork or Sale Items, please bear in mind:
3.5.1. The seller/artist is responsible for the cost of packing and insurance of the Artwork and the cost of delivery to any delivery address located in the South West (meaning Devon, Cornwall, Somerset, Dorset, Bath and Bristol); buyers from outside of the South West, as defined, will have to pay for delivery; it is therefore recommended that these costs are taken into account and included within the price for the item(s).
3.5.2. The cost of the Services for sellers, known as commission, is equal to 10% of the sale price for the Sale Item, plus VAT on this commission.
3.5.3. From time to time, we will run promotions by offering discounts, typically 15% on the price of all Sale Items. Please be aware of this. Within a promotion, the balance that you would receive from the sale of an Artwork/Sale Items will therefore be reduced. When registering, you will have a choice to indicate whether you wish to participate in these promotions or not; clearly promotions encourage sales but the balance received by you, as a seller, will be reduced where a sale is completed within a particular promotion and you appreciate the effect of this.
3.6. All contracts for sale are between the seller and the buyer of the relevant Sale Item; our service is limited to facilitating promotion and availability of such items for sale. If a buyer contacts the seller or the artist themselves and buys direct, there will be no commission charged by us. We therefore accept no responsibility for any Sale Items.
3.7. Rent for a seller’s online shop is currently charged at £15 per month for art shops and business sellers. £6 per month plus vat for individual artists.
3.8. Unless indicated within the details of a particular Sale Item, Sale Items must be sent to the buyer within 5 working days with a reputable courier and suitably packaged, to avoid damage and insured with a reputable insurer to the full replacement value of the item. Unfortunately ceramics and glass items cannot be insured and it is the artist’s responsibility to make sure that they are packed extremely carefully. We accept no responsibility for any damage or loss whilst in transit.
3.11. We reserve all rights in our sole discretion to amend, edit, re-size, adapt or modify any Content as we deem appropriate, prior to publication of a Listing for a Sale Item.
3.12. Any date(s) indicated for the completion of the provision of all or part of the Advertising Services shall not be of the essence, being an indication of expectation only and any failure by us to meet any expected date(s) shall not entitle you to treat the Advertising Contract as repudiated or otherwise confer any right to rescind it or any related contract or arrangement then in existence.
3.13. Charges imposed by us for the provision of Advertising Services and any other use of our Services will be those set out, from time to time (within our Charges for Services page) on our Site. You authorise us to take payment for all charges properly due, using your payment method(s) confirmed to us, or otherwise via direct collection of any sum(s) that you owe.
3.14. You warrant and represent to us that in providing any Sale Item referred to in a Listing for that item or in relation to any related Content about it that you had uploaded to our Site, you will comply fully with any contract agreed with the buyer and will observe all sale or supply of goods and services legislation applicable to that sale/purchase transaction.
3.15. You warrant that you have not been induced to enter in to an Advertising Contract as a result of any representation, statement or assurance made on or before the date that the Advertising Contract comes into force, whether by us or by anyone associated with us and no such representation, statement or assurance shall be deemed to be incorporated in to an Advertising Contract, unless initialled by each of you and us and annexed to these terms and conditions
3.16. You accept that any indication of the Advertising Services contained in marketing or promotional material were only issued for the sole purpose of giving an approximate indication of the nature and scope of the services described in them and you agree they will not have contractual force.
3.17. When you indicate your intention to purchase an item through the Site, and then go on to complete check out, you understand that you enter into a legally-binding contract to purchase that item at the stated or agreed price, to include the commitment to pay that price to the seller. As such, you undertake to carefully consider a potential purchase before making a commitment to buy. All buyers must be at least 18 years of age.
3.18. Although we may facilitate the resolution of any difficulties with buying and selling transactions, you accept that we make no warranties or representations about any actual Sale Items, save that we require our sellers to abide by our policies concerning listings, but are not in a position to guarantee that they do so.
4.1. In relation to any Sale Items, sellers are required to provide buyers with certain pre-determined information, under consumer law. As a purchase through our online marketplace constitutes a distance contract, in other words, where the seller and buyer are not face-to-face, you acknowledge your acceptance of being provided with that information electronically, as opposed to on paper or on another durable medium; however, if you would like to receive that information in a durable form, or if you consider that the relevant seller has not fully provided you with the necessary information, you should contact the seller requesting all relevant information from them; these responsibilities are between sellers and buyers; the extent of our responsibility is to provide the Services, that facilitate communication and the means to buy and sell through the Site.
4.2. In addition, buyers are entitled to exercise certain cancellation rights, where they are acting as a consumer and provided the Sale Items are not bespoke or personalised. This right to cancel may be exercised without having to give a reason; where Sale Items are defective, buyers have additional rights.
4.3. A buyer’s general right to cancel may be exercised at any time within 14 (fourteen) days from the day after they receive all of items purchased in one transaction, or where someone receives them on their behalf (this does not include receipt by any delivery company the seller may use). Following any notice of cancellation, the buyer will agree to return all items related to their cancellation without undue delay and in any event not later than 14 (fourteen) days from the day on which they communicated their cancellation to the seller, otherwise a refund will not be payable. Returned items must be sent with a reputable courier, suitably packaged to avoid damage and insured with a reputable insurer to the full replacement value of the item(s). The buyer is responsible for all of these costs. Unfortunately, ceramics and glass items cannot be insured. It is the buyer’s responsibility to make sure that they are packed extremely carefully and no refund will be made if any item on the Site is returned damaged to the seller. We accept no responsibility for any damage or loss whilst in transit and the parties will make contact with the courier or any relevant insurer where that is the case.
4.4. Where a buyer does wish to cancel, they may do so by making a clear statement to that effect; it will help sellers where this is in writing; for example by letter or e-mail. There is a standard form of notice that a buyer may use, but they do not have to. An example of this is below:
I/We* hereby give notice that I/we* cancel my/our*contract for the supply of the following products:
Ordered on*/received on* ………………………………….[date]
Name of consumer(s): ……………………………………………
Address of consumer(s) ……………………………………………………………………………………………
Signature of consumer(s) …………………………………………………………………………………………..
(only if this form is notified on paper).
(*Delete as applicable)
5.1. If Sale Items are ordered through the Site for delivery outside of the European Union (EU), you acknowledge that you may be subject to import duties and taxes, in addition to the price of the item(s), as a result of levies imposed by the relevant authorities where those items are intended to be received, or as part of their transit to that destination.
5.2. All additional charges, duties and taxes must be paid, allowing you to receive the Sale Items. We do not have any control over the imposition of such charges and the responsibility for receiving any purchased items lies with you; the relevant authorities will consider you to be the importer of record and accordingly you must comply with all applicable laws and regulations; the policies of different countries and territories can vary widely and therefore we recommend that you contact your local customs office for additional information. Any items received by you may also be subject to inspection, which may include the opening of secure packaging by the relevant authorities or customs officials.
6.2. Where we receive funds in respect of the provision of the Services, you irrevocably authorise us to deduct all fees and expenses properly due to us; the balance of those funds, from time to time (the “Balance”) shall become due and payable to you; we will remit the Balance to your promptly, taking account of the volume of transactions being carried out; these payments will usually be made 28 days following the sale (except in unusual circumstances, such as allowing for relevant administration and the fact that a buyer may exercise their right to cancel the order and change their mind about purchasing the Sale Item) and therefore avoiding any inconvenience of having to recall sale funds transferred to you. On an ongoing basis, you must provide and ensure that any related bank or similar account to which funds are to be transferred are and remain accurate and up-to-date; we shall not be responsible for any misapplication of funds where we have, in good faith, relied on details provided for such purpose, where these prove to have been wrong. Where funds have only recently been received, those funds will not immediately be available for transfer, albeit they will show as part of your Balance. We allow a reasonable period between receipt of funds and your ability to make a transfer, to ensure transactions have gone through smoothly and to allow an opportunity for buyers to raise, and for sellers to attempt to resolve, any issues or disputes.
6.4. Where any sum remains outstanding and overdue, we may, in our discretion, suspend or terminate the provision of Services and/or claim default interest and other remedies pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and The Late Payment of Commercial Debts Regulations 2002 (as amended).
7.1. In order to post and/or upload Content, you will need to register and set up an account with us, through the Site. You must be at least 18 years of age to set up an account. Please read the instructions on the Site about applying to sell on the Site and setting up an account. Once you have applied for an account, we will usually confirm if you are accepted within 2 working days.
7.2. Your account is personal to you and should not be shared by anyone else. You will be asked to create a username and password and must keep those details confidential and secure; you agree not to share your username and password details or allow anyone else to access your account; likewise, you agree not to access anyone else’s account using their username and password.
7.3. If you think there has been any unauthorised access to your account, we recommend that you change your details as soon as possible and immediately notify us, providing us with an opportunity to investigate, should we consider that necessary.
7.4. In setting up an account, you will need to register a valid e-mail address and other personal details; you agree to keep all of those details up-to-date, from time to time. You appreciate that we will use these details to contact you, to provide relevant updates or where there are any issues or queries relating to your account or our provision of the Services.
8.1. As part of the Services, you may post and/or upload Content to the Site, to include Artwork for sale, details about yourself or your business and any links to your website or other content online, provided that all such Content meets the guidelines set out below; you accept and acknowledge that Content not meeting these requirements (or any other requirements that we specify, for example via e-mail to you) may be deleted and/or your right to continue to post or upload may be suspended or withdrawn; in addition, we may modify Content where we consider that to be preferable, in each case, acting in our sole discretion.
8.2. You confirm the following to us, on a continuing basis, in relation to any Content that you publish or cause to be published on the Site: (i) that you have all legal rights to post or upload such Content, (ii) that such Content does not, in whole or part, infringe the rights, including copyright and other Intellectual Property Rights, of any other person (for example where you do not have permission to share that Content), (iii) that such Content is not in contravention of any law or regulation, nor is it misleading, offensive, racist, obscene, blasphemous, libellous, indecent, unacceptable or otherwise likely to fall foul of good taste or acceptability, given the nature and purpose of the Site and (iv) that it does not seek to endorse or suggest any affiliation with any third party.
8.3. You must not upload any naked or semi-clothed image of anyone under the age of 18; anyone depicted in any sale item that is not fully clothed must be over the age of 18.
8.4. If you buy from the Site the delivery will be made to the address specified by you. You are responsible for ensuring that someone is able to take delivery of the purchased item on delivery; otherwise additional redelivery or collection charges may apply.
8.5. If the buyer or the person receiving delivery suspect(s) the artwork or the relevant item might be damaged when received, the recipient must let the carrier know, ensuring this is noted on the delivery receipt. If the item is damaged you must also promptly let us know either by contacting us on 07941 459384 or by email: email@example.com.
8.6. A seller must first have obtained written permission from anyone depicted or referred to in an artwork or item for sale, or in relation to any business or other mark or name that could constitute a trademark, before it is uploaded to the Site; we may request a copy by way of verification from you.
8.7. Any Content that you create and publish on our Site is your sole responsibility; to provide the best user-experience on our Site, we do not pre-approve any Content before publishing and are not able to monitor or control such Content; in getting the best from the Site, you acknowledge and agree that all images, particularly of Artwork, will be of the highest quality, to best promote your work to our users.
8.8. You must not upload or cause to be uploaded any Content that is offensive, pornographic, obscene, defamatory or any other Content which is likely to cause anxiety or be contrary to applicable law; if you do find any Content that falls into any of these categories, or which is inaccurate or otherwise inappropriate, we ask that you Contact Us so that we may review and take any necessary steps. We are not and shall not be held liable in any way arising from Content that is inaccurate or otherwise inappropriate (to include errors in any details of Sale Items), or any loss or damage arising from those circumstances.
8.9. Your Content posted to the Site may be shared, via links to our Site and via for example related social media and similar channels and you give your consent to this.
8.10. You acknowledge that legally we are the publisher of all Content and therefore you irrevocably agree to indemnify and hold us harmless from and against all claims, damages, losses, demands, costs and expenses arising from any Content that you post or upload or otherwise cause to be posted or uploaded to the Site, which results in loss, including loss or damage to our reputation.
On an ongoing basis, you undertake to co-operate fully with us in all matters relating to our Services including providing us promptly with all necessary information and other items that we may reasonably require; you accept and acknowledge that any delay or inability to provide such information and items may result, where relevant, in publication being delayed and in those circumstances, we shall not be liable for any losses or damages that arise.
10.1. In relation to Advertising Services, you accept and acknowledge that we receive multiple requests for Listings and that these may relate to similar items or items of Artwork that depict similar scenes or images to those offered via Listings that you wish us to publish; as such, you agree not to seek to hold us liable or claim any damage or loss arising from the publication of any Listing(s) which may be similar in this way.
10.2. You appreciate that the provision of the Site is primarily for the benefit of users interested in finding items and products for sale and that inclusion of competitive suppliers or services to yours will inevitably arise.
11.1. In this paragraph 11, the following expressions shall have the following meanings:
“Controller” means the person that alone or jointly with others determines the purposes and means of the processing of Personal Data;
“Data Breach” means the loss or misuse by any means of any Personal Data, inadvertent unauthorised or unlawful processing of any Personal Data or any other similar act or omission that compromises the security, confidentiality or integrity of any Personal Data;
“Data Protection Laws” means all applicable laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality, integrity, security and protection of Personal Data, including without limit, the EU General Data Protection Regulation 2016/679, the EU Data Protection Directive 95/46/EC and the EU ePrivacy Directive 2002/58/EC as amended by Directive 2009/136/EC, each as amended or superseded from time to time and/or as otherwise implemented in or by any national legislation.
“Personal Data” means any information provided to us or which we otherwise acquire relating to an identified or identifiable natural person by reference to an identifier such as a name, location data or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, in the course of the provision of Services under this agreement;
“Processor” means any person other than an employee of the Controller who processes Personal Data on behalf of the Controller; and
“Supervisory Authority” means any regulatory, supervisory, governmental or other competent authority with jurisdiction or oversight over the Data Protection Laws.
11.2. Where our Services are provided to a business, we acknowledge that you will be subject to Data Protection Laws that expect you to ensure that we process Personal Data in a manner consistent with your own obligations under those laws, even where they may not apply to us. The provisions of this paragraph 11 and this agreement as a whole constitute a data processing agreement as required by the Data Protection Laws.
11.4. We covenant that we will treat Personal Data as confidential and will implement and maintain, using industry best practice, appropriate technical, administrative and organisational security measures to protect the security, confidentiality and integrity of Personal Data against accidental or unlawful loss, disclosure of or access to Personal Data transmitted, stored or processed by us and as required by Data Protection Laws. Such technical and organisational measures will ensure a level of security appropriate to the risk of processing the Personal Data, to include as appropriate pseudonymisation and encryption of Personal Data and the ability to restore the availability and access to Personal Data following an incident concerning such data. We will conduct periodic risk assessments to identify and assess reasonably foreseeable risks to the security, confidentiality and integrity of any records provided by you in connection with the Services, containing Personal Data.
11.5. We will immediately and in any event within 24 hours of becoming aware, notify you of any Data Breach involving Personal Data, to include a description of the likely consequences of the Data Breach and the measures taken or proposed to address and/or mitigate its effects. In the event of a Data Breach, as notified above, we will provide such reasonable assistance to you, in facilitating the handling of the Data Breach in a compliant manner, to include co-operation with any Supervisory Authority and to notify upon receipt of any Personal Data request from that authority, a data subject or any law enforcement agency.
11.7. We will provide all materials, documents and other information reasonably necessary to demonstrate compliance with the obligations laid down in this paragraph 11 and will contribute to audits and inspections of your business processes concerned with Personal Data, within a reasonable period of being notified.
11.8. We undertake not to transfer any Personal Data out of the European Economic Area to any country that has not been identified by the European Commission or a Supervisory Authority under the Data Protection Laws as a country that provides an adequate level of data protection.
12.1. We try to ensure that all information on this Site is accurate and error-free but we do not represent or warrant that the material comprised in this Site is completely accurate and/or up to date.
12.4. To add value to visitors’ experiences when using this Site, we may provide links to other websites or resources for you to access at your sole discretion, but you agree that we shall not be responsible or liable to you in respect of the availability or content of, or consequences of you linking to, any such external site, to include transmission of viruses; although we welcome links to this Site, we shall be entitled to demand that such links are broken if we consider the content or nature of the linking site to be unsuitable or unprofessional, as we see fit.
12.5. The content of external sites and advertisements linking to them are the responsibility of the third party site owner; businesses or site owners who wish to advertise on this Site should contact us and we will be pleased to discuss their requirements with them.
12.6. If the advertising, offering for sale or selling of the products or any services on this Site is illegal for any reason in the jurisdiction in which it is accessed or viewed, access to and/or viewing of such material is not authorised by us and you accept that any continued use is unauthorised and illegal.
You agree and acknowledge that any information (except for any Listing(s)) provided on this Site is for information purposes only and is not intended to be relied upon by you, or taken in any way as advice or a recommendation of such material. We therefore disclaim to the fullest extent permitted by law (including with regard to any indirect or consequential losses you may suffer) all liability and responsibility arising from any reliance placed on such material by any user of this Site, or by any third party who may become aware of any of its contents.
You must not use this Site in any malicious way, which shall include but not be limited to: knowingly, or allowing any third party to, introduce, post or transfer material which is malicious or intended to be technologically harmful to this Site and/or our property. You must not attempt to gain unauthorised access to this Site, its content, or the server(s) upon which it is held. Breach of this provision shall constitute a criminal offence under the Computer Misuse Act 1990 and we will report any such breach to, and work with, the relevant law enforcement authorities to identify and bring a prosecution against you.
15. Suspension and Termination
15.1. You accept that we may suspend or terminate the Services at any time, without prior notification should we, in our sole discretion, deem that to be necessary.
15.4. You accept that in the following circumstances, we may end the provision of Services to you, without notice:
b) where you are in breach of the Data Protection Laws, as defined under paragraph 11; or
c) where you suspend, or threaten to suspend, payment of your debts or are, or are deemed to be (under any applicable laws relating to insolvency), unable to pay your debts as they fall due or admit an inability to pay your debts or where you seek to compromise your liabilities or make an arrangement with creditors generally; or
d) where a petition or notice is filed, or a resolution passed, for or in connection with your insolvency, bankruptcy or, where applicable, winding up, or where you otherwise commence any formal insolvency process under applicable laws.
15.5. You accept and acknowledge that we shall continue to be entitled to be paid, in full, all charges then outstanding, where Services are terminated.
16.1. All Intellectual Property Rights in or arising from the provision of Advertising Services shall, subject to any license granted under paragraph 16.2, be or remain our sole property.
16.2. We grant you a non-exclusive license to use any Content provided to us in connection with our delivery of the Services but not further or otherwise.
16.3. Any license granted under paragraph 16.2 shall be for the benefit of you only and shall not be capable of being assigned or sub-licensed to any other person or entity, which shall include permission for any other person or entity to use or benefit from those items, except in each case where our written consent has first been obtained.
16.4. You acknowledge and agree that all Intellectual Property Rights in all Content, to include software, website code, source code, files and related copyright material published on, or forming part of, this Site, shall at all times remain vested in us; sellers, or the artists on whose behalf they act, hold copyright and/or relevant intellectual property rights in the items made available for sale. You may download such intellectual property rights to your device or computer in connection with your access to and use of the Site, but sharing such material, unless via the general sharing functions made available via social media platforms, is not permitted and no other license or rights are granted.
16.5. No part of the Content contained in, or forming part of, this Site may be copied or stored in any retrieval system, for any purpose, except for your access to and use of this Site. You further acknowledge and agree that any other use of such Content is strictly prohibited and you agree not to, nor to assist any other person to, copy, reproduce, transmit, publish, distribute, commercially exploit or create derivative works of it or any part of it.
17.2. You undertake to indemnify and hold us harmless from and against all losses, damages, costs, expenses and liabilities incurred or suffered by us or our agents as a result of or arising from your acts and/or omissions (including those of others acting on your behalf) which relate in any way to the provision of Services, or which arise from any claim or legal proceedings brought or threatened against us by any third party for the misuse of any rights, Intellectual Property Rights, data or other information supplied to us by or on your behalf.
18.2. Subject to the above, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by applicable law; in relation to any Sale Item(s), for the avoidance of doubt, this paragraph 18 shall not operate to exclude or restrict any seller’s liability for breach of any obligation arising from the Supply of Goods and Services Act 1982 or, if deemed to apply, the Sale of Goods Act 1979, as against a buyer who is dealing as a “consumer” (as such term is understood by section 12 of the Unfair Contract Terms Act 1977) and/or pursuant to the Consumer Rights Act 2015.
18.6. In all cases, you accept that our maximum financial liability, save as excluded under paragraph 18.1, shall be the greater of £100 and the aggregate of all sums paid to us for the provision of Services in the preceding 12 (twelve) months.
19.7. We may assign, transfer or otherwise deal with any legally-binding agreement made between us, acting in our sole discretion, save that we shall procure the identity of any assignee is confirmed to you promptly in writing as soon as reasonably possible; any attempted assignment by you shall be void, unless we confirm our prior agreement in writing.
20.1. Our contact details are: firstname.lastname@example.org, telephone: 07941 459384; address: 10 Moor View Close, Sidmouth, Devon EX10 9UP and can otherwise be found on our website at: artgallerysw.co.uk.
20.3. Communications shall be deemed to have been received, where delivered by hand or sent via e-mail, on the date that the communication was left at the relevant address or sent, and if posted, on the second day (excluding weekends and public holidays) after the date that the communication was given to the postal authorities.
Last Updated: 14 May 2018