Artist/Gallery Terms and Conditions A Space For Art GmbH

Transcription

1 1 8 Artist/Gallery Terms and Conditions A Space For Art GmbH 1 Introduction 1.1 The following terms and conditions ( Artist T&Cs ) apply between A Space For Art Ltd. ( ASFA ) and any Artists, Galleries or Art-Owners engaging the Services of ASFA (collectively also Artists, you ). These Artist T&Cs together with the General Terms and Conditions ( General T&Cs ) and any applicable orders placed by the Artist as well as agreements concluded between ASFA and the Artist such as online or offline agreements on the supply of Artworks ( Supply Agreements ) shall be collectively known as the Agreement. Terms and conditions of the Artist do not become part of the Agreement, unless ASFA has accepted them in writing. 1.2 The Agreement is between ASFA and the Artist only. 1.3 All provisions in the General T&Cs relating to Members shall also apply to Artists, unless otherwise stipulated in these Artist T&Cs. In case of any conflicts between the General T&Cs and these Artist T&Cs, the Artist T&Cs shall prevail. 1.4 ASFA shall receive a consideration based on the successful sale of Artwork, for example to the clients of a Venue ( Clients ) or to members of the Online Platform ( Members ). That is, ASFA shall receive a share of the price obtained when Artwork is sold, according to 7 below. 2 Registration 2.1 ASFA offers its Services to Artists on a commercial basis only. Consumers are not eligible to become an Artist. 2.2 As an Artist, you will be prompted for your contact information (including your name, billing address, address and phone number), delivery/pickup location of Artwork (if different than your billing address) and potentially also payment information such as your credit card information, pay-out information such as your paypal account or bank account number, and to select a password, all of which is subject to our privacy policy ( You represent and warrant that all of your account information is true and accurate, and you agree to provide us with updates to such information promptly to keep it current.

2 2 8 3 Booking, Delivery of Booked Artwork, Term 3.1 With an Artist account, you may be able to choose Venues on the ASFA Online Platform and request them for exhibiting your Artwork. In case the Venue agrees, such Artwork will then become Booked Artwork. 3.2 ASFA cannot guarantee the availability of exhibition space or interest in your Artwork by Venues on the Online Platform. Venues have 72 hours from the time you request a Booking to either confirm or cancel it. If no answer is received during this time the Booking is considered cancelled. 3.3 A Space For Art may also allow Venues to contact you via the Online Platform about exhibiting Artwork. If a Booking is requested for your Artwork via the Online Platform, you will be required to either confirm or reject the Booking within 72 hours of when the Booking is requested (as determined by ASFA) or the Booking request might be cancelled. 3.4 When a Booking is requested for your Artwork via the Online Platform, we will share with you (i) the type of Venue who has requested the Booking, (ii) a link to the Venue s ASFA Account profile page, if available, or picture of the Venue or (iii) information about the Venue where your Artwork will be exhibiting. Such information might include, but is not limited to, the name and location, information on primary demographic, capacity of the Venue so that you can view such information before confirming or rejecting the Booking. 3.5 If a Booking is confirmed by the other party (i.e. usually within max. 72 hours of your or the Venue s request) a binding contract comes into effect. 3.6 Once a Booking is made, ASFA will endeavour to issue the Venue and the Artists, Galleries or Art-Owners with a confirmation specifying the individual Artworks and agreed exhibition time. 3.7 Once a Booking is made, Artist and Venue have to agree and arrange a mutually agreeable time to deliver and install Booked Artwork. 3.8 The minimum exhibition time in case of a Booking shall be 4 months with an option to extend by another 2 months, unless specifically agreed otherwise. 3.9 The Artist is responsible for the transport of Booked Artwork and shall bear all costs and expenses related to the delivery and/or return transport of the Booked Artwork. For the avoidance of doubt, this means that, unless specifically agreed otherwise, you agree to deliver all Booked Artwork yourself, at your own expense, at the Venue at the agreed time ASFA might offer to coordinate and organise free of charge transport for Booked Artwork. Such transport may be performed by third-parties or by ASFA. Nevertheless, Artist shall be responsible for all aspects of the transport at all times, including checking sufficient insurance cover, if any, and deciding whether or not to use the transport method suggested by ASFA In the case that a third-party transports Booked Artwork for Artist, Artist shall assert any claims relating to the transportation against such transport company, especially for any damages to Booked Artwork.

3 In the case that ASFA transports Booked Artwork for Artist, ASFA shall only be liable within the limits provided herein, even if the value of Booked Artwork is above that limit, see especially 3 of the General T&Cs In case the Artist alters or modifies the Booked Artwork prior to delivery after the Booking has been confirmed, or the online description of the Booked Artwork is wrong or misleading (for example the size of the Booked Artwork was substantially incorrectly described), the Artist agrees that the Booked Artwork might be rejected by the Venue on such ground. In this case, Artist is responsible for the transport of Booked Artwork and shall bear all costs and expenses related to the delivery and/or return transport of the Booked Artwork, even if ASFA had offered free of charge transport. 4 Exhibition, Access to Booked Artwork, Right to Sell Booked Artwork 4.1 The Artist shall deliver all Booked Artwork in accordance with the Agreement, including any specifications and requirements provided by ASFA to ensure the proper delivery of such Booked Artwork. The Artist is advised to regularly check the instructions published on ASFA s Site or Application, The Artist undertakes not to deliver Booked Artwork in a manner which might be detrimental to ASFA or its reputation. 4.3 The Booked Artwork shall be fit to be exhibited in a prominent position. The Artist shall meet the requirements as reasonably defined by ASFA. 4.4 Once exhibited at a Venue, you can request access to Booked Artwork, i.e. for viewing in with a potential buyer, at the Venue within reasonable hours. 4.5 In case you find a buyer for Booked Artwork yourself, you may sell your Artwork to this buyer subject to a reduced consideration payable to ASFA according to the conditions stipulated in 7 (especially 7.5). You acknowledge and agree that you will not use this option to circumvent your obligations under this Agreement, especially your obligations according to 8 (Exclusivity and Non-Circumvention). 4.6 Artist shall respect the Venue s right of first refusal according to 7.3 of the General T&Cs. Artist shall give ASFA and Venue the information mentioned in 7.3 of the General T&Cs, and Artist shall not sell the Artwork or make any other binding agreements with a potential buyer before the term mentioned in 7.3 of the General T&Cs is expired. In case the Venue notifies the Artist within such term that it will exercise its right of first refusal by submitting to the Artist a binding offer equal or better than the offer by the potential buyer, Artist shall be obliged to accept such offer of the Venue.

4 4 8 5 Artwork and Promotion 5.1 Artist profiles might be made publicly available via the Online Platform, including information such as full name, Artworks and details about current or previous Booked Artwork and any information entered in the profile section of the Online Platform. 5.2 ASFA reserves the right to promote single Artists and Artworks at ASFA s own discretion. This can be accomplished e.g. by featuring Artists or Artworks on special sections of the Online Platform. ASFA may also choose to provide single Artists with special features that are not available to other Artists on the Online Platform. The Artist is not entitled to be featured, included in search masks, etc. whatsoever. In addition, although the Agreement requires Members to provide accurate information, we are not obliged to confirm any Member s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Online Platform (see also 7 of the General T&Cs). Except as provided in this Agreement, ASFA will not be responsible for any damage or harm resulting from your interactions with other Members. 5.3 As an Artist, you acknowledge and agree that you are responsible for any and all Content and/or Artwork you post. Accordingly, you represent and warrant that any Content or Artwork you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply, including, (b) not conflict with the rights of third parties. Please note that ASFA assumes no responsibility for compliance with any applicable laws, rules and regulations. 5.4 ASFA neither endorses nor approves of Content made available by the Artist. 5.5 The Artist represents and warrants not to submit any Artwork to ASFA or the Online Platform that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene ( Artwork of an Illegal Nature ). 5.6 In case the Artworks are unlawful, or defamatory, libellous, harassing, abusive, fraudulent or obscene in certain countries or regions of the world only ( Restricted Countries ), the Artist shall instruct ASFA in writing not to display the Artwork in Restricted Countries. 5.7 Artworks of an Illegal Nature; Artworks inappropriate for Restricted Countries; and Artworks otherwise contradicting this Agreement or otherwise harmful to the Services or Online Platform are collectively referred to as Undesired Artwork. 5.8 ASFA has the right, but is under no obligation, to review Artworks submitted by the Artist. 5.9 ASFA may, at its sole discretion, reject or remove any Artwork which, in ASFA s reasonable opinion, is an Undesired Artwork. ASFA does not have an obligation to inform you in case an Artwork has been removed.

5 If the Artist considers that ASFA has deemed an Artwork to be an Undesired Artwork under 5.9 for no good reason and removed it, the Artist shall request ASFA, in writing, to review its decision. If, upon further review, ASFA agrees with the Artist, it may re-activate the Artwork. If however ASFA still disagrees with the Artist, ASFA may, at its reasonable discretion: (a) (b) elect to discontinue to deliver the Artwork through the Online Platform; elect to continue to deliver the Artwork through the Online Platform, but inform its Venues in an appropriate way that it holds the Artwork to be an Undesired Artwork, and suggest the Venues put it on a blacklist or review with consideration The Artist does not have any other claims against ASFA. By using the Online Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members, or your Clients as a Venue or other third parties will be limited to a claim against the particular Members, Clients or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from ASFA with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with these particular Members, Clients of the Venue or other third parties. 6 Insurance, Damage to Artwork 6.1 You understand and agree that ASFA does not provide insurance, act as an insurer or as a contracting agent for you as an Artist. 6.2 ASFA recommends that Artists obtain appropriate insurance for their Artwork and in particular for Booked Artworks. ASFA does not check whether you or the Venue have sufficient or any insurance for Booked Artwork. 6.3 Artist acknowledges that there is a risk related to exhibiting Artwork at a Venue. ASFA can neither warrant nor represent that the Venue will adhere to its obligations. 6.4 In the event that a Venue does not fulfil its obligations under the Venue T&Cs or General T&Cs, or obligations individually agreed upon between the Venue and ASFA, the Artist shall not have any claim against ASFA, unless ASFA is responsible for such breach or non-performance, but shall assert any claims against such Venue. 6.5 To the extent that any obligation of the Venue under the Venue T&Cs protects the interests of the Artist, this obligation is for the benefit of the Artist (echter Vertrag zugunsten Dritter, Sect. 328 German Civil Code). 6.6 ASFA reserves the right, without being under any such obligation, to try and mediate between the Artist and the Venue to find an amicable solution.

6 6 8 7 Consideration, Charges, Payments and VAT 7.1 Artwork can be sold either through a Venue while exhibited in the Venue s space (thus being Booked Artwork) or through the Online Platform directly. 7.2 If Artwork, i.e. art offered through the Services of ASFA for exhibition or sale or otherwise, is sold, ASFA shall receive a consideration from Artist. 7.3 If Booked Artwork is sold while exhibited in the Venue s space, ASFA shall receive or retain a consideration and might hand on a portion of the consideration to the Venue. 7.4 The consideration payable to or retained by ASFA, and possibly to the Venue, is calculated based on a certain percentage share of the obtained price for the Artwork. ASFA shall receive a consideration equivalent to 40 % of the obtained price and pay out the Venue s share (if any) out of these 40 %. 7.5 If Booked Artwork is sold by the Artist while exhibited at a Venue and without using the Services of ASFA, ASFA shall receive a consideration equivalent to 20 % of the obtained price from Artist. 7.6 The payments received by ASFA from Customers of Venues and other third parties for the sale of Artist s Artwork will be credited to the Artist s ASFA Account after ASFA has received the full price and after deducting the aforementioned consideration to ASFA. Artists can request from ASFA to pay out amounts credited to his ASFA Account at any time. Such payment is due and payable within 15 working days after the Artist s request and after the Artist has provided all required payment information inside his ASFA Account. In the event that the Artist s ASFA Account is in credit, no interest shall be due. 7.7 Payments will be remitted by ASFA to Artist via the payment methods described from time to time on the Site or via the Application. Please note that for any payments from ASFA in currencies other than Euro, ASFA may deduct foreign currency processing costs from such payments. 7.8 In case ASFA decides to produce and sell limited edition print of your Artwork, you shall receive a consideration per sale equivalent to 20% of the net price obtained by ASFA. 7.9 In case the buyer of an Artwork has a right of withdrawal ( Widerrufsrecht ) and lawfully exercises such right of withdrawal, a consideration already paid by the Artist to ASFA for the sale of this particular Artwork will be credited to the Artist s ASFA Account. The aforementioned crediting of consideration is conditional upon the Artist showing ASFA sufficient evidence that the respective amount was paid back to the buyer. In any other case, where the buyer of an Artwork returns Artwork, for example when the buyer can make a claim based on warranty rights against the Artist, ASFA shall nevertheless be entitled to receive or, as the case may be, keep the respective consideration for the sale from the Artist All amounts payable under this Agreement are displayed exclusive of VAT. Transactions of Artists are subject to VAT or sales tax, as far as applicable,

7 7 8 hence the Artist will be charged by transaction costs plus VAT or sales tax rate applicable at that date. 8 Exclusivity and Non-Circumvention 8.1 The Artist undertakes during the entire term of this Agreement and for a period of three months after termination of this Agreement not to enter, either directly or indirectly, nor via third parties, into contractual or other (business) relationships with Venues, the purpose of which is to provide services to support the Artist in exhibiting and selling its Artworks, if the Venue exhibited Artwork of the Artist while Artist was contractually bound with ASFA. 8.2 The Artist undertakes during the entire term of this Agreement and for a period of three months after termination of this Agreement not to enter, either directly or indirectly, nor via third parties, into contractual other (business) relationships with Members, or Clients respectively Customers of Venues, the purpose of which is to sell its Artworks. 8.3 This does not apply to those Venues, or Members, or Clients respectively Customers of Venues, with which the Artist had demonstrably already concluded corresponding agreements before registration of the Artist for the Services of ASFA. 8.4 The Artist undertakes to pay ASFA for each infringement of this obligation a contractual penalty set at the reasonable discretion of ASFA, the amount of which is to be verified by the responsible court. 9 Ownership of Rights 9.1 You hereby grant a worldwide, royalty free, irrevocable, perpetual license to ASFA to use, reproduce, display, and prepare derivatives of Artworks for ASFA s promotional purposes (such as by placing advertisements on third party websites) and for the purpose of providing the Services including, without limitation, presenting Artworks to potential clients. You hereby provide such consent to any use or display of Artwork, in any manner whatsoever, by ASFA. 9.2 You hereby especially grant the aforementioned right to ASFA, and give your consent to ASFA, to use your ASFA profile data and your Artwork in social networks. 9.3 You hereby especially grant the aforementioned right to ASFA, and give your consent to ASFA, to use your Artworks in order to produce and sell limited edition prints of your Artwork, based on the consideration according to You hereby especially grant the aforementioned right to ASFA, and give your consent to ASFA, to use your Artworks for promotional purposes. ASFA will do its best not to display or use Artwork without attribution to the Artist.

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