These Terms & Conditions are effective from 19th September 2008. They replace all previous terms and conditions. By using the Website, you are agreeing to be bound by these terms and conditions.
1 Definitions and Interpretation
In this Agreement expressions shall have the following meaning:
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"Art Health Check" |
an appraisal of the Work by the Company in the
Client's possession; |
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"Artist" |
the creator of the Work; |
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"Artist Fee" |
the fee payable to the Artist as set out on the Website and subject to change from time to time; |
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"Business Model" |
the concept of enabling the Client in return for the Fees to have possession of any work of art from a pool of artwork and the right to purchase a work of art in their possession or exchange it for another by the same artist or another together with the right to resell the Work back into the Market following purchase; |
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"Client" |
you, the user of the Company's service and Website; |
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"Company" |
Art-Switch Exchange Ltd whose company number is 5373601 and whose registered office is 137, Gerry Raffles Square, Stratford, London E15 1BQ; |
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"Condition Report" |
the report detailing condition of the Work to be signed and completed on receipt and return of the Work by Client; |
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"Delivery Date" |
date on which
the Work shall be delivered to the Client at the Site; |
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"Delivery Fee" |
the fee as set out on the Website and subject to change from time to time for delivering the Work to the Site and carrying out any Additional Services; |
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External Websites are WWW server domain names which do not end in .art-switch.com; |
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"Indemnity Waiver" |
the option of purchasing a Waiver from the Company so as not to be liable for any damage to the Work whilst on the Site that is not directly attributable to the negligence of the Client; |
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"Long Borrow Fee" |
the fee as set out on the Website and subject to change from time to time to be paid by the Client where the period of time for holding the Work exceeds the Maximum Borrowing Period; |
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"Market" |
the system of
determining price from measuring demand for the Work based on indicators of
popularity derived electronically from the Website and Business Model; |
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"Market Price" |
the value of
the Work as determined by the Market; |
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"Maximum Borrowing Period" |
the maximum period of time that a Client is permitted to have the Work in its possession without incurring a Long Borrow Fee. The period of time is published on the Website and is subject to change from time to time; |
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"Option Price" |
the price at which a Client may purchase the Work, being either the Market Price on the day the Client first takes possession of the Work, or, where the Work has been withdrawn, the Market Price on the day of repossession of the Work by the Client; |
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"Option Price Expiry Date" |
seventy five days from the Delivery Date; |
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"Registration Fee" |
the one off fee payable to the Company on joining as set out on the Website and subject to change from time to time; |
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"Retrieval Date" |
date on which the Work will be collected from the Site by the Company; |
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the place or places specified by the Client where the Work is to be delivered and located while in the Client's care; |
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"Software" |
Widgets and facebook applications offered on this Website; |
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"User content" |
Any kind of data (such as text, images, video, audio, applications) uploaded by you; |
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"Website" |
the website
currently located at www.art-switch.com; and |
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"Work" |
any individual
piece of artwork displayed on the Website. |
2 Purpose
2.1 In return for the Artist Fee and the Registration Fee (together referred to as the "Fees"), the Client shall be entitled to:
2.1.1 up to 5 Works at any one time to be placed on the Client's short list, referred to as "My Favourites";
2.1.2 exhibit the Work or Works at the Site in accordance with the obligations set out in these terms and conditions; and
2.1.3 to purchase any Work in accordance with clause 5 below.
3 Payment
3.1 The Client shall pay the Fees upon entering into this agreement and the Artist Fee on each subsequent anniversary for the purposes set out in clause 2 above.
3.2 The Client shall receive an invoice from the Company if any additional purchases have been made in the preceding month.
3.3 If the Client for whatever reason fails to pay the Fees or an invoice by the due date, the Company shall grant the Client a final extension of seven days to pay the Fees or invoice or return any Works in their possession.
3.4 If the Fees or an invoice has still not been paid in accordance with clause 3.3 above and the Client is still in possession of any Works, the Client shall be deemed to have purchased the Works at the Market Price on that day. The Market Price shall immediately become due to the Company.
4 Delivery
4.1 In return for the appropriate Delivery Fee, the Work shall be delivered to the Client at the Site on the Delivery Date.
4.2 Except where the Client will be picking up or returning the Work to the Company, the Client shall select a Delivery Date when borrowing the Work or Retrieval Date when switching or returining the Work.
4.3 The Company shall use its reasonable endeavours to deliver or retrieve the Work to/from the Site on the Delivery Date or Retrieval Date but shall not be liable to the Client in any way if the Work cannot be delivered or retrieved on the Delivery Date or Retrieval Date due to any reason outside of the Company's control such as but not limited to the unavailability of public transport in London.
4.4 Where the Company cannot deliver or retrive the Work to/from the Client on the Delivery Date or Retrieval Date, the Company shall notify the Client of this as soon as is reasonably practicable and arrange an alternative Delivery Date or Retrieval Date.
4.5 Where the Company cannot deliver or retrieve the Work due to the actions of the Client, the Client shall be responsible for all additional costs.
4.6 The Client acknowledges that in certain cases, delivery may not be possible of the Work at the Site. In such cases, the Work will be returned to the Company and the Client will be liable for all delivery costs.
4.7 The Work shall be delivered to the Client in specially design packaging provided free of charge. It is recommended that this packaging is used when returning the Work to the Company. Where the Work is returned without the packaging provided by the Company the Client will be charged a nominal fee as notified by the Company from time to time and available on the Website
5 Client's Obligations
5.1 The Client agrees and undertakes to:
5.1.1 exhibit the Work at the Site only;
5.1.2 store the Work between 10 to 30 degrees centigrade;
5.1.3 store the Work out of direct sunlight;
5.1.4 never store the Work on or over a direct heat source;
5.1.5 never store the Work on a wall or mounting that is not capable of bearing the weight of the Work;
5.1.6 protect the Work from dust
5.1.7 only clean and handle the Work in an appropriate fashion as described on the Website, and at the least with either washed or gloved hands;
5.1.8 not alter the Work in any way (including framing where the Work is unframed); and
5.1.9 not copy the Work or allow it to be copied.
6 Site
6.1 The Client must notify the Company of:
6.1.1 any changes in its address or contact details including telephone number and email address; and
6.1.2 any period of more than 3 business days when they will not be present at the Site.
6.2 If the Client is in possession of Work whilst changing addresses, the Work must be transported in the packaging provided by the Company or alternatively, in packaging that must be no less secure than that provided by the Company.
6.3 The Client agrees not to transport the Work outside of the United Kingdom.
7 Title and Risk
7.1 Until the Work is purchased by the Client and the purchase price received by the Company in accordance with clause 4 above, title in the work shall remain with the Artist irrespective of whether the Work is in the possession of the Client.
7.2 Risk in the Work shall pass to the Client following completion of a Condition Report and either:
7.2.1 the Work is delivered to the Client; or
7.2.2 the Client collects the Work from the Company.
7.3 In the event that the Client lets another person take possession or return the Work the Client authorises that person to sign the Condition Report on their behalf.
7.4 Risk in the Work shall remain with the Client until a second Condition Report is completed and either:
7.4.1 the Work is collected by the Company from the Client; or
7.4.2 the Work is returned to the Company.
7.5 The Client shall be liable for any loss in value of the Work upon its return to the Company attributable to any differences in the second Condition Report from that of the first. Damage shall be assessed according to a procedure published on the Website.
7.6 Whilst in its possession, the Client shall either purchase an Indemnity Waiver or have the Work insured for at least the purchase price in accordance with clause 9.2 below in a form to be notified by the Company.
7.7 The Client shall immediately notify the Company where the Work is destroyed, lost or otherwise damaged.
7.8 Where the Work has been in the possession of the Client for more than 6 months, the Company shall perform an Art Health Check at no expense to the Client. The Company may photograph the work in situ. In the event of the Client being out of contact, the Work will be assumed to be lost or destroyed and liability shall come into effect as set out in clause 3 above.
8 Switching and Borrowing Work
8.1 The rules of Art-Switch can be found on the Website and are expressly incorporated into these Terms & Conditions. The rules are subject to change from time to time.
8.2 Following notification from the Company of the availability of the Work, the Client must notify the Company if he or she wishes to switch the Work.
8.3 The Client will receive the work if he or she is determined to have the strongest interest in the Work calculated using a variety of factors collected by the Company. Further details on these factors can be found on the Website. An indication of whether a particular Work is available is provided on the Website.
8.4 The Client is free to switch the Work for another work at any time. If the Client does not switch a Work within a Maximum Borrowing Period they will be charged a Long Borrow Fee.
8.5 Where the Work is in the possession of the Client and is under offer to be purchased by another client of the Company, the Client will have 2 working days to exercise first right of refusal to purchase the work. If the Client chooses not to purchase the Work, the Client must release the Work to the Company within 7 days of the date notification of purchase was received from the Company. For the avoidance of doubt, returning the Work to the Company will not constitute a switch.
8.6 The prompt compliance with clause 8.5 will entitle the Client to a switch without incurring a Delivery Fee.
8.7 The Client must give the Company at least 4 days notice of its intention to switch the Work.
8.8 For each switch that the Client completes, the Client will be reimbursed a sum subject to a maximum published on the Website from time to time This reimbursement can only be used against future purchases of artwork on the Website.
9 Purchase of Work
9.1 The Client may buy any Work that is available at the Website.
9.2 Where the Work is in the Client's possession and the Option Price Expiry Date has not passed, the purchase price of the Work shall be the Option Price on the day the Client notified the Company of its intention to purchase the Work. After the Option Price Expiry Date passes, the purchase price shall be the Market Price on on the day the Client notifies the Company of its intention to purchase the Work
9.3 Where the Work is in the Client's possession, the Client will have the first right of refusal to purchase the work.
9.4 Where the Work is not in the Client's possession, the purchase price shall be the Market Price.
10 Reselling Work
10.1 Once a Work has been purchased by the Client, it may be made available again by the Client for purchase at the Website using the Business Model. In such circumstances the Client will receive 70% of the Market Price if resold.
10.2 The Client acknowledges that the Market Price can rise and fall and that where a Work is resold, the Market Price could be more or less than the Market Price at which the Client originally purchased the Work.
11 Withdrawal of Work
11.1 Unless title in the Work has passed to the Client in accordance with clause 7.1 above, the Client acknowledges that any Work in its possession must be returned to the Company within 6 weeks of being notified by the Company. The Client will not be responsible for any costs involved in returning the Work to the Company. For the avoidance of doubt, the return of the Work to the Company by the Client will not constitute a switch.
11.2 Where the Work is withdrawn so as to be exhibited by the Artist, the Client may offer to purchase the Work at any time until a third party offers to purchase the Work at the exhibition.
11.3 The Client acknowledges that where it purchases a Work that is at an exhibition, the Work may not be delivered to the Client until the end of the exhibition.
11.4 Where the exhibition finishes and the Work has not been purchased, it shall be returned to the Client for any remaining period that the Client was entitled to have possession of the Work, unless the Client has switched the Work.
11.5 Where Work is returned to a Client following an exhibition, the new Option Price will be the Market Price on the day the Work is returned to the Client.
12 Hanging and Installation
12.1 Where the Client wishes Art Switch to install the Work, the Client will notify Art Switch at the time of delivery where the Work is to be installed on the Site. The Client will be liable for any damage caused by the installation where the position on the Site was not suitable and the damage was not caused by the negligence of Art Switch. Details of the installation packages available are listed on the Website.
12.2 The Client will indicate its acceptance of the installation by signing the form provided to the Client at the time of installation.
12.3 The Client will be liable for any damage caused to either the Work or the Site after completion of installation where the damage has been caused by an act or omission of the Client.
13 Limitation of Liability
13.1 The Company's entire aggregate liability under this Agreement in respect of any loss or damage suffered by the Customer in connection with:
13.1.1 any misrepresentation made by the Company (other than fraudulent misrepresentations);
13.1.2 any breach of the Company's obligations under this Agreement; and
13.1.3 the Company's negligence shall be limited to the sum equal to the amount paid to the Company by the Customer in the 12 months preceding the cause of action arising.
13.2 Notwithstanding anything else contained in this Agreement and to the fullest extend permissible by law, the Company shall not be liable to the Customer for:
13.2.1 loss of profits;
13.2.2 indirect or consequential losses; and
13.2.3 wasted management time and expenditure irrespective of whether such loss arises from negligence, breach of contract, statutory duty or otherwise.
14 Termination
14.1 The Company may terminate this Agreement if:
14.1.1 the Client does not make the payments as set out in clause 3 above; or
14.1.2 the Client fraudulently provides the Company with incorrect information regarding payment and/or the Site and/or telephone and email contact details; or
14.1.3 in accordance with clause 17 below.
14.2 The Client may terminate this Agreement on 30 days written notice to the Company.
14.3 Where this Agreement is to be terminated, all sums owing to the Company must be paid and all Work returned to the Company within 30 days of receipt of notification of termination.
15 Accuracy
15.1 The Company shall endeavour to ensure that all information on the Website is accurate and free of any errors but shall not be liable in any way should any such inaccuracies or errors be found to exist.
15.2 The Client acknowledges that the electronic image of the Work on the Website may not be identical or exactly resemble the Work.
16 Data Protection
16.1 The Client acknowledges and consents to the Company holding, storing, processing, using and transferring the Client's personal data in order to comply with its obligations under the Agreement.
16.2 For the avoidance of doubt, the Client consents to its personal data being used by the Company for the following purposes:
16.2.1 to complete delivery;
16.2.2 to insure the Works;
16.2.3 to provide access to the Website; and
16.2.4 to notify the Artist of the location of the Work, but only in the circumstances where the Company ceases to trade.
16.3 The Company agrees that it will not without the Client's prior written consent sell the Client's personal information to third parties.
16.4 The Company undertakes to comply with all requirements of the Data Protection Act 1998.
17 Amendments
17.1 The Company may make changes to this Agreement but must provide the Client 30 days notice of any such changes.
17.2 If the Client does not accept the changes proposed by the Company, the Client must notify the Company of this in writing within 7 days of receipt of such notice.
17.3 If the parties do not reach an agreement on the proposed amendments, this Agreement shall terminate 30 days after receipt of the notice of amendment by the Client.
17.4 If the Company does not receive any notice from the Client within 30 days of notifying the Changes, the Client will be deemed to have accepted all the changes.
18 Notices
18.1 Any notice given under this Agreement must be in writing.
18.2 Except as set out at clause 18.3 below, notices must be served by personal delivering, sending via first class mail or registered post.
18.3 For the purposes of clauses 4, 8 and 9 above, the Company will only accept notices by e-mail or fax at the email addresses or fax numbers set out on the Website.
18.4 Any notice shall be deemed to have been received:
18.4.1 if sent first class or registered post, two (2) Business Days from the date of posting; and
18.4.2 if sent by fax or email, at the time of transmission but only if the receiving fax machine is capable of printing a report confirming receipt or where no error message is received following service by email.
19 Entire agreement
This Agreement constitutes the entire agreement between the Client and the Company. It replaces and supersedes all previous communications, representations and agreements between the parties (except for any fraudulent pre contractual misrepresentations made by a party upon which the other party can be shown to have relied).
20 Variation
No variation of this Agreement will be valid unless signed by an authorised signatory of both parties.
21 Severance
If any provision of this Agreement is found by any competent court or administrative body to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
22 Waiver and Remedies
Any waiver, concession or extra time given is limited to the specific circumstance for which it was given. It does not affect any other rights a party may have.
23 Software
23.1 Art-Switch grants a nonexclusive license to use the Software on the following terms:
23.2 All Software is for private, non-commercial, single computer use only.
23.3 All Software is provided 'as is'. Art-Switch makes no warranties, expressed or implied, as to merchantability or fitness for a particular purpose. In no event shall Art-Switch be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this Software, even if advised of the possibility of such damage.
23.4 You may not copy, retransmit, redistribute, resell or transfer the Software or any parts or components thereof to any other person at any time. You shall not create any derivative works from the Software or any parts thereof.
23.5 Art-Switch may terminate your access to the Software immediately at any time without prior notice.
23.6 The images, artwork and text used within the Software are the property of Art-Switch or their respective copyright owners. All copyright, trademarks, logos, designs, product names, whether or not appearing in large print or with trademark symbols, are trademarks of Art-Switch and its partners and may not be used, downloaded, edited, reposted, reproduced, reused, transmitted, modified, displayed, distributed or otherwise used by any mechanical or electronic means without the express written permission of Art-Switch.
24 User content
24.1 By posting User Content to any part of the Website, you automatically grant, and you represent and warrant that you have the right to grant, to Art-Switch an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Website or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.
24.2 You may remove your User Content from the Website at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that Art-Switch may retain archived copies of your User Content.
24.3 To remove your User Content from the Site send an email to . Include the email address you have used to post your User Content and set the subject to "Remove all User Content from Art-Switch.com". It may take up to two weeks to delete all your User Content.
24.4 You shall not:
24.4.1 post any User Content that is unlawful, harmful, threatening, abusive, harassing, stalking, defamatory, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
24.4.2 post User Content which contains software viruses, Trojan horses, worms, time bombs, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Website, any computer software or hardware or telecommunications equipment;
24.4.3 impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity;
24.4.4 intentionally or unintentionally violate any applicable law and any regulations requirements, procedures or policies in force from time to time;
24.4.5 transmit, access or communicate any content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
24.4.6 infringe on the rights of any third party, including but not limited to trademark, copyright or the rights of publicity.
25 Links to External Websites
25.1 External links are selected and reviewed when the Website is published. However, Art-Switch is not responsible for the content of External Websites. This is because:
- Art-Switch does not produce, maintain or update them
- Art-Switch cannot change them
- They can be changed without Art-Switch's knowledge or agreement
25.2 The inclusion of a link to an External Website from this Website should not be understood to be an endorsement of opinions expressed or services provided at those websites.
26 Governing law and jurisdiction
26.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
26.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any matter arising under or in connection with this Agreement or the legal relationships established by this Agreement.