Effective 1 August 2019
- USER ACCEPTANCE
This document (the “Seller Terms”) contains important legal terms which are additional to the Terms & Conditions relating to the use of the artq.co website (the “Website”) operated by Artq (“Artq” or “we”). These Seller Terms apply to you if you sell art through the Website, or any other offline or online 3rd party channels used by Artq. You are referred to in these Seller Terms as the “Seller” or as “you”.
You should read these Seller Terms carefully, and we advise you to print and retain a copy for your reference.
By submitting your work of art (“Your Work”) to Artq for sale you agree to these Seller Terms, and agree to have Artq become a sales agent for Your Work. If you do not agree to these Seller Terms, you should not submit Your Work for sale to Artq.
These Seller Terms, together with the Terms and Conditions relating to the use of the Website constitute the entire agreement between you and Artq in relation to the display, promotion and sale, and supersede all other agreements, statements, letters and other arrangements made between the parties.
These Seller Terms and any matter arising out of the subject matter of these Seller Terms shall be governed by New Zealand law and you agree to submit to the jurisdiction of New Zealand court.
- OUR SERVICE
By entering into this Seller Agreement, you appoint Artq as an agent for Your Work listed on the Website and approved by Artq for sale at the discretion of Artq. As part of this service, Artq may (in its sole discretion) showcase and sell Your Work on the Website and various other offline and online 3rd party sales channels.
Without prejudice to any other legal remedy that may be available to us, we reserve the right to reject at any time Your Work for sale and remove it from the Website and any other publications or circulars, if we determine, at our sole discretion, that Your Work fails to comply with the warranties as outlined below or for any other reason. Artq expressly disclaims all liability in connection with Your Work.
- YOUR WARRANTIES
By agreeing to this Seller Agreement for the sales Your Work, you hereby warrant, covenant and represent to us as set out below:
- Your Work is your original artistic work, it has not been copied from any other work and does not contain any copies, reproductions, adaptations or versions of a third party's work and it does not otherwise infringe or violate any person's copyright, design right, trade mark or confidential information.
- You are the sole owner of all rights, title and interest in the copyright in Your Work and you are entitled to grant the rights purported to be granted to us under this Seller Agreement.
- Your Work does not contain anything which is, or would be (if Your Work is published), in breach of applicable laws or infringes any third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or menacing).
You agree to indemnify Artq and keep it indemnified on demand against any loss or liability arising to Artq or any of its directors, officers, employees or members of the Artq curation board out of the breach of any of the warranties above and against any breach of your obligations under this Seller Agreement.
- Receipt of Your Work: Upon acceptance of this Seller Agreement, you shall submit (via any process as defined by Artq in its sole discretion) to Artq Your Work to be sold under the terms of this Seller Agreement. Artq reserves the right to (in its sole discretion) approve or reject Your Work for sale. Upon notification of a sale by Artq, you must be able to deliver Your Work to the mutually agreed location for shipping within 5 business days unless otherwise mutually agreed by email.
- Non-Exclusivity: You may continue to sell Your Artwork in other venues and non-exclusive arrangements outside of Artq so long as Your Artwork has not already been sold by Artq. You shall stop offering any of the pieces of Your Artwork for sale through any other channels immediately after we notify you of the sale of such piece of Your Work. If Your Work is sold via another channel, you must notify Artq within 2 days of the sale, so that we may mark the work as sold.
- Price: You shall provide Artq with a selling price for Your Work, which shall be inclusive of GST, sales tax or any other amount paid as tax (“List Price”). You can change the List Price at any time by providing at least 7 day written notice to Artq. The List Price shall never be more expensive on Artq that on any other sales channel or venues. Artq shall be allowed to discount the List Price upon mutual consent if an offer is received for a lower price. You shall be allowed to discount the List Price at your discretion, by providing Artq notice of such discount and the period of such discount.
- Sales: Artq agrees to list Your Work for sale at the Price, including any discounts requested by you or agreed mutually as defined in clause 4.4 above (the “Sale Price”).
- Costs Incurred: Artq will be reimbursed out of the proceeds of the sale of Your Work for any costs incurred by Artq in relation to the delivery or sale of Your Work (“Costs Incurred”).
- Commission: After deduction from the Sale Price of any Costs Incurred, Artq will be paid a commission on the sale of 40% of the net proceeds plus any Costs Incurred and you will be entitled to the balance.
- Shipping: Unless Artq has elected to take possession and store Your Work by mutual agreement; you are solely responsible for packing your work and delivering it to a mutually agreed location for shipping to the customer. Artq may provide you with packing and shipping instructions, which you shall follow. If you fail to pack or deliver Your Work securely, you will be fully liable for any damage to Your Work in the shipping process.
(A) If Your Work is damaged or destroyed during shipment to a customer, Artq will pay to have Your Work repaired or will pay you your commission as applicable under this Agreement at our sole discretion.
(B) If Your Work is damaged or destroyed during shipment by You, you will be liable for any damage to Your Work.
- Removal: You may elect to remove Your Work for sale from Artq at any time by notifying Artq in written form, via any tools provided by Artq in its sole discretion. Your Work will be removed from Artq within 30 days of notification. During this period, we may still exercise our right to sell Your Work under the terms of this agreement.
- Promotions: You agree to assist Artq with the marketing and promotions of Your Work on Artq. This includes responding to media inquires and participating in interviews, video productions or editorial contributions.
Artq may offer Your Work for sale to corporate, trade and other business customers (“Corporate Sales”). Corporate Sales will be governed by the same terms as Sales above with the following exceptions:
(A) Artq may in its sole discretion offer Your Work for Corporate Sales at a sale price set in accordance with this agreement (“Corporate Price”). Such Corporate Price shall be valid for a minimum of 30 Days from the time Artq makes the offer to the customer. You agree to sell Your Work at the Corporate Price provided the customer has accepted the offer within the prescribed 30 Days.
Intellectual Property: You acknowledge and agree that the words “ARTQ” and and any other name, logo and sign used on the Website, as well as the design and layout and all content of the Website are the trade marks, copyright and other intellectual property rights of Artq and are owned solely by (or licensed to) Artq. You shall not acquire any title, right or interest (including any user right) in any such intellectual property by reason of you selling and/or renting Your Work on the Website. You acknowledge and agree that any use of our intellectual property is subject to our prior written consent.
Limitations On Liability: In no event shall Artq be liable to you for any damages, including any lost profits or savings or anticipated profits or savings, loss of data, loss of opportunity, loss or reputation, goodwill or business, or any consequential, special, incidental, or indirect damages of any kind arising out of the services provided by Artq or its failure to provide these services, the consideration, selection, rejection or sale of Your Work or any other artwork or out of the operation of the Website, or the content of the Website, or the exploitation of any artwork, or as a result of the exercise or inability to exercise the rights granted to Artq hereunder or as a result of the termination or expiry of these Seller Terms, even if we have been advised of the possibility of such damages in advance. Artq's maximum aggregate liability for any single event (or a series of related events) giving rise to a claim in connection with these Seller Terms or in connection with the operation of the Website, either in tort, for breach of contract, misrepresentation or negligence, shall be limited to a sum equal the amount paid to you, or which would be payable to you if Your Work is sold and/or rented under these Seller Terms. Notwithstanding anything to the contrary above, nothing in these Seller Terms shall operate to exclude or restrict our liability for death or personal injury resulting from our negligence, or our liability to fraud or fraudulent misrepresentation made by us, or any liability that cannot be limited or excluded by law.
Termination: Artq may terminate these Seller Terms by giving you notice in writing (including by fax or email) upon any breach by you of any of the warranties or obligations under these Seller Terms or any of the Artist Submission Terms relating to the submission of Your Work or any of the Terms and Conditions relating to the use of the Website. Termination of these Seller Terms shall not affect any accrued rights or obligations of either party but shall release both Artq and you from any further obligations hereunder. PROVIDED ALWAYS that the termination of these Seller Terms shall not terminate any rights and obligations relating to clause 4.3 (“Commissioning Work for Artq Purchase”) which shall continue without limit after the termination thereof, directly or indirectly.
General terms: Nothing in these Artist Submission Terms shall create, or be deemed to create, a partnership or joint venture between you and Artq. Except as expressly provided herein, these Seller Terms shall not be construed as giving rise to any authority by you to represent or act on our behalf.
If at any time any provision of these Seller Terms are or become illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction or any other jurisdiction of any other provision of these Seller Terms.
A person who is not a party to this Agreement shall have no rights to enforce the provisions of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
No omission or delay in exercising any right, power or privilege under these Seller Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any right or remedies provided by law.
Neither Party shall be deemed to be in breach of this Agreement or otherwise liable to the other Party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement due to a Force Majeure Event. A party who becomes aware of a Force Majeure Event which gives rise to or which is likely to give rise to any failure or delay in performing its obligations under this Agreement shall immediately notify the other and shall inform the other of the nature or the Force Majeure Event and period for which it is estimated that such failure or delay shall continue. The affected Party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
Each Party agrees that it shall at all times conduct its efforts under this Agreement in strict accordance with all applicable statutes, laws, regulations, rules, ordinances and judicial or governmental agency orders (“Laws”) and with the highest commercial standards. Each Party shall render any and all information necessary for the fulfilment of legal obligations under GST Laws.