TERMS AND CONDITIONS OF USE AND SERVICE
This document is an electronic record in terms of Information Technology Act, 2000 and rules framed there under, as applicable.
1.1 All the capitalized terms contained in the Agreement that have not been defined elsewhere, shall mean as follows:
(a) “Art Work” shall mean any artistic work including hand crafted collectibles, hand crafted jewellery, charcoal work, oil paintings, photography, printmaking, sculptures and water colour art that is displayed, marketed and/or sold through the Website, whether by 404 Gallery or by Artists/Dealers/Vendors and Sellers.
(b) “Authenticity Certificate” means a valid authenticity certificate issued by a Seller, physically signed by the Seller or an authorized signatory of the Seller, containing a detailed description and a picture of the concerned Art Work and a seal of the Seller, if so required.
(c) “Buyers” shall mean Users who or which use Services to purchase Art Work through the Website.
(d) “Listed Price” with respect to an Art Work means the sale price displayed against such Art Work on the Website.
(e) “Person” shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable law.
(g) “Sellers” shall mean Users who or which use the Services in order to display, market and sell the Art Work through the Website but excludes 404 Gallery.
(h) “Services” shall mean services provided by 404 Gallery, including provision of Website to Users and display, marketing and/or sale of an Art Work by 404 Gallery through the Website and other services provided through the Website to promote art and Art Work.
(i) “Terms” shall means these terms and conditions of use and service which form a part of the Agreement governing Users’ relationship inter se and with 404 Gallery.
(j) “Users” shall mean any Person who or which uses the Services, including Buyers, Sellers and Persons who or which access the Website or any content displayed thereof.
(k) “Website” shall mean the online platform www. 404gallery.com as provided by 404 Gallery to provide Services, including facilitating display, marketing and sale of Art Work and promotion of art, from time to time.
2.1 Any reference to the singular includes a reference to the plural and vice versa, unless explicitly stated otherwise.
2.2 Any reference to one gender includes a reference to the other gender(s), unless explicitly provided for.
2.3 Headings and captions are used for convenience only and not for interpretation of the Agreement.
2.4 Any reference to a natural person shall, include his/her heirs, executors and permitted assignees and any reference to a juristic person shall, include its affiliates, successors and permitted assignees, unless repugnant to the context.
3 USERS’ APPROVAL
3.1 Users approve of and accept this Agreement by accessing any of the Services offered by 404 Gallery, including by simply accessing the Website, either by itself (if the User is a natural person) or through its authorized representative (if the user is a juristic person).
3.2 A User may accept this Agreement only if:
(a) if such User is a natural person, is of the legal age, eligibility and mental capability to form a binding contract.
(b) if such User is a juristic person, is lawfully existing and has all the authorizations, permits and allowances to enter into this Agreement and form a binding contract.
(c) such User is not legally barred or restricted from using any of the Services.
404 Gallery reserves the right to terminate the membership of an User and refuse to provide any User with access to the Website if 404 Gallery discovers that an User is under the age of 18 years. The Website is not available to persons whose membership has been suspended or terminated by 404 Gallery for any reason whatsoever. If an User is registering as a business entity, the User represents that he/she has the authority to bind the entity to this Agreement.
3.5 The Agreement shall govern the relationship of each and every User with 404 Gallery. 404 Gallery may also execute separate written agreements with its Users. In case of conflict between terms of such separate written agreement and this Agreement, the terms of the separate written agreement shall prevail.
4 PROVISION OF SERVICES
4.2 The purpose of provision of Services is to facilitate an online market place for the Buyers and Sellers for display, marketing and/or sale of Art Work and promotion of art through various activities, including online exhibitions, curations, art blogs and providing art advice.
4.3 The Services may be availed by the Users by:
(a) registering on the Website for display, marketing and/or sale of Art Work through the Website;
(b) promoting Art Work or art through the Website;
(c) placing an order through the Website for delivery of an Art Work;
(d) writing blogs or putting any content on the Website for display, marketing and/or sale of Art Work and/or promotion of art through the Website;
(e) accessing (either though itself or through another Person) the Website or any content thereof; and/or
(f) simply surfing and/or browsing the Website.
4.4 In order to provide certain parts of Services to the Users, 404 Gallery may require the Users to register on the Website by providing certain information (“Registrable Services”). Users agree and understand that Registrable Services shall not be provided by 404 Gallery to the Users unless the Users register on the Website in the form and manner required by 404 Gallery.
4.5 Users agree and acknowledge that provision of Registrable Services is dependent on the information provided by a User to access such Registrable Services. Users shall ensure that all information provided by it to 404 Gallery in order to access the Registrable Services will always be true, accurate, complete and updated.
4.6 The Website may include links to other online platforms which may contain materials that are objectionable, unlawful, or inaccurate. 404 Gallery does not endorse or support these links or the products and services they provide; these links are provided for Users’ convenience only. 404 Gallery is not responsible or liable for the content or accuracy of such links.
4.7 Subject to applicable law, 404 Gallery may stop provision of Services (or any part of Services), permanently or temporarily, to a User or to Users generally or may modify or change the nature of Services and/or these Terms at its sole discretion, without any prior notice to the Users. Use of Services by a Person following any such modification constitutes such Person’s deemed acceptance to be bound by this Agreement (or as it may be modified).
5 USE OF SERVICES
5.1 In order to use Services, a Person will require accessing the Website through internet in such form and manner as provided by 404 Gallery. 404 Gallery may update the Website from time to time in order to ensure a better User experience and consequently may temporarily cut or restrict Users’ access to the Website or to the Services.
5.2 Users shall use the Services only for such purposes as is permitted by:
(a) this Agreement; and
(b) if User is a natural person, any law, regulation or generally accepted practices or guidelines applicable in the country of which User is a citizen, in which User is a resident or from where User accesses the Services; or
(c) if User is a juristic person, any law, regulation or generally accepted industry practices and guidelines applicable in the country where User is registered, where User maintains its principle office or from where User accesses the Services.
5.3 While most parts of the Services are available to Users free of cost, certain parts of Services may be provided to the Users at a cost. 404 Gallery reserves the right to amend these Terms and impose a cost on free parts of Services in future. 404 Gallery will use its reasonable efforts to give Users a prior intimation as and when any part of free Service becomes a paid Service. If, after being so intimated, any User access paid parts of Services, cost for such paid Services shall become due and payable by such User to 404 Gallery and 404 Gallery shall have the right to recover the cost for provision of such paid Service to the User, from the User.
5.4 Users agree and acknowledge that with respect to any content that may be created, accessed or uploaded by another User on the Website and/or through the Services, including any blogs, images, comments on discussion forums, pictures of Art Work, graphs, tables, audios, videos or any other forms of audio-visual representations (“Content”), Users shall be bound by specific roles and obligations detailed in Section 7 of these Terms, in addition to other obligations contained elsewhere in the Agreement.
5.5 Users who or which have registered for accessing Registrable Services shall be provided access to an online account on the Website through which such Users may access the Registrable Services. It shall be the sole responsibility of the Users to maintain the privacy and confidentiality their access details (user id, password etc.) with respect to Registrable Services. Any access to or use of Registrable Services from the registered account of a User shall be construed as access to or use of such Registrable Services by such registered User.
6 RESTRICTION ON USE OF SERVICES
6.1 Users will not use the Services or any Content for any purpose that is illegal, unlawful or prohibited by this Agreement.
6.2 Users will not access (or attempt to access) the Services or Content provided through the Services by any means other than in the form and manner provided by 404 Gallery, unless such User has been specifically allowed to do so in a separate written agreement with 404 Gallery.
6.3 Users will not redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Services or Content, in full or in part, available to third parties unless allowed to do so by 404 Gallery in writing.
6.4 Users will not circumvent or disable any digital rights management, usage rules, or other security features of the Website; remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Website; and not use Services in any manner that threatens or is likely to threaten the integrity, performance or availability of Services.
6.5 Users will not attempt to or engage in any activity that may:
(a) reverse engineer, decompile or otherwise extract the source code(s) related to the Services or any part thereof, unless it is expressly permitted by 404 Gallery in writing or is required by applicable law;
(b) use any robot, spider, retrieval application, or other device to retrieve or index any portion of Services or Content;
(c) collect information about other Users in any illegal or unlawful manner for any illegal or unlawful purpose;
(d) register on the Website to access Registrable Services or create any online accounts by automated means or under false or fraudulent pretences for using the Services;
(e) transmit any viruses, worms, defects, trojan horses, or any items of a destructive nature through Services;
(f) use Services in any manner that can damage, disable, overburden, or impair, or undertake any action which is harmful or potentially harmful to, any of the servers, networks, computer systems or resources connected to any of the servers connected, directly or indirectly to the Services, or interfere with any other third party's access to and/or enjoyment of Services;
(g) carry out any denial of service (DoS, DDoS) or any other harmful attacks on the Website or; disrupt or place unreasonable burdens or excessive loads on, or interfere with or attempt to make, or attempt any unauthorized access to Services or any part of Services or any User;
(h) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website; or
(i) obtain any materials or information through any means not intentionally made available, in the opinion of 404 Gallery, through Services.
6.6 Users agree and undertake not to impersonate another Person or impersonate, guide or host on behalf of, or falsely state or otherwise misrepresent its own affiliation with any Person, including, but not limited to 404 Gallery’s officials, employees, agents, partners, affiliates, dealers and franchisees.
7 ROLES AND OBLIGATIONS OF 404 GALLERYAND USERS
7.1 Users agree to the following roles and obligations in order to avail Services:
(a) Display, Marketing and/or Sale of Art Work: Users may display, market and/or sell any Art Work to other Users through the Website. For such display, marketing or sale of Art Work, in addition to other applicable terms of the Agreement, Users specifically agree to the roles and obligations of the Sellers set out under Section 7.3 of these Terms. Users agree to remove the Art Work from the Website if such Art Work has been sold by other means as permitted under these Terms.
(b) Purchase of Art Work: Users may purchase any Art Work from Sellers through the Website. For such purchase of Art Work, in addition to other applicable terms of the Agreement, Users specifically agree to the roles and obligations of the Buyers set out under Section 7.2 of these Terms.Any sale of Art Work through the Website will constitute a contract of sale between the Buyer of such Art Work and the Seller of such Art Work and all Art Work shall be delivered by such Seller to such Buyer directly.
(c) Content in relation to Art Work: Users may create and/or display Content (including articles, descriptions of Art Work, images, comments and replies in discussion forums) on the Website and make such Content accessible to other Users. By displaying any Content on the Website, unless agreed to and provided for to the contrary, Users waive off any intellectual property rights associated with such Content and agree to use of such Content by other Users in any form and manner.
(d) Content Responsibility: Users acknowledge and understand that 404 Gallery shall not review, and cannot review, all of the Content displayed on the Website, and cannot therefore be responsible for such Content (unless such Content has been created by 404 Gallery itself). Each User is entirely responsible for any Content displayed or accessed by such User through the Website, and any harm resulting from display or use of such Content.
(e) Removal of Content: Users understand and acknowledge that if a User deletes or removes any Content from display, 404 Gallery will use reasonable efforts to facilitate removal of such Content from the Website, but cache, cookies, back up files and/or references to such deleted Content may not be immediately removed and/or disposed off.
(f) Commercial Use: Unless agreed to the contrary in writing, Services provided by 404 Gallery are for non-commercial and personal use of the Users only. Users are not allowed to copy, reproduce, alter, modify, create derivative works of, or publicly display any Services or any part thereof without a prior written consent of 404 Gallery.
(g) Art Advisory: 404 Gallery may, within Services, provide a platform where Users can avail art advisory and consultancy Services from other experts. This part of Services may be provided as a Registrable Service and may be provided by 404 Gallery on a paid or unpaid basis. Users understand and acknowledge that 404 Gallery is only providing a platform for Users to interact with such art experts and has no responsibility with respect relevancy, adequacy or standard of art advice rendered by art experts through such platform.
(h) Gift Vouchers: Any gift voucher purchased by Users with respect to Services will be valid for a period of 1 (one) year from the date of purchase of such gift voucher and such validity shall not be extended beyond 1 (one) year from the date of purchase, under any circumstances.
(i) Overseas Sale: Pricing and payments with respect to any overseas sale made through the Services will automatically be calculated on the basis of exchange rate, as applicable from time to time.
(j) E-Platform for Communication: The Website is an online platform that enables Buyers to purchase products listed on the Website at the price indicated therein at any time from any location. 404 Gallery is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the Website. Accordingly, the contract of sale of products on the Website shall be a strictly bipartite contract between Buyers and Sellers on the Website.
7.2 Buyers agree to the following roles and obligations in order to avail the Services:
(a) Purchase of Art Work: Buyers may purchase Art Work from Sellers through the Website at the Listed Price in such form and manner as provided herein. Buyers acknowledge that such purchase of Art Work is being made directly from the Seller through the Website and 404 Gallery is only providing a platform for the Buyers and Sellers to interact online with respect to such sale through the Website.
(b) Pricing: All Art Work made available for sale on the Website will be sold at the Listed Price only unless contrary has been specifically mentioned with respect to a particular Art Work. The Listed Price includes taxes, shipping and handling costs. Transactional costs may be additional. 404 Gallery is not liable for any additional charges that may be levied on the Art Work at the destination of delivery, whether in India or overseas, over and above the taxes collected and paid by 404 Gallery at the time of sale. Nothing in this Sub-section prohibits 404 Gallery from changing its pricing policy anytime with a prior intimation to the Buyers.
(c) Registration: Buyers will need to register with 404 Gallery through the Website by providing such information as may be requested by 404 Gallery from the Buyer. The information provided by the Buyer while registering or at the time of finalizing a purchase (as the case may be) shall be the final billing address and shipping address for delivery of the Art Works.
(d) Adequacy of Information: The Buyer represents and warrants that all the information furnished by such Buyer at the time of registration will be true, complete, correct and updated and any change in such information will be updated by the Buyer and intimated to 404 Gallery immediately. 404 Gallery is entitled to act on the basis of the information provided by the Buyer and seek such further information, clarifications or verifications as it may deem necessary for granting registration. Such registration may be suspended or cancelled if 404 Gallery is of the view that any of such information may be fake, incomplete, false, redundant or inaccurate. A suspended registration may be restored immediately upon Buyer furnishing the requisite information to the satisfaction of 404 Gallery.
(e) Confirmations and Invoicing: All order confirmations and invoices will be raised by 404 Gallery based on the registration information provided by the Buyer and available with 404 Gallery at the time of making a purchase and accordingly payments will be accepted by 404 Gallery only from the Buyer so registered.
(f) Payments: Once Buyer has placed an order on the Website for delivery of an Art Work; Buyer is required to make advance payment of Listed Price of the Art Work in such form and manner as permissible by the Website. 404 Gallery may use third party platforms in order to facilitate such payment by the Buyers and will not be responsible for any loss or damage caused to the Buyer by any such third parties.
(g) Acceptance of Delivery: Buyers acknowledge that placing an order for purchase through 404 Gallery constitutes an irrevocable obligation of the Buyer to accept delivery once such order has been delivered, unless rescinded/cancelled by 404 Gallery within a reasonable time on account of a default by the Seller or any prior or continuing breach by the Buyer. Buyers may not accept delivery of an Art Work if it has been damaged or is not accompanied by an Authenticity Certificate from the Seller.
(h) Limitation of Liability: Buyer acknowledges that Seller (and not 404 Gallery) will be responsible for adequacy and accuracy of information displayed with respect to Art Work, the entire process of sale of Art Work including pricing the Art Work, delivery, return, packaging and insurance with respect to such Art Work and authenticity of the Art Work. 404 Gallery’s limited responsibility in terms of provision of Services is dependent on the information provided by the Buyer. In case of any inaccuracies in any information provided by a Buyer, 404 Gallery shall not be responsible for any consequences thereof. 404 Gallery is not obligated to provide any physical preview of the Art Work either before or after the sale.
(i) Damaged Art Work: On delivery, if Buyer receives the Art Work in a damaged condition or if the Art Work is not as per the specifications provided on the Website with respect to such Art Work then the Buyer should not accept the parcel and notify 404 Gallery immediately. Buyers are expected to understand that since each Art Work is individually created there may be slight variations in shade and colour of Art Work. No complaints in this regard will be entertained by 404 Gallery. In case an Art Work is returned, 404 Gallery will refund the payment or issue a credit note to the concerned Buyer and cancel the order. However, NO GOODS WILL BE RETURNED ONLY BECAUSE THE BUYER DID NOT LIKE THE ART WORK HE HAS PURCHASED.
(j) Authenticity: Buyers may note that all Art Work posted for sale by Sellers on the Website is supported by an Authenticity Certificate from the Seller and 404 Gallery does not issue any Authenticity Certificate or guarantee. Sellers are bound to deliver such Authenticity Certificate to the Buyer along with the delivery of the concerned Art Work.
(k) Resale of Art Work: Buyers may use the Services to resell an Art Work purchased through the Services. With respect to such a resale transaction, the Buyer will act as a Seller and will be bound by the roles and obligations of the Seller contained in these Terms.
(l) Custom / Octroi & Import Duties: The Custom Duty / Octroi/ Local Taxes / Import Duties are borne directly by the buyer, to be paid at the time of delivery to our courier partner or as advised by our courier partner. 404gallery.com does not include these extra charges on our price (as displayed on the e-shop). These taxes will be chargeable over & above the product/order price you pay on the e-shop.
7.3 Sellers agree to the following roles and obligations in order to avail the Services:
(a) Listing Art Work on Website: Subject to 404 Gallery’s rights contained in this Agreement, Sellers will have a right to list Art Work on the Website for display, marketing and/or sale. However, Sellers will not display, market and/or sell any Art Work through the Website if such Art Work (i) is defamatory, obscene, pornographic, vulgar, offensive or against the public policy of India; (ii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iii) is violent or threatening or promotes violence or actions that are threatening to any Person; (iv) harms minors in any way; or (v) promotes illegal or harmful activities or substances.
(b) Maintain Online Presence: Sellers will register, maintain an online presence and have an independent profile page on the Website in a form and manner acceptable by 404 Gallery.By virtue of registering on the Website, Sellers will have access to Content Management System (“CMS”) to manage its online profile and Art Works, and to keep track of any orders received. 404 Gallery shall facilitate provision of CMS to a Seller upon such Seller registering itself on the Website. 404 Gallery may also maintain, upgrade and enhance such CMS from time to time, as it may deem fit.
(c) Pricing the Art Work: Subject to Section 7.4(a)(iii), the Seller will choose the amount of Listed Price. The Seller may edit and/or update the Listed Price from time to time provided such updated price is at par with the fair market value of the Art Work. Listed Price shall not be revised for an Art Work if order for sale of such Art Work has been received on the Website.
(d) 404 Gallery Marks: 404 Gallery may grant to a Seller a non-exclusive, royalty-free, limited license to use, display and reproduce the trademarks, service marks, logos and/or any other such marks of 404 Gallery as 404 Gallery may notify to the concerned Seller from time to time in writing at its discretion (“404 Gallery Marks”). The 404 Gallery Marks shall be used solely in connection with such purposes as may be communicated in writing by 404 Gallery to the concerned Seller. Sellers acknowledges that 404 Gallery is the sole and exclusive owner of 404 Gallery Marks and 404 Gallery may at any time, immediately and without advance notice prohibit any User from using any of the 404 Gallery Marks for any reason.
(e) Display Information on Website: Each Seller will display, with regard to each Art Work a descriptive information including name, size, details of Art Work and availability status of Art Work, as and when requested for by 404 Gallery through its Website or otherwise. Once order for sale of an Art Work has been received, then any information provided by a Seller with regard to such Art Work on the Website cannot be altered. However, a Seller may alter the information with regard to an Art Work if no order for sale of such Art Work has been received.
(f) Adequacy and Accuracy of Information: Each Seller shall ensure that all the information and data requested for by 404 Gallery from such Seller is promptly provided within the requested timelines and is accurate, adequate and updated. Sellers shall verify the details of each Art Work proposed to be displayed, marketed and/or sold through the Website and will inform 404 Gallery in writing if any discrepancy is found in or change is required to be made to such details within 24 (twenty four) hours of such discrepancy being brought to the Seller’s knowledge.
(g) Sale of Art Work: Sellers are responsible for completing the sale orders received through the Website and dispatching the concerned Art Work within promised timelines. Sellers will not dispatch any Art Work if 404 Gallery has cancelled such order for any reason within a reasonable time of the order being placed.
(h) Delivery, Packaging and Insurance Costs: Sellers will be responsible for and pay the costs for use of adequate material for proper packaging and timely delivery of Art Work and insurance costs with respect to Art Work required to be delivered to a Buyer. Such costs shall not be paid and/or reimbursed by 404 Gallery (either to the Buyer or to the Seller) for any reason and may be taken into account by the Seller while deciding the Listed Price. It will be the Seller’s responsibility to ensure that all Art Work ordered through the Website is securely packaged, neatly labelled and adequately insured for safe and timely delivery to the concerned Buyer.
(i) Delay in Delivery: Should a Seller become aware of any reason which may cause a delay in delivery of an Art Work, seller will notify 404 Gallery immediately of such reason and expected delay time. On being so notified, 404 Gallery may attempt to contact the concerned Buyer and/or offer a refund with regard to such sale of the Art Work and/or cancel the order with respect to such Art Work, if so requested by the Buyer. The Seller, and not 404 Gallery, is responsible for any orders that may be delivered to an incorrect address or for loss or damage of any Art Work in transit while being delivered.
(j) Exclusivity: Sellers may market or sell their Art Work through any other channels (not engaged in a business similar to business of 404 Gallery) provided that this shall not affect timely delivery of an Art Work once order for sale of such Art Work has been received through the Website. In case an Art Work is sold through another channel (not engaged in a business similar to business of 404 Gallery) the Seller shall immediately remove such Art Work from sale on the Website and within no later than 30 (thirty) minutes from the time of sale through another channel.
For avoidance of any doubt, it is hereby clarified Seller will not sell any Art Work displayed, marketed and/or listed for sale on the Website through any third party online marketplace or e-commerce platform. Sellers may sell other art works (not displayed, marketed or listed for sale on the Website) through third party online marketplaces and e-commerce platforms.
Subject to this Section 7.3(j), if a Seller is selling its Art Work displayed, marketed and/or listed for sale on the Website through other channels, Seller shall maintain parity in pricing of such Art Work on the Website, without any malafide intention.
(k) Non-compete and Non-solicit: Sellers will never, directly or indirectly, (i) solicit or attempt to solicit, induce or recruit, engage or in any other way encourage employees or consultants of 404 Gallery, its subsidiaries, divisions, or affiliates to terminate their respective contracts with 404 Gallery and/or engage with itself and/or any third party; or (ii) engage in any activity which is same or similar to the business of 404 Gallery.
(l) Authenticity of Art Work: Sellers will ensure that all Art Work proposed to be displayed, marketed and/or sold through the Website, is authentic and is accompanied by a valid Authenticity Certificate. No Art Work proposed to be displayed, marketed and/or sold through the Website should be fake or infringing, misappropriating or violating any third party’s patent, copyright, trademark, moral rights or other intellectual property rights or rights of publicity or privacy, or results in violation of any applicable law.
(m) Damaged Art Work and Return: Sellers will be responsible and liable for retrieval of any Art Work that is delivered in a damaged condition and/or that is not as described on the Website. Seller shall bear all the costs of and/or arising from such damaged and/or improper Art Work and retrieval thereof from the concerned Buyer.
(n) Payments: Seller will be entitled to pay to 404 Gallery an amount equal to certain percentage(such percentage to be agreed by 404 Gallery and Seller in a separate written agreement on a case by case basis)of Listed Price against each Art Work sold through the Website (“Commission”) plus such service tax per transaction as may be applicable (“Service Tax”).On completion of a transaction, such amount shall become due and payable to the Seller by 404 Gallery as calculated by deducting applicable Commission plus Service Tax from the Listed Price. Listed Price will be paid by the Buyer to 404 Gallery on placing the order for delivery of an Art Work through the Website.
(o) Limitation of Liability: In the event a third party raises any allegation in relation to copyright, sale right and/or authenticity of an Art Work listed by a Seller on the Website, 404 Gallery will have no liability in this regard, and if a third party chooses to take any action against 404 Gallery, then Seller will indemnify and hold harmless 404 Gallery against any such action in addition to damages for financial and reputational loss suffered by 404 Gallery.
7.4 404 Gallery shall play the following role and have the following rights with respect to provision of Services:
(a) Accept or Decline Art Work: 404 Gallery may accept or decline display, marketing and/or sale of any Art Work proposed to be displayed on the Website, at its sole and absolute discretion. 404 Gallery may decline the display, marketing and/or sale of Art Work, inter alia, if: (i) the image of the Art Work uploaded by the Seller does not meet the standards set by 404 Gallery; (ii) the Art Work is not accompanied by complete and/or clear details, including an Authenticity Certificate, back image, history, price, category, shipping condition, size or medium of Art Work or any other details requested by 404 Gallery; (iii) the Listed Price (as defined hereinafter) quoted by Seller, in the opinion of 404 Gallery, is not fair or is not in line with current pricing trends in the market; (iv) the Art Work is not as per these Terms or is not suitable for display, marketing and/or sale in the opinion of 404 Gallery; or (v) the Authenticity Certificate with regard to a particular Art Work is not acceptable to 404 Gallery due to any reason.
(b) Promotion of art and Art Work: 404 Gallery may feature any Users or any Art Work in any curation, assortment, marketing story or other social media content on the Website and make press releases to give due credit to requisite Users. 404 Gallery may also engage with specific Users in joint online activities, like brand creation, brand promotion, online exhibitions, sale and discounts.
(c) Non-Exclusivity: 404 Gallery has a right to engage with multiple Users at the same time for provision of Services or some part of Services or for engagement in same or similar activity.
(d) Prohibit Access: 404 Gallery reserves the right to, at its sole and absolute discretion, deactivate any User’s account on the Website and block any User’s access to CMS upon a material violation of this Agreement by such User. 404 Gallery also reserves the right to block or suspend the use of Website, Content, or Services at any time for any reason. 404 Gallery shall use best efforts to give a reasonable notification of such prohibition to the concerned User.
(e) Seller Marks: Sellers grant to 404 Gallery a non-exclusive, royalty-free, limited license to use, display and reproduce the trademarks, service marks, logos and/or any other such marks of the Seller (“Seller Marks”). Seller Marks shall be used by 404 Gallery solely in connection with provision of Services and promotion of art and Art Work and in such other form and manner as may be reasonably acceptable to the concerned User. 404 Gallery acknowledges that the concerned Seller and not 404 Gallery is the sole and exclusive owner of Seller Marks.
(f) Content License: Users hereby grant to 404 Gallery and 404 Gallery hereby accepts a worldwide, non-exclusive, royalty-free, sub licensable, limited license to use any Content uploaded by the User on Website for using the Services or otherwise. For avoidance of any doubt, ownership of all Content uploaded by the User on the Website shall rest with such User and 404 Gallery shall use such Content only for limited purposes as agreed herein.
(g) Information regarding Orders: 404 Gallery will inform the Sellers of any orders received for the sale of an Art Work displayed by such Seller through the Website. 404 Gallery shall also inform the Seller in case such order has been cancelled or modified and should not be dispatched by the Seller due to any other reason. It is the Seller’s duty to be active in all sorts of communication with 404 Gallery and respond to all the e-mails and/or messages received from 404 Gallery within 1 (one) working day of receipt of such e-mails and/or messages.
(h) Marketing and Promotion: 404 Gallery shall use its best efforts to: (i) drive traffic, customers and Buyers to Seller’s profile and other online pages and Art Work on the Website and promote the Seller on the Website, social media pages of 404 Gallery and/or to its registered Users; (ii) extend reasonable discounts and offers to Users on a particular Art Work and/or Seller from time to time, as it may deem fit; (iii) undertake public relation activities, jointly with a Seller, from time to time, wherein the Seller or a spokesperson of the Seller may be invited by 404 Gallery to give a quote or speak to the media about experience with 404 Gallery; (iv) promote the Sellers on the Website through curations, assortments, exhibitions, discounted sale or offering other discounts on the Website.
(i) Open Edition Prints and Reproductions: 404 Gallery shall have a right to reproduce and reprint such Art Work for which the concerned artist has granted printing rights. The size and price of the prints may vary from painting to painting and from time to time. Open edition prints may be printed on paper or canvas by high quality printing machines and shipped directly by 404 Gallery without being accompanied by any Authenticity Certificate, as this work is a reproduction.
Such prints may be rolled and packed in protective cylinders for shipping through a reliable courier. One a print order has been received by 404 Gallery, the transaction will be automatically closed within 2 (two) days of delivery, and no complaints whatsoever will be entertained thereafter. Any prints received in an unsatisfactory condition may be brought to the attention of 404 Gallery at the time of delivery. In such a case, 404 Gallery may replace the prints with a fresh copy or issue a credit note to the Buyer.
8.1 Each User is bound by the Agreement from the time such User commences using the Services till the time such User ceases to use Services. All the rights and obligations of Users under this Agreement, which either expressly or by their nature survive the termination of this Agreement (such as 404 Gallery’s right to be indemnified, non-compete, non-solicit), will not be extinguished by termination of this Agreement.
8.2 User may terminate this Agreement by ceasing access to Services in any manner, including disabling access to Registered Services. 404 Gallery may terminate this Agreement with respect to any User by suspending or permanently barring access to Services.
8.3 404 Gallery reserves the right to terminate Users’ access to Services or any part of Services, at any time if:
(b) such User does not pay the requisite cost of using such part of Services which is not provided by 404 Gallery free of cost;
(c) a third party (if any) with whom 404 Gallery offers Services has terminated its relationship with 404 Gallery or ceased to offer the related services to 404 Gallery or to such User;
(d) provision of Services or any part of Services is no longer commercially viable or feasible for 404 Gallery;
(e) 404 Gallery believes that such User is a repeat infringer of the terms of this Agreement; or
(f) 404 Gallery is required to terminate this Agreement by applicable law, Government order or order of a court with requisite jurisdiction.
8.4 Upon termination of this Agreement with respect to a User, all the legal rights, obligations and liabilities that such User and 404 Gallery have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and shall continue to apply to such rights, obligations and liabilities indefinitely.
9 INTELLECTUAL PROPERTY RIGHTS AND DATA OWNERSHIP
9.1 Use of Services shall, at all times, be governed by and subject to the applicable laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property and Users agree to abide by such laws. A User shall solely be responsible for any violation of any law or for any infringement of any intellectual property rights caused by such User’s use of Services.
9.2 The User shall retain ownership of any intellectual property rights that such User holds with respect to any Content that such User displays, uploads, submits, stores or sends through the Services. Users shall ensure that they have the necessary rights to grant 404 Gallery the license with respect to Content as specified in Section 7.4(f) and Section 9.3 of this Agreement.
9.3 When a User uploads, submits, stores or sends any Content to or through the Services, such User gives 404 Gallery including, 404 Gallery’s employees, agents, consultants, as the case may be) a worldwide license to use, copy, transmit, host, store, reproduce, modify, create derivative works of, communicate, publish, publicly perform, publicly display, print, edit, translate, reformat and distribute such Content. The rights Users grant in this license are for the limited purpose of operating, promoting, and improving Services, and to develop new services. This license shall continue to operate even if a User stops using Services.
9.4 Unless specified to the contrary and subject to applicable law, ownership of all intangible and/or intellectual property developed or existing (including any data generated as a result of Services) shall ab initio rest with 404 Gallery. Nothing in these Terms shall be construed as granting of any implied licenses by 404 Gallery and all rights not expressly granted to a User are reserved solely by 404 Gallery unless specified otherwise.
9.6 Users acknowledge that certain underlying technology or software used by 404 Gallery in connection with Services and certain Content displayed on Website may contain rights of a third party and for use of any such third party’s intellectual property, Users may need to get permission directly from the owner of such intellectual property. All third parties owning any intellectual property have a right to take appropriate actions against any User for any violation, infringement or passing off by such User.
9.7 404 Gallery respects the intellectual property rights of Persons and does not hold any responsibility for any violations of any intellectual property rights by Users.
10.2 Users are responsible for maintaining the confidentiality of passwords associated with any device or online accounts that Users use to access Services. Accordingly, a User is solely responsible for all activities that occur with use of such Users’ online account or device. If a User becomes aware of any unauthorized use of its online account of device, such User will immediately notify the relevant authorities of the same.
11 LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1 Use of Services and/or Content is entirely at User’s own risk and 404 Gallery shall not be liable for any direct, indirect, incidental, consequential, special, exemplary, punitive, monetary or any other damages, fees, fines, penalties or liabilities whatsoever arising out of or relating to a User’s use of Services.
11.2 404 Gallery shall make reasonable efforts to make the Services available to Users in the best possible manner. However, a User may cease from accessing the Services if such User is not satisfied with Services.
11.3 Users agree and understand that Website may be accessed by multiple Users who or which act as Buyers and Sellers. Users acknowledge that Services only include providing an online platform for displaying, marketing, buying, selling and promoting art and Art Work. Any sale transaction made between a Buyer and a Seller shall constitute an agreement of sale between such Buyer and Seller and 404 Gallery shall have no liability with respect to quality, appropriateness, merchantability, authenticity and accuracy of the goods sold or the delivery, delivery condition, packaging and insurance costs associated with the goods sold through the Website. 404 Gallery, by providing the Website, does not constitute an institution of agency with any of its Users and 404 Gallery’s relationship with each and every individual User shall be on a principal to principal basis. Please refer to Section 7to access and understand the roles and obligations of Users and 404 Gallery in relation to provision of Services by 404 Gallery.
11.4 Users shall defend, indemnify and hold 404 Gallery, and 404 Gallery’s officers, directors, employees, representatives, consultants and agents harmless from and against any claims, actions, demands, liabilities, judgments, and settlements, including without limitation, reasonable legal fee that may result from or alleged to result from (a) such User’s access to or use of the Services; (b) such User’s breach of any rules, regulations and/or orders under any applicable law; or (c) such User’s breach of any obligation under this Agreement.
11.5 Each User is responsible for any breach of its obligations under the Agreement and/or for the consequences of any such breach.
12 NO WARRANTIES
12.1 404 Gallery disclaims all warranties in relation to access to or provision of Services, whether express or implied, including but not limited to:
(a) Services being constantly available or available at all;
(b) Services being successfully executed in all cases;
(c) Services being always functional without any disruption, delay or error;
(d) User’s ability to use the Services, directly or indirectly;
(e) Users’ satisfaction with the Services;
(f) the accuracy of the data provided in the course of Service;
(g) the security and privacy of each User’s data;
(h) that all bugs or errors in relation to Services will be fixed or corrected;
(i) that Website will be compatible with all devices, all networks and all browsers;
(j) that use of Services is fit for a particular purpose or use, except as provided herein; or
(k) that Services and Contents is accessible in every location.
12.2 404 Gallery, 404 Gallery’s officers, directors, employees, affiliates and agents and any other service provider responsible for providing Services in connection with this Agreement will not be liable for any acts or omissions, including of a third party, and including those vendors participating in 404 Gallery’s offerings made to Users, or for any unauthorized interception of data or breaches of this Agreement attributable in part to the acts or omissions of third parties, or for damages associated with 404 Gallery, or equipment that it does not furnish, or for damages that result from the operation systems, equipment, facilities or services provided by third parties that are interconnected with 404 Gallery.
13 GOVERNING LAW AND DISPUTE RESOLUTION
13.1 The Services may be provided from and the Website may be controlled and operated from and through any country and may be subject to the laws of that country. When a User accesses the Services from any location, then, the User is responsible for compliance with the local laws applicable to such User.
13.2 This Agreement shall be governed by and shall be construed in accordance with the laws of India. All disputes relating to this Agreement shall be settled in the courts located at Delhi, India.
13.3 Any cause of action arising out of a User’s use of Services must be commenced within 30 (thirty) days after (a) when such cause of action accrues; or (b) such User becomes aware of the facts giving rise to the cause of action, whichever is later, else, such cause of action shall be permanently barred.
14.1 404 Gallery may post notices within the Website or send Users notices on the registered e-mail address or the telephone numbers as shared by the Users with 404 Gallery. Users will deemed to have received such notices, if sent via e-mail, within 24 (twenty four) hours of 404 Gallery sending the notice. Use of Services by any User after expiry of 3 (three) days from the day notice was sent, shall constitute receipt and acceptance of the notices sent to the User.
15.1 The information, software, products, and services forming parts of the Services have been contributed by various Users and may include inaccuracies or typographical errors. Any advice received or inferred via the Services should not be relied upon by the Users for any personal, legal or financial decisions and Users should consult an appropriate professional for tailored advice, specific to such User’s situation.
15.2 404 Gallery shall not be responsible for viruses, worms, trojan horses, and other harmful or destructive Content. The Website may contain Content that is offensive, indecent, or otherwise objectionable. The Website may also contain Content that infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to certain additional terms and conditions, stated or unstated. 404 Gallery disclaims any responsibility for any harm resulting from the use of the Website, or from any downloading of Content posted on the Website.
Last Updated on : 7th September 2016