TERMS OF SERVICE

(1)                   Acceptance of Terms of Service:

 

Theeart Group (‘Theeart’) is engaged in the business of providing an electronic platform for offering for sale and purchase of artwork (collectively referred to as ‘Services’) to Member(s).

 

These Terms of Service (the “Terms”) govern the use of Services and access and/ or use of our website (hereinafter referred to as ‘the website’ or ‘our website’) by Member(s). By accessing and/ or using our website and/ or Services, you agree and acknowledge that you have read and agree to these Terms and that you will be legally bound by these Terms as may be modified and / or amended without prior notice by Theeart from time to time.

 

(2)                   Eligibility:

 

The website and Services are intended solely for persons who are 18 years of age or older. Any access to or use of the website or Services by anyone under 18 years of age is expressly prohibited. By accessing or using the website or Services you represent and warrant that you are 18 years or older.

 

(3)                  Definitions:

 

“Applicable Law(s)” shall mean all applicable laws, bye-laws, rules, regulations, decree, orders, ordinances, protocols, codes, guidelines, policies, notices, circulars, directions and judgments of any Governmental Authority, each having the force of law, as applicable to any party to these Terms.

 

“Artwork(s)” shall mean the artistic works which are offered for sale by Members on our website including digital work(s).

“Intellectual Property Rights” includes but is not limited to all right(s), title(s) and interest(s), without limitation, copyright, designs, trade marks, patents, trade secrets, whether or not registrable in India and / or worldwide.

“Member(s)” shall mean registered user(s) of our website and/ or Services.

 

“Purchaser(s) / purchaser(s)” shall mean Member(s) placing purchase requests for Artwork(s) through our website.

 

 “Seller Member(s) / seller Member(s)” shall mean the Members offering Artwork(s) for sale on our website.

 

“Website/ website” shall mean website of Theeart, www.theeart.com

 

(4)                   Use of Services:

 

In order to avail services of Theeart, you will have to register and/ or create an account through the website of Theeart.

Theeart shall collect certain information from you during the registration process which shall be governed by and subject to the Privacy Policy of Theeart.

You are requested to refer to the Privacy Policy of Theeart for further details.

 

(5)                   Representations, Warranties, Covenants & Obligations:

 

(5.1)       FOR SELLER MEMBERS:

 

5.1.1      The Artworks offered for sale on the website of Theeart shall be exclusively offered and/ or displayed for sale on the website of Theeart and no other platform and/ or channel for one year. If an Artwork offered on the website is found to be unavailable due to its sale on another platform and/ or channel, Theeart shall be entitled to remove the said Seller Member from its website and/ or platform in addition to any other legal remedies that may be available to the Seller Member.

 

5.1.2      Theeart will provide you with the name and address of the purchaser and particulars of the purchase request within one working day from Theeart’s receipt of purchase request from the purchaser and, unless otherwise instructed in writing by Theeart, you shall be responsible for shipping the purchased Artwork directly to the purchaser in accordance with the purchase request.

5.1.3      Theeart will provide you with information regarding its preferred shippers with which Theeart maintains an account.

 

5.1.4     You agree to ship and/ or dispatch the purchased Artwork to the purchaser within three days following the date of purchase request by the purchaser (the "Shipping Period"). If you do not ship and/ or dispatch the purchased Artwork to the purchaser prior to the expiration of the Shipping Period, the sale may be cancelled, at the option of Theeart. Theeart shall not be responsible and/ or liable in any manner whatsoever to you and/ or any other party for failure on your part to ship and/ or dispatch and/ or deliver the Artwork to the purchaser within time or in accordance with the purchase request.

 

5.1.5      If you ship and/ or dispatch the purchased Artwork via Theeart preferred shipper and/ or courier account, Theeart will be responsible for reimbursing to you the cost of shipping and / or courier. You are responsible for providing accurate shipping and / or consignment weight, dimensions and address to Theeart if you are using a Theeart preferred shipper and/ or courier. If actual shipping and/ or courier weight, dimensions and origination information at the time of shipment and/ or courier varies from the information provided by you, Theeart (after providing documentation) reserves the right to deduct the resulting increased courier and/ or shipping costs from your Artist Revenue Share.

 

5.1.6      You agree and acknowledge that all Artworks dispatched and / or provided by you against the purchase requests shall be packaged and/ or labelled strictly in accordance with our packaging guidelines given in Seller/Buyer Support which may be revised from time to time by Theeart. You shall be solely liable for any damage caused to Artwork(s) due to non-compliance with the afore-mentioned packaging guidelines.

 

5.1.7      Order Cancellations:

 

(a)  Theeart reserves the right to cancel any order for an Artwork(s) placed via the website, if Theeart determines, in its sole discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed on the website. You agree and acknowledge that Theeart shall not be responsible or held liable in any manner whatsoever for cancellation of any orders owing to the afore-said reasons or due to any act, omission or fault on the part of the sellers or purchasers. If Theeart cancels an order placed through the website, Theeart will send the purchaser an email confirmation of such cancellation and the purchaser will not be charged and / or eligible for full refund for such order cancelled by Theeart save and except when such cancellation is owing to any fault, act and/ or omission on the purchaser’s part. If Theeart has to cancel any order owing to the Seller’s inability and/ or Seller’s fault, act and/ or omission, the Seller shall forthwith refund any money received by it from Theeart for the said order.

 

(b)  You agree and undertake to rectify, replace and/ or substitute Artwork(s), as may be required and decided by Theeart in consultation with you, in case the Artwork(s) received by the purchaser are in damaged condition, not being damage caused in transit. You agree and acknowledge that Theeart shall not be responsible in any manner whatsoever to any party and/ or person for any damage in the Artwork(s). You also agree that Theeart may at its option decide to refund the money paid by the purchaser in event of the Artwork(s) being damaged. In such a case, you agree to refund any Artist Revenue Share paid to you by Theeart.

 

(c)  Transaction Restrictions:

If you are a Member and have submitted a listing for Artwork(s) on the website and have been contacted through the website by another Member with respect to purchasing the Artwork(s) directly or through a channel other than the website, you shall not deal with such Member independent of the website and Services.

 

(d)  Taxes:

All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the website, are stated in INR and do not include any sales, use, value added, goods and services ("GST") or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, "Taxes"). Sellers acknowledge that Theeart will withhold the Taxes required to be withheld from the payments Theeart makes to you. Seller Members must fill out appropriate Tax forms prior to sharing of any Artist Revenue. Artist revenue will be paid as follows: 60% of the selling price set by the Selling Member for the Artwork.


(e)  You acknowledge and agree that you are solely responsible for all Artworks and / or digital works that you make available through the website and Services. Accordingly, you represent and warrant that: (i) you are the author and/ or creator and/ or sole and exclusive owner of all rights, title and interest in and to the Artworks and digital works made available by you on our website and/ or application and (ii) neither the artworks nor digital works that you make available through the website and/ or Services nor TheeArt's use and / or exploitation thereof shall infringe, misappropriate and/ or violate third party proprietary right(s) including but not limited to patent, copyright, trade mark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any Applicable law or regulation.

 

 

(5.2)      FOR PURCHASING MEMBERS:


5.2.1        As a Member, you may purchase Artwork(s) that are listed by other Members for sale on the website.


5.2.2      You agree that all Artwork(s) listed and/ or displayed and/ or shown on our website are subject to availability. Theeart will attempt to inform you within two working days of receiving your purchase request as to the availability of Artwork(s) and/ or digital work(s) ordered.


5.2.3   You agree that the Artwork(s) dispatched to you against your purchase request shall be packaged in accordance with packaging guidelines given in Seller/Buyer Support which may be revised from time to time by Theeart.

 

5.2.4     When you purchase such Artwork(s) through the website, you shall remit payment for the Artwork(s) to Theeart and not to the Member identified on the listing for such Artwork(s). Prices for Artworks will be as specified on the applicable listing.

 

5.2.5      You agree and acknowledge that prices displayed for each listing on our website do not include packaging, shipping, handling charges or applicable Taxes (defined below), if any, for which you are responsible and which will be separately identified on your receipt. Theeart and/or its thirdparty service providers will collect your billing and shipping information and process your billing and payment remittance.

 

5.2.6      The Member identified on the listing of the Artwork(s) shall ship the purchased Artwork(s) directly to you. The Artwork(s) and/ or digital work(s) purchased by you through the website shall be attempted to be delivered to you within 10 (ten) working days of receiving the purchase request from you on Theeart’s website. The terms and conditions of Theeart's then-applicable Return, Refund and Cancellation Policy shall apply to any Artwork(s) that you purchase through the website.

 

5.2.7      You agree that the images of the Artwork(s) displayed on our website are for illustrative purposes only and that Theeart cannot guarantee that the colours are accurately displayed on your device. You further agree that the Artwork(s) and/or their packaging may vary slightly from their images and/ or depiction on the website.

 

5.2.8      You agree and undertake to use the Artwork(s) purchased from our website only for domestic and/ or private use and not for any commercial, business or re-sale purposes.


5.2.9      Returns, Refunds and Order Cancellations


(a)  Theeart reserves the right to cancel any order for Artwork(s) placed via the website, if Theeart determines, in its sole discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed on the website. You agree and acknowledge that Theeart shall not be responsible or held liable in any manner whatsoever including for any loss of profit, loss of business, business interruption or loss of business opportunity etc. due to cancellation of any orders owing to the afore-said reasons or due to any act, omission or fault on the part of the sellers or purchasers. If Theeart cancels an order placed through the website, Theeart will send the purchaser an email confirmation of such cancellation and the purchaser will not be charged and shall be eligible for full refund for such order cancelled by Theeart save and except when such cancellation is owing to any fault, act and/ or omission on the purchaser’s part.

 

(b)  You agree and acknowledge that there shall be no refund of any payment made for orders cancelled by you otherwise than for any fault of the seller Members or Theeart.

 

(c)  Artwork(s) delivered to you through our website can be returned for rectification and/ or replacement and/ or substitution to Theeart only if the Artwork(s) are received by purchasers in a damaged condition, not being damage caused in transit. Provided that the said requests to return the Artwork(s) shall be made by you within four working days from date of receipt of the Artwork(s) by email to support@theeart.com and furnish such information including photographs of the damaged Artwork(s) as may be required by Theeart.

 

(d)  Upon receiving a return request, Theeart shall examine the request and decide if it is valid. On receiving Theeart’s approval, purchaser shall return the Artwork(s) along with the original packaging. Thereafter, Theeart in consultation with the Seller Member shall decide if the returned Artwork(s) are fit for rectification, replacement, substitution with other artworks or full or partial refund of money paid. In cases of valid returns, Theeart shall attempt to rectify or replace, substitute the Artwork(s) or refund the money paid, as decided by Theeart, within 10 days from receipt of return of Artwork(s) from purchaser.

 

(e)  Taxes

All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the website, are stated in Indian Rupees (INR) and do not include any sales, use, value added goods and services ("GST") or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, "Taxes").

 

(6)            Transmission of payment: (Time of payment etc.)

 

(6.1)          *With regard to sellers members

The transmission of payment shall be done via a mode convenient to Theeart into the Artist’s account directly within 10 days of the delivery of artworks to purchaser.

 

(6.2)          *With regard to Purchasers

In case of returns, the payment shall be transferred back by Theeart to the same account/debit card/ credit card used by the Purchaser at the time of the purchase.


(7)           Mode of Payment:

 

(7.1)    For Seller Members –

Payment can be made by aby any mode (NEFT/IMPS/DIRECT TRANSFER), as may be suitable to Theeart.

 

(7.2)    *For Purchasers-

Purchasers have to pay the full price for the artwork by Paypal (online) at the time of making the purchase request.

 

GENERAL TERMS:

(8)           Term and Termination:

(a)  These Terms shall remain valid and subsisting until revision and/or modification thereof by Theeart.

 

(b)  Theeart may forthwith terminate your use of the Services and deny you access to the Services in its sole discretion, including on account of your: (i) violation of these Terms; (ii) breach of your obligations or (ii) lack of use of the Services. You agree that any termination of your access to the Services may be effected without prior notice, and you acknowledge and agree that Theeart may immediately deactivate or delete your account and all related information and/or bar any further access to your account or the Services, without prejudice to other rights and remedies that Theeart may have against you in law.

 

(c)  If you use the Services in violation of these Terms, Theeart may, in its sole discretion, retain all data collected from your use of the Services. Further, you agree that Theeart shall not be liable to you or any third party for the discontinuation or termination of your access to the Services.

 

(9)       Intellectual Property Rights:

 

(a)  All rights, titles and interests including but not limited to ownership of copyright, trade marks, designs, patents and all other Intellectual Property Rights in and to any and all designs, layouts, technology, interfaces, images, screen shots, icons, logos, marks, names, softwares, codes, executables, algorithms, methods, flowcharts, know-how, methods, trade secrets, formulae, infrastructure, application- server-sms architecture, source codes, processes, improvements etc. in the website and/ or application shall vest solely, exclusively and in perpetuity with Theeart and/ or its successors and/ or assigns.

 

(b)  Use of the Services and/ or this website shall give the Members only a limited right to use the interface for the purpose of availing Services of Theeart.

 

(c)  Members shall not be entitled to reproduce, make copies, distribute, make adaptations, reverse engineer and/ or in any manner commercially exploit the Intellectual Property Rights of Theeart including but not limited to the trade mark and trading name ‘Theeart’ without prior written license of Theeart.

 

(d)  Member(s) shall not commit any act and/ or omission which is likely to jeopardize and / or prejudice and/ or dilute and/ or challenge the ownership and/ or rights, titles and / or interests of Theeart in the Intellectual Property and/ or the website and/ or application.

 

(10)        Limitation of Liability:

 

(a)  You acknowledge and agree that the Services provided through this website are on an ‘as is’ and ‘as available’ basis.

 

(b)  To the fullest extent permitted by the Applicable Laws, Theeart, its affiliates and their respective officers, directors, employees, agents, branches, subsidiaries, licensors, contractors, representatives (“Theeart parties”) disclaim all warranties, other than those expressly set out herein, in connection with the Services including your use of the website.

 

(c)  To the fullest extent permitted by the Applicable Laws, the Theeart parties make no warranties or representations and assume no responsibility for any (i) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Services, (ii) any damage caused to the Artwork(s) and/ or digital work(s) in transit (iii) any unauthorized access to or use of our servers and/or any and all personal information stored therein, (iv) any interruption or cessation of transmission to or from the Services, (v) any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the services through the actions of any third party, (vi) any loss of your data or content from the services and/or (vii) any errors or omissions whether based on warranty, contract, tort, or any other legal theory, and whether or not Theeart is advised of the possibility of such damages, (viii) your failure to keep your password or account details secure and confidential.

 

(d)  Downloading of from our website is done at your own discretion and risk and you will be solely responsible for any damage to your computer system, mobile phone or other device or loss of data that results from the download of any such content.

 

(e)  In no event shall the Theeart parties be liable to you for any indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, however caused and under any theory of liability, including but not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.

 

(11)        Indemnity:

 

(a)  You agree to indemnify, defend, and hold harmless Theeart parties from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by Theeart arising as a result of, or in connection with: (i) your unauthorized use of the Services; (iii) your access to and use of the Services; (iv) your violation of any rights of another party; or (v) your breach of these Terms, including, but not limited to, any violation and / or infringement by you of the copyright or intellectual property rights of any third party.

 

(b)  Theeart reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Theeart and you agree to cooperate with and bear all expenses and/ or costs and/ or damages of Theeart’s defense of these claims. You agree not to settle any matter in which Theeart is named as a defendant and/or for which you have indemnity obligations without Theeart’s prior written consent.

 

 

(12)        Confidentiality:

 

(a)  You agree to keep confidential and not to disclose or use for your own benefit or the benefit of any third party (except as may be required for the performance of Services or as may be required by law), any information which is proprietary or confidential to Theeart. The confidentiality obligations in the preceding sentence, however, shall not extend to any information, documents, or materials that (a) become publicly available without breach of this provision, (b) are received from a third party without restriction, and provided further that such obligations herein shall survive the termination of these Terms.

 

(b)  Theeart will not use any collected information for purposes other than rendering of Services. Theeart shall not be liable in any manner for fines and/ or penalties and/ or any punishments imposed on Member(s) for violation of privacy and/ or data protection.

 

(13)        Relationship:

 

None of the provisions of these Terms shall be deemed to constitute a partnership or agency between you and Theeart and you shall have no authority to bind Theeart in any form or manner whatsoever.

 

(14)        Assignment:

            You shall not assign your rights and/ or obligations under these Terms to any person.

 

(15)        Governing Law & Courts:

 

These Terms shall be governed by the provisions of the Indian Laws and any dispute arising out of these Terms and/ or connected therewith, including but not limited to its interpretation, existence, performance, non-performance, violation, etc. shall be subject to the exclusive jurisdiction of the courts in Mumbai.

 

(16)        Severability:

 

If any provision of these Terms is rendered void, illegal or unenforceable in any respect under Applicable Law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

 

(17)        Force Majeure:

 

Theeart will not be held responsible for any delay or failure in performance of any part of these Terms to the extent that such delay is caused by events or circumstances beyond the its reasonable control including but not limited to any acts of God, wars, riots, terrorists, insurrection, accident, fire, flood, explosion, power, civil commotion, or any other unavoidable cause.

 

(18)        Modification:

 

Theeart reserves the right, at its sole discretion, to modify, discontinue or terminate the website or Services or to modify these Terms, at any time and without prior notice. By continuing to access or use the website or Services after the modification of these Terms, you shall be deemed to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the website and Services.

 

(19)        Entire Agreement:

 

These Terms and the Privacy Policy shall constitute the entire agreement between you and Theeart with respect to the Services and supersedes all prior agreements and undertakings, both written and oral, with respect to the subject matter hereof.


 

 

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