Terms and Conditions

 

Herewith the terms and conditions on which The Gallerist Limited (TGL), registered in Auckland, New Zealand,  grants to a Member (a “Member”) a license to access the TGL Services on www.thegallerist.co.nz (the “TGL Website”).

 

The TGL Website is an online art marketing service that markets art held in private art collections and art produced by artists, connecting sellers to buyers of these Art Works. TGL is a reliable and trustworthy art marketing platform making the sourcing, buying and re-selling of artworks accessible to art owners and buyers.

 

In these terms, references to “‘You” and “Your” are references registered individuals who have successfully registered on the TGL Website. When You use the TGL website and services, You agree that these terms apply to that use in addition to any other terms and conditions which may apply including the Privacy Policy each of which is incorporated herein by this reference (together, the “Terms”).

1. Definitions and Interpretation

In this Agreement the following words and expressions have the following meanings unless the context otherwise requires:

“Approved”: the status whereby an TGL Member registering on the TGL Website is approved by TGL;

“Applicable Deductions”: 12.5% commission payable to TGL

 “Artist”: the artist of the Art Work;

 “Art Work”: a work of art that constitutes a Listing;

“Art Work Description”: the description attached to a Listing;

“Art Work Price”: the price of the Art Work inclusive of any applicable General Sales Tax;

“Art Work Vetting Process”: the process implemented for the benefit of an TGL Member whereby, upon receipt of the Art Work submitted by an TGL Member, The Gallerist will ascertain the provenance and legitimacy of the Art Work submitted by the TGL Member for Listing based on the information provided;

“Business Day”: any day (other than a Saturday or Sunday) when banks are generally open for normal business in New Zealand;

“Claim(s)”: all demands, claims and liability for all Losses and any other expenses of any nature whatsoever;

“Codes”: the up-to-date versions of all applicable codes of practice (including ancillary guidance notes and advice) published by regulatory authorities or other industry professional bodies;

“Consumer Rights”: those rights enshrined in the Consumers Guarantees Act of New Zealand;

“Completed Transaction”: a Transaction that has been duly completed;

“Contract”: the legally binding and enforceable agreement that may be formed between a TGL Members buying Art Works and a TGL Member selling Art Works that forms part of a Completed Transaction;

“Data”: Personal Data and Financial Data;

“Data Protection Law”: all applicable data protection laws, regulations, legislative and regulatory requirements and codes of practice;

“Dispute”: any dissatisfaction expressed by or against an TGL Member in connection with a Transaction or by an TGL Member against TGL in connection with the provision of the TGL Services;

“Fees”: TGL sales commission of 12.5%;

“Gross Proceeds”: the Art Work Price;

“Intellectual Property Rights”: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Legislation”: all applicable laws;

“Listing”: the listing of the Art Work on the TGL Website;

“Losses”: any claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses;

“TGL-Approved”: the status of the Art Work that has been approved for a Listing by TGL;

“TGL Login”: the username and unique password an TGL Member applies to their account upon registration;

“TGL Member”: a registered and Approved Member;

“TGL Member Account”: the secure account created by an Approved TGL Member upon registration and from where the same can access the TGL Services via their TGL Login;

“Net Proceeds”: the Gross Proceeds less the Applicable Deductions;

“Personal Data”: as defined in Data Protection Law;

“Member”: an individual who has been Approved and is registered as an TGL Member on the TGL Website and who is buying, selling or intending to buy or sell one or more Art Works in one or more Listings;

“Pre-Sales Agreement: The Gallerist Online Gallery Consignment Agreement”: the agreement signed by the seller enabling TGL to upload the Listing; “Sale”: the selling or reselling of an Art Work as a result of the TGL Website. (“Sell”, “Resell”, “Sale” and “Resale” shall be interpreted accordingly);

“Submit Your Artwork for Consideration”: the form that a Member must fill out upon applying to post a Listing and which shall include the title of the Art Work, the medium of the Art Work, the Artist’s name, the edition size, the Art Work Price, the size of the Art Work and the Art Work Description; “Transaction”: a prospective Sale and purchase or a Completed Transaction occurring as a result of an trade made via the TGL Website; and

 

2. Your Agreement with TGL

2.1 By using the TGL Website to access the TGL Services, You expressly agree to be bound by these Terms and all applicable Legislation and Codes. These Terms form a legally binding agreement between You and TGL and applies to all Members.

 

2.2 If You disagree with any part of these Terms, do not use the TGL Website for the purpose of accessing the TGL Services. If You violate these Terms, TGL may terminate Your use of the TGL Website, bar You from future use of the TGL Website and/or take appropriate legal action against You.

 

2.3 We reserve the right to modify these Terms at any time without notice. Any changes We may make to these Terms in the future will be posted on this page and, where appropriate, notified to You by e-mail or when You next use the TGL Website to access the TGL Services. The new Terms may be displayed on-screen and You may be required to read and accept them to continue. You agree that TGL may treat Your use of the Site to access the TGL Services as acceptance of the Terms.

 

2.4 As a Member, You can be a selling Member or a buying Member.

 

3. Applicable Transaction Terms

3.1 The Terms apply to the activities of all TGL Members in respect of their use of the TGL Website. 

 

3.2 TGL shall not be responsible for any acts or omissions of any Member and consequently, as a Member, You hereby release, indemnify and hold harmless TGL (and Our agents and employees) from all Claims and Losses (actual, consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Introduction, any Art Work, any failure on the part of a Member to comply with the Regulations and any other relevant Legislation and any Transaction or Completed Transaction.

 

3.3 A binding Contract shall come into existence between the relevant Selling Member and Buying Member who are party to a Completed Transaction under the relevant Transaction Terms.

 

4. Becoming a Member

4.1 To become a Member, entitling You to make use of the TGL Services and to be party to a Transaction via the TGL Website, You agree to comply in full with the Terms at all times.

 

4.2 You must submit Your name, email, phone number and password via an online registration form to apply for membership to the TGL Website (“Membership”). You warrant and represent that the Data that You provide is and will remain at all times true, accurate and complete. Your Membership application will undergo an approvals process to become Approved and it is in TGL’s absolute discretion to decide if You qualify (or continue to qualify) to be Approved.

 

4.3 In order to provide You with maximum protection, during registration, You will be asked to input Your email address and registered password, which shall represent Your TGL Login which You shall use to access Your TGL Member Account and the associated TGL Member Account Features.

 

4.4 You undertake to keep Your TGL Login confidential and not reveal it to anyone. You are responsible for all activities that are carried out under Your TGL Login. We will not be liable where Your TGL Login is unlawfully used by another. You agree to notify TGL by email at art@thegallerist.co.nz as soon as you become aware of any unauthorised use of Your TGL Login or TGL Member Account (with “IMPORTANT” in the subject line). You will not create additional accounts for the purpose of abusing the functionality of the TGL Website or other registered TGL Members or for any other reason in breach of the Terms.

 

4.5 You can cancel Your Membership at any time. Please send us an email at art@thegallerist.co.nzwith “URGENT – CANCELLATION REQUEST” in the subject line to have your TGL Member Account closed.

 

4.6 It is a violation of the Terms to use any information obtained from the TGL Website in order to harass, abuse or harm another person, or in order to contact, advertise to, solicit or Sell to any TGL Member without their prior explicit consent.

 

4.7 You may not transfer ownership or Sell Your TGL Member Account to a third party.

 

4.8 TGL Members who do not comply with the Terms may be subject to review, which can result in suspension of TGL Member Account privileges and/or termination. This includes all accounts by virtue of association. TGL reserves the right to suspend or terminate the use of the TGL Website for a TGL Member. Suspended or terminated TGL Members remain obligated to pay any Fees to other TGL Members where applicable in respect of a Completed Transaction in accordance with the relevant Transaction Terms.

 

4.9 Should We need to contact You regarding Your TGL Member Account, You are required to respond to us within seventy-two (72) hours, failing which a pending Transaction may be abandoned, revoked or terminated.

 

4.10 A Member may be a business that involves multiple people.

 

5. Art Work Description, Listing Process, and Member Exclusivity

5.1 All Approved Members may apply to have an Art Work listed on the TGL Website as a Listing by submitting a Submit Your Artwork For Consideration Form. There are no fees payable for applying for a Listing.

 

5.2 All Listings shall not be subject to Member TGL Exclusivity, which shall mean that while the Art Work constitutes a live Listing on the TGL Website, You may continue to offer the artwork for sale elsewhere.

 

5.3 Upon receipt of the Submit Your Artwork For Consideration Form, the Art Work will be assessed as appropriate by TGL.

 

5.4 As part of the Listing process it is the Member’s responsibility in respect of each Art Work, to provide an accurate Art Work Description including information and pricing. 

 

5.5 Market prices for Art Works can be volatile and can change regularly to remain competitive. The market value price of an Art Work is established by the Member.

 

5.6 You authorise TGL to have Your Listing go live on the TGL Website once You submit the Submit Your Artwork For Consideration Form.

 

5.7 All Listings on the TGL Website must be for a tangible or digital Art Work and each Art Work must be available for Sale and purchase. You may not create a Listing for an Art Work that is not available for Sale at the relevant time. A Listing may not be created solely as an advertisement.

 

5.8 Art Works must not be posted as available for rental or lease.

 

5.9 A Listing must not be conditional upon the purchase of another Art Work.

 

6. Fees

6.1 TGL shall be entitled to charge a selling Member the TGL Website Fee of 12.5% plus GST if applicable in respect of a Completed Transaction between the selling Member and a buying Member as a result of the Listing on the TGL Website.

 

6.2 TGL Buyer pays for delivery. The TGL buying Member is solely responsible for any Delivery Fees incurred.

 

6.3 A buying Member can change its mind and return the Art Work at its own cost to the selling Member by written notice, provided it is within the cancellation period of seven (7) working days.

 

6.7 The Gross Proceeds will be held for two (2) calendar days of the date on which the artwork is sold. Following successful completion of the Transaction, the Net Proceeds are released accordingly (“Release”). Release shall take on average two (2) Business Days to process.

 

7. Intellectual Property. 

You acknowledge that all Intellectual Property Rights used by or subsisting in the Art Work are and shall remain the sole property of the Artist. You shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any agents or contractors or any other person to do so. 

 

9. Data Protection and Privacy

In respect of any Personal Data processed by either party pursuant to the Terms, each party warrants and undertakes to the other party that it will comply and will continue to comply with all applicable Data Protection Law, any regulations made thereunder and any guidance notes or guidelines issued by the Privacy Act 1993, New Zealand.

 

10. Warranties and Indemnities

10.1 TGL Members acknowledge that the TGL Services are limited to providing an online marketing service in an exclusive but open marketplace through which TGL Members can carry out and conclude a Transaction in a dedicated online art marketing environment.

 

10.2 You acknowledge and agree that TGL may have many Art Works for sale on the TGL Website concurrently and that TGL has no responsibility whatsoever for the marketing or promotion of any one specific Art Work or the success of the Sale of any one specific Art Work.

 

10.3 A TGL Member warrants, represents and undertakes to TGL that:

(a) You are at least eighteen (18) years of age at the time of registration;

(b) You have and shall continue to have all necessary licenses, rights, consents and permissions required to enable TGL to use or display Your Artworks;

(c) You will comply with all applicable Legislation and Codes;

(d) You agree to cooperate fully with TGL and any TGL Member in resolving any Dispute;

(e) all information provided to TGL or to another TGL Member in respect of itself and in respect of any Art Work or Transaction is true and accurate in all respects;

(f) You are solely responsible for any breach of Your obligations under the Terms due to Your act, omission or default and/or Your failure to comply with any of Your obligations under the Terms and for the consequences of any such breach or failure;

and

(g) You will keep Your TGL Login credentials secure and confidential.

 

10.5 If you are a seller Member, You further warrant, represent and undertakes to TGL that:

(a) all Art Works are fully assured and available for immediate Sale at the Art Work Price stated in the Listing;

(b) You will not behave fraudulently or Sell or attempt to Sell illegal, counterfeit or stolen Art Works;

(c) all Art Works are Your property or You are legally authorised to Sell the Art Works (by law, contract or otherwise) and no third party rights (including without limitation any Intellectual Property Rights) will be infringed by the Seller Member in listing the Art Work for Sale via the TGL Website; and

(d) in offering Art Works for Sale via the TGL Website, You will comply with all applicable Legislation and Codes and the Regulations.

 

10.6 You release, indemnify and hold harmless discharge TGL from any and all Losses (actual and consequential, direct or indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Dispute arising from the Sale and purchase of an Art Work which may ensue as a result of the use of the TGL Website including any misinformation, misdescribed Art Work, non-delivery of Art Work, faulty or damaged Art Works, or inaccurate/ non-genuine advertisement or pricing, or any alleged malpractice arising out of a TGL Member’s use of the TGL Website to access its services. As the context permits, We make no warranty, and hereby expressly disclaim any liability to You. You shall indemnify and hold harmless TGL on demand and keep TGL fully and effectively indemnified against any and all Losses incurred by, or Claims asserted against, TGL arising out of or in connection with:

(a) any breach of the Terms or breach of warranty by You;

(b) Your acts or omissions (or those of Your employees, sub-contractors or agents), including without limitation Your use of or inability to use the TGL Services or Website functionality at any point in time in accordance with the Terms (other than and to the extent that any losses arise directly from breach of the Terms by TGL or by TGL’s negligence);

(c) the Art Works infringing a third party’s rights; 

(d) any advertisement, marketing or promotion including the Listing of Art Works and Art Work Descriptions on the TGL Website (other than any material produced by TGL) and any reliance placed on it;

(e) the information in any pre-existing TGL-Supported Artist Listings Categories on the TGL Website being inaccurate or incomplete;

(f) the TGL Website’s unavailability at any time for any period;

(g) any linked third party TGL Website or resources, statements, information, content, products or services that are published on, or may be accessible from, any linked third party website, including without limitation any third party customer/client-facing policies and/or contractual terms or as a result of any reliance placed by You on the completeness, accuracy or existence of the same;

(h) due to any changes that TGL may make to the TGL Services, or for any permanent or temporary cessation in the provision of the TGL Services (or any features within the TGL Services);

(i) the deletion of, corruption of, or failure to store, any communications data maintained or transmitted by or through Your use of the TGL Services;

(j) any errors or omissions on the TGL Website or in relation to any reliance placed by You on any content on the TGL Website or its accuracy thereto; and

(k) any unauthorised access or loss of Data that is beyond our control.

 

11. Liability

11.1 Nothing in this Clause 11 shall exclude or restrict TGL’s liability for (i) fraudulent misrepresentations, (ii) any liability where the law does not permit such exclusion of liability, and (iii) death or personal injury arising from its negligence.

 

11.2 TGL shall not be in breach of any of its obligations under the Terms which arise or occur due to Your act, omission or default or that of a Broker or Your failure to comply with any of Your obligations herein.

 

11.3 Subject to Clause 11.1, TGL shall not be liable to You for any special, indirect or consequential loss or damage or any loss (whether direct or indirect) of profit, anticipated profits, business, data, opportunity, revenue, goodwill or reputation.

 

11.4 Subject to Clause 11.1, TGL’s total maximum liability arising under or in connection with the Terms, whether in contract, tort (including without limitation negligence), breach of statutory duty or otherwise (including without limitation in respect of any Transaction that has taken place as a result of the TGL Website) shall not exceed an amount equivalent to the TGL Website Fees paid in respect of the Completed Transaction(s) to which the Claim relates or, where there is no Completed Transaction, the sum of fifty dollars NZ (NZ$50).

 

11.5 The limitations on TGL’s liability to You in this Clause 11 shall apply whether or not TGL has been advised of, or should have been aware of, the possibility of any such losses arising.

 

11.6 Except as expressly set out herein and to the fullest extent permitted by law, TGL gives no warranties and excludes all other express or implied terms, conditions, and warranties, including without limitation any implied warranties of merchantability and fitness for a particular purpose.

 

11.7 No action arising out of or in connection with the Terms may be brought by You more than twelve (12) months after the date of the event from which the Claim (or series of related Claims) arose.

 

12. Enquiries and Disputes

12.1 You acknowledge that in order to facilitate an efficient online art marketing portal, certain enquiries need to be responded to and resolved rapidly. You agree to respond to all queries made to You within forty-eight (48) hours via email. 

 

12.2 In the event of a dispute,  we encourage the parties to communicate with each other directly, fairly and in a timely and honest manner. We offer no advice, recommendations, endorsements or legal representation under any circumstances and will not make judgments or claims.

 

13. Non-Circumvention

13.1 The TGL Member hereby legally and irrevocably covenants to TGL that it will not circumvent or attempt (or cause) to circumvent, avoid, by-pass or obviate either directly or indirectly through any persons(s), firm(s), business(es) or company/ies by entering into business transactions or ventures with third parties in a manner that results in the loss of actual or potential business opportunity or Fees or revenue for TGL, or otherwise results in any form of financial return or considerations to or for the benefit of the other party or any other company or third party excluding or causing a detriment to TGL.

 

13.2 In the event of circumvention of the Terms, whether directly or indirectly, the party placed at a disadvantage shall be entitled to receive from the party in default a payment equal to maximum considerations or Fees as reasonably determined by a court of competent jurisdiction plus all Losses incurred to recover the lost revenue. The obligations contained in this Clause 13 shall continue without limit of time notwithstanding termination or expiry of TGL Membership. 

 

14. Entire Agreement/Severability

The Terms incorporate this document, the Privacy Policy, the Cookie Policy which together constitute the entire agreement between You and TGL in relation to Your use of the TGL Website and/or the TGL Services. The Terms supersede any prior representations, inducements or agreements relating to its subject matter. Should the courts strike-out as invalid or unenforceable or otherwise alter any part of the Terms, the remaining terms shall remain valid and in force.

 

15. Assignment

The Terms shall be personal to You and You may not assign or transfer Your TGL Membership and/or Account to a third party. We reserve the right to assign or transfer all or any of its rights and obligations under these Terms to any companies in the same group as Us or another third party. In the event of assignment or transfer, notification will be given to You either by e-mail or posted on the TGL Website.

 

16. No Waiver

Failure by either TGL or You to exercise or enforce any right conferred by the Terms shall not be deemed to be a waiver of any such right, nor to operate so as to bar the exercise or enforcement thereof (or of any other right) on any later occasion.

 

17. Notice

Any notice alleging a breach of the Terms shall be made in writing, addressed to the relevant Party’s Legal Department and shall be sent by overnight courier or delivered in person to the Party’s address set forth in this document. Any other notice required to be provided under the Terms may be sent by e-mail or mail to the relevant party at its address set out in the Deal Terms.

 

18. Law and Jurisdiction

We will try and solve any disagreements between You and Us quickly and efficiently. If You are not happy with the way We deal with any disagreement and You want to take court proceedings, You must do so in the courts of NEW ZEALAND. New Zealand law will apply to the Terms and the relevant courts will have exclusive jurisdiction in relation to the Terms.

 

 

 

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