1. Platform Conditions
1.1 Online Marketplace for Members
The Platform is an online marketplace that enables registered users (“Members”) and certain third parties who offer works of art (Members and third parties who offer products are “Sellers” and the works of art they offer are “Artworks”) to publish such Artworks on the Platform (“Listings”) and to communicate and transact directly with Members that are seeking to purchase such Artworks (Members intending to purchase Artworks are “Buyers”).
1.2 Contract between Buyers and Sellers
As the provider of the Platform, Artmarketspace does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Artworks. Sellers alone are responsible for their Listings and Artworks.
When Sellers and Buyers make or accept a purchase, they are entering into a contract directly with each other. Artmarketspace is not and does not become a party to or other participant in any contractual relationship between Buyers and Sellers, nor is Artmarketspace an insurer.
Artmarketspace is not acting as an agent in any capacity for any Member, Buyer or Seller, except as expressly otherwise specified in these Terms
1.3 Resolution of Disputes
While we may help facilitate the resolution of disputes between Members, Artmarketspace has no control over and is not able to provide an absolute guarantee concerning matters beyond our direct control such as:
• the existence, quality, safety, suitability, or legality of any Listings or Artworks;
• the truth or accuracy of any Listing descriptions, or other Member Content (as defined below); or
• the performance or conduct of any Member or third party.
1.4 No Endorsement or Verification
Artmarketspace does not endorse any Buyer, Seller, Member, Listing or Artworks. Any references to a Member being "verified" (or similar language) only indicate that the Member has completed a relevant verification or identification process and nothing else. Any such description is not a representation, warranty, endorsement, certification or guarantee by Artmarketspace about any Member, including of the Member's identity or background or whether the Member is trustworthy, safe or suitable.
You should always exercise due diligence and care when deciding whether to purchase an Artwork, accept a purchase request from a Buyer, or communicate and interact with other Members, whether online or in person.
Verified Images and Unique Video Experiences (UVE) are intended only to indicate a representation of a Listing at the time the UVE's and photographs were taken, and are therefore not an endorsement by Artmarketspace of any Seller, Listing or Artwork.
UVE is a feature in the Platform that allows you to, amongst others:
• capture a 360° view of an Artwork, so what you see is what you get. This aims to ensure that the totality of a piece of art is captured, not just a single image;
• create a UVE of your studio and give potential buyers an insight in where or how you create your work;
• demonstrate your fine brushwork and the steady hand that is required to produce your work ; and
• discuss you work and where you draw your inspiration from, subject to content restrictions in these Terms.
1.5 Seller's Relationship
If you choose to use the Platform as a Seller, your relationship with Artmarketspace is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Artmarketspace for any reason. You act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Artmarketspace.
1.6 Use of Member Content
Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements to promote the Platform and to increase the exposure of Listings to potential Buyers.
1.7 Links to Third Party Products
The Platform may contain links to third-party websites or resources (“Third-Party Products”). Such Third-Party Products may be subject to different terms and conditions and privacy practices. Artmarketspace is not responsible or liable for the availability or accuracy of such Third-Party Products, or the content, products, or products available from such Third-Party Products. Links to such Third-Party Products are not an endorsement by Artmarketspace of such Third-Party Products.
1.8 Availability of Platform
Due to the nature of the Internet, Artmarketspace cannot guarantee the continuous and uninterrupted availability and accessibility of the Platform. Artmarketspace may restrict the availability of the Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Platform. Artmarketspace may improve, enhance and modify the Platform and introduce new Artmarketspace Products from time to time at its sole discretion.
2. Use of the Platform
2.1 Legal Capacity
You must be at least 18 years old and able to enter into legally binding contracts to access and use the Platform and register an Artmarketspace Account. By accessing or using the Platform you represent and warrant and represent that you are 18 or older and have the legal capacity and authority to enter into this Agreement.
2.2 Use of Platform by Artmarketspace
Artmarketspace may make access to and use of the Platform, or certain areas or features of the Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews (when available) thresholds, purchase history, or other factors.
2.3 No Responsibility for Member Identity
User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to:
• ask Members to provide a form of identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members;
• screen Members against third party databases or other sources and request reports from service providers; and
• where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions (if available).
2.4 Additional Terms and Conditions
Access to or use of certain areas and features of the Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Platform, the later terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
2.5 Agreement to Apple's Licence Agreement
If you access or download the Application from the Apple App Store, you must agree to Apple’s Licensed Application End User License Agreement.
2.6 Agreement to Google's Licence Agreement
If you access or download the Application from Google Play, you must agree to Google Play's Terms of Service.
3. Modification of these Terms
3.1 Modification to Terms
Artmarketspace reserves the right to modify these Terms at any time in accordance with this clause. If we make changes to these Terms, we will post the revised Terms on the Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective.
3.2 Your Right of Termination
If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 Member Registration of Account
You must register an account ("Artmarketspace Account") to access and use certain features of the Platform, such as publishing a Listing or purchasing an Artwork. If you are registering an Artmarketspace Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 Email address and password
You can register an Artmarketspace Account by using an email address and creating a password.
4.3 Member's Obligation to Provide Accurate Information
You must provide accurate, current and complete information during the registration process and keep your Artmarketspace Account and public Artmarketspace Account profile page information up-to-date at all times.
4.4 Multiple Member Accounts
You may not register more than one Artmarketspace Account unless Artmarketspace authorises you to do so. You may not assign or otherwise transfer your Artmarketspace Account to another party.
4.5 Member Responsible for Confidentiality
You are responsible for maintaining the confidentiality and security of your Artmarketspace Account credentials and may not disclose your credentials to any third party. You must immediately notify Artmarketspace if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorised use of your Artmarketspace Account. You are liable for any and all activities conducted through your Artmarketspace Account, unless such activities are not authorised by you and you are not otherwise negligent (such as failing to report the unauthorised use or loss of your credentials).
5.1 Member Content Control
Artmarketspace may, at its sole discretion, enable Members to:
• create, upload, post, send, receive and store content, such as text, photographs, audio, video, or other materials and information on or through the Platform ("Member Content"); and
• access and view Member Content and any content that Artmarketspace itself makes available on or through the Platform, including proprietary Artmarketspace content and any content licensed or authorised for use by or through Artmarketspace from a third party ("Artmarketspace Content" and together with Member Content, "Collective Content").
5.2 Intellectual Property Rights
The Platform, Artmarketspace Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of Australia and other countries. You acknowledge and agree that the Platform and Artmarketspace Content, including all associated intellectual property rights, are the exclusive property of Artmarketspace and/or its licensors or authorizing third-parties.
You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, Artmarketspace Content or Member Content.
All trademarks, service marks, logos, trade names, and any other source identifiers of Artmarketspace used on or in connection with the Platform and Artmarketspace Content are trademarks or registered trademarks of Artmarketspace in Australia and other countries.
Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Platform, Artmarketspace Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 Members Use of Platform and Collective Content
You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms.
No licences or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Artmarketspace or its licensors, except for the licenses and rights expressly granted in these Terms.
You are solely responsible for all Member Content that you make available on or through the Platform. Accordingly, you represent and warrant that:
• you either are the sole and exclusive owner of all Member Content that you make available on or through the Platform or you have all rights, licences, consents and releases that are necessary to grant to Artmarketspace the rights in and to such Member Content, as contemplated under these Terms; and
• neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Artmarketspace's use of the Member Content will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.4 Grant of Licence by Artmarketspace
Subject to your compliance with these Terms, Artmarketspace grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferable licence to:
• download and use the Application on your personal device(s); and
• access and view any Collective Content made available on or through the Platform and accessible to you, solely for your personal and non-commercial use.
5.5 Grant of Licence by Member
By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the Platform, you grant to Artmarketspace a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable licence to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the Platform, in any media or platform.
Unless you provide specific consent, Artmarketspace does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.
5.6 Member Content Suitability
You will not post, upload, publish, submit or transmit any Member Content that violates Artmarketspace’s policies (see Clause 12.1).
Artmarketspace may, without prior notice, remove or disable access to any Member Content that Artmarketspace finds to be in violation of these Terms or Artmarketspace’s then-current policies or otherwise may be harmful or objectionable to Artmarketspace, its Members, third parties, or property.
5.7 Infringement of Copyright
Artmarketspace respects copyright law and expects its Members to do the same.
Artmarketspace will respond to claims of alleged copyright infringement committed using the Platform that are reported to us in accordance with these Terms.
If you believe that any content on the Platform infringes copyrights you own, please notify us.
Your notification to us should:
1. Identify the specific protected work that you claim has been infringed, or - if multiple works are covered by this Notice - you may provide a representative list of the works that you claim have been infringed.
2. Identify the material that you claim is infringing (or to be the subject of infringing activity) and that you believe should be removed or access to which should to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
o "I hereby state that I have a good faith belief that the disputed use of the identified material is not authorized by the IP owner, its agent, or the law (e.g., as a fair use).”
o "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the IP rights that are allegedly infringed."
5. Provide your full legal name and your electronic or physical signature.
We will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged material from the Platform. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the account or access of Members who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
We reserve the right to remove any content, in whole or part, at our discretion without giving reasons.
In the event of repeated or severe violations, we may suspend or permanently deactivate the account(s) in question.
6. Service Fees
6.1 Artmarketspace Fees
Artmarketspace charges a fee constituting 30% of the Sale Price (Fee) in consideration for the use of the Platform to Sellers and Buyers, less applicable Taxes.
6.2 Change of Service Fees
Artmarketspace reserves the right to change the Fees at any time, and we will provide Members adequate notice of any Fee changes before they become effective.
7. Payment Terms
In this clause 7:
“Adjusted Exchange Rate” means the Base Exchange Rate plus a 3% fee charged by Artmarketspace for certain cross-border transactions.
“Base Exchange Rate” means a system-wide rate used by Artmarketspace if the Purchase Currency is different than the Listing Country Currency. It does not include any fee or mark-up by Artmarketspace. Artmarketspace establishes the Base Exchange Rate using data from one or more third parties such as OANDA (www.oanda.com)
"Freight Fee" means the applicable fright cost selected by the Buyer at the time of purchase.
"Sale Price" means the price listed for the purchase of the Artwork in a Listing, including the Fee.
“Payout” means a payment initiated by Artmarketspace to a Member for services (such as Sale Prices) performed in connection with the Platform.
“Payment Method” means a financial instrument that you have added to your Artmarketspace Account, such as a credit card or debit card.
“Payout Method” means a financial instrument that you have added to your Artmarketspace Account, such as direct deposit, a credit card, or a debit card (where available).
“Purchase Currency” means the currency in which a Buyer pays for his or her Purchase. The Buyer will be able to see (and in some cases, select) their Purchase Currency when checking out. The Purchase Currency for a Purchase may be different from the relevant Listing Country Currency.
"Total Fees" means the Sale Price, the Freight Fee and Taxes.
7.2 Payment Services
Artmarketspace provides payments services to Members in connection with and through the Platform (“Payment Services”).
7.3 Changes to Payment Services
Artmarketspace may restrict the availability of the Payment Services, or certain services or features thereof, to carry out maintenance measures that ensure the proper or improved functioning of the Payment Services. Artmarketspace may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time.
7.4 Third Party Services
The Payment Services may contain links to third-party websites or resources (“Third-Party Services”), such as eWay or Web Active Corporation Pty Ltd ABN 32 086 209 403 and its related bodies corporate. Such Third-Party Services are subject to different terms and conditions and privacy practices and Members should review them independently. Artmarketspace is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Artmarketspace of such Third-Party Services.
Please note that Payment Methods and Payout Methods may involve the use of Third Party Services. These Third Party Services may charge you additional fees when processing payments and Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and Artmarketspace is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method or Payout Method may also be subject to additional terms and conditions imposed by the applicable Third Party Services; please review these terms and conditions before using your Payment Method or Payout Method.
7.5 Use Governed by the laws of Australia
You may not use the Payment Services except as authorised by the laws of Australia and any other applicable laws.
7.6 Company Warranty
If you are agreeing to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
7.7 Use of Platform by Artmarketspace
Artmarketspace may make access to and use of certain areas or features of the Payment Services subject to certain conditions or requirements, such as completing a verification process, meeting specific eligibility criteria, purchase history, or other factors.
Artmarketspace reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any information.
7.9 Account Registration
In order to use the Payment Services, you must have an Artmarketspace Account in good standing. If you or Artmarketspace closes your Artmarketspace Account for any reason, you will no longer be able to use the Payment Services.
You may authorise a third party to use your Artmarketspace Account in accordance with these Terms. You acknowledge and agree that anyone you authorise to use your Artmarketspace Account may use the Payment Services on your behalf and that you will be responsible for any payments made by such person.
7.10 Provision of Information
When you add a Payment Method or Payout Method to your Artmarketspace Account, you will be asked to provide customary billing information such as name, billing address, and financial instrument information either to Artmarketspace or its third-party payment processor(s). You must provide accurate, current, and complete information when adding a Payment Method or Payout Method and it is your obligation to keep your Payment Method and Payout Method up-to-date at all times. The information required for Payout Methods will include: for direct deposit, your address, name on the account, account type, routing number, and account number.
7.11 Storage of Payment Information
You authorise Artmarketspace to store your Payment Method information and charge your Payment Method as outlined in these Terms. If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partner or your bank and update your Payment Method on file in your Artmarketspace Account.
7.12 Member Responsibility for Accuracy of Information
You are solely responsible for the accuracy and completeness of your Payment Method and Payout Method information. Artmarketspace is not responsible for any loss suffered by you as a result of incorrect Payment Method or Payout Method information provided by you.
7.13 Financial terms for Sellers
Artmarketspace will collect the Total Fees from a Buyer at the time the Buyer’s Purchase is made.
In order to receive a Payout, you must have a valid Payout Method linked to your Artmarketspace Account. Artmarketspace will generally initiate Payouts to your selected Payout Method for sales of Artworks 14 days after the contract being formed between the Buyer and Seller and receipt of the Total Fees from the Buyer.
In certain jurisdictions or instances, Artmarketspace may offer you a different time or trigger for payment. The time it takes to receive Payouts once released by Artmarketspace may depend upon the Payout Method you select. Artmarketspace may delay or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation.
7.15 Amount of Payout
Your Payout for a Purchase will be the Sale Price less applicable Fees and Taxes.
Artmarketspace will remit your Payouts in your currency of choice, depending upon your selections via the Platform. If the currency of your Sale Price at the time of Purchase is different from your selected Payout currency when we initiate your Payout, we will apply the Base Exchange Rate to your Payout. Amounts may be rounded up or down as described in Clause 7.24 (“Rounding Off”).
7.17 Limitation to Payouts
For compliance or operational reasons, Artmarketspace may limit the value of each individual Payout. If you are due an amount above that limit, Artmarketspace may initiate a series of Payouts (potentially over multiple days) in order to provide your full payout amount.
7.18 Third-Party Payment Service provider Charges
Artmarketspace is not responsible for any fees that a Buyer’s third-party payment service provider may impose when Artmarketspace charges the Buyer’s Payment Method, and Artmarketspace disclaims all liability in this regard.
7.19 Appointment of Agent
Each Seller collecting payment for Artworks facilitated via the Platform hereby appoints Artmarketspace as the Seller’s exclusive payment collection agent solely for the limited purpose of accepting funds from Buyers purchasing such services.
7.20 Payment Terms
Each Seller agrees that payment made by a Buyer through Artmarketspace, shall be considered the same as a payment made directly to the Seller and the Seller will provide the Artworks to the Buyer in the agreed-upon manner as if the Seller has received the payment directly from the Buyer.
Each Seller agrees that Artmarketspace may refund the Buyer in accordance with these Terms. Each Seller understands that Artmarketspace’s obligation to pay the Seller is subject to and conditional upon successful receipt of the associated payments from Buyers.
Artmarketspace guarantees payments to Sellers only for such amounts that have been successfully received by Artmarketspace from Buyers in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Seller, Artmarketspace assumes no liability for any acts or omissions of the Seller.
7.21 Member Acknowledgement
Each Buyer acknowledges and agrees that, notwithstanding the fact that Artmarketspace is not a party to the agreement between you and the Seller, Artmarketspace acts as the Seller’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Seller.
Upon your payment of the funds to Artmarketspace, your payment obligation to the Seller for the agreed upon amount is extinguished and Artmarketspace is responsible for remitting the funds to the Seller in the manner described in these Terms, which constitute Artmarketspace’ agreement with the Buyer.
In the event that Artmarketspace does not remit any such amounts, the Seller will have recourse only against Artmarketspace and not the Buyer directly.
You agree that Artmarketspace may collect from you any amount payable through the application of clause 17 by charging the Payment Method associated with the relevant Purchase or any other Payment Method on file in your Artmarketspace Account, or by withholding the amount from your future Payouts.
Artmarketspace will process such payments otherwise in accordance with these Terms.
7.23 Rounding Off
Artmarketspace may, in its sole discretion, round up or round down amounts that are payable from or to Members to the nearest whole functional base unit in which the currency is denominated (i.e., to the nearest dollar, euro or other supported currency); for example, Artmarketspace may round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00.
For currencies denominated in large numbers, Artmarketspace may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Artmarketspace to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
7.24 Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original Payout to or payment by you, so that you end up receiving or paying the correct amount.
7.25 Title and Risk
Title to and risk in the Artwork passes from the Seller to the Buyer upon delivery of the Artwork to the Buyer's nominated address. The parties agree that confirmation of delivery by the freight agent nominated by the Buyer and provided by Your Freight Agent ACN 602 410 159 ("Freight Agent") is conclusive proof of delivery.
7.26 Legally Binding Agreement
Upon receipt of a purchase confirmation from Artmarketspace, a legally binding agreement is formed between the Buyer and the Seller, to which Artmarketspace is not a party to, subject to clause 10, and any rules and restrictions specified in the Listing. Artmarketspace will collect the Total Fees at the time of the Seller’s confirmation pursuant to this clause 7.
8. Terms specific for Sellers
8.1 Listing Information
When creating a Listing through the Platform you must:
• provide complete and accurate information about your Artwork (such as listing description, location, certificate of authenticity, and provenance, if available);
• disclose any known faults and defects; and
• provide any other pertinent information requested by Artmarketspace.
You are responsible for keeping your Listing information up-to-date at all times.
8.2 Price of Artwork
You are solely responsible for setting a price (including any Taxes if applicable) for your Listing .
8.3 Image Quality
Pictures, animations or UVE's (collectively, "Images") used in your Listings must accurately reflect the quality and condition of your Artworks. Artmarketspace reserves the right to require that Listings have Images of a certain format, size, resolution and appearance.
8.4 Freight and Packaging of Artwork
Upon sale of your Artwork, you will be notified by email by Artmarketspace or the Freight Agent of the sale, and the date and time for pickup of the Artwork by the Freight Agent.
You must promptly arrange for the packaging of your Artwork ready for pick up by the Freight Agent on or before the pickup date and time advised. You must also securely attach the transport label emailed to you to the packed Artwork and have the Artwork ready for pick up at the nominated time and date. If the Artwork is not ready for pick up at the nominated time and date, you will be responsible for any additional pick up and rescheduling charges.
You must ensure that the Artwork is properly and professionally packed to ensure that the Artwork is not damaged during transport to the Buyers delivery address. You will be responsible for improper packaging leading to the Artwork becoming damaged in transit.
If you have any questions regarding the transport and delivery of the Artwork, please contact Your Freight Agent ACN 602 410 159 directly at email@example.com.
8.5 Listing Rules
You may only list one Artwork per Listing.
When listing an Artwork, you agree that the Listing must be made available exclusively on the Platform for a minimum period of 3 months, unless sold earlier.
8.6 No Breach of Other Agreements
You represent and warrant that any Listing you post and the purchase of an Artwork by a Buyer will not breach any agreements you have entered into with any third parties.
9. Terms specific for Buyers
9.1 Purchasing Rules
Subject to meeting any requirements (such as completing any verification processes) set by the Seller, you can purchase an Artwork available on the Platform by following the respective purchase process. All applicable fees, including any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to purchasing an Artwork.
9.2 Delivery of Artwork
Upon purchase of the Artwork, you will be notified by email by Artmarketspace or the Freight Agent of the sale, and the approximate date for delivery of the Artwork by the Freight Agent.
Please check your shipment before signing for them when the Freight Agent makes the delivery. If the items appear damaged, please sign for them "package received damaged", ask the driver to co-sign your written comment on the delivery docket . It is advisable to take photos of the package before it is opened, and then photos of the damaged items inside the box. This will assist you when making a claim.
9.3 Purchase on Behalf of Others
If you purchase an Artwork on behalf of additional buyers, you are required to ensure that every additional Buyer meets any requirements set by the Seller, and is made aware of and agrees to these Terms and any terms and conditions, rules and restrictions set by the Seller.
9.4 Confirmed Sale
You understand and agree that a confirmed purchase of an Artwork (“Confirmed Sale”) is a contract of sale between you as the Buyer to purchase the Artwork from the Seller, in accordance with your agreement with the Seller.
Artmarketspace will, at its cost, procure transit insurance for Artworks purchased through the Platform, for up to a value of $30,000 for transit to the Buyer and for any returns of Artworks within Australia only, where these Terms provide that we will pay for the relevant return. It should be noted that the value of $30,000 covers the combined value of all Artworks in transit in one Load at any one time, with Load being defined as the method by which the Artwork is transported (such as (but without limitation) by truck, airplane or ship). Artmarketspace recommends that Buyers assess the adequacy of this insurance and if appropriate, obtain additional insurance for their purchased Artworks. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy.
Upon and from delivery of the Artwork, the Buyer bears all risk relating to Artworks and the Buyer must procure appropriate insurance from then onwards.
10. Refunds and Returns
In this clause 10:
A “Manifest Issue” means any one of the following:
(a) the Seller of the Artwork fails to deliver or fails to procure the delivery of the Artwork to the Buyer within a reasonable time; or
(b) the Listing’s description or depiction of the Artwork is materially inaccurate with respect to:
(i) the size of the Artwork;
(ii) the physical condition of the Artwork;
(iii) the owner of the Artwork;
(iv) the certificate of authenticity or provenance; or
(v) features represented in the Listing are misleading.
A "Damaged Artwork" means an Artwork damaged in transit and arriving at the delivery address in a condition materially different to that when first shipped.
10.2 Buyer Refunds
If you are a Buyer and suffer a Manifest Issue or a Damaged Artwork, we may, at our sole discretion, reimburse you the amount paid by you through the Artmarketspace Platform (“Total Fees”) depending on the nature of the Manifest Issue suffered within 7 days of delivery of such Artwork and upon Artmarketspace receiving written notification from you.
If you are a Buyer and decide within 7 days of delivery of the Artwork that you no longer want the Artwork for any reason, we may, at our discretion, reimburse the Total Fees paid by you through the Artmarketspace Platform within 7 days of notification to us that you have, at your cost, returned the Artwork to the Seller without damage or alteration.
If you are a Seller and:
(a) the Buyer suffers a Manifest Issue or a Damaged Artwork, title to and risk in the Artwork immediately passes from the Buyer to you and you agree to pay the cost to return the Artwork from the Buyers delivery address to your nominated address;
(b) the Buyer suffers a Manifest Issue, you agree to pay the cost to return the Artwork from the Buyers delivery address to your nominated address;
(c) the Buyer receives a Damaged Artwork, Artmarketspace will make an insurance claim on your behalf, and you agree to pay the initial cost to return the Artwork from the Buyer's delivery address to your nominated address, which will be included in the insurance claim.
If you are a Buyer and decide within 7 days of delivery of the Artwork that you no longer want the Artwork for any reason, title to and risk in the Artwork immediately passes from you to the Seller, and you agree to pay the cost to return the Artwork to the Seller's nominated address.
10.4 Conditions to Claim a Manifest Issue
To submit a valid claim for a Manifest Issue and receive the benefits with respect to your claim, you are required to meet each of the following conditions:
(a) you must be the Buyer that purchased the Artwork;
(b) you must bring the Manifest Issue to our attention by email or via telephone and provide us with information (including photographs or other evidence) about the Artwork and the circumstances of the Manifest Issue within 7 days of receipt of delivery of the Artwork;
(c) you must not have directly or indirectly caused the Manifest Issue (through your action, omission or negligence); and
(d) unless Artmarketspace advises you that the Manifest Issue cannot be remediated, you must have used reasonable efforts through communications to us to try to remedy the circumstances of the Manifest Issue prior to making a claim for a Manifest Issue.
10.5 Conditions to Claim a Damaged Artwork
To submit a valid claim for a Damaged Artwork and receive the benefits with respect to your claim, you are required to meet each of the following conditions:
(a) you must be the Buyer that purchased the Artwork;
(b) you must bring the Damaged Artwork to our attention and the Freight Agent by email or via telephone upon our request, and provide us with information (including photographs or other evidence) about the Artwork and packaging and the circumstances of the Damaged Artwork within 7 days of receipt of delivery of the Artwork;
(c) you must not have directly or indirectly caused the Damaged Artwork (through your action, omission or negligence);
(d) the Damaged Artwork must not have occurred after delivery; and
(e) unless Artmarketspace advises you that the Damaged Artwork cannot be remediated, you must have used reasonable efforts to try to remedy the circumstances of the Damaged Artwork with the Freight Agent through communications with the Freight Agent prior to making a claim for a Damaged Artwork.
10.6 Minimum Quality Standards
If you are a Seller, you are responsible for ensuring that the Artworks you list on the Artmarketspace Platform meet minimum quality standards regarding adequacy of the Listing information and do not present a Buyer with Manifest Issues.
10.7 Seller Responsibilities and Reimbursement to Buyer
If you are a Seller, and if:
• Artmarketspace determines that a Buyer has suffered a Manifest Issue related to an Artwork listed by you or Damaged Artwork, and
• Artmarketspace reimburses that Buyer (up to their Total Fees),
you agree to reimburse Artmarketspace up to the amount paid by Artmarketspace within 7 days of Artmarketspace’s request as a debt immediately due and payable to Artmarketspace.
You authorize Artmarketspace Payments to collect any amounts owed to Artmarketspace by reducing your Payout or as otherwise permitted pursuant to these Terms.
10.8 Seller Acknowledgement
As a Seller, you understand the rights of Buyers under this clause 10. If you dispute the Manifest Issue or Damaged Artwork, you may notify us via telephone and in writing upon our request and provide us with information (including photographs or other evidence) disputing the claims regarding the Manifest Issue or Damaged Artwork, provided you must have used reasonable and good faith efforts to try to remedy the Manifest Issue or Damaged Artwork with the Buyer prior to disputing the Manifest Issue or Damaged Artwork claim.
11.1 Tax Obligations
As a Seller you are solely responsible for determining your obligations to report, collect, remit or include in your Sale Prices any applicable GST or other indirect sales taxes ("Taxes").
11.2 Collection of Taxes
Tax regulations may require us to collect appropriate Tax information from Sellers, or to withhold Taxes from payouts to Sellers, or both. If a Seller fails to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to halt all payouts, withhold such amounts as required by law, or to do both, until resolution.
11.3 Authorise Collection of Tax
In certain jurisdictions, Artmarketspace may decide in its sole discretion to facilitate collection and remittance of Taxes from or on behalf of Buyers or Sellers, in accordance these Terms ("Collection and Remittance") if such jurisdiction asserts Artmarketspace or Sellers have a Tax collection and remittance obligation. In any jurisdiction in which we decide to facilitate direct Collection and Remittance, you hereby instruct and authorise Artmarketspace (via Artmarketspace) to collect Taxes from Buyers on the Seller's behalf at the time.
The amount of Taxes, if any, collected and remitted by Artmarketspace will be visible to and separately stated to both Buyers and Sellers on their respective transaction documents. Where Artmarketspace is facilitating Collection and Remittance, Sellers are not permitted to collect any Taxes being collected by Artmarketspace relating to their Artworks in that jurisdiction.
12. Prohibited Activities
12.1 Member Responsibilities and Obligations
You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Platform. In connection with your use of the Platform, you will not and will not assist or enable others to:
• breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms;
• post content that is illegal or that violates another person’s or entity’s rights, including intellectual property rights and privacy rights, fraudulent or material that is false, misleading, or deceptive;
• violate or infringe anyone else’s rights or otherwise cause harm or loss to anyone.
• use the Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Artmarketspace endorsement, partnership or otherwise misleads others as to your affiliation with Artmarketspace;
• post advertising or other commercial content, company logos, links, or company names;
• post Content that is sufficient to identify a listing’s location or other content that may pose a personal safety risk to an Artmarketspace community member;
• use the Platform in connection with the distribution of unsolicited commercial messages ("spam");
• offer, as a Seller, any Artwork that you do not yourself own or have authority and permission to make available through the Platform;
• to impersonate another person, account, or entity, including a representative of Artmarketspace;
• use the Platform to request, make or accept a purchase independent of the Platform, to circumvent any Service Fees or for any other reason;
• request, accept or make any payment for Sale Prices outside of the Platform or Artmarketspace;
• discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behaviour;
• use, display, mirror or frame the Platform or Collective Content, or any individual element within the Platform, Artmarketspace's name, any Artmarketspace trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Platform, without Artmarketspace's express written consent;
• dilute, tarnish or otherwise harm the Artmarketspace brand in any way, including through unauthorised use of Collective Content, registering and/or using Artmarketspace or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Artmarketspace domains, trademarks, taglines, promotional campaigns or Collective Content;
• use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Platform for any purpose;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Artmarketspace or any of Artmarketspace's providers or any other third party to protect the Platform;
• attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform; or
• take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Platform.
If you do so, you acknowledge and agree that you:
(a) would be in breach of these Terms;
(b) accept all risks and responsibility for such conduct; and
(c) release, hold and fully indemnify Artmarketspace and its directors, officers, employees and agents (for whom Artmarketspace accepts benefits under these Terms) from and against any damages, loss, liability, expenses (whether direct, indirect or consequential) in relation to such conduct, acts or omissions.
12.2 No Obligation to Monitor Members Use of Platform
You acknowledge and agree that Artmarketspace has no obligation to monitor the access to or use of the Platform by any Member, but has the right to do so at its election, to:
• operate, secure and improve the Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes);
• ensure Members’ compliance with these Terms;
• comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body;
• respond to Member Content that it determines is harmful or objectionable; or
• as otherwise set forth in these Terms.
Members agree to cooperate with and assist Artmarketspace in good faith and to provide Artmarketspace with such information and take such actions as may be reasonably requested by Artmarketspace with respect to any investigation undertaken by Artmarketspace or a representative of Artmarketspace regarding the use or abuse of the Platform.
13. Term and Termination, Suspension and other Measures
13.1 Term of Agreement
This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Artmarketspace terminate the Agreement in accordance with this provision.
13.2 Termination by Member
You may terminate this Agreement at any time by sending us an email, addressed to firstname.lastname@example.org.
13.3 Termination by Artmarketspace
Without limiting our rights specified below, Artmarketspace may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
Artmarketspace may immediately, without notice terminate this Agreement if:
• you have materially breached your obligations under these Terms or any of our Policies or you have violated applicable laws, regulations or third party rights; or
• Artmarketspace believes in good faith that such action is reasonably necessary to protect the personal safety or property of Artmarketspace, its Members, or third parties (for example in the case of fraudulent behaviour of a Member).
13.4 Additional Actions
Without limiting any other provision of these Terms, if you:
• fail to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body; or
• have breached these Terms, or any our Policies or applicable laws, regulations, or third party rights; or
• have provided inaccurate, fraudulent, outdated or incomplete information during the Artmarketspace Account registration, Listing process or thereafter; or
• and/or your Listings or Artworks at any time fail to meet any applicable quality or eligibility criteria; or
• and Artmarketspace believes in good faith that such action is reasonably necessary to protect the personal safety or property of Artmarketspace, its Members, or third parties, or to prevent fraud or other illegal activity:
Artmarketspace may take any of the following measures:
• refuse to delete any Listings or other Member Content;
• cancel any pending or confirmed Purchases; or
• temporarily or in case of severe or repeated offenses permanently suspend or close your Artmarketspace Account.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Artmarketspace and an opportunity to resolve the issue to Artmarketspace's reasonable satisfaction.
13.5 Effects of Termination
If we take any of the measures described in Clauses 13.3 and 13.4, you will not be entitled to any compensation.
When this Agreement has been terminated, you are not entitled to a restoration of your Artmarketspace Account or any of your Member Content.
If you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect, including any provisions that reduce our liability.
14.1 Assumption of Risk
If you choose to use the Platform or Collective Content, you do so voluntarily and at your sole risk. The Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
14.2 Adequate Opportunity to Investigate
You agree that you have had whatever opportunity you deem necessary to investigate the Artmarketspace Products, laws, rules, or regulations that may be applicable to your Listings and/or Artworks you are receiving and that you are not relying upon any statement of law or fact made by Artmarketspace relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
You agree to release and hold harmless Artmarketspace from all damages, liabilities, losses and expenses (whether director, indirect or consequential) and claims that arise in any way from any injury, death, loss, damage or harm that occurs to you arising from the Listing or purchase of an Artwork or in any way related to your Artwork.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Platform and Collective Content, your publishing of any Listing or purchase of an Artwork via the Platform, or any other interaction you have with other Members whether in person or online remains with you.