The adherence to the terms and conditions hereinafter constitutes the agreement (the “Agreement”) that made as of this ___ day of _____, 2017 (the “Effective Date”) by and between:
Rakesh Tiwari, an Artist and having his work location at Q-76, South City 1, Gurgaon 122001, Haryana, India, hereinafter referred to as the “Artist”, (the expression unless repugnant to the context shall include his representatives, successors and assignees)
You , hereinafter called the “Buyer”, the expression unless repugnant to the context shall include its employees, successors guardians and permitted assigns) of the second part
.These terms and conditions of sale shall govern the Buyer’s Transactions relating to the Work(s) of Art from the site rakeshtiwari.net, and all other URLs forming part thereof (hereinafter referred to as “the Sites”).
The Sites host the collections of Work(s) of Art online and is a platform for the purchase of paintings, graphics, photographs and illustrations. The Buyer on seeing a specimen of the Work(s) of Art on the Site is interested in the purchase thereof through the Internet.
Artist is in the physical possession of his Work(s) of Art and his role is to that of a platform for the display and sale of the Work(s) of Art created by him to the Buyer.
These terms and conditions shall apply on the sale of the Work(s) of Art of the Artist to the buyer through the Sites
The Buyer must read, agree with and accept all of the terms and conditions contained in this document.
Clause 1: Definitions
1.1 “Buyer” means the individual above eighteen years of age or legal entity whose order for the Work(s) of Art is accepted by Artist;
1.2 “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Artist.
1.3 “Transactions” refer to online offers, acceptances of sale made and/or entered into by the “Buyer”, for professional or non-professional purposes, in his name and for his account or in the name or for the account of another individual or entity.
1.4 “Writing” includes email, telex, cable, facsimile transmission and any other comparable means of communication, and “written” shall be construed accordingly;
1.5 “Work(s) of Art” means the Work(s) of Art (including any installment of the Work(s) of Art or any parts for them) which Artist is to supply in accordance with these Conditions.
Clause 2: Online Order
2.1 To effectuate a purchase of a Work(s) of Art on seeing its displayed specimen on the Site, Buyer shall be responsible for disclosing information including inter alia contact details and address. The Buyer understands that the second step involved in completing the online purchase relates to furnishing details for online payment which may include payment through credit card, debit card, online banking or cash card. Buyers shall eventually accept a confirmation page.
2.2 Work(s) of Art presented on this website as an invitation to treat only and the availability of these Work(s) of Art is subject to the confirmation by Artist;
2.3 Artist shall ensure that all such data are communicated through secure web channel. Artist shall use appropriate technical means to allow buyers to spot and correct errors made while filling out the order forms. Artist shall take adequate steps to store order forms and any relevant document relating the sales transactions.
2.4 The Buyer understands that any contract of sale shall only be deemed entered into between Artist and Buyer after checking the availability of the Work(s) of Art. Any order confirmation email sent by Artist or the confirmation page itself shall therefore not be deemed to amount to a legal offer.
2.5 Notwithstanding the terms and conditions contained herein, no presentation of any product and/or service shall be deemed to amount to a legal offer.
2.6 Unless otherwise provided, the Buyer’s use of the Sites is subject to these terms and conditions and shall be deemed entered into in the country and at the place of Artist’s principal establishment, i.e. Gurgaon, Haryana, India.
2.7 The Buyer is advised to read these Conditions carefully and print a copy for future reference. The Buyer’s submission of an order indicates the Buyer’s acceptance of these Conditions as the exclusive terms of the Contract. If the Buyer wishes to vary these Conditions, the Buyer must not place an order through this website, but should instead contact Artist at the address given in the introductory paragraph. No variation to these Conditions will be binding unless agreed in a writing signed by the duly authorized representatives of the Buyer and Artist respectively.
2.8 The Buyer is advised to review the Conditions prior to placing each order as Artist may modify the Conditions from time to time. The version of the Conditions posted on the Site at the time that the Buyer places an order will apply to that order unless otherwise agreed in a writing signed by duly authorized officers of the Buyer and Artist respectively.
2.9 Artist’s employees or agents are not authorized to make any representations concerning the Work(s) of Art unless confirmed by Artist in writing. On accessing these Sites, Buyer acknowledges that it does not rely on and waives any claim for breach of, any such representations which are not so confirmed.
2.10 Any advice or recommendation given by Artist or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Work(s) of Art which is not confirmed in writing by Artist is followed or acted upon entirely at the Buyer’s own risk, and accordingly Artist shall not be liable for any such advice or recommendation which is not so confirmed.
2.11 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Artist either in hard copy or any electronic medium shall be subject to correction without any liability on the part of Artist. Artist shall take all reasonable steps to bring any such correction to the Buyer’s attention.
2.12 Artist will retain a copy of these Conditions and each order accepted by Artist in either electronic or paper form for one year after receipt of such order.
Clause 3: Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by Artist unless and until an invoice to the same effect is issued by Artist or Artist’s authorized representative.
3.2 The Buyer shall be responsible to Artist for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Artist any necessary information relating to the delivery of the Work(s) of Art within a sufficient time.
3.3 No order which has been accepted by Artist may be cancelled by the Buyer except with the agreement in writing of Artist and on terms that the Buyer shall indemnify Artist in full against all loss, damages, charges and expenses incurred by Artist as a result of cancellation.
3.4 The Work(s) of Art may vary in accordance with normal trade tolerances from the specifications and specimens provided on the Site and the Buyer shall not be entitled to make any claim against Artist in respect of any such variations
3.5 Notwithstanding that a specimen of Work(s) of Art be exhibited to and inspected by the Buyer, such specimen so exhibited or inspected is solely to enable the Buyer to judge for itself the quality and the features of the Work(s) of Art, and not so as to constitute a sale by sample. The Buyer shall take the Work(s) of Art at its own risk as to their corresponding with the said specimen, and subject to the normal variation between the Work(s) of Art and specimen accepted by the trade. The Buyer understands that the Work(s) of Art are in the physical possession of Artist, however, Artist is not under an obligation to provide a physical preview of the Work(s) of Art and is no way liable for the Work(s) of Art.
3.6 Once an order is placed on the Website, the Work(s) of Art should be received from the Artist within two to four working days of Artist having received the payment from the customer. Thereafter Artist would dispatch the Work(s) of Art to the Buyer within seven to fourteen working days. However, the time mentioned for the delivery of goods from Artist to the Buyer may vary. The time frame is only indicative not binding since the Artwork is processed one final time before delivery due to which the Work(s) of Art may take longer time to be delivered to the Buyer. Artist shall not be responsible and shall not be held liable for any delay in delivery of the ordered Work(s) of Art. Provided the delivery of the Work(s) of Art should not exceed thirty days from the date of placing. Artist undertakes to take all reasonable steps to ensure that the Work(s) of Art is/ are delivered on time.
3.7 Artist will send to the Buyer an electronically generated invoice once the Buyer’s order has been received. Artist is not liable for any charges that may be levied at the destination whether in India or overseas.
Clause 4: Price
4.1 The price of the Work(s) of Art shall be the price quoted by the Artist and published on the Website. Artist reserves the right to quote the price of the Work(s) of Art.
4.2 Artist shall not be responsible for any change or increase in the price of the Work(s) of Art which is due to any factor beyond the control of Artist including without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of shipment, insurance etc.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Artist and unless otherwise agreed in writing between the Buyer and Artist, all prices are given by the Artist, and the costs of shipment and insurance pertaining to the delivery of the Work(s) of Art to the Buyer is to borne by the Buyer either separately or included in the cost of the Work(s) of Art. On receipt of the Buyer’s order, Artist shall be responsible for ensuring that the Work(s) of Art is delivered to the Buyer in a timely manner and in an acceptable condition.
Clause 5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and Artist, Artist shall be entitled to invoice the Buyer for the price of the Work(s) of Art after confirming its availability within seven (7) days from the date of which the Order is placed by the buyer.
5.2 The Buyer shall pay the price of the Work(s) of Art debit card or net banking or credit card or any other mode of payment as specified on the Website at the time of placing the Order. Subsequent to such payment being made and order being placed, Artist shall have the sole responsibility to confirm the availability of the Work(s) of Art as per the manner laid down in Clause 5.1.
5.3 If the Buyer fails to make any payment at the time of the placement of the Order or rescinds it before three (3) days from the date of the placement of the Order, then there is no obligation on Artist to determine the availability of the Work(s) of Art. On the other hand, if the Buyer has furnished the payment and the same has been realized by Artist, i.e, the said payment is credited in the bank account designated for Artist, then Artist shall be responsible for returning the said payment within twenty five (25) days of the Order being placed if the Artist is unable to procure the Work(s) of Art or to deliver it to the buyer for any reason, (except what constitutes Force Marjeure under Clause 9), including but not limited to unavailability of the Work(s) of Art, theft, disparagement or damage of the Work(s) of Art during transit, incurable defect in the title or the physical Work(s) of Art.
5.4 It is understood by both the Parties that Artist’s obligation to dispatch the Work(s) of Art shall only arise when the payment for the same has been realized, i.e. the said payment is credited in the bank account designated for Artist. If the Buyer has failed to comply with any of the terms or the full payment has not been realized due to any reason including but not limited to reversal of instructions to the credit card company, credit card being stolen, lack of authenticity of the Buyer, failure by Buyer to make any payment due hereunder, then without prejudice to any other right or remedy available to Artist, Artist shall be entitled to:
(a) Cancel the purchase or suspend any further purchases made by the Buyer;
(b) Demand payment of all outstanding balances whether or not due and/or cancel any outstanding orders from the Buyer;
(c) Appropriate any payment made by the Buyer to such of the Work(s oArt (or the Work(s) of Art supplied under any other contract between the Buyer and Artist) as Artist may think fit (notwithstanding any purported appropriation by the Buyer); and
(d) Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four (4) per cent per annum, until payment in full is made.
5.5 If the following enumerated points apply then, without prejudice to any other right or remedy available to Artist, Artist shall be entitled to cancel or suspend any further deliveries without any liability to the Buyer, and if under any circumstances the Work(s) of Art have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and if any of the Work(s) of Art have not been delivered, Artist may sell the Work(s) of Art at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price or charge the Buyer for any shortfall below the price.
(a) The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
(b) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(c) The Buyer ceases, or threatens to cease, to carry on business; or
(d) Due to any other circumstances, there is no realization of payment, i.e., the said payment is credited in the bank account designated for Artist..
(e) Artist reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notified the Buyer accordingly.
5.6 Artist retains the right to retain title and ownership of materials and Work(s) of Art until Artist receives payment from Buyer for said materials.
5.7 Notwithstanding anything contained herein, Artist does not offer the exclusivity of the Work(s) of Art at any point of time to the Buyer.
5.8 The Buyer acknowledges that Artist exercises reasonable diligence and prudent care regarding all aspects of the website including inter alia the Work(s) of Art uploaded on the Website, the authenticity of the Work(s) of Art, credentials and the authenticity of the affiliates of the Website etc. The Buyer acknowledges that the Artist is solely responsible for the delivery of the Work(s) of Art and its authenticity. Any certificate regarding the authenticity of the Work(s) of Art can be obtained from the Artist along with the Work(s) of Art if the same is indicated at the time of payment.
Clause 6: Cancellations and Return
6.1 Work(s) of Art received in an unsatisfactory condition by the buyer may be returned to the Artist within 2 working days in an ‘as is’ condition. In such a case Artist will refund the payment to the buyer and cancel the order. However, the unsatisfactory condition will only be covered for if the Work(s) of Art is substantially different from the one displayed on the Site, and NOT because the buyer did not like the artwork he has purchased. Artist does not take the responsibility of damage caused by the shipping company as it is not in control of the artist, for this Artist will ensure sending a picture of the image before packing, while packing, and after packing in excellent condition to the buyer. The shipment will be insured by the artist for the buyer to claim any damages in case due to any reason not in the hands of artist, or due to the responsibility of artist, the artwork is damaged in transit. This claim will be made by the buyer with the insuring company, to recover their loss. The artist shall not be held responsible for any claims to be made, or in case the insurance company finds any discrepancy with the claims of the buyer and refuses to refund the full amount to the buyer. The buyer indemnifies the Artist from any such claims to be made to the insurance company.
Clause 7: Force Majeure
7.1 In the event that Artist is prevented from carrying out its obligations under a contract for sale as a result of any cause beyond its control such as but not limited to Acts of God, War, Strikes, Lock-outs, Flood and Failure of third parties to deliver the Work(s) of Art, Artist shall be relieved of its obligations and liabilities under such contract for sale for as long as such fulfillment is prevented.
Clause 8: No Waiver
8.1 Artist’s failure to insist upon strict performance of any provision of these Conditions shall not be deemed to be a waiver of its rights or remedies in respect of any present or future default of the Buyer in performance or compliance with any of these conditions.
Clause 9: Limitation of liability
9.1 To the full extent permitted by law, Artist shall not be liable to buyer or any other person or entity for, and buyer releases Artist from any and all liability for negligence by Artist with respect to any activity engaged in by Artist with regard to the Work(s) of Art. Artist shall not, under any circumstances including, but not limited to, delay in delivery, breach of contract, breach of warranty, negligence, tort, strict liability, or use of materials sold or processed by Artist, be liable to buyer or any other party for any special, incidental, indirect or consequential damages, including but not limited to loss of profits, loss of turnover, loss of savings, loss of business, loss of clientele, loss of data, third-parties’ claims or claims for labor. To the extent not prohibited by law, in no event shall Artist’s liability for defective material sold to buyer exceed the purchase price thereof.
9.2 Except as specifically set forth in these terms and conditions, and notwithstanding any language in this or any other provision to the contrary, the warranties referred to herein are in lieu of all other warranties, express or implied; Artist disclaims specifically the implied warranties of merchantability, fitness for a particular purpose, for hidden/latent defects, or otherwise. No representations or warranty, express or implied, made by any sales representative or other agent or representative of Artist which is not specifically set forth in these terms and conditions shall be binding upon Artist.
Clause 10: Intellectual Property & Copyrights
10.1 The copyright or any other Intellectual Property Rights subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programmes or any other material prepared by the Artist whether readable by humans or by machines shall belong to the Artist absolutely and they shall not be reproduced or disclosed or used in their original or translated form by the Buyer without the Artist’s written consent for any purpose other than that for which they were furnished. The Copyrights to the Work(s) of Art shall always remain with the Artist to resell digital copies of Work(s) of Art or reuse the digital copy in any way whatsoever deemed necessary by the Artist. The Buyer on purchasing the Work(s) of Art, does not have the right to copy or duplicate or reuse the Work(s) of Art for any commercial gains of any nature in any format, digital or reproduction of any kind whatsoever.
Clause 11: Miscellaneous
11.1 These terms and conditions and sales documentation constitute the entire contract between Artist and Buyer. No modification hereof shall be of any force and effect unless in writing and signed by the party claimed to be bound thereby.
11.2 If any portion of these terms and conditions is declared to be unenforceable by a court of competent jurisdiction, all other portions shall be considered to be valid and enforceable to the extent that they are reasonably severable.
11.3 The headings contained in these terms and conditions are for convenience of reference only and are not intended to have any substantive significance in interpreting this document.
11.4 Subject to the foregoing restriction, these conditions are binding upon and insures to the benefit of and are enforceable by the parties and their respective successors and assigns
11.5 Any notice and other communications provided herein shall be by email and that email receipt is to be acknowledged by Artist and in the event that the delivery fails, notice can be sent to the address provide at the time of registration.
11.6 All notices shall be deemed to have been given validly on:
(a) the date immediately after the date of transmission by e-mail, if transmitted by e-mail, or
(b) the date of receipt, if transmitted by courier.
11.7 Artist assumes no responsibility for the theme of the Work(s) of Art including any moral or religious minds or in any manner as may be contrary to public policy. No claims shall be entertained against the website on the ground that the display of art is defamatory, contrary to public policy, or of any community, group of persons or any law in any country.
Clause 12: Dispute Resolution
12.1 Subject to the terms and conditions contained herein, the Parties shall endeavor to agree and resolve any issues/ matter with differing views, including matters requiring affirmative vote of nominees of the Parties through mutual discussions.
12.2 If the Parties fail to arrive at a settlement within 30 days of such issue being raised by either Party, all such disputes, controversies or claims arising out of or in connection with the terms and conditions contained herein or from agreements resulting there from, or the breach, termination or invalidity thereof shall be exclusively and finally settled by arbitration of a sole arbitrator.
12.3 Authorized representatives of both the Parties shall appoint the sole arbitrator with mutual consent. If the appoint authorities fail to agree upon the name of the sole arbitrator or fail to act upon the request for appointment of an arbitrator within 30 days, then either Party may have the arbitrator appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The place of arbitration shall be New Delhi and for any reference to courts, the Parties agree to submit to the exclusive jurisdiction of courts in New Delhi. The Arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996 or any statutory amendment made thereto. The arbitration proceedings shall be in English. The arbitrator shall record the evidence of the Parties and give a reasoned award. The decision of the arbitrator shall be final and binding on the Parties.
12.4 This document shall be governed in all respects by the laws of India.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND ARTIST. BY MAKING A PURCHASE ON THIS SITE AND/OR CLICKING ON THE “I HAVE READ ACCEPT THE TERMS & CONDITIONS” BUTTON AT THE END OF THIS AGREEMENT OR DURING CHECKOUT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS THEREOF.
© 2017 Rakesh Tiwari, All Rights Reserved