artFido’s Terms of Use
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1 General terms applying to all users
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AIntroduction
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1In this document, some terms appear capitalised and bold (so, they appear Like This). What follows is a list of each term, and its meaning:
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aAdministrative Services Information means information regarding:
- ia Member’s membership;
- iiany transactions a Member is involved in;
- iiiservices that a Member has requested (for example, artist or gallery alerts);
- ivadministrative messages, Including service announcements;
- vactivities on the artFido Website or news regarding the artFido Services, Including any changes or improvements; or
- vinew artFido services.
- bAffiliate means any present or past director, officer, shareholder, agent or employee.
- cAnyone means any natural person or legal entity, Including Members or Casual Users.
- dartFido Art Watchdogs means a number of independent, experienced art experts that artFido has engaged. A list of these art experts can be accessed here shop.artfido.com/art-watchdogs.
- eartFido means artFido Pty Ltd (ACN 153 951 145) and its Related Bodies Corporate and Related Entities.
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fartFido Community means, individually and jointly:
- iartFido’s Facebook, Twitter and YouTube accounts;
- iithe artFido blog; and
- iiiany other social media applications accessible from the artFido Website, but excluding feedback.
- gartFido IP means the Intellectual Property Rights in the artFido System.
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hartFido Platform means the electronic platform that Members can access on the artFido Website:
- ienabling sellers to publish listings of Works for sale:
- 1by online auction (with or without Reserve); or
- 2for a fixed ‘buy now’ price (with or without a Make an Offer Option).
- iienabling buyers to bid on and purchase those Works; and
- iiiIncluding all functionality and features that artFido periodically makes available to Members.
- iartFido Privacy Policy means the artFido privacy policy that can be accessed here shop.artfido.com/privacy-policy.
- jartFido Services means artFido providing access to the artFido Platform.
- kartFido System means the artFido Website, the artFido Services and the artFido Platform, individually and jointly.
- lartFido Terms means these artFido terms of use.
- martFido Website means the website that can be accessed here shop.artfido.com
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nArtists’ Resale Royalty Scheme means:
- ithe scheme entitling visual artists to a royalty payment on the sale price of any commercial resale of their original work, as established by the Resale Royalty Right for Visual Artists Act 2009 (Cth); or
- iiany substantially similar scheme which operates in another jurisdiction.
- oAustralian Art Sales Digest means the organisation providing information regarding the Australian and New Zealand art markets, including information about forthcoming auctions or past auction results, market statistics and news. More information about the digest can be accessed here www.aasd.com.au.
- pBusiness Day means a day on which banks are open for general business in Melbourne, Victoria, other than a Saturday, Sunday or public holiday.
- qCasual User means a person who accesses the artFido Website but is not a Member.
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rClaim means any legal claim, suit, action, demand, notice, proceeding, litigation, investigation or the like, of every kind and nature, however arising, Including:
- iarising in contract, tort (Including negligence), equity or under statute; and
- iiwhether present or future, fixed or unascertained, actual or contingent, or known or unknown.
- sContent means any information in any form, Including text, graphics or photos, uploaded to, appearing in or downloaded from the artFido Community.
- tCopyright Agency means the Copyright Agency Limited or any substantially similar agency which performs equivalent functions in another jurisdiction.
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uCounter Offer means a seller’s offer to a potential buyer:
- ito sell the seller’s Work for a particular price; and
- iiwhich is made in response to an Offer.
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vDamage means any loss or damage, of every kind and nature, however caused, Including:
- iloss, damages, costs or expenses (Including legal costs and expenses on a full indemnity basis);
- iidebts, dues or liabilities;
- iiiarising directly, indirectly or consequentially;
- ivwhether pecuniary or non-pecuniary; and
- vwhether present or future, fixed or unascertained, actual or contingent, or known or unknown.
- wDistributors means individuals, legal entities or legal organisations who partner with artFido to syndicate, broadcast, distribute or publish Content on any and all forms of media;
- xEU Database Directive means the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.
- yFAQs means the list of frequently asked questions, and answers to them, that can be accessed here shop.artfido.com/faq.
- zFees means the Listing Fee and the Sales Fee.
- aaGST has the meaning given to it in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any substantially similar tax which applies in another jurisdiction.
- bbIncluding means including without limitation.
- ccIntellectual Property Rights means all current and future registered and unregistered rights in respect of copyright (Including sui generis rights in databases under the EU Database Directive), designs, trademarks, patents, inventions and discoveries.
- ddLicense means an irrevocable, worldwide, non-exclusive, royalty-free license.
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eeListing Fee means the fee a seller must pay to artFido once:
- ithe seller submits a listing to artFido; and
- iiartFido publishes that listing on the artFido Website.
- iiiartFido presently does not charge this fee. We’ll let Members know when this changes.
- ffListing Conclusion Date means the date a listing results in a sale.
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ggMake an Offer Option means the functionality attached to a particular type of ‘buy now’ sale which allows:
- ia potential buyer to make an Offer; and
- iia seller to make a Counter Offer.
- hhMember means a person who has registered as an authorised user of the artFido Platform.
- iiOffensive means potentially or actually hurtful or resentful, Including defamatory, discriminatory, abusive and disrespectful.
- jjOffer means a potential buyer’s offer to a seller to buy the seller’s Work for a price within 25% of the seller’s original fixed ‘buy now’ price.
- kkPersonal Information has the meaning given to it in section 6(1) of the Privacy Act.
- llPost means post, submit or display.
- mmPrivacy Act means the Privacy Act 1988 (Cth).
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nnPromotional Services Information means information related to promoting or marketing:
- iartFido’s products, the artFido Services (Including new services) or artFido’s activities;
- iiproducts, services or activities related to artFido’s products, the artFido Services (Including new services) or artFido’s activities respectively; or
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iiiany other products, services (Including third party services) or activities that:
- 1are related to art; and
- 2artFido thinks may interest the user.
- ooRelated Body Corporate has the meaning given to it in section 50 of the Corporations Act 2001 (Cth).
- ppRelated Entity has the meaning given to it in section 9 of the Corporations Act 2001 (Cth).
- qqReserve means the undisclosed lowest price at which a seller has agreed to sell their Work that has been listed for auction on the artFido Platform.
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rrResulting From means any causal connection, of every kind and nature, however strong or weak, between A and B, Including where B arises:
- idirectly out of A; or
- iiindirectly in connection with A.
- ssSales Fee means the fee a seller must pay to artFido once they sell a listed Work. From 1 April 2013, this fee will be 10% (plus GST if you are an Australian seller) of the final sale price of a sold Work (excluding any delivery costs or packaging costs).
- ttSeparate Legal Entity means a legal entity that has an identity that is separate from the actual user (Including a business, company or trust).
- uuServices Information means Administrative Services Information and Promotional Services Information.
- vvStatutory Guarantee means a guarantee provided by the Competition and Consumer Act 2010 (Cth).
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wwThird Party Information means information a third party:
- ipublishes on the artFido Website; or
- iiprovides to artFido, which artFido then publishes on the artFido Website.
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xxThird Party IP means the Intellectual Property Rights in external systems which a third party has:
- iprovided to artFido; and
- iipermitted artFido to reproduce on the artFido Website.
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yyUnauthorised Person means a person other than:
- ia particular user of the artFido Website;
- iia user who, along with the particular user, is authorised to act on a Separate Legal Entity’s behalf; and
- iiian artFido administrator.
- zzUse means use, copy, reproduce, process, adapt, modify, publish, transmit, display or distribute.
- aaaWork means an artwork listed for auction or sale on the artFido Website.
- bbbWe means artFido.
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cccYou means any person:
- iaccessing the artFido Website; or
- iiusing any of the artFido Services.
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- 2Where a word or phrase is defined, corresponding forms have the same or a similar meaning. So, for example, We, Us and Our all refer to artFido.
- 3Thanks for using the artFido Website. By doing so, You agree to various things, including Your obligations under these artFido Terms. Please read them carefully.
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BThe artFido Terms are legally binding
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4These artFido Terms legally bind You when You use the artFido Website in any way (for example, to browse, list Works or submit a bid).
- aIf You are a Casual User who complies with the artFido Terms, in return artFido lets You use the artFido Website.
- bIf You are a Member who complies with the artFido Terms, in return artFido lets You use the artFido Website and the artFido Services.
- 5If You use the artFido Website on a Separate Legal Entity’s behalf, these artFido Terms bind both You and that entity.
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6If You use the artFido Website, You confirm to Us that You have read, understood and that You accept these artFido Terms.
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aIf You find anything contained in these artFido Terms unclear, You should contact Us by sending an email to [email protected].
- iIf You are still unclear on something after contacting Us, You might consider getting some legal advice.
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7These are the current artFido Terms. They might change from time to time.
- aAny amended artFido Terms take effect once published on the artFido Website. They replace the previous document.
- bWe don’t need to notify You of any changes. So, You should check the artFido Website regularly for any updated artFido Terms.
- 8This version of the artFido Terms was published on 06 September 2012.
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CMembership and Personal Information
- 9Casual Users may view and access the artFido Website and participate in the artFido Community
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10Members may:
- aview and access the artFido Website and participate in the artFido Community;
- baccess the artFido Services; and
- clist, buy or sell Works over the artFido Platform.
- 11To register as a Member, You must be over 18 years old.
- 12If You register on a Separate Legal Entity’s behalf, You must provide accurate contact details for Yourself personally, and that entity.
- 13You must not register as a Member under multiple identities.
- 14Membership is free. So, if You haven’t joined, what are You waiting for? You can register as a Member here shop.artfido.com/register.
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15You expressly consent to Us using Your Personal Information to provide You with Services Information.
- aIn particular, You expressly consent to Us using Your Personal Information to provide You with Services Information when You enter Your email address in the subscription box located at the top of all of Our webpages accessible through the artFido Website.
- bWe send You Promotional Services Information emails an ‘opt-out’ basis. So, if at any time You don’t want to receive them, just click on the ‘unsubscribe’ link at the bottom of these emails and follow Your nose. We won’t sniff around about this again, unless You ask Us to.
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16If You register as a gallery, You expressly agree that We may publically display on the artFido Website any image(s) that You have given Us for the purpose of public display, including any image(s) of:
- aYour gallery; or
- bthe types of artworks in which Your gallery specialises in.
- 17If You register as an artist, You expressly agree that We may publically display on the artFido Website any image(s) of You or Your Works that You have given Us for the purpose of public display.
- 18You must keep Your artFido login information secret and secure. That information Includes Your username and password.
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19Without limiting anything in clause 18, You agree not to:
- apermit any Unauthorised Person to use Your membership (Including Your username); and
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bdisclose to any Unauthorised Person any information that, when combined, will allow that person to access Your membership (Including Your username and password).
- iIf someone close to You wants to use the artFido Services (like a close relative), just ask them to become a Member themselves. Membership is free.
- 20If You find out that an Unauthorised Person has used Your membership (Including Your username), You must contact Us immediately by sending an email to [email protected].
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21When You register as a Member, You state, warrant and represent that You have provided complete, accurate and current Personal Information.
- aYou must update Your Personal Information to keep it current.
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22Your privacy and information security is extremely important to Us.
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aartFido’s Privacy Policy explains how We:
- icollect, use and share Your Personal Information; and
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iiprotect Your privacy when You use the artFido Website or the artFido Services.
- 1You can access that policy here shop.artfido.com/privacy-policy.
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DUsing the artFido Website and artFido Services
- 23Don’t misuse the artFido Website or the artFido Services. You may use either only as permitted by these artFido Terms, and by law.
- 24If You are a Casual User, and You don’t comply with these artFido Terms, We may suspend or terminate Your access under section 1(O).
- 25If You are a Member, and You don’t comply with these artFido Terms, We may suspend or terminate Your membership under section 1(O).
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EartFido isn’t responsible for Works or listings
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26We provide the artFido Platform for sellers to offer their Works for auction or sale by:
- aonline auction (either with or without a Reserve); or
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bat a fixed ‘buy now’ price (with or without a Make an Offer Option).
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iThe FAQs provide more information about the two ways in which sellers can sell, and buyers can buy, artwork on the artFido Website.
- 1You can get the FAQs here shop.artfido.com/faq.
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27artFido doesn’t sell artwork (either itself, or as anyone’s agent), or buy artwork (either itself, or as anyone’s agent). We aren’t in the business of dealing in artworks.We are not an auctioneer.
- aartFido is a mere conduit: a convenient medium by which a seller’s information is conveyed to the buyer. We fetch information, and pass it on.
- 28Subject to section 1(K), We don’t proactively monitor listings.
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29If a seller sells a Work to a buyer on the artFido Website, the buyer and seller enter into a contract. artFido:
- ais not a party to that contract; and
- bcan’t ensure in any way that each party properly performs their contract.
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30artFido is not the source of any information contained in any listing (Including any images or description of the Work). artFido doesn’t investigate whether the listing’s content is adequate, accurate, or not misleading in any way.
- aartFido does no more than communicate what the seller is stating, warranting, or representing in a listing, without adopting or endorsing anything contained in that listing.
- bartFido expressly and impliedly disclaims any belief that the information contained in any listing is true or false: artFido merely passes on the information for what it is worth. artFido is a mere conduit and it is not responsible for the information it communicates.
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31To the extent the law permits, artFido doesn’t expressly or impliedly state, warrant or represent anything at all in relation to any listing or Work advertised on the artFido Website.
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aWithout limiting anything in this clause 31, artFido doesn’t expressly or impliedly state, warrant, or represent that:
- ithe seller has described their Work adequately, accurately or not in a misleading way (Including in respect of the Work’s size, condition, authorship or provenance);
- iithe seller has clear title to the Work;
- iiithe Work is authentic;
- ivthe Work has any particular market value or any specific quality, whether or not the seller has stated, warranted or represented anything about its value or qualities; or
- veither the seller or buyer will comply with the terms of their contract.
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bYou must exercise Your own judgment. You must not rely on any express or implied statement, warranty or representation that You believe artFido has made, or given, in publishing any listing.
- iIf You rely on any of these things after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
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- 32To the extent the law permits, artFido won’t be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From any listing, auction or sale of any Work.
- 33artFido doesn’t owe You a duty of care in relation to any listing or Work.
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FartFido isn’t responsible for availability or performance issues, data loss or unauthorised data access
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34We will reasonably try to make sure that the artFido System:
- ais available at all times, excluding any downtime needed for administrative tasks or maintenance; and
- bperforms reasonably satisfactorily.
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35We will reasonably try to make sure that the data or information it holds is not:
- alost, misused or corrupted; or
- baccessed, modified or shared without authorisation.
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36To the extent the law permits, artFido doesn’t expressly or impliedly state, warrant or represent anything at all in relation to the artFido System’s availability or performance, or the integrity, quality or security of the data or information artFido holds.
- aYou must exercise Your own judgment. You must not rely on any express or implied statement, warranty or representation that You believe artFido has made, or given, in artFido’s operating the artFido System, or artFido’s collecting and holding data or information.
- iIf You rely on any of these things after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
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37To the extent the law permits, artFido won’t be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From:
- athe artFido System’s availability or performance, Including its reliability or ability to meet Your needs; or
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bdata or information artFido holds being:
- ilost, misused or corrupted; or
- iiaccessed, modified or shared without authorisation.
- 38In short, artFido provides the artFido System on an ‘as is’ basis.
- 39artFido doesn’t owe You a duty of care in relation to the artFido System’s availability or performance, or the integrity, quality or security of the data or information that artFido holds.
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GImplied terms and guarantees
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40To the extent the law permits, artFido excludes its liability for breach of any and all implied warranties or conditions, or failing to comply with any and all Statutory Guarantees, in relation to the artFido System (Including in relation to the artFido System’s availability or performance).
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aTo the extent artFido can’t exclude its liability under a Statutory Guarantee which applies to any services artFido provides (Including the artFido Services), artFido’s liability for failing to comply with that Statutory Guarantee is limited to either:
- ire-supplying the services, without charging You; or
- iipaying the cost of having the services re-supplied.
- bartFido may in its sole discretion choose between the remedies in clause 40(a).
- cartFido will not rely on clause 40(a) if You establish that it is not fair or reasonable for it to do so.
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- 41To the extent the law permits, artFido excludes any relevant duty arising out of a Statutory Guarantee in relation to the artFido System (Including in relation to the artFido System’s availability or performance).
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42You may choose to expressly or impliedly notify artFido of:
- aany particular purpose(s) for which You are acquiring the artFido Services; or
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bthe result(s) that You wish the artFido Services or their product to achieve.
- iIf so, You must not rely on artFido’s skill or judgment.
- iiYou should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
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HIndemnity
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43You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- ausing the artFido System;
- bbreaching the artFido Terms; or
- cviolating any law or that third party’s rights.
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43You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
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ILimited refund
- 44Without limiting anything in sections 1(E)-1(H), We may sometimes offer buyers a limited refund.
- 45To be eligible, a buyer must request a refund within 30 days from the Listing Completion Date.
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46We will consider refunding to a buyer any Fees that the seller has paid Us in connection with the auction or sale of a Work where:
- athe buyer paid the seller in full for the Work; and
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bthe seller either:
- ididn’t deliver the Work; or
- iidelivered the Work, but the buyer can reasonably satisfy Us that the seller misled the buyer to the buyer’s detriment (Including by materially misrepresenting the Work);
- cthe buyer can reasonably satisfy Us that they put in every reasonable effort to resolve the issue with the seller, but failed to do so; and
- dthe buyer hasn’t recovered any of the amount they paid to the seller for the Work.
- 47We will decide whether to offer You a refund in Our sole discretion.
- 48If, after We have provided a refund, the buyer recovers any part of the purchase price from the seller, they must return the refund to Us. We think that’s only fair.
- 49Where We offer it, the refund is a goodwill gesture. It says nothing in any way about artFido’s liability.
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JAustralian Art Sales Digest content
- 50The artFido Website sometimes displays content that is not Ours.
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51The Australian Art Sales Digest provides Us with some of the content We publish on the artFido Website. We publish that content without altering it.
- aWe identify this content.
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52artFido is not the source of any information the Australian Art Sales Digest provides to Us which We then publish on the artFido Website. artFido doesn’t investigate whether this information is adequate, accurate, or not misleading in any way. artFido doesn’t review this information, so You shouldn’t assume that We do.
- aartFido does no more than communicate what the Australian Art Sales Digest is stating, warranting, or representing in its content, without adopting or endorsing anything contained in that content.
- bartFido expressly and impliedly disclaims any belief that the information in any of the Australian Art Sales Digest content is true or false: artFido merely passes on the information for what it is worth. artFido is a mere conduit and it is not responsible for the information it communicates.
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53To the extent the law permits, artFido doesn’t expressly or impliedly state, warrant or represent anything at all in relation to any Australian Art Sales Digest content published on the artFido Website.
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aYou must exercise Your own judgment. You must not rely on any express or implied statement, warranty or representation that You believe artFido has made, or given, in publishing this content.
- iIf You rely on any of these things after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
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- 54To the extent the law permits, artFido won’t be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From the Australian Art Sales Digest content.
- 55artFido doesn’t owe You a duty of care in relation to the Australian Art Sales Digest content.
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KThe artFido Art Watchdogs
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56Without limiting anything in clauses 1(E)-1(H), We have engaged the artFido Art Watchdogs to:
- aperiodically and selectively review certain listings on the artFido Website; and
- badvise Us in relation to any listing the artFido Art Watchdogs have reviewed.
- 57We have not asked the artFido Art Watchdogs to review all listings.
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58We have asked the artFido Art Watchdogs to bring to Our attention any listing of a Work for auction or sale which, in the artFido Art Watchdog’s opinion, is potentially problematic in some respect, based on the limited nature of their review.
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aThe artFido Art Watchdogs’ review is limited in many ways, Including that they:
- ireview a listing of a Work for auction or sale (which may Include images of the Work the seller has uploaded), rather than inspecting and reviewing the actual Work ‘in the flesh’;
- iiassess any image(s) of the Work the seller has uploaded in the listing, which means the quality of the images may vary across listings, and are sometimes poor; and
- iiireview the listing in a short timeframe, compared to the extended time an art expert takes when personally inspecting an artwork ‘in the flesh’ to authenticate it.
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59The artFido Art Watchdogs only advise Us by providing a statement of their opinion as to whether a listing of a Work is potentially problematic in some respect.
- aIf the artFido Art Watchdogs express an opinion, the artFido Art Watchdogs will in fact hold that opinion, and have a basis for that opinion.
- iHowever, the basis for that opinion will be founded necessarily on the limited nature of their review.
- bThe artFido Art Watchdogs do not state, warrant or represent that their opinion is necessarily correct. Neither do We.
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60Given the artFido Art Watchdogs’ advice, We may remove a listing in accordance with section 2(B).
- aWe may remove a listing in Our sole discretion, and in any circumstances (Including based on the artFido Art Watchdogs’ advice).
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bYou must not infer from Our removing a listing that We state, warrant or represent anything at all in relation to any aspect of the listing, or the relevant Work referred to in the listing, Including that We state, warrant or represent in any way that the artFido Art Watchdogs have:
- ireviewed the listing, even if You have requested them to do so; or
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iiformed any particular opinion about:
- 1the listing; or
- 2the nature, quality, state, condition or otherwise of the Work referred to in the listing, Including an opinion that the Work referred to in the listing is not authentic.
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cYou must exercise Your own judgment. You shouldn’t in any way rely on the fact We have removed a listing.
- iIf You rely on this fact after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then then rely on the results of those inquiries.
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61Given the artFido Art Watchdogs’ advice, We may continue to publish a listing.
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aYou must not infer from Our continuing to publish a listing that We state, warrant or represent anything at all in relation to any aspect of the listing, or the relevant Work referred to in the listing Inlcuding that We state, warrant or represent in any way that the artFido Art Watchdogs have:
- ireviewed the listing, even if You have requested them to do so; or
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iiformed any particular opinion about:
- 1the listing; or
- 2the nature, quality, state, condition or otherwise of the Work referred to in the listing, Including an opinion that the Work referred to in the listing is authentic.
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bYou must exercise Your own judgment. You shouldn’t in any way rely on the fact We continue to publish a listing.
- iIf You rely on this fact after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then then rely on the results of those inquiries.
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- 62Sellers must not state, warrant or represent that the artFido Art Watchdogs have endorsed their listing or the Work referred to in the listing.
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63To the extent the law permits, neither artFido or the artFido Art Watchdogs expressly or impliedly state, warrant or represent anything at all in relation to any aspect of a listing, or the relevant Work referred to in a listing.
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aWithout limiting anything in this clause 63, neither artFido or the artFido Art Watchdogs expressly or impliedly state, warrant, represent that the artFido Art Watchdogs have:
- ireviewed the listing, even if You have requested them to do so; or
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iiformed any particular opinion about:
- 1the listing; or
- 2the nature, quality, state, condition or otherwise of the Work referred to in the listing, Including an opinion that the Work referred to in the listing is, or is not, authentic.
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bYou must exercise Your own judgment. You must not rely on any express or implied statement, warranty or representation that You believe:
- iartFido has made, or given, in relation to any aspect of a listing, or the relevant Work referred to in a listing;
- iithe artFido Art Watchdogs have made, or given, in relation to any aspect of a listing, or the relevant Work referred to in a listing;
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iiiartFido and the artFido Art Watchdogs have jointly made, or given, in relation to any aspect of a listing, or the relevant Work referred to in a listing;
- 1Including any statement, warranty or representation that Results From the artFido Art Watchdogs’ actual or perceived activities.
- cIf You rely on any of the things listed in clause 63(b) after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
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64To the extent the law permits, neither artFido or the artFido Art Watchdogs will be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From any listing, auction or sale of any Work, regardless of whether or not the artFido Art Watchdogs:
- areviewed the listing or Work, whether upon request or otherwise; or
- badvised artFido in relation to any opinion the artFido Art Watchdogs formed based on their review of any listing or Work.
- 65Neither artFido or the artFido Art Watchdogs owe You a duty of care in relation to any listing or Work.
- 66You can access important information about the artFido Art Watchdogs here shop.artfido.com/art-watchdogs.
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LFeedback
- 67Members may leave feedback. The FAQs describe how You can do this. You can get the FAQs here shop.artfido.com/faq.
- 68Once You provide feedback, it becomes Our property.
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69Only Members may use their feedback, or their feedback rating.
-
aMembers may only use their feedback and their feedback rating in accordance with these artFido Terms.
- iIn particular, a Member may only use their feedback and feedback rating on the artFido Website, and in connection with their using the artFido Services.
- bMembers must obtain Our prior written permission to refer to or use their feedback or feedback rating in any way that these artFido Terms don’t allow.
-
-
70Members cannot refer to or use another Member‘s feedback or feedback rating other than:
- ain deciding whether or not to deal with that other Member;
- bin communications with that other Member; or
- cwith that other Member‘s consent.
- 71If We develop any concern about the feedback given regarding a Member, or that Member‘s feedback rating, We may suspend or terminate the Member‘s membership, under section 1(O) of these artFido Terms.
-
MContributing to the artFido Community and Your social media Content
-
72artFido welcomes You making the most out of Your artFido experience. We encourage You to participate and interact with other Members or Casual Users in the artFido Community.
- aWe welcome enthusiastic, respectful discussion.
- bWe understand what it means to be passionate about art. So, We expect that You will contribute to the artFido Community in a passionate way.
-
73You may choose to Post Content to the artFido Community.
-
aThe Content You Post can be viewed by:
- iother Members and Casual Users; and
- iithird party websites users.
-
-
74You are responsible for any:
- aContent You Post to the artFido Community; and
- bconsequences of You Posting any Content to the artFido Community.
-
75artFido is not the source of any Third Party Information, Including any third party’s Content which the third party, or artFido, Posts to the artFido Community. artFido doesn’t investigate whether this information is adequate, accurate, or not misleading in any way. artFido doesn’t review this information, so You shouldn’t assume that We do.
- aartFido does no more than communicate what the third party states, warrants, or represents in its Content, without adopting or endorsing anything contained in that Content.
- bartFido expressly and impliedly disclaims any belief that the information in any of the third party’s Content is true or false: artFido merely passes on the information for what it is worth. artFido is a mere conduit and it is not responsible for the information it communicates.
-
76To the extent the law permits, artFido doesn’t expressly or impliedly state, warrant or represent anything at all in relation to any Third Party Information, Including any third party’s Content which the third party, or artFido, Posts to the artFido Community.
-
aYou must exercise Your own judgment. You must not rely on any express or implied statement, warranty or representation that You believe artFido has made, or given, in publishing this Content.
- iIf You rely on any of these things after You have been advised not to, You will have failed to take reasonable care. You should make Your own inquiries (Including by consulting independent expert advisers), and then rely on the results of those inquiries.
- bIf You use or rely on any Content Posted to the artFido Community, You do so at Your own risk.
-
- 77To the extent the law permits, artFido won’t be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From any Third Party Information, Including any third party’s Content which the third party, or artFido, Posts to the artFido Community.
- 78artFido doesn’t owe You a duty of care in relation to any Third Party Information, Including any third party’s Content which the third party, or artFido, Posts to the artFido Community.
-
79You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From:
- ainformation that You provide to artFido, which artFido then publishes on the artFido Website, breaching a third party’s rights in any way; or
- bYour Posting Content to the artFido Community that breaches a third party’s rights in any way.
-
80Subject to 80(a), You retain Your rights to any Content You Post to the artFido Community.
-
aBy Posting Content to the artFido Community, You expressly grant Us:
-
ia License to Use Your Content:
- 1in any and all media; and
- 2via any current and future distribution methods;
- iithe right to assign the License; and
- iiithe right to create a sublicense.
-
-
bOur License allows Us to share Your Content with Our Distributors:
- isubject to these artFido Terms; and
- iiwithout Us or Our Distributors providing You with any benefit or advantage in return for You allowing Us and them to use Your Content.
- cYou state, warrant and represent to Us that You have the right to grant this License to Us.
-
dYou agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- ifailing to comply with a statement set out in clause 80(c); or
- iibreaching a representation or warranty set out in clause 80(c).
- eTo the extent the law permits, artFido won’t be liable to Anyone for any and all Damage suffered or incurred, or any and all Claims, Resulting From any use We may make of Your Content.
-
-
81We may modify Your Content:
- ain order to display it on, or transmit it over, any and all forms of media or communication; and
- bas is necessary to adapt that Content to any requirements of any network, device, service, media or form of communication.
-
82artFido may remove any Content from the artFido Community at any time. It may do so:
- ain its sole discretion; and
- bwithout notifying or explaining anything to You.
-
83Without limiting anything in clause 82, if We reasonably consider any Content Posted to the artFido Community to be Offensive, then We may:
- aremove that Content; and
- bsuspend or terminate the Casual User’s access, or the Member’s membership, under section 1(O) of these artFido Terms.
-
-
NIntellectual Property Rights
- 84We own all the artFido IP.
-
85You can use the artFido IP whilst You use the artFido System.
- aUnless the law otherwise permits, You must obtain Our prior written permission to use any of the artFido IP in a way that these artFido Terms don’t allow.
-
86The artFido Website allows You to Post Content to the artFido Community.
- aYou will continue to own any Intellectual Property Rights that You hold in that Content after You Post it. In short, what is Yours stays Yours.
- 87A third party owns all the Third Party IP.
-
88You can use the Third Party IP whilst You use the artFido System.
- aUnless the law otherwise permits, You must obtain the relevant third party’s prior written permission to use any of the Third Party IP in a way that these artFido Terms don’t allow.
-
OYour membership or access may be limited, suspended or terminated
- 89artFido may add or create new limitations to the artFido Website or artFido Services at any time, in its sole discretion.
- 90If You are a Casual User, artFido may suspend or terminate Your access at any time, in its sole discretion.
- 91If You are a Member, artFido may suspend or terminate Your membership at any time, in its sole discretion.
- 92artFido doesn’t need to notify You of any limitation, suspension or termination, but it will try to do so.
-
93Without limiting anything in this section 1(O), and only by way of example, artFido may suspend or terminate Your access or membership if:
-
aYou charge the buyer more than the total of:
- ithe final sale price in an artFido listing;
- iithe actual cost of delivery; and
- iiireasonable packaging costs;
-
bYou:
- iinaccurately describe a Work in a listing;
- iisend to the buyer an artwork which does not match the image(s) and description of the Work contained in the listing;
- iiisend to the buyer something which corresponds to the image(s) and description of the Work contained in the listing, but is not an authentic piece of art;
- ivlist for auction or sale a Work which You know, have been advised, suspect or should reasonably be aware is problematic in any way; or
- vdescribe the Work in a way that is likely to mislead others;
- cYou list for auction or sale a Work which We prohibit to be auctioned or sold;
- dYou include in any part of a listing any of Your contact details (Including phone numbers or email addresses);
- eYou fail to pay for purchased Works;
-
fYou Yourself bid, or have others bid for You, on Works:
- iYou have listed for auction or sale; or
- iilisted for auction or sale by a family member, friend, acquaintance or any Member You know personally where the bid is intended solely or primarily to artificially increase the sale price of the Work;
- gYou abuse or misuse the artFido Community;
- hMembers give persistent, negative feedback about You, or Your feedback rating becomes unacceptable, or both;
- iYou threaten to leave negative feedback for another Member as a negotiating tactic;
- jWe receive a serious complaint about Your conduct;
- kWe are investigating Your suspected misconduct, Including where You are directly responsible for, or indirectly involved in, the suspected misconduct;
- lYou don’t comply with these artFido Terms; or
- mYou violate any law or infringe any third party’s rights in connection with Your using the artFido System.
-
-
94If artFido suspends or terminates Your membership, artFido isn’t required to:
- arefund You any Fees as You forfeit those Fees upon Our suspending or terminating Your membership;
- breinstate Your membership; or
- cconsider any reasons You may have for why artFido should reinstate Your membership.
-
95However, artFido may, in its sole discretion:
- areinstate Your membership;
- bconsider Your reasons for why, in Your view, artFido should reinstate Your membership; or
- creinstate Your membership after considering Your reasons.
-
96If You are a Member, You may terminate Your membership at any time. If You are a Casual User, You may stop using the artFido Website at any time. In either case, We’ll be really upset to see You leaving Us.
- aYou may terminate Your membership by sending artFido an email requesting that We do so. You should send Your email to [email protected].
-
PDisputes and communications
-
97If a dispute arises between You and artFido in connection with these artFido Terms or the artFido Services, the parties agree to seek to resolve their dispute by:
- ainformal negotiation; failing that
- bmediation pursuant to the Australian Commercial Disputes Centre guidelines; failing that
- cformal legal proceedings.
-
98If a dispute needs to be litigated in a court or tribunal, You must bring any and all Claims against Us Resulting From the artFido System or the artFido Terms within 30 days of Your becoming entitled to make the Claim.
- aIf You do not bring Your Claim within 30 days, it is absolutely barred.
-
99artFido will not resolve any dispute arising between Members, between Casual Users, or between a Member and a Casual User.
- aartFido recommends that the parties try and resolve any dispute informally.
- bIf the parties can’t do so, they may wish to consider dispute-resolution processes other than litigation, such as mediation.
- 100You must send any communications, Including notices, addressed to Us by email to [email protected].
-
101We may send any communications, Including notices, addressed to You by:
- aemail — to the address You provided to artFido when You registered as a Member, or as updated; or
- bcertified, prepaid mail (return receipt requested) — to the address You provided to artFido when You registered, or as updated.
-
102Any notice is deemed given:
- aif sent by email – 24 hours after the email is sent, unless the sending party is notified that the email address is invalid; or
-
bif sent by post – on the:
- ithird Business Day after the date of posting, if posted from, and addressed to, somewhere within Australia; or
- iiseventh Business Day after the date of posting, if posted from, or addressed to, somewhere outside Australia.
- 103You must communicate openly and honestly with other Members in relation to any aspect of the artFido Services, Including issues regarding the auction or sale, or purchase, of Works.
-
-
QBits and pieces
- 104The artFido Terms constitute the entire agreement between Us and a particular user relating in any way to the artFido System.
-
105If You don’t comply with these artFido Terms, We might not take action right away. This doesn’t mean that We are giving up any rights that We may have.
- aAny giving up, or ‘waiver’, of a right that these artFido Terms provides must be express and in writing.
- 106If any clause of these artFido Terms is ineffective (Including illegal, void or unenforceable), it will be severed from this document. This won’t affect the other clauses.
-
107The law of Victoria, Australia, governs these artFido Terms.
- aThese artFido Terms will be interpreted in accordance with Victorian law.
- bIf legal proceedings arise between You and Us in any way relating to these artFido Terms, each party will submit to the Victorian courts’ exclusive jurisdiction.
-
-
2 Selling on artFido
-
AGeneral
- 108When You list a Work for auction or sale on the artFido Website, You confirm to Us that You have read, understood and accept these artFido Terms, Including the terms set out in this part 2.
- 109In this part 2, You refers to Members in their capacity as sellers.
-
BartFido may remove listings
-
110artFido may remove any listing at any time. It may do so:
- ain its sole discretion, Including after considering the artFido Art Watchdogs’ advice;
- bwithout notifying or explaining anything to the seller; and
- cwithout refunding any Fees paid, as You forfeit those Fees upon Our removing Your listing.
-
111Without limiting anything in clause 110, We may remove any listing which:
-
aincludes any of:
- iYour contact details (Including phone numbers or email addresses); or
- iia buyer’s contact details; or
-
bin Our opinion:
- iis not a piece of art;
- iiis dangerous or unlawful; or
- iiiisn’t appropriate to be published on the artFido Website.
-
-
112Without limiting anything in this section 2(B), and only by way of example, artFido may consider the following inappropriate to publish — listings:
- acontaining provocative or graphic sexual content;
- bcontaining Offensive content of any kind; or
- cwhich may cause artFido or anyone else to violate any law or infringe any third party’s rights.
-
-
CFees
- 113The Listing Fee is due to artFido on the date You list a Work.
- 114The Sales Fee is due to artFido on the Listing Conclusion Date.
-
115We will refund the Sales Fee where You can reasonably satisfy Us that the buyer has not paid You, despite You making all reasonable endeavours to obtain payment.
- aTo be eligible, a seller must satisfy Us to this standard no later than 15 days after the Listing Conclusion Date.
-
DYou are responsible for Your listing’s content and Your Counter Offers
- 116You must ensure that Your listing is adequate, accurate and not misleading in any way.
-
117When You submit Your listing to be published on the artFido Website, You state, warrant and represent to Us that:
- athe Work is adequately and accurately described, and is not misleading in any respect;
- bYou own the Work, or are otherwise authorised to sell the Work;
- cYou have the unconditional right to pass title to the buyer;
- dthe Work isn’t subject to any undisclosed, registered or unregistered security interest (Including a lien);
-
ethe following don’t infringe any third party’s rights, Including their Intellectual Property Rights, confidentiality or privacy rights:
- ithe Work itself;
- iiany images of the Work Your listing includes; and
- iiiany description of the Work Your listing includes;
- fYou will comply with Your obligations under any Artists’ Resale Royalty Scheme resulting from You selling the Work; and
- gYour listing does not violate any law or infringe any third party’s rights.
-
118You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- afailing to comply with a statement set out in clause 117; or
- bbreaching a representation or warranty set out in clause 117.
- 119You must only make a Counter Offer if You intend and are prepared to sell the relevant Work at the Counter Offer price.
- 120If You make a Counter Offer, You state, warrant and represent to Us that You have the legal right to enter into and complete the transaction with the buyer.
-
121You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- afailing to comply with a statement set out in clause 120; or
- bbreaching a representation or warranty set out in clause 120.
- 122You make a legally binding offer to a buyer when You make a Counter Offer. You offer to sell Your Work to the buyer at the Counter Offer price if the buyer accepts Your Counter Offer.
-
EGeneral terms for sellers
-
123You expressly agree to let Us provide Your contact details to the buyer of Your Work in order to facilitate:
- athe buyer paying You for the Work; and
- bYou delivering the Work to the buyer.
-
124You may only close Your listing early if:
- aYou made a mistake in entering the start price or the Reserve;
- bYou made a mistake describing the Work being listed; or
- cfollowing the date it was listed, the Work was lost or materially changed in quality, state or condition (Including becoming damaged) so that You can’t sell it, at all or at least as originally or most recently described.
-
125The FAQs provide more information regarding closing a listing early.
- aYou can get the FAQs here shop.artfido.com/faq.
-
126If Your Work does not sell as a result of Your listing, artFido will automatically relist Your Work in a relisting.
- aIf Your Work does not sell as a result of Your original listing, You expressly consent to Us relisting Your Work in accordance with this clause 126.
-
bWe will relist Your Work in a relisting which adopts:
- ithe same format as the original listing (for example, if the original listing sought to sell Your Work by online auction, the relisting will also try to do so by online auction); and
- iiidentical features to the original listing (for example, the relisting will contain the same image(s) and description of the Work as the original listing contained).
- cWe will notify You by email at the time We relist Your Work in a relisting.
- dWe will not charge You any Listing Fee for the relisting.
-
127If Your Work does not sell as a result of a relisting, artFido will automatically relist Your Work again in a further relisting.
- aIf Your Work does not sell as a result of a relisting, You expressly consent to Us further relisting Your Work in accordance with this clause 127.
-
bWe will relist Your Work in a futher relisting which adopts:
- ithe same format as the relisting (for example, if the relisting sought to sell Your Work by online auction, the further relisting will also try to do so by online auction); and
- iiidentical features to the relisting (for example, the relisting will contain the same image(s) and description of the Work as the relisting contained).
- cWe will notify You by email at the time We relist Your Work in a further relisting.
- dWe will not charge You any Listing Fee for the further relisting.
-
128If You make a Counter Offer on the artFido Website, that Counter Offer is irrevocable, unless it can be cancelled.
- aYou may only cancel a Counter Offer in very limited circumstances.
- bThe FAQs provide more information regarding cancelling a Counter Offer.
- iYou can get the FAQs here shop.artfido.com/faq.
-
129You must familiarise Yourself with what the Artists’ Resale Royalty Scheme requires.
- aIf required, You must report the necessary information about any applicable commercial resale, and pay any applicable resale royalty, to the Copyright Agency.
- bYou can access more information on resale royalties here http://www.resaleroyalty.org.au/FAQ.aspx.
- 130You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From You breaching Your obligations under the Artists’ Resale Royalty Scheme.
-
-
FGuidelines for the sale of Works
-
131At the very least, We recommend that all listings should include:
- aa clear and accurate description of the Work, including a statement of any material issues that You are aware of which may affect the value of the Work (including minor damage or wear and tear);
-
bdetails of any documents accompanying the Work, including any:
- icertificate of authenticity; or
- iidocuments helping to show the Work’s provenance;
- ca clear description of the acceptable payment method(s);
-
da clear description of:
- iapproximately how long it will take for the Work to be delivered to a particular location (for example, to deliver the Work within the same city, to a particular city interstate, or a particular city internationally);
- iithe method of delivery; and
- iiithe approximate cost of delivering the Work;
- ea clear statement of when title will pass to the buyer;
- fdetails of Your returns policy;
- ga clear indication that the sale price includes any sales tax (for example, GST); and
- hif the Work must be delivered to an international buyer, a clear indication of which party is required to pay any fees or taxes imposed, including customs duties.
-
132The parties alone must decide their contract’s terms. artFido is only a messenger. We fetch information, and pass it on. However, artFido recommends that You consider:
- aagreeing to send the artwork contained in the image in Your listing to the successful buyer, once the buyer pays You in full;
- bagreeing to include any sales tax payable (for example, GST) in Your final sale price;
-
cagreeing You won’t charge the buyer more than the total of:
- ithe final sale price;
- iithe actual cost of delivery; and
- iiireasonable packaging costs;
- donly using experienced art removalists to transport any sold Works;
- eagreeing that title in the Work will pass to the buyer on delivery; and
-
fagreeing to contact the buyer to arrange payment and delivery within 24 hours of the earlier of:
- ithe Listing Conclusion Date; or
- iiOur communication notifying You that a listing You have posted has been sold.
-
-
-
3 Buying on artFido
-
AGeneral
- 133When You buy a Work for auction or sale on the artFido Website, You confirm to Us that You have read, understood and accept these artFido Terms, Including the terms set out in this part 3.
- 134In this part 3, You refers to Members in their capacity as buyers.
-
BYou are responsible for Your bids, Offers or fixed ‘buy now’ price acceptances and Counter Offer acceptances
- 135You must only place a bid in an auction if You intend and are prepared to buy the relevant Work at the bid price You entered.
- 136You must only make an Offer, accept a seller’s fixed ‘buy now’ price or accept a Counter Offer if You intend and are prepared to buy the relevant Work at the Offer price You put forward, or the ‘buy now’ price or Counter Offer price You accepted.
- 137If You place a bid in an auction, make an Offer, accept a seller’s fixed ‘buy now’ price or accept a Counter Offer, You state, warrant and represent to Us that You have the legal right to enter into and complete the transaction with the seller.
-
138You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- afailing to comply with a statement set out in clause 137; or
- bbreaching a representation or warranty set out in clause 137.
- 139You make a legally binding offer to a seller when You place a bid on a listed Work or make an Offer. You offer to pay the seller the amount of the bid or the Offer price (plus any delivery and packaging costs, as detailed in clause 132(c)), if Your bid wins, or the seller accepts Your Offer, respectively.
- 140You make a legally binding promise to a seller when You accept a seller’s fixed ‘buy now’ price in a listing or accept a Counter Offer. You promise that You will pay the seller the amount You have accepted (plus any delivery and packaging costs, as detailed in clause 132(c)).
-
141You must meet Your commitments. If You don’t meet Your commitments, Including by not paying, then:
- aYou may be liable to the seller; and
- bWe may suspend or terminate Your membership under section 1(O) of these artFido Terms.
- 142You state, warrant and represent to Us that You will comply with Your obligations under any Artists’ Resale Royalty Scheme resulting from You buying any Work.
-
143You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From Your:
- afailing to comply with a statement set out in clause 142; or
- bbreaching a representation or warranty set out in clause 142.
-
CGeneral terms for buyers
- 144You expressly agree that We may publically display Your username and the amount of Your bid on the artFido Website.
-
145You expressly agree to let Us provide Your contact details to the seller of the listed Work in order to facilitate:
- aYour paying the seller for the Work; and
- bthe seller delivering the Work to You.
-
146If You bid on an auction or make an Offer on the artFido Website, that bid or Offer is irrevocable, unless it can be cancelled.
- aYou may only cancel a bid or an Offer in very limited circumstances.
-
bThe FAQs provide more information regarding cancelling a bid or Offer.
- iYou can get the FAQs here shop.artfido.com/faq.
-
147You must familiarise Yourself with what the Artists’ Resale Royalty Scheme requires.
- aIf required, You must pay any applicable royalty to the Copyright Agency.
- bYou can access more information on resale royalties here http://www.resaleroyalty.org.au/FAQ.aspx.
- 148You agree to indemnify and hold harmless artFido and its Affiliates from and against any and all Damage that a third party suffers or incurs, or any and all Claims a third party brings, Resulting From You breaching Your obligations under the Artists’ Resale Royalty Scheme.
-
DGuidelines for the purchase of Works.
-
149The parties alone must decide their contract’s terms. artFido is only a messenger. However, artFido recommends that You consider:
- aasking questions of a seller if any aspect of a listing is unclear before You place a bid, make an Offer, accept a seller’s fixed ‘buy now’ price or accept a Counter Offer, including obtaining an estimate of the delivery and packaging costs;
- bnot relying on any express or implied statement, warranty or representation a listing gives or makes;
- cexercising Your own judgment in relation to all listings;
- dundertaking Your own inquiries if You are concerned in relation to any aspect of a listing (including by consulting independent art advisers), then relying on the results of those inquiries;
- ein the case of an auction, agreeing that You will complete the transaction with the seller only once We notify You that You are the buyer as at the Listing Conclusion Date;
- fagreeing that You will pay the seller in full within five Business Days of the seller contacting You and providing You with their payment details.
-
-