Terms and Conditions
Welcome to Artichoke Art's terms and conditions!
Last Updated Date: Dec. 1 st, 2018
Artichoke Art Inc. ("Artichoke Art," "we" or "our") provides a service for selling and purchasing original works of art and commercially exploiting digital images of works of art (the "Service", collectively the "Services") through our website, accessible at www.artichokeart.ca (the "Site"). Please read carefully the following terms and conditions ("Terms").
These Terms govern your access to and use of the Site and Services, and constitute a binding legal agreement between you and Artichoke Art.
Certain areas of the Site and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Site or for specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site or Services.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES OR BY SELLING OR PURCHASING A WORK ON OR THROUGH THE SITE OR SERVICES OR BY POSTING ANY CONTENT ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Artichoke Art reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date". By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
Listing Works on the Site
As an artist, you may submit to our curators original works of art ("Original Works of Art") that you have created and that you desire to sell through the Site and Services. You may not submit listings for Original Works of Art that were created by another artist. As an artist you may also submit listings for digital images of works of art ("Digital Works") that you have created and that you desire to commercially exploit through the Site and Services. You may not submit listings for Digital Works that were created by another artist. In order for your listings to be accepted, you must provide Artichoke Art with all the information requested on the applicable page of our Site and you must comply with any other Artichoke Art requirements as identified on such page. Artichoke Art is a curated marketplace and we reserve the right to refuse artwork we deem does not fit well with our site. Without limiting the generality of the foregoing, if you submit listings for sale you may be required to verify your identity by separately providing Artichoke Art with a copy of a government-issued ID or similar documentation. Artichoke Art reserves the right to edit any listings to ensure that they comply with these guidelines. You acknowledge that Artichoke Art reserves the right to promote and market Original Works of Art and/or Digital Works through the use of sales and/or discounts. The sale or discount amount will apply to the listing price of Original Works of Art and/or Printed Works (defined below) relating to the Digital Works. You always retain the right to remove a listing for an Original Work of Art or Digital Work from the Site - please see below for instructions.
If you have sold a work of art or it has in another way become unavailable for sale it is your responsibility to inform Artichoke Art of the fact that the work is no longer available so that we can update our database. All such notices are to be sent to email@example.com
Responsibility for Works
You acknowledge and agree that you are solely responsible for all Original Works of Art and Digital Works that you make available through the Site and Services. Accordingly, you represent and warrant that: (i) as to Original Works of Art that you make available through the Site and Services, you are the creator of all such Original Works of Arts and you are the sole and exclusive owner of all such Original Works of Art; (ii) as to Digital Works that you make available through the Site and Services, you are either the sole and exclusive owner of all such Digital Works or you have all rights, licenses, consents and releases that are necessary to grant to Artichoke Art the rights in such Digital Works as contemplated under these Terms; and (iii)neither the Original Works of Art nor Digital Works that you make available through the Site and Services nor Artichoke Art's use and exploitation thereof as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, 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.
Artichoke Art and/or its third party service providers will be responsible for collecting billing and shipping information from the purchaser and for processing payment for such purchases via the Site and Services. For purchases made via third party websites and for Offline Sales, the applicable third party website or Artichoke Art’s Offline Sales partner will be responsible for collecting billing and shipping information, as applicable, from the purchaser and for processing payments, and will remit applicable payments relating to such sales as agreed upon between Artichoke Art and the third party website or Artichoke Art’s Offline Sales partner, as applicable, to Artichoke Art and share related shipping information, including the contact details of the purchaser where necessary, with Artichoke Art.
For Original Works of Art, Artichoke Art will provide you with the name and address of the purchaser and, unless otherwise instructed in writing by Artichoke Art, you will be responsible for shipping the purchased Original Work of Art directly to the purchaser. Artichoke Art will provide you with information regarding its preferred shippers with which Artichoke Art maintains an account. You agree to ship the purchased Original Work of Art to the purchaser within seven days following the date of purchase (the "Shipping Period"). If you do not ship the purchased Original Work of Art to the purchaser prior to the expiration of the Shipping Period, then the sale may be cancelled. The buyer is responsible for the cost of shipping.
For sales of Original Works of Art via the Site and Services, subject to Artichoke Art’s receipt of confirmation of delivery to the purchaser, Artichoke Art will make a payment to the artist either via cheque or money transfer with the corresponding Artist Revenue Share following the expiration of the return period and for sales of Original Works of Art via third party websites, Artichoke Art will provide payment via the above mentioned channels with the corresponding Artist Revenue Share within a commercially reasonable time after it has received payment from the third party website and the Original Work of Art has been confirmed to have been successfully delivered to the purchaser, as determined by Artichoke Art, in its sole discretion.
You will have the right to request Artichoke Art to remit the Artist Revenue Share in your Account in accordance with a Artichoke Art-designated payment schedule. Upon the termination of these Terms or cancellation of your Account, Artichoke Art will remit to you the remaining balance of Artist Revenue Shares in your Account, if any.
Purchaser Terms and Conditions
When you purchase such an Original Work of Art through the Site and Services, you are purchasing the work from Artichoke Art and not from the artist identified on the listing for such work. Prices for Original Works of Art will be as specified on the applicable listing. You acknowledge that prices do not include shipping and handling charges or applicable Taxes (defined below), if any, for which you are responsible and which will be separately identified on your receipt. Artichoke Art and/or its third party service providers will collect your billing and shipping information and process your payment. The Artist identified on the listing of the Original Work of Art will ship the purchased work directly to you. The terms and conditions of Artichoke Art's then-current Return Policy apply to any Original Works of Art that you purchase through the Site and Services. When you purchase Original Works of Art via Online Sales (other than via the Site and Services) such purchases will be subject to the terms and conditions of the applicable Online Sales channels which will be presented to you at the time of purchase.
Artichoke Art reserves the right to cancel any order for an Original Work of Art placed via the Site and Services if Artichoke Art determines, in its sole discretion, that the item is mispriced, out of stock, discontinued, or otherwise unavailable at the price listed via the Site and Services. If Artichoke Art cancels an order placed via the Site and Services, Artichoke Art will send you an email confirmation of such cancellation and you will not be charged for your order.
Terms for both Sellers and Purchasers
All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Site, are stated in CAD dollars and do not include any harmonized sales ("HST") 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"). If you are a seller of Original Works you acknowledge that Artichoke Art will withhold the Taxes required to be withheld from the payments Artichoke Art makes to you.
If you are a purchaser of Original Works, you acknowledge that Artichoke Art will add Taxes to the amounts charged, as a separate charge, when required or when allowed to do so. Each party will be responsible for complying with any and all obligations imposed on it under applicable law with respect to the collection and payment of any Taxes. Each party will cooperate with the other party, and furnish the other party with any customary written documentation or forms required under applicable law to enable the other party to comply with such obligations or to exercise any rights available under applicable law to minimize or to qualify for an exemption from any such obligations.
You understand and agree that Artichoke Art uses commercially reasonable efforts to display the colors of Original Works of Art, Digital Works and Printed Works accurately via the Site and Services. However, because individual computer monitors may display colors differently, Artichoke Art is not responsible for the color accuracy of any Original Works of Art displayed on the Site and Services, and disclaims all liability in this regard.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services ("Feedback"). You may submit Feedback by filling out our feedback form. You acknowledge and agree that all Feedback will be the sole and exclusive property of Artichoke Art and you hereby irrevocably assign to Artichoke Art and agree to irrevocably assign to Artichoke Art all of your right, title and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Artichoke Art's request and expense, you will execute documents and take such further acts as Artichoke Art may reasonably request to assist Artichoke Art to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback.
Artichoke Art Content
Artichoke Art may also make available through the Site and Services text, graphics, audio, video and images of works of art (collectively, "Artichoke Art Content"), some of which is owned by Artichoke Art ("Artichoke Art-owned Content"), and some of which is made available under license by a third party ("Artichoke Art-licensed Content"). Artichoke Art authorizes you to download, view and print Artichoke Art-owned Content" solely for your personal use in visiting the Site. For Artichoke Art Licensed Content, the scope of your rights thereto will be solely as set forth in the applicable license agreement that governs the use of such content, as identified on the page of the Site where such content appears. Nothing in these Terms is intended to modify, restrict or limit the scope of your rights as to such Artichoke Art Licensed Content. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Artichoke Art or its licensors, except for the licenses and rights expressly granted in these Terms.
Sweepstakes and Contests
Artichoke Art may operate sweepstakes, contests and similar promotions (collectively, "Promotions") through the Site and Services. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Site and Services, as they may contain additional important information about Artichoke Art's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of any Official Rules conflict with these Terms, the terms and conditions of the Official Rules will control.
The Site, Services and Artichoke Art Content are protected by copyright, trademark and other laws of Canada and foreign countries. Except as expressly provided in these Terms, Artichoke Art and its licensors exclusively own all right, title and interest in and to the Site, Services and Artichoke Art Content and Printed Works, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Artichoke Art Content.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Artichoke Art is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Artichoke Art of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
THE SITE, SERVICES, Artichoke Art CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Artichoke Art EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Artichoke Art MAKES NO WARRANTY THAT THE SITE, SERVICES, Artichoke Art CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ARTICHOKE Art MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ARTICHOKE Art OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Artichoke Art MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Artichoke Art, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, Artichoke Art Content or your violation of these Terms.
Limitation of Liability
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Site, Services, Artichoke Art Content remains with you. Neither Artichoke Art nor any other party involved in creating, producing, or delivering the Site, Services, Artichoke Art will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, Artichoke Art Content, or from any communications, interactions or meetings with other users of the Site or Services or other persons with whom you communicate or interact as a result of your use of the Site or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Artichoke Art has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will Artichoke Art's aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Site, Services, Artichoke Art Content exceed: (i) if you are an artist who has sold Original Works of Art or has licensed Digital Works and has received any Artist Revenue Share from Artichoke Art from the sale of Printed Works, the total payments made or credited to you by Artichoke Art for the sale of your Original Works of Art and/or from the sale of Printed Works based on your licensed Digital Works during the three (3) month period preceding the date a claim for liability arises under these Terms; and (ii) if you have purchased Original Works of Art or Printed Works, the total payments that you made to Artichoke Art for the Original Works of Art and/or Printed Works that are the subject of a claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Artichoke Art and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Artichoke Art used herein are trademarks or registered trademarks of Artichoke Art. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
These Terms constitute the entire and exclusive understanding and agreement between Artichoke Art and you regarding the Site and Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between Artichoke Art and you regarding the Site and Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without Artichoke Art's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Artichoke Art may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by Artichoke Art via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Artichoke Art to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Artichoke Art. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Contacting Artichoke Art
If you have any questions about these Terms, please contact Artichoke Art at firstname.lastname@example.org