Artist Terms and Conditions
GALLERYGIFT MARKETPLACE ARTIST TERMS OF SERVICE
GalleryGift Pty Ltd (trading as GalleryGift) (“GalleryGift”) provides an online marketplace for artwork, where Artists sell their artworks to Users. Users may also create CoFunds, which operate as vouchers for other Users to purchase artwork on the Website or from participating galleries.
These Terms of Service apply to the use of the GalleryGift Website, located at www.gallerygift.com.au
You should read these Terms of Service (“Agreement”) carefully.
This Agreement governs the provision and use of the Services and the Website by Artists.
In this Agreement, the words “GalleryGift”, “we”, and “us” refer to GalleryGift Pty Ltd (ACN 622 326 023) trading as GalleryGift and includes its directors, employees and agents; and “Artist”, "you" or "your" means the person, company, association or organisation who accepts these Terms of Service. Acceptance will be deemed by registration or listing of goods or services on the Marketplace.
By accepting these Terms of Service, you agree to the obligations imposed on you under this Agreement and, in exchange, GalleryGift agrees to provide you with access to the Services.
1.1. In this Agreement, the following expressions shall have the following meanings, unless otherwise stated:
- ‘Agreement’ or ‘Terms of Service’ means these Terms of Service, as may be amended by us from time to time, at GalleryGift’s discretion.
- ‘Business Day’ means a day that is not a Saturday, Sunday or public or bank holiday in Victoria, Australia.
- 'Charges' means the charges set out in Clause 5, calculated at the rates set out in Clause 5 or as otherwise published by us on the Website from time to time.
- ‘CoFund’ means a fund on the Website that operates as a voucher for other Users to purchase artwork on the Website or from participating galleries.
- ‘Confidential Information’ means:
- this Agreement;
- a party to this Agreement;
- any asset, business, property, right, trade secret, know-how, operation, employee, customer, customer and supplier list, database, finances, transaction, technical methodology, operating procedure or affair of any party or a Related Entity of that party (as that term is defined in the Corporations Act 2001 (Cth); and
- all information, data, trade secrets, know-how and intellectual property in relation to the Products.
- ‘Commencement Date’, in relation to any Artist, means the date on which the Artist creates an account on the Website for the purposes of listing on the Marketplace.
- ‘Intellectual Property Rights’ means all present and future intellectual and industrial property rights of whatever nature (whether or not registered or registrable), including, but not limited to, all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by us or you in the provision of the Services.
- ‘Marketplace’ means the online platform located on the Website at www.gallerygift.com through which certain goods and services can be bought or sold.
- 'Payment Processing Services' means any services which we provide to Artists pursuant to this Agreement which are to be used to process payments in relation to subscription fees or listings on the Marketplace.
- “Buyer” means any person who purchases goods and/or services listed by Artists for sale on the Marketplace.
- “Registration Data” means information provided by you to us for the purposes of your registration to access certain sections of the Website including, but not limited to, your name, your business or trading name, Australian Business Number, Australian Company Number, business address and contact details.
- ‘Services’ refers to the Marketplace and the Payment Processing Services and the services provided by GalleryGift pursuant to Clause 2.
- “Subscription Term’ has the meaning in Clause 3.1.
- 'Term' means the term of this Agreement, which shall commence on the Commencement Date of this Agreement and shall thereafter continue for the length of the Subscription Term.
- ‘Termination’ means termination of this Agreement pursuant to Clause 10.
- ‘User’ means a reference to any person using the Services, whether they are an Artist, Buyer or a person who browses, visits or otherwise uses the Website, the Marketplace or the Services, within the meaning of the Marketplace User Terms of Service located at [insert hyperlink to User Terms of Service].
- ‘Website’ means the website located at www.gallerygift.com or any other website nominated by GalleryGift from time to time.
1.2. In order to confirm your agreement to these Terms of Service, you will be required to electronically mark a ‘tick’ in the relevant on-screen box on the Website and to signify which of the Services you require us to provide you with. Your continued use of the Services will be deemed to be acceptance of these Terms. If you do not agree to these Terms you should immediately cease accessing the Website and using the Services.
2. Overview of Services
2.1. Artists will be able to access and use the Marketplace which allows Artists to upload goods and services on the Website.
2.2. The Marketplace is a portal or conduit providing Users with an online platform through which persons may list, advertise, sell or exchange goods and/or services. The Marketplace allows Users to easily purchase artworks for sale.
2.3. As an Artist, you will have:
- the ability to create a business profile to be displayed on the Marketplace which includes, but is not limited to:
- a profile summary including up to one (1) image;
- a maximum of thirty (30) artworks to be for sale at any one time;
- a display of up to ten (10) images relating to any one artwork; and
- a description of the goods and / or services that the Artist is able to offer to Users.
- the ability to create personalised promotions in relation to goods and / or services you are able to offer to Users, including discounts, specials and sales for the goods and / or services; and
- the opportunity to access performance data in relation to your business which was created, or has come into existence, as a result of your use of the Website.
3. Using the Services
3.1. Subject to successful registration under Clause 4, GalleryGift will provide you with access to the Website and use of the Services until such time as either party terminates the Agreement in accordance with clause 10.
3.2. You must take precautions to ensure that when accessing the Services, you do not expose your telecommunications or computer systems to viruses, malware or other forms of interference that may damage your telecommunications or computer systems. GalleryGift takes no responsibility for any such damage to your telecommunications or computer systems which may arise in connection with your access to the Website and use of the Services.
3.3. Any information we provide to Artists is supplied in good faith, but we do not guarantee the accuracy or completeness of any information provided by us or any third party, including any User or other Artist. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information which we receive from you or third parties.
3.4. We shall not be obliged to provide any Services to you except pursuant to this Agreement.
3.5. You agree that you will bear the sole responsibility for any activity that occurs on your account. You must keep your GalleryGift account details and password secure, as you are responsible for any activity on your account (whether undertaken by you or anyone else). You agree to notify us immediately if you become aware of or suspect any security breach or unauthorised use of your GalleryGift password or account.
3.6. GalleryGift may discontinue or stop (temporarily or permanently) providing access to the Services to you, Users or guests generally, at its absolute discretion and without prior notice to you.
3.7. GalleryGift may, at its absolute sole discretion, terminate or suspend your GalleryGift account or restrict your access to the Services for any reason including for security, technical, maintenance, legal or regulatory reasons, or due to any breach of these Terms of Service. If we do this, you may be prevented from accessing all or parts of the Services, your account details or other content contained in your GalleryGift account. We will not be liable to you or any third party for doing so. We may impose limits or restrictions on your use of the Services. Further, for security, technical, maintenance, legal and / or regulatory reasons, or due to any breach of these Terms of Service, we may withdraw the Services or change or remove the functions of the Services at any time without notice to you.
3.8. We shall only be obliged to provide you with the Services through the Website, unless otherwise agreed with you in writing.
3.9. Provided you comply with your obligations under this Agreement (including in relation to payment of the Charges), we shall use our reasonable endeavours to provide the Services to you.
3.10. You acknowledge that we have no obligation to provide you with customer support of any kind. However, we may provide you with customer support from time to time, at our sole discretion, provided that you submit your enquiries to email@example.com
3.11. The Services may contain links to other websites. Those links are provided for convenience only and may not be current. Any hyperlinks or banners advertising other websites on the Website or from websites that are external to the Website which advertise the Website are not subject to GalleryGift’s control or privacy standards, policies and procedures. GalleryGift will not be responsible for the content or privacy practices associated with such linked websites and we recommend that you make your own enquiries as to the privacy and other policies of these third parties.
3.12. If you fail to comply with this Agreement, GalleryGift may, at its absolute discretion and without liability:
- Immediately, temporarily or permanently withdraw your right to access and use the Services (including deletion of your account);
- immediately temporarily or permanently remove goods and /or services listed by you for sale on the Marketplace;
- take any other legal action against you; or
- refer or report any suspected fraudulent, abusive or illegal activity to relevant law enforcement authorities.
4.1. To access the Services, you must register with GalleryGift by providing us with Registration Data as requested. You may not use one email address to register for multiple accounts.
4.2. You warrant that persons providing the Registration Data to GalleryGift have the relevant authority to provide such information and to enter contracts on behalf of the Artist seeking registration with GalleryGift, and that the business has the capacity to offer the goods and / or services listed by the Artist on the Marketplace.
4.3. In the event that you provide Registration Data to us, you represent and warrant to us that the Registration Data provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and / or as required by us.
4.4. If you provide us with Registration Data you consent to the possibility that:
- you may receive emails from us confirming the details of your registration and any subscriptions to the Services made through your account with GalleryGift, providing you with necessary information relating to your access and use of the Services and any subscriptions to the Services made through your GalleryGift account; and
- from time to time, we may email you regarding our Services or third-party products and services which we believe may be of interest to you, such as new products, services, features, special offers and updated information. The emails may contain code that enables our database to track your usage of the emails, including whether the email was opened and / or what links (if any) were clicked. We may combine that information with other information which we have about you and may use that information to improve your site experience and / or provide customised email communications to you.
4.6. You agree that we may reject your Registration for any reason.
5. How much do we charge for the Services? And how do you, as an Artist, get paid?
5.1. We take a 20% commission, calculated in accordance with the industry standard, on the sale price of any artwork sold on or commissioned via the Website (“Commission”).
5.2. We will pay you the remaining 80% of the sale price within 28 days following the purchase of an artwork by a User from you on the Website.
5.4. You agree to indemnify us for any loss, liability or cost that we directly or indirectly suffer in relation to any tax laws or rulings as a result of, or in connection with the provision of the Website, your use of the Services or this Agreement.
6. What are your obligations?
6.1. You shall at all times during the Term comply with your obligations under this Agreement and fulfil your obligations in a timely manner.
6.2. Your obligations include, but are not limited to, the following:
- Creation and Maintenance of Profile
The Artist bears sole responsibility for creating a profile to be displayed on the Marketplace with high-resolution photos and a brief profile summary and any additional relevant information about you or your artwork. The profile created by the Artist must be reflective of the actual goods and / or services offered, and must not be misleading or deceptive. The Artist must ensure that photos uploaded to the GalleryGift business profile do not infringe the Intellectual Property Rights of GalleryGift or any third party.
- Defamatory Content
The Artist must not upload any content to the Website that promotes intolerance, racism, illegal behaviour or contains defamatory content. GalleryGift reserves the right (but not the obligation) to amend or remove any content uploaded to the Website without the uploader’s consent and without notice to the uploader (including for the purposes of attempting to avoid the upload of content prohibited by this Clause 6.2).
- Viruses and Hacking
You must not misuse any part of the Website by introducing viruses, trojans or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to any part of the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not engage in any activity that interferes with or disrupts the Services or the servers and networks which host the Services and you must not attempt to circumvent, disable or otherwise interfere with any security-related features of the Services or any features which prevent or restrict the use or copying of any content or enforce limitations on the use of the Services or the content of the Website.
- Interactions with Users
You must not advocate, support or practise discrimination based on race, religion, age, national origin, language, gender, sexual orientation, or mental or physical handicap. Any complaints regarding abuse or derogatory behaviour on the part of any Artist may see such Artist(s) removed from the Website, result in the termination or suspension of their account and / or lead to restricted access to the Services, at GalleryGift’s absolute discretion.
- Willing and Able
At the time an Artist lists any goods and / or services on the Marketplace, such Artist must be willing and able to provide such goods and / or services to Users. All prices listed on the Marketplace should be in Australian Dollars and exclude goods and services tax (GST), unless otherwise specified. Artists are expected to respond to Users’ requests within 2 Business Days. Upon selling an artwork, you must ensure that the artwork is properly packaged and dispatched to the User as quickly as possible.
- Artworks and sales
You must determine the price at which you sell your artwork. Artwork must be in very good condition, or otherwise as advertised by you on the Website. You agree that all artworks are original, and were created by you. All artworks must be signed and dated by you. If you are a photographer, you may only sell images that are your own. You will not arrange the sale of an artwork with a User other than via the Website. Artworks that are listed on the Website for 1 year and are not sold will be removed from the Website. You agree that artworks listed for sale on GalleryGift that sell elsewhere must be placed on hold or removed from GalleryGift within 24 hours of selling. If, outside of the Website, you are selling or advertising for sale the same artwork or an artwork that is substantially similar to an Artwork you are listing on the Website, you may not sell or advertise for sale the unlisted artwork for cheaper than the Artwork that is listed on the Website.
If a Buyer returns an Artwork to you pursuant to the refund policy in the User Terms and Conditions here, it is your sole responsibility to ensure that the Artwork is in the same condition as when you sold it.
- Social media
You agree that, by uploading pictures of your Artwork to the Website, you grant permission to us and our Users to share images to and links of those Artworks online, including on social media.
6.3. You acknowledge and agree that, in order for us to be able to provide the Services to you without interruption you will, at your cost, at all times:
- co-operate with and reasonably assist us to provide the Services;
- promptly provide us with full and accurate information, data and explanations with regard to any dispute, complaint, issue or otherwise that may arise, as and when required; and
- inform us of any abusive or allegedly abusive behaviour from any User or Artist on the Website.
6.4. You shall procure all necessary consents or authorisations from any third parties which may be required from time to time in order for us to be able to provide the Services to you.
6.5. If we are delayed, obliged to spend additional time or incur additional expenses in order to provide you with the Services or otherwise perform any of our obligations under this Agreement by reason of your act, omission, failure to provide information (in a timely manner or at all) or your instructions, you shall compensate us by reimbursing us for any additional reasonable costs and expenses incurred by us or on our behalf. In this situation, any agreed delivery or action times specified or implied by us regarding any of our obligations to you shall be extended accordingly.
6.6. It is your obligation to ensure that any written communication we send to you correctly reflects your details. If any changes occur to your details during the Term, you must give us written notice of these changes so that we may update your details (which change will be made within a reasonable period of time).
6.7. Any goods and / or services listed on, or via, the Website is an acknowledgement by you that you meet the specified age requirement to transact with the User, accept the terms of this Agreement and agree that these terms are binding.
7.1. We will, within a reasonable period of time, investigate any alleged error or other issue regarding any of the Services, provided that you notify us in writing within seven (7) days of becoming aware of the error or other issue and give us all necessary information to be able to investigate the error or other issue. Notwithstanding, you agree that our liability will be limited in any event to the right to attempt redelivery of the Services to you.
7.2. You agree to use your reasonable endeavours to ensure that the information you supply to any User or to GalleryGift is complete and accurate and notify us (and, if relevant, the User(s)) in writing if there is any change to the information supplied.
7.3. Except as provided in this Agreement, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance or fitness for purpose of the Services provided in accordance with this Agreement is given by us, other than as required by law. Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.
7.4. Except as set out in this Clause 7, we give no further warranties. All implied warranties are hereby excluded.
8. Liability and Exclusions
8.1. We will not be liable for any loss, expenses, liabilities, costs or damage caused by viruses, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of any part of the Website or downloading of any material or content posted on it, or on any website linked to it. We always recommend all Internet Users ensure they have up-to-date virus checking software installed.
8.2. You acknowledge that GalleryGift provides a marketplace service for connecting Users and Artists to use the Services, and is in no way involved in purchases or payments in relation to goods and / or services displayed on the Website. To the fullest extent permitted by law, GalleryGift is not responsible for dealing with, and not liable for, any disputes or complaints made by you or any User in relation to the goods or services sold on, or via, the Website (including any dispute or complaint regarding refunds, payment, goods or services). If you have any complaints you should raise them directly with the User.
8.3. You agree that GalleryGift shall not be liable to you or any third party for any:
- indirect, consequential, special or exemplary losses, expenses or liabilities; or
- loss of profits, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, failure to realise anticipated savings, loss of opportunity, expectation loss or loss of production, arising out of, or in connection with, the provision or use of the Services, the Marketplace, the Website or these Terms of Service.
8.4. Notwithstanding, you agree that in any event, GalleryGift’s maximum aggregate liability to you or a third party under this Agreement will be the total commission you have paid to GalleryGift in furtherance of this Agreement in the preceding 3 months of the claim.
8.5. The Artist and GalleryGift acknowledge that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties. The provisions of this Clause 8 will continue to apply indefinitely after Termination of this Agreement.
9.1. The Artist and GalleryGift agree not to use or disclose Confidential Information relating to or owned by the other, received or disclosed to it by the other party during the Term, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure shall be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.
9.2. The Artist and GalleryGift agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal requirement, or is independently developed by the receiving party.
9.3. Any Confidential Information will be returned or destroyed by the receiving party at the written request of the owner.
9.4. You allow us to refer to you in any publicity we engage in after we have provided you with the Services or, with your written permission, during our provision to you of the Services.
9.5. In the event that the parties execute a separate confidentiality agreement, the terms of that agreement shall prevail over this Clause 9 only.
10.1. Either party may terminate this Agreement at any time with notice.
10.2. On the Termination of this Agreement for whatever reason but pursuant to this Clause 10, we will be entitled to payment for all outstanding Commission properly incurred by us up to the date of Termination and any other Charges specified in this Agreement.
11. Intellectual Property
11.1. You acknowledge and agree that GalleryGift owns all Intellectual Property Rights in the Services and the Website (including all updates, improvements, modifications, new versions, any associated documentation or anything else arising or generated therefrom). This Agreement does not grant you (or anyone else) any rights to, title or interest in the Intellectual Property Rights or any other rights or licences in respect of the Services and the Website, whether existing now or at any time in the future. You must not use, copy, modify or reproduce any part of the materials or code on, or contained within, the Website, for commercial purposes without obtaining an express licence to do so from us or our licensors. We grant you for the duration of the Term a personal, non-exclusive, non-transferable and revocable licence to use the Intellectual Property Rights embodied in the Services to the extent necessary for you to use the Services, the Marketplace and the Website for any business purposes.
11.2. You grant GalleryGift a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use any content uploaded or published by you on the Marketplace (‘Artist Data’) (and all Intellectual Property Rights contained therein) to enable GalleryGift to provide the Services, the Marketplace and the Website.
12. Unavoidable Events
We will not be liable to you (or anyone else) if GalleryGift is prevented from, or delayed in, performing its obligations under the Agreement or for failing to provide the Services by acts, events, omissions or accidents beyond its reasonable control (‘Unavoidable Events’). Where an Unavoidable Event occurs, we will attempt to recommence provision of the Services as soon as is reasonably practicable. In such circumstances, there may be a delay (sometimes a substantial delay) before we can begin or resume providing the Services to you.
13.1. Any notice required to be given pursuant to this Agreement shall, unless stated otherwise in this Agreement, be in English and in writing (including email communications), and be sent to the other party marked to such address as either party may from time to time notify to the other in writing and in accordance with this clause (if no such address has been provided then in the case of GalleryGift, to firstname.lastname@example.org and in the case of an Artist, to that Artist’s last email address registered with GalleryGift via the Marketplace).
13.2. A correctly addressed notice sent by post shall be deemed to have been received 72 hours after posting and correctly addressed emails shall be deemed to have been received 24 hours after sending.
14. Dispute Resolution
14.1. If a dispute arises under or in connection with this Agreement, before resorting to other dispute resolution mechanisms (including court proceedings, except to seek urgent interlocutory relief), the parties must attempt to resolve, by negotiation, any dispute in relation to this Agreement by referring the matter to an independent mediator for mediation.
14.2. A mediator must be appointed by agreement by the parties or, failing such agreement on the appointment of a mediator being reached within fifteen (15) Business Days of the dispute first arising, be appointed by the President of the Law Institute of Victoria, or his or her nominee, and whose costs must be paid equally by the parties.
14.3. If the dispute between the parties is not settled within fifteen (15) Business Days of the mediator initially being appointed in accordance with Clause 14.2, the parties may, at their absolute discretion, initiate court proceedings.
14.4. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this agreement.
14.5. This clause 14 survives the termination of this agreement.
15.1. To the fullest extent permitted by law, you agree that you waive, release, discharge and relinquish any and all claims that you have now or may have against GalleryGift which are connected with, arise out of, relate to or are incidental to the provision of the Website and your use of the Services.
15.2. You agree to indemnify and to keep GalleryGift indemnified and hold it harmless from and against any and all claims, loss, damage, taxes, liabilities and/or expenses that may be incurred by GalleryGift arising out of, or in connection with, your use of the Website and the Services, any breach by you of this Agreement or your use of any part of the Website contrary to these Terms of Service or any other warnings or instructions (including labels) on the Services, or as otherwise notified to you from time to time.
15.3. The Artist agrees and acknowledges that GalleryGift will not be liable or responsible for any loss or damage suffered by any User due to the actions of an Artist, and the Artist will indemnify GalleryGift from and against any and all claims by any User in relation to any and all content created by the Artist or any actions of the Artist.
16. Linking to the Website
16.1. You may link to the Website, provided that you do so in a way that is fair and legal and does not damage GalleryGift’s reputation or take advantage of its goodwill. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on GalleryGift’s part where none exists.
16.2. You must not establish a link to the Website from any website that is not owned by you (except with the website owner’s express permission).
16.3. The Website must not be framed on any other website.
16.4. Notwithstanding anything to the contrary, we reserve the right to withdraw linking permission under this Clause 16 by updating these Terms of Service on the Website.
17.1. Variations to this Agreement will only be effective if in writing and signed by authorised representatives of both parties.
17.2. GalleryGift may assign, sub-contract, or otherwise transfer any or all of its rights and/or obligations under this Agreement. You may only assign, subcontract, or otherwise transfer any or all of your rights and/or obligations with GalleryGift’s prior written consent, which can be refused at GalleryGift’s absolute discretion.
17.3. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right.
17.4. If you are using the Services for the supply of goods and / or services directly to a third party then you shall:
- procure that such third party shall comply with these Terms of Service; and
- indemnify us for any claim, loss, damage or expense incurred by us as a result of any breach of these Terms of Service by such third party.
17.5. This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither we nor you will have, nor represent that we or you have, any authority to make any commitments on the other party's behalf except expressly pursuant to this Agreement.
17.6. If any provision of this Agreement is held invalid or unenforceable, such provision shall, to the extent that it is invalid or unenforceable, be severed from this Agreement without affecting the enforceability or validity of any other provisions.
17.7. This Agreement shall be governed by, and construed in accordance with, the laws of [Victoria], Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts of [Victoria].
17.8. This Agreement and any document expressly incorporated in it contains the whole agreement between us and you in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between the parties. The parties confirm that they have not relied on any representation that is not expressly incorporated into this Agreement.