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GTC PRIVATE SALES
Last updated 28 April 2019
1.1 These Terms and Conditions apply to the free use of our website (hereinafter referred to as ARTCRATER) and to all agreements concluded with you as our user (hereinafter referred to as ‘Private Seller’, ‘Art dealer’, ‘Gallery’, ‘User’, ‘Seller’ or ‘Purchaser’) via ARTCRATER. The Terms and Conditions apply to entrepreneurs as defined in Section 14 of the German Civil Code (BGB) (‘Entrepreneur’) as well as to consumers as defined in Section 13 BGB (‘Consumer’). These Terms and Conditions do not apply to purchase contracts concluded on-site at a physical space of ARTCRATER.
Our website is operated under the trademark ARTCRATER by Wurlitzer Architekten GmbH, a German limited liability company with its registered office at Hermann-Löns-Strasse 12, 91413 Neustadt a.d. Aisch, Germany, managing director: Ruth Gudrun Wurlitzer, Registration number: AG Fürth (Bay) HRB 8753,
Postal Address:
ARTCRATER / Wurlitzer Architekten GmbH
Mohrenstrasse 61
10117 Berlin
Germany
(in the following: ARTCRATER)
1.2 By using the website of ARTCRATER (currently available at artcrater.com) you are agreeing to these Terms and Conditions and are hereby entering into a contract with ARTCRATER. This contract is subject to the law of the Federal Republic of Germany. These Terms are the only terms that apply. We will not accept general contractual clauses, which deviate from these.
Communication with you or the provision of services by us will not implicate acceptance of any deviating general contractual clauses.
Please print out these terms as we will not store older contractual terms for you.
To use our services you must have full legal capacity and be at least 18 years old.
1.3 These Terms and Conditions apply, unless an alternating clause has been explicitly made, irrespective of whether you are consumer, entrepreneur or merchant.
2.1 ARTCRATER is an internet platform which allows private sellers, art dealers and galleries (‘User’) to submit artworks for sale and buy artworks . (See Sales of Artworks § 12, Seller Terms and Conditions §13-20 and Purchaser Terms and Conditions § 21-33)
2.2 Private sellers, art dealers and galleries (‘User’) can register and thus have the possibility to sell or purchase artworks.
2.3 For the purpose of sale the private seller/art dealer/gallerist (‘User’) can fill out a form with images and descriptions of artworks on the platform. The artwork will only go online after the explicit permission of the seller. It can be removed at any time on instruction of the seller. Our experts will consult in all concerns if desired, Phone +49 30 2 79 79 444.
2.4 In any sale or purchase of artwork ARTCRATER is never a contract partner. ARTCRATER only provides the platform that makes these transactions possible.
2.5 ARTCRATER reserves the right, at its sole discretion, to modify, discontinue or terminate the site or services or to modify these Terms and Conditions, at any time and without prior notice.
3.1 All intellectual property rights of context on ARTCRATER (including text, graphics, software, photographs and other images, videos, sound, trademarks and logos) are owned by ARTCRATER or the participating parties (private sellers, art dealers, galleries, artists). You acknowledge that you do not acquire any ownership rights by uploading or downloading any information, accessing the website or using the services.
3.2 The contents stored on the ARTCRATER website may not be copied or disseminated or otherwise used or reproduced without the previous consent of the legal owner. This shall also apply to copying using ‘robot/crawler’ search engine technologies or other automatic mechanisms.
3.3 ARTCRATER shall be entitled to block users’ accounts, if it is suspected that a user account is being used in a fraudulent manner or misused in other ways. ARTCRATER will notify the user of the blocking, if the purpose of the blocking is not jeopardized by the notification.
3.4 Our website includes links to external sites, which may include links to further sites. We are not responsible for the content of these sites or for anything provided by them.
We will communicate with you electronically by email. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide you electronically are legally binding, unless applicable laws require a different form of communication.
We take your privacy rights very seriously along to the European General Data Protection Regulation, GDPR. In addition to these Terms, You can find further information on the handling of personal data in our Privacy Policy.
6.1 ARTCRATER strives to always ensure that the website is available to users without interruption and that transmissions are error-free. However, this cannot be guaranteed at all times. Further, access to the ARTCRATER website can be occasionally interrupted or restricted to allow maintenance and servicing to be carried out or to introduce new facilities. ARTCRATER strives to limit the duration and frequency of these temporary interruptions.
6.2 ARTCRATER shall be liable for damage only in the event of intent and gross negligence on the part of ARTCRATER or one of its vicarious agents. If ARTCRATER or one of its vicarious agents breaches a fundamental contractual obligation in a manner that endangers the purpose of the contract, liability shall be limited to the typical damage that ARTCRATER could reasonably foresee at the time of entering into the contract, unless the breach of obligation is intentional or grossly negligent.
6.3 ARTCRATER shall not be liable under section for lack of economic success, loss of profits and indirect losses.
6.4 The limitations of liability shall apply mutatis mutandis to employees, representatives and subcontractors of ARTCRATER.
6.5 Any liability of ARTCRATER for guarantees given and claims under the Sale Liability Act shall remain unaffected.
6.6 ARTCRATER is not liable for any false information found on the site.
6.7 While we do our best to ensure safety for all users, ARTCRATER is not liable for any content. We cannot be held responsible for any user-generated content. You use ARTCRATER at your own risk.
7.1 The participating seller/user is hereby informed that for the publication of the provided photo-material a transfer of rights is required. The participating seller/user hereby confirms that they has the rights to the supplied photographs, and that they irrevocably authorizes the unlimited and unrestricted publication of these unaffected by time or location. You acknowledge and agree that the foregoing image/license rights are granted on a royalty-free basis.
The photographer retains full ownership rights of the image.
7.2 The participating seller/user hereby confirms that no rights of third parties are harmed through the uploaded photos of objects or locations.
The agreement keeps its validity if the website changes its name or holding.
In case of publication(s) the participating seller/user will not make any claims against ARTCRATER or third parties (for example publishing company, provider, Webmaster).
Both contract parties are entitled to store the image material without any limitation in time and location, modified or unmodified and in physical or digital form.
The participating private seller/art dealer/gallerist/(‘user’) is obligated to provide the necessary data completely and correctly and to provide notification of changes without delay. This applies, in particular, to address details and the email address.
The private seller/user shall ensure that his or her content on ARTCRATER do not breach statutory regulations or third party rights.
The private seller/art dealer/gallerist/(‘user’) agrees not to upload any content to ARTCRATER that is of an extremist nature, content that is pornographic, violent or that glorifies violence, racist, discriminatory, harmful to minors or seditious, nor content that incites criminal activity or instructs such acts.
Artcrater acts along to the German Anti-Money Laundering Act.
Each seller and purchaser is identified before the the transaction is permitted. We point out that it is strictly forbidden to transfer unclean money via Artcrater and will inquire in case of doubt.
It is strictly forbidden to offer counterfeit or stolen artworks on Artcrater.
To prevent fake users, Artcrater allows only persons on its website by giving them a membership after registration during we verify the person. The membership can be cancelled at any time without giving a reason.
The participating private seller/art dealer/gallerist/(‘user’) shall compensate ARTCRATER for all damage arising from a breach of the foregoing provisions where the private seller/user is responsible for the breach. The compensation shall also comprise the costs of any necessary legal defence. ARTCRATER shall inform you without delay if a third party assert such claims against them and shall give you the opportunity to respond.
12.1 If you submit artworks to ARTCRATER, you hereby grant ARTCRATER a worldwide, transferable, nonexclusive, right and license, with a right to sublicense, reproduce, distribute, perform publicity and publicly display copies of the artwork or digital work via artcrater.com, and access to view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the artworks or digital works in any form, medium or technology now known or later developed for the purpose of promoting ARTCRATER. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis. If you want to refrain from any publication, you must inform ARTCRATER.
13.1 As a registered and approved seller you may upload artworks on ARTCRATER in order to sell them. When you sell an artwork, you are the sole contractor with the purchaser. ARTCRATER only grants you (‘third parties’) the possibility to offer artworks on artcrater.com and is neither a buyer nor seller of these artworks. Your contract will always be with the buyer. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
13.2 As between you and us, ARTCRATER will not be deemed as the seller of the artworks that are purchased via artcrater.com, but as a platform that implements transition between sellers and buyers on a commission basis as agreed upon via acceptance of these Terms and Conditions between ARTCRATER and the art dealer or private seller selling artwork via ARTCRATER.
13.3 Once a seller decides to make an artwork available on ARTCRATER it must remain on the site for 14 days before the seller can remove it. After this period has elapsed It is up to the discretion of the seller how long an artwork remains on the platform.
13.4 Transaction Restrictions
If you are a private seller/art dealer/gallerist/(‘user’) and have submitted a listing for an artwork to the ARTCRATER website and have been contacted by another user with respect to purchasing either of the foregoing, you may not sell such artworks independently of ARTCRATER. If ARTCRATER is notified of such a transaction, ARTCRATER may decide to refrain from working again with the private private seller/art dealer/gallerist/(‘user’) in this case.
14.1 Only contemporary art shall be sold on ARTCRATER. Contemporary art is the art of today, produced in the late 20th century or in the 21st century.
14.2 The description of the artworks must be truthful. This includes the description of any defects. The seller is liable for inaccurate or incorrect information. Insofar ARTCRATER leaves the description of the goods to the seller for review before publishing the offer.
14.3 The seller shall set a market price. ARTCRATER reserves the right to reject artworks with non-market-based price expectations or to discuss the price at which the artworks can be offered. Please understand that we do not accept artworks under the value of 5000 $.
14.4 Sellers must provide and declare the provenance of the artwork as well as documents of authentication, such as the invoice of the gallery where purchased or a certificate by the artist. Such documents are verified by specialists within the ARTCRATER team prior to any artwork being admitted on the platform. Although ARTCRATER takes great care in examining these documents, ARTCRATER is not responsible for their accuracy and authenticity. The responsibility for this is borne by the seller.
14.5 Defects
ARTCRATER instructs the sellers to indicate possible defects in the description of the offered artwork. Buyers should inspect each item after delivery and can withdraw from the contract along to our policy (See §26).
14.6 Colour
You understand and agree that ARTCRATER displays artworks as they are without editing. However, because individual computer monitors may display colours differently, ARTCRATER is not responsible for the colour accuracy of any artworks, digital works or printed works displayed on the website, and disclaims all liability in this regard.
Artworks over 100000 $ can be inspected on demand by the buyer or their deputy in a viewing room which can be provided by our courier partners worldwide. The return policy of 14 days in case of purchases from a a commercial dealer/gallery starts from the day of the first viewing. The transport costs for the viewing shall be split between seller and buyer, unless otherwise agreed via ARTCRATER. The agreement has to be made in written form.
Artworks under 100000 $ are delivered directly to the purchaser and must be inspected in presence of the courier.
16.1 Once a sale of artworks via artcrater.com has occurred, ARTCRATER will credit your account in an amount to be determined in accordance with ARTCRATER commission terms at time of purchase.
16.2 ARTCRATER takes the following commission fees for the completed sale for artworks:
• 10% for artworks over 20000 $
• 15% for artworks up to 20000 $
The commission is of the net price. The commission is split between seller and purchaser and is due when a sale occurs.
Along to the copyright act, an additional percentage between 0,25% and 4%, with a maximum of 12 500€ of the net price for the resell rights has to be paid to the artist if he/she is still alive or died after 1945. The commission and the resell fee are split between seller and purchaser and are due when a sale occurs.
Percentage to be paid to the artist for their resale rights:
• 4,0% up to 50 000 Euro
• 3,0% from 50 000,01 to 200 000 Euro
• 1,0% from 200 000,01 to 350 000 Euro
• 0,5% from 350 000,01 to 500 000 Euro
• 0,25% over 500 000 Euro
• Maximum 12.500 Euro
16.3 Subject to ARTCRATER receipt of confirmation of delivery and inspection by the purchaser, ARTCRATER will credit the seller’s account with the corresponding payment – deducting commission, resell fee, insurance fee, transport and money transfer costs – following the expiration of the return period.
17.1 Prices of the artworks and additional charges
Prices for shipping are calculated on ARTCRATER once the customer has entered their delivery address. In cases where the delivery address is not with regular transport routes of our courier partners, the shipping amount will be calculated for each individual delivery. The customer must submit a request and we will respond with a shipping amount as soon as possible.
17.2 ARTCRATER works with preferred transport partners and their partners at ICEFAT in order to perform quality shipping worldwide.
17.3 Taxes
Applicable taxes for which you are responsible and which will be separately identified on the buyers receipt, will be added – if due – to the price as soon as the buyer has entered his address. Nevertheless ARTCRATER is not responsible for the correctness of these taxes and the seller must check their accuracy.
As a seller you must be aware that if your amount of sales to a different European country exceeds a certain sum (threshold), (see VAT & Sale Tax), all sales above must be taxed in the country of destination.
17.4 ARTCRATER provides insurance to all purchases via our platform. They cover insurance from ‘nail to nail’ and also the transport back to the seller in case of artwork returns as described in §32. It will be calculated once the transaction is determined. If buyer has their own insurance, please indicate in the shopping cart.
17.5 Shipping
ARTCRATER will commission an art transportation firm to ship the purchased artwork directly to the address given by the buyer. ARTCRATER provides special transportation firms which must be used due to our safety standards and which supply and execute also the packaging.
The Terms and Conditions of ARTCRATER’s current Return Policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTCRATER.
Please read carefully in Purchaser Terms and Conditions §32.
You agree to comply with the terms and conditions of ARTCRATER return policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
The Terms and Conditions of ARTCRATER’s current Damaged Artworks policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTCRATER.
Please read carefully in Purchaser Terms and Conditions §31.
You agree to comply with the terms and conditions of ARTCRATER Damaged Artworks policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
You are the sole and exclusive owner of all artworks you make available on ARTCRATER and you have all rights, licenses, consents and releases that are necessary to grant to ARTCRATER the rights to sell and to publish the artworks. You confirm that the artworks that you make available through ARTCRATER.com use and exploitation thereof as expressed under these terms will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, other intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law.
These Terms and Conditions are valid together with the Sellers Terms and Conditions which you will have to sign during the buying process.
As a registered user you may purchase artworks that are listed on ARTCRATER. When you purchase such an artwork, you are not purchasing the work from ARTCRATER, but from the seller (the private seller/user or another person commissioned by them). ARTCRATER only grants third parties the possibility to offer artworks on artcrater.com and is neither a buyer nor a seller of these artworks. Your contract will always be with the seller. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
22.1 The purchaser must pay for all shipping and handling which is conditional on the order’s value, weight dimensions and shipping destination.
22.2 The listed prices are final for customers from and within the European Union. In case of other countries, they may not include all taxes, especially import taxes and import VAT which will be charged separately by the art transportation firm and you will receive an extra receipt for them.
22.3 The shipping cost and VAT, if due, will be added to an artworks listing and become visible once you have entered a delivery address. Please note, that in case of hard to reach destinations higher transportation price might be required by the seller.
22.4 When you purchase artworks via ARTCRATER you agree to pay the amount via our indicated payment options to the account specified by ARTCRATER (on the website or via email).
22.5 Purchase price, along with shipping and handling charges are immediately payable, without deduction.
22.6 As soon as ARTCRATER has received the payment, the viewing of the artwork (for artworks from 100000 $ upwards, as described in §15) or the shipping (for artworks under 100000 $) will be arranged.
The shipping will take about 10 to 14 days, and in some cases up to 30 days, to China up to 60 days until the artwork arrives at your destination. If you wish express transportation, please advise the seller. This will cause extra costs which you will have to pay in advance.
22.7 If the customer pays with PayPal the transaction will be carried out straight away. If the customer opts to pay by bank transfer they will receive an order information, after which the money transfer has to be executed right away in order to arrive at ARTCRATER within a set period of 7 days.
22.8 ARTCRATER will process your payment and pass the amount to the seller, deducting our commission, transport and insurance costs.
22.9 Bidding on artworks
Sellers have the opportunity to solicit offers for the artwork they have put up for sale. This is not an auction process, just an option of pricing. The seller can wait for a period before accepting an offer.
Bidding is stopped when the artwork has reached a price accepted by the seller. The submission of a bid is binding for the purchase of the artwork if the seller accepts the bid.
23.1 The paid amount will be kept safe at ARTCRATER until the artwork has been approved by the buyer either after inspection in a viewing room or in presence of the courier at the buyer’s destination. After the granted withdrawal period is over the payment is released to the seller.
The goods shall remain the property of the seller until the purchase price is paid in full.
25.1 The presentation and promotion of available artworks on the website does not represent a formalized offer and the prices are subject to change before a binding offer has been made.
25.2 With the consignment of an order through ARTCRATER by clicking the ‘buy’ button you declare a legally binding acceptance of offer.
25.3 You will be given an opportunity to edit your information, check information thoroughly especially information about your delivery address since after this step it cannot be changed.
25.4 ARTCRATER will confirm the approval of your purchase request immediately by e-mail. This e-mail does not mean a declaration of acceptance, unless it explains not only the admission confirmation, but also the acceptance.
25.5 A purchase agreement only comes into existence once we mandate the shipping of the artwork with our distribution partner and you receive a confirmation of this via email (in the following: delivery confirmation).
25.6 The purchased artwork will be shipped directly to you. The Terms and Conditions of ARTCRATER return policy apply to any artworks that you purchase through ARTCRATER..
25.7 In addition to your cancellation right according to § 26 you may cancel your order at any time before consignation of the associated delivery confirmation.
26.1 If the offer comes from a commercial dealer/gallery, you as a buyer have the right to withdraw from your contract of purchase without giving any reason.
a) after 14 days from the inspection day for artworks at a value from 100000 $ upwards
b) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 10000 $ and 100000 $.
c) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 5000 $ and 10000 $.
In the case of a contract relating to multiple goods ordered by you in one order and delivered separately, the period shall begin on the day on which you acquire, or a third party other than the carrier and indicated by you acquires physical possession of the last good. To exercise the right of withdrawal you must inform us (ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany, telephone no. +49 30 2 79 79 444, e-mail sales@artcrater.com) of your decision to withdraw your contract or by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. We will pass the information on to the seller.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
26.2 Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction.
Transport costs to the viewing room and back have to be split between you and the seller unless otherwise agreed in advance via ARTCRATER in written form.
Fees for the money transfer have to be paid by you.
If the artwork was already delivered to you, we will withhold reimbursement until the seller has received the artwork back.
The deadline is met if the transport firm picks up the artwork before the above set period has expired. You will have to pay all costs of returning the artwork.
You are only liable for any diminished value of the artworks resulting from the handling other than what is necessary to keep the nature, characteristics and surfaces of the artworks.
For handling of artwork returns see §32.
End of information on right of withdrawal.
26.3 Model withdrawal form
(Complete and return this form only if you wish to withdraw from the contract. ARTCRATER will pass it on to the seller)
-To ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany telephone no.+49 30 2 79 79 444, e-mail sales@artcrater.com
–I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
–Ordered on (*)/received on (*)
–Name of purchaser(s)
–Address of purchaser(s)
–Signature of purchaser(s) (only if this form is notified on paper),
–Date
______________________
(*) Delete as appropriate.
Shipment takes place worldwide.
If your order is to be sent by more than one transport, it may be the case that you receive a separate delivery confirmation email for each transport. In this instance a separate purchase agreement will come into existence for each of the products.
The purchaser will be contacted by our transportation firm in terms of the delivery date.
If the artwork cannot be delivered out of various reasons, like absence of the purchaser, too narrow doors or staircases, the purchaser is liable for the resulting costs.
IMPORTANT: Check the artwork immediately in presence of the courier when delivered for possible damages as described in § 31.
Although ARTCRATER is not the seller, we provide insurance to all purchases via our platform. It fully covers damages occurring on the transport from ‘nail to nail’ and also the transport back to the seller if an artwork is returned as described in §32. It will be calculated once the transaction is determined. If buyer has their own insurance, please indicate in the shopping cart.
All artworks have to be handled with greatest care. You must be aware that they are irretrievable goods. Don’t touch them with your bare hands, but use special gloves which we provide, or something equally protecting.
Please consider carefully in which condition the artwork is placed; environments that contain high levels of humidity and sunlight are not advised. Changes that occur to the artwork due to exposure to natural elements and the passing of time are not considered defects.
Similarly any damages sustained through inappropriate handling after an artwork has been received are not considered to be a fault of the artwork. Artworks may be fragile and must be handled with the utmost care.
Procedure
Check the artwork immediately when delivered in presence of the courier for possible damages. In case you find a damage, please act as follows:
(a) – Keep the original packaging!
(b) – Take photos of damaged artwork and packaging. Please email these photos immediately to sales@artcrater.com
(c) – Within five days of your artwork delivery date, please email sales@artcrater.com to give us your order information for the artwork return.
We will pass on all information to our insurance and the seller who will contact you.
32.1 Art is not a consumer good and all acting persons have a high responsibility to handle it safely to keep away any danger. For this reason, we cannot leave the choice of the shipper to our customers, but require using our certified transport companies.
You shall send back the artwork by using our designated transport firm or an equally safe shipper without undue delay and in any event not later than
a) after 7 days for artworks between 10000 $ and under 100000 $ from the day on which you communicate your withdrawal from this contract to us.
b) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 5000 $ and 10000 $.
Artworks over 100000$ are treated differently, as pointed out in §15. They are then directly returned from the viewing room to the seller.
32.2 Procedure
(a) Contact us by email at sales@artcrater.com using the withdrawal form, found at §26. Or by phone, on +49 30 2 79 79 444, between 9-18 Monday to Friday (Central European Time) and a member of the ARTCRATER team will assist you. You can return the work without telling us a reason, but we are happy if you give us a hint.
(b) We will send you the courier to handle packing and transport. You will be responsible for all return shipping costs.
(c) ARTCRATER requires the successful return of the good as proof that the buyer has complied correctly with our artwork return policy. Once we are informed of the return by seller, ARTCRATER will return the full amount to the purchaser (artwork cost, VAT and original shipping cost)
32.3 Neither ARTCRATER nor the seller is responsible for undelivered returns.
32.4 The buyer bears the costs for the return shipment.
ARTCRATER reserves the right to cancel any order for an artwork or digital work placed on our website if ARTCRATER determines, in its sole discretion, that the item is mispriced, damaged, already sold, or otherwise unavailable. If ARTCRATER cancels an order, ARTCRATER will send you an email confirmation of the cancellation and you will not be charged for your order.
The EU Commission provides an online platform for online settlements (OS platform). It can be accessed at http://ec.europa.eu/consumers/odr/.
35.1 Deviating business terms and conditions of customer shall not form part of the contract even if ARTCRATER does not expressly dispute their validity.
35.2 Customer may only offset against claims of ARTCRATER or assert a right of retention if its counterclaim is undisputed, a legal title exists or the counterclaim is synallagmatic in proportion to the respective claim in question.
35.3 The law of the Federal Republic of Germany applies under the exclusion of the UN Convention on Contracts for the International Sale of Goods. This does not apply for Consumers with regard to such mandatory consumer rights, which – according to the law applicable if this clause would not exists (which is in general the law of Consumer’s primary residence) – are legally compulsory and cannot be waived by parties‘ agreement.
35.4 Exclusive venue for any and all disputes with regard to this contract is Berlin, provided the parties of the contract are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these Terms and Conditions or permanent or habitual residence is not known at the time the action is filed.
35.5 If individual provisions of this Terms and Conditions are or become ineffective and/or contradict legal provisions, the effectiveness of the remaining Terms and Conditions shall not be affected thereby.
Contacting ARTCRATER:
If you have any questions about these Terms, please contact ARTCRATER at contact@artcrater.com. We will respond to all inquiries
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Last updated 18 April 2019
1.1 These Terms and Conditions apply to the free use of our website (hereinafter referred to as ARTCRATER) and to all agreements concluded with you as our user (hereinafter referred to as ‘Private Seller’, ‘Art dealer’, ‘Gallery’, ‘User’, ‘Seller’ or ‘Purchaser’) via ARTCRATER. The Terms and Conditions apply to entrepreneurs as defined in Section 14 of the German Civil Code (BGB) (‘Entrepreneur’) as well as to consumers as defined in Section 13 BGB (‘Consumer’). These Terms and Conditions do not apply to purchase contracts concluded on-site at a physical space of ARTCRATER.
Our website is operated under the trademark ARTCRATER by Wurlitzer Architekten GmbH, a German limited liability company with its registered office at Hermann-Löns-Strasse 12, 91413 Neustadt a.d. Aisch, Germany, managing director: Ruth Gudrun Wurlitzer, Registration number: AG Fürth (Bay) HRB 8753,
Postal Address:
ARTCRATER / Wurlitzer Architekten GmbH
Mohrenstrasse 61
10117 Berlin
Germany
(in the following: ARTCRATER)
1.2 By using the website of ARTCRATER (currently available at artcrater.com) you are agreeing to these Terms and Conditions and are hereby entering into a contract with ARTCRATER. This contract is subject to the law of the Federal Republic of Germany. These Terms are the only terms that apply. We will not accept general contractual clauses, which deviate from these.
Communication with you or the provision of services by us will not implicate acceptance of any deviating general contractual clauses.
Please print out these terms as we will not store older contractual terms for you.
To use our services you must have full legal capacity and be at least 18 years old.
1.3 These Terms and Conditions apply, unless an alternating clause has been explicitly made, irrespective of whether you are consumer, entrepreneur or merchant.
2.1 ARTCRATER is an internet platform which allows private sellers, art dealers and galleries (‘User’) to submit artworks for sale and buy artworks . (See Sales of Artworks § 12, Seller Terms and Conditions §13-20 and Purchaser Terms and Conditions § 21-33)
2.2 Private sellers, art dealers and galleries (‘User’) can register and thus have the possibility to sell or purchase artworks.
2.3 For the purpose of sale the private seller/art dealer/gallerist (‘User’) can fill out a form with images and descriptions of artworks on the platform. The artwork will only go online after the explicit permission of the seller. It can be removed at any time on instruction of the seller. Our experts will consult in all concerns if desired, Phone +49 30 2 79 79 444.
2.4 In any sale or purchase of artwork ARTCRATER is never a contract partner. ARTCRATER only provides the platform that makes these transactions possible.
2.5 ARTCRATER reserves the right, at its sole discretion, to modify, discontinue or terminate the site or services or to modify these Terms and Conditions, at any time and without prior notice.
3.1 All intellectual property rights of context on ARTCRATER (including text, graphics, software, photographs and other images, videos, sound, trademarks and logos) are owned by ARTCRATER or the participating parties (private sellers, art dealers, galleries, artists). You acknowledge that you do not acquire any ownership rights by uploading or downloading any information, accessing the website or using the services.
3.2 The contents stored on the ARTCRATER website may not be copied or disseminated or otherwise used or reproduced without the previous consent of the legal owner. This shall also apply to copying using ‘robot/crawler’ search engine technologies or other automatic mechanisms.
3.3 ARTCRATER shall be entitled to block users’ accounts, if it is suspected that a user account is being used in a fraudulent manner or misused in other ways. ARTCRATER will notify the user of the blocking, if the purpose of the blocking is not jeopardized by the notification.
3.4 Our website includes links to external sites, which may include links to further sites. We are not responsible for the content of these sites or for anything provided by them.
We will communicate with you electronically by email. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide you electronically are legally binding, unless applicable laws require a different form of communication.
We take your privacy rights very seriously along to the European General Data Protection Regulation, GDPR. In addition to these Terms, You can find further information on the handling of personal data in our Privacy Policy.
6.1 ARTCRATER strives to always ensure that the website is available to users without interruption and that transmissions are error-free. However, this cannot be guaranteed at all times. Further, access to the ARTCRATER website can be occasionally interrupted or restricted to allow maintenance and servicing to be carried out or to introduce new facilities. ARTCRATER strives to limit the duration and frequency of these temporary interruptions.
6.2 ARTCRATER shall be liable for damage only in the event of intent and gross negligence on the part of ARTCRATER or one of its vicarious agents. If ARTCRATER or one of its vicarious agents breaches a fundamental contractual obligation in a manner that endangers the purpose of the contract, liability shall be limited to the typical damage that ARTCRATER could reasonably foresee at the time of entering into the contract, unless the breach of obligation is intentional or grossly negligent.
6.3 ARTCRATER shall not be liable under section for lack of economic success, loss of profits and indirect losses.
6.4 The limitations of liability shall apply mutatis mutandis to employees, representatives and subcontractors of ARTCRATER.
6.5 Any liability of ARTCRATER for guarantees given and claims under the Sale Liability Act shall remain unaffected.
6.6 ARTCRATER is not liable for any false information found on the site.
6.7 While we do our best to ensure safety for all users, ARTCRATER is not liable for any content. We cannot be held responsible for any user-generated content. You use ARTCRATER at your own risk.
7.1 The participating seller/user is hereby informed that for the publication of the provided photo-material a transfer of rights is required. The participating seller/user hereby confirms that they has the rights to the supplied photographs, and that they irrevocably authorizes the unlimited and unrestricted publication of these unaffected by time or location. You acknowledge and agree that the foregoing image/license rights are granted on a royalty-free basis.
The photographer retains full ownership rights of the image.
7.2 The participating seller/user hereby confirms that no rights of third parties are harmed through the uploaded photos of objects or locations.
The agreement keeps its validity if the website changes its name or holding.
In case of publication(s) the participating seller/user will not make any claims against ARTCRATER or third parties (for example publishing company, provider, Webmaster).
Both contract parties are entitled to store the image material without any limitation in time and location, modified or unmodified and in physical or digital form.
The participating private seller/art dealer/gallerist/(‘user’) is obligated to provide the necessary data completely and correctly and to provide notification of changes without delay. This applies, in particular, to address details and the email address.
The private seller/user shall ensure that his or her content on ARTCRATER do not breach statutory regulations or third party rights.
The private seller/art dealer/gallerist/(‘user’) agrees not to upload any content to ARTCRATER that is of an extremist nature, content that is pornographic, violent or that glorifies violence, racist, discriminatory, harmful to minors or seditious, nor content that incites criminal activity or instructs such acts.
Artcrater acts along to the German Anti-Money Laundering Act.
Each seller and purchaser is identified before the the transaction is permitted. We point out that it is strictly forbidden to transfer unclean money via Artcrater and will inquire in case of doubt.
It is strictly forbidden to offer counterfeit or stolen artworks on Artcrater.
To prevent fake users, Artcrater allows only persons on its website by giving them a membership after registration during we verify the person. The membership can be cancelled at any time without giving a reason.
The participating private seller/art dealer/gallerist/(‘user’) shall compensate ARTCRATER for all damage arising from a breach of the foregoing provisions where the private seller/user is responsible for the breach. The compensation shall also comprise the costs of any necessary legal defence. ARTCRATER shall inform you without delay if a third party assert such claims against them and shall give you the opportunity to respond.
12.1 If you submit artworks to ARTCRATER, you hereby grant ARTCRATER a worldwide, transferable, nonexclusive, right and license, with a right to sublicense, reproduce, distribute, perform publicity and publicly display copies of the artwork or digital work via artcrater.com, and access to view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the artworks or digital works in any form, medium or technology now known or later developed for the purpose of promoting ARTCRATER. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis. If you want to refrain from any publication, you must inform ARTCRATER.
13.1 As a registered and approved seller you may upload artworks on ARTCRATER in order to sell them. When you sell an artwork, you are the sole contractor with the purchaser. ARTCRATER only grants you (‘third parties’) the possibility to offer artworks on artcrater.com and is neither a buyer nor seller of these artworks. Your contract will always be with the buyer. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
13.2 As between you and us, ARTCRATER will not be deemed as the seller of the artworks that are purchased via artitious.com, but as a platform that implements transition between sellers and buyers on a commission basis as agreed upon via email between ARTCRATER and the art dealer or private seller selling artwork via ARTCRATER.
13.3 Once a seller decides to make an artwork available on ARTCRATER it must remain on the site for 14 days before the seller can remove it. After this period has elapsed It is up to the discretion of the seller how long an artwork remains on the platform.
13.4 Transaction Restrictions
If you are a private seller/art dealer/gallerist/(‘user’) and have submitted a listing for an artwork to the ARTCRATER website and have been contacted by another user with respect to purchasing either of the foregoing, you may not sell such artworks independently of ARTCRATER. If ARTCRATER is notified of such a transaction, ARTCRATER may decide to refrain from working again with the private private seller/art dealer/gallerist/(‘user’) in this case.
14.1 Only contemporary art shall be sold on ARTCRATER. Contemporary art is the art of today, produced in the late 20th century or in the 21st century.
14.2 The description of the artworks must be truthful. This includes the description of any defects. The seller is liable for inaccurate or incorrect information. Insofar ARTCRATER leaves the description of the goods to the seller for review before publishing the offer. If no complaint is made within 5 working days or the description is confirmed positively, the offer will go online.
14.3 The seller shall set a market price. ARTCRATER reserves the right to reject artworks with non-market-based price expectations or to discuss the price at which the artworks can be offered. Please understand that we do not accept artworks under the value of 5000 $.
14.4 Sellers must provide and declare the provenance of the artwork as well as documents of authentication, such as the invoice of the gallery where purchased or a certificate by the artist. Such documents are verified by specialists within the ARTCRATER team prior to any artwork being admitted on the platform. Although ARTCRATER takes great care in examining these documents, ARTCRATER is not responsible for their accuracy and authenticity. The responsibility for this is borne by the seller.
14.5 Defects
ARTCRATER instructs the sellers to indicate possible defects in the description of the offered artwork. Buyers should inspect each item after delivery and can withdraw from the contract along to our policy (See §26).
14.6 Colour
You understand and agree that ARTCRATER displays artworks as they are without editing. However, because individual computer monitors may display colours differently, ARTCRATER is not responsible for the colour accuracy of any artworks, digital works or printed works displayed on the website, and disclaims all liability in this regard.
Artworks over 100000 $ shall be inspected by the buyer or their deputy in a viewing room which can be provided by our courier partners worldwide. The return policy of 14 days starts from the day of the first viewing. The transport costs for the viewing shall be split between seller and buyer, unless otherwise agreed via ARTCRATER. The agreement has to be made in written form.
Artworks under 100000 $ are delivered directly to the purchaser and must be inspected in presence of the courier.
16.1 Once a sale of artworks via artcrater.com has occurred, ARTCRATER will credit your account in an amount to be determined in accordance with ARTCRATER commission terms at time of purchase.
16.2 ARTCRATER takes the following commission fees for the completed sale for artworks:
• 10% for artworks over 20000 $
• 15% for artworks up to 20000 $
The commission is of the net price. The commission is split between seller and purchaser and is due when a sale occurs.
Along to the copyright act, an additional percentage between 0,25% and 4%, with a maximum of 12 500€ of the net price for the resell rights has to be paid to the artist if he/she is still alive or died after 1945. The commission and the resell fee are split between seller and purchaser and are due when a sale occurs.
Percentage to be paid to the artist for their resale rights:
• 4,0% up to 50 000 Euro
• 3,0% from 50 000,01 to 200 000 Euro
• 1,0% from 200 000,01 to 350 000 Euro
• 0,5% from 350 000,01 to 500 000 Euro
• 0,25% over 500 000 Euro
• Maximum 12.500 Euro
16.3 Subject to ARTCRATER receipt of confirmation of delivery and inspection by the purchaser, ARTCRATER will credit the seller’s account with the corresponding payment – deducting commission, resell fee, insurance fee, transport and money transfer costs – following the expiration of the return period.
17.1 Prices of the artworks and additional charges
Prices for shipping are calculated on ARTCRATER once the customer has entered their delivery address. In cases where the delivery address is not with regular transport routes of our courier partners, the shipping amount will be calculated for each individual delivery. The customer must submit a request and we will respond with a shipping amount as soon as possible.
17.2 ARTCRATER works with preferred transport partners and their partners at ICEFAT in order to perform quality shipping worldwide.
17.3 Taxes
Applicable taxes for which you are responsible and which will be separately identified on the buyers receipt, will be added – if due – to the price as soon as the buyer has entered his address. Nevertheless ARTCRATER is not responsible for the correctness of these taxes and the seller must check their accuracy.
As a seller you must be aware that if your amount of sales to a different European country exceeds a certain sum (threshold), (see VAT & Sale Tax), all sales above must be taxed in the country of destination.
17.4 ARTCRATER provides insurance to all purchases via our platform. They cover insurance from ‘nail to nail’ and also the transport back to the seller in case of artwork returns as described in §32. It will be calculated once the transaction is determined. If buyer has their own insurance, please indicate in the shopping cart.
17.5 Shipping
ARTCRATER will commission an art transportation firm to ship the purchased artwork directly to the address given by the buyer. ARTCRATER provides special transportation firms which must be used due to our safety standards and which supply and execute also the packaging.
The Terms and Conditions of ARTCRATER’s current Return Policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTCRATER.
Please read carefully in Purchaser Terms and Conditions §32.
You agree to comply with the terms and conditions of ARTCRATER return policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
The Terms and Conditions of ARTCRATER’s current Damaged Artworks policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTCRATER.
Please read carefully in Purchaser Terms and Conditions §31.
You agree to comply with the terms and conditions of ARTCRATER Damaged Artworks policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
You are the sole and exclusive owner of all artworks you make available on ARTCRATER and you have all rights, licenses, consents and releases that are necessary to grant to ARTCRATER the rights to sell and to publish the artworks. You confirm that the artworks that you make available through ARTCRATER.com use and exploitation thereof as expressed under these terms will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, other intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law.
These Terms and Conditions are valid together with the Sellers Terms and Conditions which you will have to sign during the buying process.
As a registered user you may purchase artworks that are listed on ARTCRATER. When you purchase such an artwork, you are not purchasing the work from ARTCRATER, but from the seller (the private seller/user or another person commissioned by them). ARTCRATER only grants third parties the possibility to offer artworks on artcrater.com and is neither a buyer nor a seller of these artworks. Your contract will always be with the seller. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
22.1 The purchaser must pay for all shipping and handling which is conditional on the order’s value, weight dimensions and shipping destination.
22.2 The listed prices are final for customers from and within the European Union. In case of other countries, they may not include all taxes, especially import taxes and import VAT which will be charged separately by the art transportation firm and you will receive an extra receipt for them.
22.3 The shipping cost and VAT, if due, will be added to an artworks listing and become visible once you have entered a delivery address. Please note, that in case of hard to reach destinations higher transportation price might be required by the seller.
22.4 When you purchase artworks via ARTCRATER you agree to pay the amount via our indicated payment options to the account specified by ARTCRATER (on the website or via email).
22.5 Purchase price, along with shipping and handling charges are immediately payable, without deduction.
22.6 As soon as ARTCRATER has received the payment, the viewing of the artwork (for artworks from 100000 $ upwards, as described in §15) or the shipping (for artworks under 100000 $) will be arranged.
The shipping will take about 10 to 14 days, and in some cases up to 30 days, to China up to 60 days until the artwork arrives at your destination. If you wish express transportation, please advise the seller. This will cause extra costs which you will have to pay in advance.
22.7 If the customer pays with PayPal the transaction will be carried out straight away. If the customer opts to pay by bank transfer they will receive an order information, after which the money transfer has to be executed right away in order to arrive at ARTCRATER within a set period of 7 days.
22.8 ARTCRATER will collect your billing and pass it on to the seller and to the shipping company. ARTCRATER will process your payment and pass the amount to the seller, deducting our commission, transport and insurance costs.
22.9 Bidding
Bidding is stopped when the artwork has reached a price accepted by the seller. The submission of a bid is binding for the purchase of the artwork if the seller accepts the bid.
23.1 The paid amount will be kept safe at ARTCRATER until the artwork has been approved by the buyer either after inspection in a viewing room or in presence of the courier at the buyer’s destination. After the granted withdrawal period is over the payment is released to the seller.
The goods shall remain the property of the seller until the purchase price is paid in full.
25.1 The presentation and promotion of available artworks on the website does not represent a formalized offer and the prices are subject to change before a binding offer has been made.
25.2 With the consignment of an order through ARTCRATER by clicking the ‘buy’ button you declare a legally binding acceptance of offer.
25.3 You will be given an opportunity to edit your information, check information thoroughly especially information about your delivery address since after this step it cannot be changed.
25.4 ARTCRATER will confirm the admission instantly, by sending an email. In such an email there will not yet be a declaration of acceptance, unless it explains not only the confirmation of admission but also, explicitly, the acceptance.
25.5 A purchase agreement only comes into existence once we mandate the shipping of the product with our distribution partner and you receive a confirmation of this via email (in the following: delivery confirmation).
25.6 The purchased artwork will be shipped directly to you. The Terms and Conditions of ARTCRATER return policy apply to any artworks that you purchase through ARTCRATER..
25.7 In addition to your cancellation right according to § 26 you may cancel your order at any time before consignation of the associated delivery confirmation.
26.1 If the offer comes from a commercial dealer/gallery, you as a buyer have the right to withdraw from your contract of purchase without giving any reason.
a) after 14 days from the inspection day for artworks at a value from 100000 $ upwards
b) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 10000 $ and 100000 $.
c) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 5000 $ and 10000 $.
In the case of a contract relating to multiple goods ordered by you in one order and delivered separately, the period shall begin on the day on which you acquire, or a third party other than the carrier and indicated by you acquires physical possession of the last good. To exercise the right of withdrawal you must inform us (ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany, telephone no. +49 30 2 79 79 444, e-mail sales@artcrater.com) of your decision to withdraw your contract or by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. We will pass the information on to the seller.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
26.2 Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction.
Transport costs to the viewing room and back have to be split between you and the seller unless otherwise agreed in advance via ARTCRATER in written form.
Fees for the money transfer have to be paid by you.
If the artwork was already delivered to you, we will withhold reimbursement until the seller has received the artwork back.
The deadline is met if the transport firm picks up the artwork before the above set period has expired. You will have to pay all costs of returning the artwork.
You are only liable for any diminished value of the artworks resulting from the handling other than what is necessary to keep the nature, characteristics and surfaces of the artworks.
For handling of artwork returns see §32.
End of information on right of withdrawal.
26.3 Model withdrawal form
(Complete and return this form only if you wish to withdraw from the contract. ARTCRATER will pass it on to the seller)
-To ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany telephone no.+49 30 2 79 79 444, e-mail sales@artcrater.com
–I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
–Ordered on (*)/received on (*)
–Name of purchaser(s)
–Address of purchaser(s)
–Signature of purchaser(s) (only if this form is notified on paper),
–Date
______________________
(*) Delete as appropriate.
Shipment takes place worldwide.
If your order is to be sent by more than one transport, it may be the case that you receive a separate delivery confirmation email for each transport. In this instance a separate purchase agreement will come into existence for each of the products.
The purchaser will be contacted by our transportation firm in terms of the delivery date.
If the artwork cannot be delivered out of various reasons, like absence of the purchaser, too narrow doors or staircases, the purchaser is liable for the resulting costs.
IMPORTANT: Check the artwork immediately in presence of the courier when delivered for possible damages as described in § 31.
Although ARTCRATER is not the seller, we provide insurance to all purchases via our platform. It fully covers damages occurring on the transport from ‘nail to nail’ and also the transport back to the seller if an artwork is returned as described in §32. It will be calculated once the transaction is determined. If buyer has their own insurance, please indicate in the shopping cart.
All artworks have to be handled with greatest care. You must be aware that they are irretrievable goods. Don’t touch them with your bare hands, but use special gloves which we provide, or something equally protecting.
Please consider carefully in which condition the artwork is placed; environments that contain high levels of humidity and sunlight are not advised. Changes that occur to the artwork due to exposure to natural elements and the passing of time are not considered defects.
Similarly any damages sustained through inappropriate handling after an artwork has been received are not considered to be a fault of the artwork. Artworks may be fragile and must be handled with the utmost care.
Procedure
Check the artwork immediately when delivered in presence of the courier for possible damages. In case you find a damage, please act as follows:
(a) – Keep the original packaging!
(b) – Take photos of damaged artwork and packaging. Please email these photos immediately to sales@artcrater.com
(c) – Within five days of your artwork delivery date, please email sales@artcrater.com to give us your order information for the artwork return.
We will pass on all information to our insurance and the seller who will contact you.
32.1 Art is not a consumer good and all acting persons have a high responsibility to handle it safely to keep away any danger. For this reason, we cannot leave the choice of the shipper to our customers, but require using our certified transport companies.
You shall send back the artwork by using our designated transport firm without undue delay and in any event not later than
a) after 7 days for artworks between 10000 $ and under 100000 $ from the day on which you communicate your withdrawal from this contract to us.
b) after 14 days from the day on which you or a third party other than the carrier and indicated by you acquires physical possession of the artwork between 5000 $ and 10000 $.
Artworks over 100000$ are treated differently, as pointed out in §15. They are then directly returned from the viewing room to the seller.
32.2 Procedure
(a) Contact us by email at sales@artcrater.com using the withdrawal form, found at §26. Or by phone, on +49 30 2 79 79 444, between 9-18 Monday to Friday (Central European Time) and a member of the ARTCRATER team will assist you. You can return the work without telling us a reason, but we are happy if you give us a hint.
(b) We will send you the courier to handle packing and transport. You will be responsible for all return shipping costs.
(c) ARTCRATER requires the successful return of the good as proof that the buyer has complied correctly with our artwork return policy. Once we are informed of the return by seller, ARTCRATER will return the full amount to the purchaser (artwork cost, VAT and original shipping cost)
32.3 Neither ARTCRATER nor the seller is responsible for undelivered returns.
ARTCRATER reserves the right to cancel any order for an artwork or digital work placed on our website if ARTCRATER determines, in its sole discretion, that the item is mispriced, damaged, already sold, or otherwise unavailable. If ARTCRATER cancels an order, ARTCRATER will send you an email confirmation of the cancellation and you will not be charged for your order.
The EU Commission provides an online platform for online settlements (OS platform). It can be accessed at http://ec.europa.eu/consumers/odr/.
35.1 Deviating business terms and conditions of customer shall not form part of the contract even if ARTCRATER does not expressly dispute their validity.
35.2 Customer may only offset against claims of ARTCRATER or assert a right of retention if its counterclaim is undisputed, a legal title exists or the counterclaim is synallagmatical in proportion to the respective claim in question.
35.3 The law of the Federal Republic of Germany applies under the exclusion of the UN Convention on Contracts for the International Sale of Goods. This does not apply for Consumers with regard to such mandatory consumer rights, which – according to the law applicable if this clause would not exists (which is in general the law of Consumer’s primary residence) – are legally compulsory and cannot be waived by parties‘ agreement.
35.4 Exclusive venue for any and all disputes with regard to this contract is Berlin, provided the parties of the contract are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these Terms and Conditions or permanent or habitual residence is not known at the time the action is filed.
35.5 If individual provisions of this Terms and Conditions are or become ineffective and/or contradict legal provisions, the effectiveness of the remaining Terms and Conditions shall not be affected thereby.
35.6 All notices given by you to us must be given in writing to the address set out in the imprint of the website. We may give notice to you at either the email or postal address you provided us when contacting us.
Contacting ARTCRATER:
If you have any questions about these Terms, please contact ARTCRATER at contact@artcrater.com. We will respond to all inquiries
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Last updated 10 November 2017
(1) These Terms and Conditions apply to the free use of our website (hereinafter referred to as ARTCRATER) and to all agreements concluded with you as our user (hereinafter referred to as “User”, “Seller” or “Purchaser”) via ARTCRATER. The Terms and Conditions apply to entrepreneurs as defined in Section 14 of the German Civil Code (BGB) (“Entrepreneur”) as well as to consumers as defined in Section 13 BGB (“Consumer”). These Terms and Conditions do not apply to purchase contracts concluded on-site at a physical space of ARTCRATER.
Our website is operated by Wurlitzer Architekten GmbH under the trademark ARTCRATER, a German limited liability company with its registered office at Hermann-Löns-Strasse 12, 91413 Neustadt a.d. Aisch, Germany, managing director: Gudrun Wurlitzer, Registration number: AG Fürth (Bay) HRB 8753,
Postal Address:
ARTCRATER / Wurlitzer Architekten GmbH
Mohrenstrasse 61,
10117 Berlin
Germany
(in the following: ARTCRATER)
(2) By using the website of ARTCRATER (currently available at artcrater.com) you are agreeing to these Terms and Conditions and are hereby entering into a contract with ARTCRATER. This contract is subject to the law of the Federal Republic of Germany. These Terms are the only terms that apply. We will not accept general contractual clauses, which deviate from these.
Communication with you or the provision of services by us will not implicate acceptance of any deviating general contractual clauses.
Please print out these terms as we will not store older contractual terms for you.
To use our services you must have full legal capacity and be at least 18 years old.
(3) These Terms and Conditions apply, unless an alternating clause has been explicitly made, irrespective of whether you are consumer, entrepreneur or merchant.
(1) ARTCRATER is an internet platform which allows collectors/users to submit artworks for sale. (See Sales of Artworks § 12 and Seller Terms and Conditions, § 26-31)
(2) Collectors/users can register and thus have the possibility to sell or purchase artworks.
(3) For this purpose the collector/user can fill out a form with images and descriptions of artworks on the platform. The artwork will only go online after the explicit permission of the seller. It can be removed at any time on instruction of the seller. Our experts will consult in all concerns if desired, Phone +49 30 27979444
(4) Sellers must provide the provenance of the artwork as well as documents of authentication, such as the invoice of the gallery where purchased or a certificate by the artist. Such documents are verified by specialists within the Artcrater team prior to any artwork being admitted on the platform.
(5) ARTCRATER enables registered Users to buy artworks via ARTCRATER.
(See Sales of Artworks § 12 and Purchaser Terms and Conditions, § 13-25)
(5) In any sale or purchase of artwork ARTCRATER is never a contract partner. ARTCRATER only provides the platform that makes these transactions possible.
(See Sales of Artworks § 12 and Seller Terms and Conditions , § 26-31 and Purchaser Terms and Conditions, § 13–25)
(7) ARTCRATER reserves the right, at its sole discretion, to modify, discontinue or terminate the site or services or to modify these Terms and Conditions, at any time and without prior notice.
(1) All intellectual property rights of context on ARTCRATER (including text, graphics, software, photographs and other images, videos, sound, trade marks and logos) are owned by ARTCRATER or the participating artists or galleries. You acknowledge that you do not acquire any ownership rights by uploading or downloading any information, accessing the website or using the services.
(2) The contents stored on the ARTCRATER website may not be copied or disseminated or otherwise used or reproduced without the previous consent of the legal owner. This shall also apply to copying using “robot/crawler” search engine technologies or other automatic mechanisms.
(3) ARTCRATER shall be entitled to block users’ accounts, if it is suspected that a user account is being used in a fraudulent manner or misused in other ways. ARTCRATER will notify the user of the blocking, if the purpose of the blocking is not jeopardised by the notification.
(4) Our website includes links to external sites, which may include links to further sites. We are not responsible for the content of these sites or for anything provided by them.
We will communicate with you electronically by email. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide you electronically are legally binding, unless applicable laws require a different form of communication.
We take your privacy rights very seriously. In addition to these Terms, You can find further information on the handling of personal data in our Privacy Policy.
(1) 1) ARTCRATER strives to always ensure that the website is available to users without interruption and that transmissions are error-free. However, this cannot be guaranteed at all times. Further, access to the ARTCRATER website can be occasionally interrupted or restricted to allow maintenance and servicing to be carried out or to introduce new facilities. ARTCRATER strives to limit the duration and frequency of these temporary interruptions.
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(2) ARTCRATER shall be liable for damage only in the event of intent and gross negligence on the part of ARTCRATER or one of its vicarious agents. If ARTCRATER or one of its vicarious agents breaches a fundamental contractual obligation in a manner that endangers the purpose of the contract, liability shall be limited to the typical damage that ARTCRATER could reasonably foresee at the time of entering into the contract, unless the breach of obligation is intentional or grossly negligent.
(3) ARTCRATER shall not be liable under section for lack of economic success, loss of profits and indirect losses.
(4) The limitations of liability shall apply mutatis mutandis to employees, representatives and subcontractors of ARTCRATER.
(5) Any liability of ARTCRATER for guarantees given and claims under the Sale Liability Act shall remain unaffected.
(6) ARTCRATER is not liable for any false information found on the site. In regards to journal postings, event postings, comments and replies, ARTCRATER holds no liability for the accuracy of information given.
(7) While we do our best to ensure safety for all users, ARTCRATER is not liable for any content. The report to ARTCRATER of harmful postings, events, comments and replies are the responsibility of the user. We cannot be held responsible for any user-generated content. You use ARTCRATER at your own risk.
(1) The participating artist is hereby informed that for the publication of the provided photo-material a transfer of rights is required. The participating artist hereby confirms that they has the rights to the supplied photographs, and that they irrevocably authorizes the unlimited and unrestricted publication of these unaffected by time or location. You acknowledge and agree that the foregoing image/license rights are granted on a royalty-free basis.
The photographer retains full ownership rights of the image.
(2) The participating artist hereby confirms that no rights of third parties are harmed through the uploaded photos of objects or locations.
The agreement keeps its validity if the website changes its name or holding.
In case of publication(s) the participating artist will not make any claims against ARTCRATER or third parties (for example publishing company, provider, Webmaster).
Both contract parties are entitled to store the image material without any limitation in time and location, modified or unmodified and in physical or digital form.
The participating collector/user is obligated to provide the necessary data completely and correctly and to provide notification of changes without delay. This applies, in particular, to address details and the email address.
The collector/user shall ensure that his or her content on ARTCRATER do not breach statutory regulations or third party rights.
The collector/user agrees not to upload any content to ARTCRATER that is of an extremist nature, content that is pornographic, violent or that glorifies violence, racist, discriminatory, harmful to minors or seditious, nor content that incites criminal activity or instructs such acts.
The participating collector/user shall compensate ARTCRATER for all damage arising from a breach of the foregoing provisions where the collector/user is responsible for the breach. The compensation shall also comprise the costs of any necessary legal defence. ARTCRATER shall inform you without delay if a third party assert such claims against them and shall give you the opportunity to respond.
(1) If you submit artworks or digital works to ARTCRATER, you hereby grant ARTCRATER a worldwide, transferable, nonexclusive, right and license, with a right to sublicense, reproduce, distribute, perform publicity and publicly display copies of the artwork or digital work via artcrater.com, and access to view, use, crop, resize, copy, distribute, license, publicly display, publicly perform, transmit and broadcast copies of the artworks or digital works in any form, medium or technology now known or later developed for the purpose of promoting ARTCRATER. You acknowledge and agree that the foregoing license rights are granted on a royalty-free basis. If you want to refrain from any publication, you must inform ARTCRATER.
(2) Transaction Restrictions
If you are a collector/user and have submitted a listing for an artwork to the ARTCRATER website and have been contacted by another user with respect to purchasing either of the foregoing, you may not sell such artworks independently of ARTCRATER. If ARTCRATER is notified of such a transaction, ARTCRATER may decide to refrain from working again with the collector/user in this case.
(3) Colour
You understand and agree that ARTCRATER displays artworks as they are without editing. However, because individual computer monitors may display colours differently, ARTCRATER is not responsible for the colour accuracy of any artworks, digital works or printed works displayed on the website, and disclaims all liability in this regard.
ARTCRATER instructs the sellers to indicate possible defects in the description of the offered artwork. Buyers should to inspect each item after delivery and can withdraw from the contract along to our policy (See §15)
These Terms and Conditions are valid together with the Sellers Terms and Conditions which you will have to sign during the buying process.
As a registered user you may purchase artworks that are listed on ARTCRATER. When you purchase such an artwork, you are not purchasing the work from ARTCRATER, but from the seller (the collector/user or another person commissioned by them). ARTCRATER only grants third parties the possibility to offer artworks on artcrater.com and is neither a buyer nor a seller of these artworks. Your contract will always be with the seller. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
Although ARTCRATER is not the seller, we provide insurance to all purchases via our platform. It fully covers damages occurring on the transport from ‘nail to nail’ and also the transport back to the seller if an artwork is returned as described in §22.
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(1) The presentation and promotion of available artworks on the website does not represent a formalized offer and the prices are subject to change before a binding offer has been made.
(2) With the consignment of an order through ARTCRATER by clicking the “buy” button you declare a legally binding acceptance of offer.
(3) You will be given an opportunity to edit your information, check information thoroughly especially information about your delivery address since after this step it cannot be changed.
(4) ARTCRATER will confirm the admission instantly, by sending an email. In such an email there will not yet be a declaration of acceptance, unless it explains not only the confirmation of admission but also, explicitly, the acceptance.
If the customer pays with PayPal the transaction will be carried out straight away. If the customer opts to pay by bank transfer they will receive an order information, after which the money transfer has to be executed right away in order to arrive at ARTCRATER within a set period of 7 days.
(6) A purchase agreement only comes into existence once we mandate the shipping of the product with our distribution partner and you receive a confirmation of this via email (in the following: delivery confirmation).
(7) In addition to your cancellation right according to § 15 you may cancel your order anytime before consignation of the associated delivery confirmation.
(9) ARTCRATER will collect your billing and pass it on to the seller and to the shipping company. ARTCRATER will process your payment and pass the amount to the seller, deducting our commission, transport and insurance costs.
(10) The purchased artwork will be shipped directly to you. The Terms and Conditions of ARTCRATER return policy apply to any artworks that you purchase through ARTCRATER.
(1) As a consumer, you have the right to withdraw in accordance with the following policy:
You have the right to withdraw from your contract of purchase within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day on which you or a third party you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods. In the case of a contract relating to multiple goods ordered by you in one order and delivered separately, the period shall begin on the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good. To exercise the right of withdrawal you must inform us (ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany, telephone no. +49 30 280 96 154, e-mail sales@artitious.com) of your decision to withdraw your contract or by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory. We will pass the information on to the seller.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
(2) Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back. You shall send back the artwork to us without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired. You will have to bear the direct cost of returning the artwork.
You are only liable for any diminished value of the artworks resulting from the handling other than what is necessary to keep the nature, characteristics and surfaces of the artworks.
End of information on right of withdrawal.
(3) Model withdrawal form
(Complete and return this form only if you wish to withdraw from the contract. ARTCRATER will pass it on to the seller)
-To ARTCRATER / Wurlitzer Architekten GmbH, Mohrenstrasse 61, 10117 Berlin, Germany telephone no.+49 30 280 96 154, e-mail sales@artitious.com
–I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
–Ordered on (*)/received on (*)
–Name of purchaser(s)
–Address of purchaser(s)
–Signature of purchaser(s) (only if this form is notified on paper),
–Date
______________________
(*) Delete as appropriate.
(1)The purchaser must pay for all shipping and handling which is conditional on the order’s value, weight dimensions and shipping destination.
(2) The listed prices are final for customers from and within the European Union. In case of other countries, they may not include all taxes, especially import taxes and import VAT which will be charged separately by the art transportation firm and you will receive an extra receipt for them.
(3) The shipping cost and VAT will be added to an artworks listing and become available once you have entered a delivery address. Please note, that in case of hard to reach destinations within Germany such as islands or areas close to borders a higher transportation price might be required by the seller, also for transportation to destinations outside of Germany or where the pick up location is outside Germany a higher rate may apply.
(4) When you purchase artworks via ARTCRATER you agree to pay the amount via bank transfer or Paypal to the account specified by ARTCRATER (on the website or via email).
(5) Purchase price, along with shipping and handling charges are immediately payable, without deduction.
(6) As soon as ARTCRATER has received the payment, the artwork will be shipped.
It will take about 10 to 14 days, and in some cases up to 30 days, until the artwork arrives at your destination. If you wish express transportation, please advise the seller. This will cause extra costs which you will have to pay in advance.
The goods shall remain the property of the seller until the purchase price is paid in full.
Shipment takes place worldwide.
If your order is to be sent by more than one transport, it may be the case that you receive a separate delivery confirmation email for each transport. In this instance a separate purchase agreement will come into existence for each of the products.
The purchaser will be contacted by our transportation firm in terms of the delivery date.
If the artwork cannot be delivered out of various reasons, like absence of the purchaser, too narrow doors or staircases, the purchaser is liable for the resulting costs.
IMPORTANT: Check the artwork immediately in presence of the courier when delivered for possible damages as described in § 22.
All artworks have to be handled with greatest care. Don’t touch them with your bare hands, but use special gloves which we provide, or something equally protecting.
Please consider carefully in which condition the artwork is placed; environments that contain high levels of humidity and sunlight are not advised. Changes that occur to the artwork due to exposure to natural elements and the passing of time are not considered defects.
Similarly any damages sustained through inappropriate handling after an artwork has been received are not considered to be a fault of the artwork. Artworks may be fragile and must be handled with the upmost care.
(1) Procedure
Check the artwork immediately when delivered in presence of the courier for possible damages. In case you find a damage, please act as follows:
(a) – Keep the original packaging!
(b) – Take photos of damaged artwork and packaging. Please email these photos immediately to sales@artitious.com
(c) – Within five days of your artwork delivery date, please email sales@artitious.com to give us your order information for the artwork return.
We will pass on all information to our insurance broker and the seller who will contact you.
(1) The Terms and Conditions of ARTCRATER current Return Policy apply to any artworks that are sold or purchased via ARTCRATER.
(2) Procedure
(a) From the date you receive an artwork you have fourteen (14) days to inform ARTCRATER about your desire to return it. Contact us by email at sales@artitious.com using the withdrawal form, found at § 15. Or by phone, on +49 30 27979444, between 9-18 Monday to Sunday (Central European Time) and a member of the ARTCRATER team will assist you. You can return the work without telling us a reason, but we are happy if you give us a hint.
(b) Repackage the artwork professionally, using the original packaging materials used by the seller. If you have disposed the packaging utilise a packaging that is of the same quality.
(c) Arrange to send the packaged artwork directly to the seller using the art transportation company recommended by us or another a trustworthy art transportation company. All shipping details must be provided to Central European Time via email at sales@artcrater.com. You will be responsible for all return shipping costs.
Additional shipping fees may apply for international returns and also have to be paid by the purchaser.
(d) ARTCRATER requires the successful return of the good as proof that the buyer has complied correctly with our artwork return policy. Once we are informed of the return by the gallery or the artist , ARTCRATER will return the full amount to the purchaser (artwork cost, VAT and original shipping cost)
(3) Neither ARTCRATER nor the seller is responsible for undelivered returns.
ARTCRATER reserves the right to cancel any order for an artwork or digital work placed on our website if ARTCRATER determines, in its sole discretion, that the item is mispriced, damaged, already sold, or otherwise unavailable. If ARTCRATER cancels an order, ARTCRATER will send you an email confirmation of the cancellation and you will not be charged for your order.
digital works or printed works displayed on the website, and disclaims all liability in this regard.
The EU Commission provides an online platform for online settlements (OS platform). It can be accessed at http://ec.europa.eu/consumers/odr/.
(1) As a registered seller you may upload artworks on ARTCRATER in order to sell them. When you sell an artwork, you are the sole contractor with the purchaser. ARTCRATER only grants you (‘third parties’) the possibility to offer artworks on artitious.com and is neither a buyer nor seller of these artworks. Your contract will always be with the buyer. ARTCRATER is not a contract partner and not responsible for the transaction of the sale and any complaints.
(2) As between you and us, ARTITIOUS will not be deemed as the seller of the artworks that are purchased via artitious.com, but as a platform that implements transition between galleries, artists and buyers on a commission basis as agreed upon via email between ARTCRATER and the gallery or artist selling artwork via ARTCRATER.
(3) Once a gallery decides to make an artwork available on ARTCRATER it must remain on the site for 14 days before the gallery can remove it. After this period has elapsed It is up to the discretion of the gallery how long an artwork remains on the platform. During the period an artwork is available on ARTCRATER it cannot be sold outside of the platform.
(1) Once a sale of artworks or digital works via artitious.com has occurred, ARTCRATER will credit your account in an amount to be determined in accordance with ARTCRATER commission terms at time of purchase.
(2) The commission from galleries is 15%. In rare cases when an artists without a gallery is granted access to selling the commission is 35% of the net price. The commission is due when a sale occurs.
(3) Subject to ARTCRATER receipt of confirmation of delivery to the purchaser, ARTCRATER will credit the seller’s account with the corresponding payment – deducting the commission and the insurance fee – following the expiration of the return period.
(1) Prices of the artworks and additional charges
Prices for shipping are calculated on ARTCRATER once the customer has entered their delivery address. In cases where the delivery address is not with regular transport routes of our courier partner, TANDEM, the shipping amount will be calculated for each individual delivery. The customer must submit a request and we will respond with a shipping amount as soon as possible.
ARTCRATER works with TANDEM and their partners at ICEFAT in order to perform quality shipping worldwide.
(2) Insurances are contributed by ARTCRATER and will be added to the price automatically during the “buy” process.
(3) Taxes
Applicable taxes for which you are responsible and which will be separately identified on the buyers receipt, will be added automatically to the price as soon as the buyer has entered his address. Nevertheless ARTCRATER is not responsible for the correctness of these taxes and the seller must check their accuracy.
As a seller you must be aware that if your amount of sales to a different European country exceeds a certain sum (threshold), (see VAT & Sale Tax), all sales above must be taxed in the country of destination.
(4) ARTCRATER provides overall insurance to all purchases via our platform. They cover insurance from ‘nail to nail’ and also the transport back to the seller in case of artwork returns as described in §18.
(5) Shipping
The seller will commission an art transportation firm to ship the purchased artwork directly to the address given by the buyer. ARTCRATER provides a special transportation firm which must be used and which supplies and executes also the packaging.
The Terms and Conditions of ARTCRATER current Return Policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTCRATER.
Please read carefully in Purchaser Terms and Conditions § 10.
You agree to comply with the terms and conditions of ARTCRATER return policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
The Terms and Conditions of ARTITIOUS current Damaged Artworks policy, which is pointed out in the Purchasers Terms, apply to any artworks that are sold or purchased via ARTITIOUS.
Please read carefully in Purchaser Terms and Conditions § 11.
You agree to comply with the terms and conditions of ARTCRATER Damaged Artworks policy, at time of purchase, that are applicable to any artworks sold via ARTCRATER.
(1) Galleries
You are the sole and exclusive owner of all artworks you make available on ARTCRATER or you are commissioned to do so by an artist you represent. Similarly, you are either the sole and exclusive owner of all digital works you upload to ARTCRATER or you have all rights, licenses, consents and releases that are necessary to grant to ARTCRATER the rights to such digital works as understood under these terms; and neither the artworks nor digital works that you make available through artitious.com nor ARTCRATER use and exploitation thereof as expressed under these terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, other intellectual property rights, rights of publicity or privacy or result in the violation of any applicable law.
(1) These Sellers Terms and Conditions represent – together with our General Terms and Conditions – the entire agreement between you and us in relation to the use of our website and our services.
(2) These Terms and Conditions shall be governed by the law of the Federal Republic of Germany to the exclusion of the rules on the Convention on the International Sale of Goods (CISG) and the rules for conflicts of laws. The courts of Berlin shall have exclusive jurisdiction on any dispute arising in connection with these Terms and/or the legal relationship between you and us. Through accepting these Terms and Conditions you irrevocably submit to the jurisdiction of the courts of Berlin.
If individual provisions of these Terms and Conditions become ineffective in full or in part, the contract will remain otherwise effective. If we fail to enforce any of our rights, that does not result in a waiver of such rights.
You may not transfer or assign any or all of your rights or obligations under any contract with us.
All notices given by you to us must be given in writing to the address set out in the imprint of the website. We may give notice to you at either the email or postal address you provided us when contacting us.
Contacting ARTCRATER:
If you have any questions about these Terms, please contact ARTCRATER at contact@artcrater.com. We will respond to all inquiries