Terms & Conditions

Last Updated: 25th September 2020

Welcome to the Artmarketspace e-commerce platform!

The term ‘Artmarketspace' or ‘us’ or ‘our’ or ‘we’ refers to Artmarketspace Pty Ltd ACN 152 956 280, the owner of the Platform and entities associated with it (collectively, "Artmarketspace"). The term ‘you’ or ‘your’ refers to the Platform user. These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement") between you and Artmarketspace governing your access to and use of the Artmarketspace website with URL address http://www.artmarketspace.com/ and any other websites through which Artmarketspace makes the Artmarketspace products and services ("Artmarketspace Products") available, including our mobile, tablet and other smart device applications and application program interfaces and all associated products (collectively referred to as the “Platform”).

By using the Platform, you agree to be bound by and to comply with these Terms, which incorporate and include any terms and conditions for payment processing products through or in connection with your use of the Platform ("Payment Products") which are provided to you by Artmarketspace.

By continuing to use the Platform, you agree with the terms of our Privacy Policy and any other policies published by us.

If you do not agree with any of these terms and conditions, you must not use the Platform.
1 Platform Conditions

1.1 Online Marketplace for Members

The Platform is an online marketplace that enables registered users (“Members”) to offer works of art (Members who offer products are “Sellers” or Sellers' agents ("Sellers' Affiliates"), and the works of art they offer are “Artworks”) to publish such Artworks on the Platform (“Listings”) for viewing by Members that are seeking to purchase such Artworks (Members intending to purchase Artworks are “Buyers”).

The Platform allows Artworks to be offered to Buyers by Sellers at a fixed price or via online auction. Auctions are held subject to the Additional Terms for Buyers - Auctions and the Additional Terms for Sellers and Sellers' Affiliates - Auctions published at https://artmarketspace.com/auctionterm-condition from time to time (together "Auction Terms"), in addition to these Terms.

1.2 Contract between Buyers and Sellers

As the provider of the Platform, Artmarketspace does not own, create, sell, resell, provide, control, manage, offer, pack, deliver, or supply any Listings or Artworks. Sellers and Sellers' Affiliates alone are responsible for their Listings, auction listing descriptions 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, Seller or Seller's Affiliate, 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 auction listing entry, or 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, Seller's Affiliate, 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 an Artwork at the time the UVEs and photographs were taken, and are therefore not an endorsement by Artmarketspace of any Seller, Seller's Affiliate, Listing, auction listing description 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 or Seller's Affiliate, 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.

Sellers and Buyers acknowledge and agree that it is the Sellers who are selling Artworks to Buyers through the Platform (including in the case of auctions), and that Artmarketspace and Seller's Affiliates are merely facilitating the conduct of sales by Sellers.

1.6 Use of Member Content

Listings and other Member Content may be displayed in auction listings (in any format), 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.

1.9 Sellers' Affiliates

Seller's Affiliates agree that their use of the Platform is subject to the current Artmarketspace Affiliate Programme terms provided to Sellers' Affiliates by Artmarketspace in writing from time to time, in addition to these Terms. Seller's Affiliates agree that:

Artmarketspace may prospectively change the commission payable by Artmarketspace to Sellers' Affiliates by providing Sellers' Affiliates with reasonable prior notice of the change in writing;

Sellers' Affiliates must handle the packing, pick-up and delivery of Artworks on behalf of Sellers at their own risk and cost;

Sellers' Affiliates are required to have adequate insurance coverage if they hold their client's property;

Seller's Affiliates must ensure that the Seller/s that they represent accept Artmarketspace's terms and conditions in writing; and

Seller's Affiliates must indemnify Artmarketspace, and keep Artmarketspace indemnified against, all costs, expenses, charges, claims, liabilities or damages suffered by Artmarketspace as a result of any false, misleading or deceptive content uploaded onto the Platform or otherwise provided to Artmarketspace or any Buyer by the Seller's Affiliate or any Seller that they represent, and any breach of these Terms (including warranties) by the Seller's Affiliate or any Seller that the Seller's Affiliate represents.

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. If you are a Seller's Affliliate you also represent and warrant that you are authorised to act as the agent of the Seller with respect to the promotion and sale of the Seller's Artworks through the Platform.

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. In the event of any inconsistency between these Terms and the Artmarketspace Affiliate Programme terms, these Terms will take precedence to the extent of the inconsistency. In the event of any inconsistency between these Terms and the Auction Terms, the Auction Terms will take precedence to the extent of any inconsistency.

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, the Auction Terms and any additional terms and conditions referred to in 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 must cease to access or use the Platform 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, bidding at an auction or purchasing an Artwork. If you are registering an Artmarketspace Account for a company or other legal entity, you personally represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licences 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 Content

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 or for the purpose of auctioning or otherwise selling any Artwork 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 licences 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 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 or any Artwork, 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:

"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).”

"I hereby state that the information in this Notice is accurate and that I am the owner, or authorized to act on behalf of the owner, of the IP rights that are allegedly infringed." 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.

5.8 General

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

Except in the case of auctions, Artmarketspace charges a fee constituting 30% including GST of the Sale Price including GST (Fee) in consideration for the use of the Platform to Sellers and Buyers. For auctions, the following Artmarketspace fees (also Fees) apply:

Seller direct to consumer auctions

Buyer's premium
22% including GST of the Sale Price including GST on works sold under $20,000 11% including GST of the Sale Price including GST on works sold from $20,000 up to $99,999 5.5% including GST of the Sale Price including GST on works sold for $100,000 and over

Commission
3.3% including GST of the Sale Price including GST on works sold under $20,000 2.2% including GST of the Sale Price including GST on works sold from $20,000 up to $99,999 1.1% including GST of the Sale Price including GST on works sold for $100,000 and over

Artmarketspace or Seller's Affiliate curated auctions

Buyer's premium
22% including GST of the Sale Price including GST on works sold under $60,000, 16.5% including GST of the Sale Price including GST on works sold from $60,000 up to $119,999, 11% including GST of the Sale Price including GST on works sold from $120,000 to $199,999 and 5.5% including GST of the Sale Price including GST on works sold for $200,000 and over

Commission

For your own works you do not get charged any vendor commission and for your own clients works you are free to charge what commission you wish to and this will be refunded in full to you.


For works that are referred to the affiliate by Artmarketspace in their scheduled auctions the following commissions will be paid to the affiliate:


8.8% including GST of the Sale Price including GST on works sold under $20,000

4.4% including GST of the Sale Price including GST on works sold from $20,000 up to $99,999

2.2% including GST of the Sale Price including GST on works sold for $100,000 and over


For complete auctions referred to the affiliate by Artmarketspace, Artmarketspace will pay the affiliate 4.4% including GST of the Sale Price including GST on works sold up to $99,999 and then 2.2% including GST of the Sale Price including GST on works sold for $100,000 and over.


(If vendor commission rates charged to the vendor are higher than the above, then this will not affect what is paid to the affiliate and the above rates will remain payable to the affiliate)


At the highest value level of $200,000 including GST where the buyer's premium reduces to the lowest level of any art auctioneer, 3.3% vendor's commission including GST will be paid to Artmarketspace for all art works sold over this amount. This will be deducted from the vendor's commission charged by the affiliate.  

6.2 Change of Service Fees and Buyer's premium

Artmarketspace reserves the right to change the Fees including Buyer's premiums at any time, and we will provide Members adequate notice of any Fee changes before they become effective.

7. Payment Terms

7.1 Definitions

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 freight 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, or the Hammer Price (as defined in the Auction Terms) in the case of the purchase of an Artwork by auction, and includes the Fee (except any applicable Buyer's premium) and excludes the Resale Royalty if payable by the Buyer.

“Payout” means a payment initiated by Artmarketspace to a Member for services (such as Sale Prices) performed in connection with the Platform.

“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, applicable Taxes (including GST) and any applicable Buyer's premium and/or Resale Royalty payable by the Buyer.  If payment is made by credit card, the amount of any credit card surcharge charged to Artmarketspace with respect to the payment will also be added to the Total Fee.

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 Buyer's payment methods and Seller's 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 personally 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.


7.8 Suspension

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 Payout Method to your Artmarketspace Account, you will be asked to provide information such as, for direct deposit, your address, name on the account, account type, routing number, and account number. You must provide accurate, current, and complete information when adding a Payout Method and it is your obligation to keep your Payout Method up-to-date at all times.

7.11 Member Responsibility for Accuracy of Information

You are solely responsible for the accuracy and completeness of your Payout Method information. Artmarketspace is not responsible for any loss suffered by you as a result of incorrect Payout Method information provided by you.

7.12 Financial terms for Sellers

Artmarketspace will require the payment of the Total Fees from a Buyer at the time the Buyer’s Purchase is made.

7.13 Payouts

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.

7.14 Amount of Payout

For fixed price sales, the Seller's Payout for a Purchase will be the Sale Price less applicable Fees, Resale Royalties and Taxes (including GST). Artmarketspace must pay the relevant Seller's Affiliate commission (if applicable). In the case of a sale by auction:

Artmarketspace will be entitled to deduct its commission and Taxes (including GST) from the Sale Price;

Artmarketspace will be entitled to deduct any applicable Resale Royalties from the Sale Price unless the Resale Royalty has been paid by the Buyer in addition to the Sale Price;

Artmarketspace must pay the relevant Seller's Affiliate commission (if applicable);

Artmarketspace will be entitled to retain the Buyer's premium (including GST); and

Artmarketspace will be entitled to deduct its Expenses (as defined in the Auction Terms) from the Sale Price.

7.15 Remittance

Artmarketspace will remit your Payouts in your currency of choice, depending upon your/ your Seller's Affiliate's 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 7.22 (“Rounding Off”).

7.16 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.

7.17 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, and Artmarketspace disclaims all liability in this regard.

7.18 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 the Seller's Artworks.

7.19 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 / Seller's Affiliate 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 and Seller's Affiliate agrees that Artmarketspace may refund the Buyer in accordance with these Terms. Each Seller and Seller's Affiliate understands that Artmarketspace’s obligation to pay the Seller and the Seller's Affiliate is subject to and conditional upon successful receipt of the associated payments from Buyers. Artmarketspace guarantees payments to Sellers and Seller's Affiliates 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 or the Seller's Affiliate (if applicable).


7.20 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 and Seller's Affiliate (if any) will have recourse only against Artmarketspace and not the Buyer directly.

7.21 Resolution

You agree that Artmarketspace may collect from you any amount payable through the application of clause 17 by withholding the amount from your future Payouts or other amounts payable to you by Artmarketspace, or adding the amount to the Total Fees payable for a purchase.

7.22 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.

7.23 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.

7.24 Title and Risk

For fixed price sales, 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 Pty Ltd ACN 602 410 159 ("Freight Agent") is conclusive proof of delivery.

For auctions:

risk in an Artwork passes immediately to the Buyer upon the Fall of the Hammer; and

title in an Artwork passes after Artmarketspace receives in full as clear funds all amounts payable by the Buyer to Artmarketspace with respect to the Artwork.

7.25 Legally Binding Agreement

Upon receipt of a purchase confirmation from Artmarketspace, (or upon your bid being accepted by the Platform as a successful bid in the case of an auction) 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 require payment of the Total Fees at the time of creation of a legally binding agreement pursuant to this clause 7.

8 Terms specific for Sellers and Seller's Affiliates

8.1 Listing Information

When creating a Listing through the Platform you must: provide complete and accurate information about the Artwork (such as date of purchase (if applicable), 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 fixed price Listing and for artworks submitted for auction all estimates and reserves will be confirmed by Artmarketspace.

8.3 Image Quality

Pictures, animations or UVEs (collectively, "Images") used in your Listings or auction 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, the Seller (or the Seller's Affiliate if applicable) 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 or the Buyer. You must promptly arrange for the packaging of your Artwork ready for pick up by the Freight Agent or the Buyer on or before the pickup date and time advised. If applicable, 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. 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 Pty Ltd ACN 602 410 159 directly at info@yourfreightagent.com.au.

8.5 Listing Rules

You may only list one Artwork per Listing.

When listing an Artwork for a fixed price sale, 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, the offering of any Artwork by you for auction and/or the purchase of an Artwork by a Buyer will not breach any agreements you have entered into with any third parties.

8.7 Resale Royalties

You acknowledge and agree that under the Resale Royalty Right for Visual Artists Act 2009 (Cth) ("the Act") a resale royalty of 5% of (the Sale Price plus any applicable GST) ("Resale Royalty") applies with respect to Artwork sold through the Platform (whether for a fixed price or at auction) if:

the sale will be the second transfer of ownership after 8 June 2010;

the sale will be for a Sale Price of at least AUD$1,000;

the artist is from Australia; and

the artist is still alive, or has been deceased for less than 70 years.

You:

acknowledge and agree that Artmarketspace will deduct any applicable Resale Royalties from the Payout (unless the Resale Royalty is paid by the Buyer in addition to the Sale Price) and Artmarketspace will pay all Resale Royalties collected by Artmarketspace on the Seller's behalf to Copyright Agency Limited ("CAL");

agree to comply with all requirements of the Act;

agree to provide Artmarketspace with all information required by Artmarketspace to provide CAL with the notice of commercial resale of the relevant Artwork required under the Act and any other information requested by CAL;

acknowledge and agree that Artmarketspace may provide your name and contact details to CAL; and

agree to indemnify Artmarketspace if the Seller fails to comply with any of the Seller's obligations under the Act.

8.8 Insurance

You acknowledge that insurance of Artwork remains your responsibility until risk passes and that Artmarketspace will not obtain any insurance with respect to any Artwork other than the limited transit insurance obtained in the name of Artmarketspace with respect to fixed price sales through the Platform.

8.9 GST

Before Artmarketspace sells any of the Seller's Artworks, the Seller or the Seller's Affiliate must inform Artmarketspace in writing whether or not the Seller will be liable for GST in connection with the supply of those goods as a result of the sale of those goods. If the Seller or Seller's Affiliate does not give Artmarketspace this information, Artmarketspace will be entitled to treat the supply of the Seller's Artwork/s as being subject to GST and may inform potential Buyers accordingly.

If the Seller or Seller's Affiliate has informed Artmarketspace that the supply of the Seller's Artworks will be subject to GST, the Seller authorizes Artmarketspace to inform potential Buyers and issue a tax invoice to the Buyer as the Seller's payment collection agent. 

In accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth), Artmarketspace will collect on behalf of the Seller and the Australian Tax Office a GST of 10% on all applicable transactions where the Seller or the Seller's Affiliate has advised Artmarketspace that the Seller is liable to pay GST or does not inform Artmarketspace whether or not the Seller will be liable for GST. Where GST will be collected by Artmarketspace, this will be noted in the listing for the relevant Artwork.

Overseas Buyers and Buyers non-resident in Australia will not be charged GST if:

- the items are exported through an Artmarketspace approved freight company including Australia Post and Your Freight Agent Pty Ltd ACN 602 410 159; and

- the items are exported within 60 days of the date of sale.

8.10 Warranties

You warrant to Artmarketspace and the Buyer that at the time of sale of the relevant Artwork:

the Seller is the owner of the Artwork, or is properly authorised by the Owner to sell the Artwork;

the Seller can and will, in accordance with these Terms, transfer possession of the Artwork to the Buyer with good and marketable title to the Artwork, free from any third party rights, claims or potential claims (including, without limitation, by governments or governmental agencies);

the Seller or the Seller's Affiliate has provided Artmarketspace in writing all information concerning the Artwork's provenance and has notified Artmarketspace in writing on the existence of any endangered or protected species in the item or any concerns expressed by third parties concerning the Artwork's ownership, condition, authenticity, attribution and export or import history;

where the Artwork has been moved to Australia, the Artwork was lawfully imported into Australia;

that the item has been lawfully and permanently exported as required by the laws of any country in which it was located;

required declarations upon the export and import of the Artwork have been properly made; and any duties and taxes on the export or import of the Artwork have been paid;

the Seller has paid or will pay all taxes and duties potentially due on the sale proceeds of the Artwork and has notified Artmarketspace in writing of all such taxes and duties payable by Artmarketspace on the Seller's behalf outside of Australia;

unless the Seller or the Seller's Affiliate advises Artmarketspace in writing prior to the publication of any Listing or auction listing, there are no restrictions on Artmarketspace's rights to reproduce photographs, UVEs or other images of the relevant Artwork; and

all information, representations, photographs, UVEs or other images or content incorporated by the Seller or the Seller's Affiliate into any Listing or auction listing, or otherwise provided to Artmarketspace for the purpose of any auction or sale, is correct and is not misleading in any respect.

You agree to indemnify Artmarketspace, and its directors and employees and the Buyer, against any loss or damage resulting from any breach of the warranties provided by the Seller or the Seller's Affiliate in these Terms, or any other breach of these Terms by the Seller or the Seller's Affiliate. Where Artmarketspace reasonably believes that there is or may be a breach of any such warranty or term, Artmarketspace is entitled in its sole discretion to rescind the relevant sale.

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 or bid on an Artwork available on the Platform by following the respective process. All applicable fees, including the amount of the credit card surcharge, the Freight Fee, any applicable Taxes (including GST), and any Resale Royalties and Buyer's premiums payable by the Buyer (collectively, “Total Fees”) will be presented to you prior to purchasing an Artwork.

9.2 Delivery of Artwork

Upon receipt by Artmarketspace of the Total Fees (in full as clear funds) payable by you with respect to the relevant 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 (if you have not elected to pick up the Artwork). Please check your shipment before signing for it 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 Artmarketspace's confirmation of purchase of an Artwork, or acceptance of your bid by the Platform as a successful bid in the case of an auction, (“Confirmed Sale”)immediately forms a contract of sale between you as the Buyer to purchase the Artwork from the Seller.

9.5 Insurance

For fixed price sales only, 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 within Australia 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 road, air, sea or rail). 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 acceptance of a successful bid at auction, the Buyer bears all risk relating to the Artwork and the Buyer must procure appropriate insurance from then onwards. Artmarketspace does not procure transit insurance for Artworks purchased at auction.

9.6 Release

The Buyer releases Artmarketspace and its directors, employees and agents from any claim or liability arising (including as a result of negligence) as a result of any fraudulent statement, error, misrepresentation or action or omission of any Seller or Seller's Affiliate (including without limitation in any Listing or auction listing).

9.7 Copyright in Artworks

The Buyer acknowledges and agrees that in purchasing an artwork, it is not acquiring any copyright or other reproduction rights in relation to it.

9.8 Export and import licences and customs duties

It is the Buyer's responsibility to be aware of, and comply with, Australia's Protection of Movable Cultural Heritage Act 1986 (Cth) and any other laws applicable to the export or import of Artworks by the Buyer.

Unless otherwise agreed with Artmarketspace in writing:

the fact that a Buyer needs to obtain any export or import licence does not affect the Buyer's obligation to make full payment to Artmarketspace in accordance with these Terms;

if Artmarketspace agrees to apply for any export licence on behalf of the Buyer, Artmarketspace will be entitled to charge the Buyer an additional fee for the service;

Artmarketspace will not be obliged to rescind a sale nor refund any payments made by the Buyer in circumstances where any export or import licence is not granted;

the Buyer must apply for any export or import licence at the Buyer's own cost; and

the Buyer must pay all applicable customs duties.
10. Refunds and Returns

10.1 Definitions

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 or auction 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 (other than at auction) 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. Reimbursements are never provided for Artworks purchased at auction except, at our discretion, in the case of a Manifest Issue or a Damaged Artwork.

10.3 Returns

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 (unless the Artwork was sold at auction), 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 applicable).

If you are a Buyer (other than at auction) and decide within 7 days of delivery of the Artwork that you no longer want the Artwork for any reason, and we agree to reimburse the Total Fees, 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 or your agent (if applicable) 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 or pick-up (if applicable); and

(e) unless Artmarketspace advises you that the Damaged Artwork cannot be remediated, where the Artwork was delivered by the Freight Agent, 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 or a Seller's Affiliate, you are responsible for ensuring that the Artworks you list on the Artmarketspace Platform meet minimum quality standards regarding adequacy of the Listing and/or auction listing information and do not present a Buyer with Manifest Issues.

10.7 Seller Responsibilities and Reimbursement to Buyer

If you are a Seller or Seller's Affiliate, 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 to you within 7 days of Artmarketspace’s request as a debt immediately due and payable to Artmarketspace. You authorize Artmarketspace to collect any amounts owed to Artmarketspace by reducing your Payout (or commission in the case of Seller's Affiliates) 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 Taxes

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"). In these Terms "GST" means goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

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;

copy, store or otherwise access or use any information, including personally identifiable information about any other Member, contained on the Platform in any way that is inconsistent with Artmarketspace’s Privacy Policy or these Terms or that otherwise violates the privacy rights of Members or third parties;

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 will be ongoing until such time when you or Artmarketspace terminate the Agreement in accordance with this provision, or this Agreement is otherwise terminated in accordance with law.

13.2 Termination by Member

You may terminate this Agreement at any time by sending us an email, addressed to info@artmarketspace.com. If you terminate this Agreement, you must immediately cease to use the Platform.

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).

If we terminate this Agreement, you must immediately cease to use the Platform.

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

you have breached these Terms, or any of our Policies or applicable laws, regulations, or third party rights; or

you have provided inaccurate, fraudulent, outdated or incomplete information during the Artmarketspace Account registration, Listing or auction process or thereafter; or

your Listings, auction listing description or the relevant Artworks at any time fail to meet any applicable quality or eligibility criteria; 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, or to prevent fraud or other illegal activity:

Artmarketspace may take any of the following measures:

delete or alter any Listings, auction listing or other Member Content;

cancel any pending or confirmed Purchases; or

temporarily or in case of severe or repeated offences permanently suspend or close your Artmarketspace Account.

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 indemnities and any provisions that reduce our liability.

14 Disclaimers

14.1 Assumption of Risk

If you choose to use the Platform or Collective Content, you do so voluntarily and at your sole risk. Subject to clause 10, the Platform and Collective Content is provided by Artmarketspace “as is”, without warranty of any kind, either express or implied including without limitation with regard to the merchantability, fitness for a particular purpose, description, size, quality, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature or historical relevance of any Artwork promoted sold on behalf of a Seller through the Platform.

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 an Artwork.

14.3 Disclaimer

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.

14.4 Release

You agree to release and hold harmless Artmarketspace from all damages, liabilities, losses and expenses (whether direct, indirect or consequential including loss of profits, loss of the benefit of any contract, loss of data, loss of goodwill, damage to reputation, service interruption, computer damage, system failure or the cost of substitute products or services) and claims that arise in any way from any injury, death, emotional distress, loss, damage or harm that occurs to you arising from your use of the Platform, the Listing, auction, sale or purchase of an Artwork or in any way related to an Artwork.

15 Liability

15.1 Risk

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, the Artmarketspace Products and Collective Content, your publishing of any Listing or auction listing description 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.

15.2 No Liability by Artmarketspace

Neither Artmarketspace nor any other party involved in creating, producing, or delivering the Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of the benefit of any contract, loss of data, loss of goodwill, damage to reputation, service interruption, computer damage or system failure or the cost of substitute products or products, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with:

these Terms;

the use of or inability to use the Platform or Collective Content;

any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the Platform;

your publishing a Listing or selling or purchasing an Artwork, including the provision or use of a Listing’s Artworks; or

the transmission of any computer viruses or anything else (such as worms or Trojan horses) that may interfere with or damage the operations of your computer systems,

whether based on warranty, contract, tort (including negligence), product liability or any other legal basis, and whether or not Artmarketspace has been informed of the possibility of such damage.

15.3 Limitation Of Liability

Except for our obligations to pay amounts to applicable Sellers and/or Seller's Affiliates pursuant to these Terms, in no event will Artmarketspace’s aggregate liability arising out of or in connection with these Terms and your use of the Platform including, but not limited to:

(a) from the publishing of any Listings or auction listing descriptions or selling or purchasing any Artwork via the Platform; or

(b) from the use of or inability to use the Platform or Collective Content and in connection with any Artwork, or interactions with any other Members

exceed the amounts you have paid for purchases via the Platform as a Buyer, or if you are a Seller or Seller's Affiliate, the amounts paid by Artmarketspace to you, or one thousand Australian dollars (AUD$1,000), whichever is the lower, to the maximum extent permitted by law The limitations of liability set forth above are fundamental elements of the basis of the agreement between Artmarketspace and you.

15.4 Australian Consumer Law

Nothing in this Agreement excludes any liability of Artmarketspace to the extent that liability may not be excluded by law, including liability under the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Where the Australian Consumer Law applies, and liability may be limited under the Australian Consumer Law but not excluded, the liability of Artmarketspace is limited to, at the discretion of Artmarketspace, the re-supply of the relevant Artmarketspace Products or the payment of the cost of acquiring equivalent Artmarketspace Products.

16 Release and Indemnity

You agree to release, indemnify, and hold Artmarketspace and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:

your breach of these Terms;

your improper use of the Platform or any Artmarketspace Products;

your interaction with any Member;

Artmarketspace’s Collection and Remittance of Taxes; or

your breach of any laws, regulations or third party rights.

17 Dispute Resolution

17.1 Condition Precedent

Subject to clause 17.3, prior to the commencement of any litigation, if a dispute arises between parties to this Agreement, the parties agree to refer the dispute to mediation administered by the Australian Disputes Centre (ADC).

17.2 Mediation

The mediation must be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (Guidelines). The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved, including the parties’ respective responsibilities for the payment of the mediator’s costs and other costs of the mediation. The terms of the Guidelines are hereby deemed incorporated into this agreement.

17.3 Injunction

At any time, nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court.

18 Applicable Law and Jurisdiction

This Agreement is made and governed by the law of Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and waives any objection to the venue of any legal process on the basis that the process has been brought in any inconvenient forum. Each Member irrevocably consents to service of initiating proceedings or any other documents in connection with court proceedings by email, personal service, delivery by mail or in any other manner permitted by the laws of Victoria, Australia, at the address of the Member last registered through the Platform, or any other usual address known to Artmarketspace.

19 General Provisions

19.1 Entire Understanding

These Terms, together with the Auction Terms and (in the case of Seller's Affiliates only) the Artmarketspace Affiliate Programme terms constitute the entire Agreement between Artmarketspace and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Artmarketspace and you in relation to the access to and use of the Platform. Capitalised terms used in these Terms that are not otherwise defined in these Terms have the meaning given in the Auction Terms.

19.2 Relationship

No joint venture, partnership, employment, or agency relationship exists between you and Artmarketspace as a result of this Agreement or your use of the Platform.

19.3 No Third Party Remedies

These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties to this Agreement.

19.4 Severability

If any provision of these Terms is held to be invalid or unenforceable, the remainder of this Agreement subsists and remains enforceable.

19.5 Exercise of Remedies

Artmarketspace’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

19.6 Assignment

You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Artmarketspace's prior written consent. Artmarketspace may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.

19.7 Notice

Unless specified otherwise, any notices or communications required to be given to Artmarketspace under this Agreement, will be in writing and given to Artmarketspace via email at complaints@artmarketspace.com. We may give you a notice by sending an email to your account registered for the Platform.