THESE TERMS ARE EFFECTIVE AS OF: 1 JANUARY 2018 "EFFECTIVE DATE"
READ THESE TERMS CAREFULLY BEFORE BROWSING THE ARTFUNDI.COM WEBSITE. YOUR CONTINUED USE OF THE ARTFUNDI.COM WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THE ARTFUNDI.COM WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. ALL SECTIONS OF THESE TERMS ARE APPLICABLE TO ALL USERS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.
The Artfundi website, www.artfundi.com is made available, owned and operated by Talking Sense (Pty) Ltd (bearing registration number: 2008/015425/07) (hereinafter referred to as “artfundi.com”, “Website”, “we”, “our”, “us” or “its”). Any reference to “Artfundi.com”, “Website”, “we”, “our”, “us” or “its” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, advisers, sub- contractors, service providers, suppliers and related entities.
Accessing and/or use of the Website after the Effective Date will signify that the User has read, understands, accepts, and agrees to be bound, and are bound, by the Terms in such User’s individual capacity and/or for and on behalf of any entity for whom the User utilises the Website. Further, the User represents and warrants that the User has the authority to do so and that in the case of a User being a natural person, the User is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
To the extent permitted by applicable law, we may modify the Terms with prospective effect without prior notice to Users, and any revisions to the Terms shall be noted within such Terms and will take effect when posted on the Website, unless a later date is otherwise stated in the revised Terms. A User’s continued use of the Website and/or the Services will be construed as a User’s consent to the amended or updated Terms, and will be conditional upon the Terms in force at the time of use. A User’s only remedy, should such User not agree to these Terms, is to stop the use of the Website.
References in these Terms to ‘include’, ‘including’ and ‘in particular’ are to be interpreted without limitation.
The following terminology applies to these Terms:
"Artfundi" shall mean a software system used to provide the Services;
“Artwork" shall mean the artwork as displayed or otherwise uploaded, if any, by the User on Artfundi;
"Party" or “Parties” shall mean User and/or us, as the context requires;
“Services” shall mean those Services as provided to the Users by the use of Artfundi as more fully set out in clause 3 below;
Artfundi is a software as a service product specifically designed to assist a User when dealing with Works of Art, whether the User is an independent artist, or a holder of artworks such as a gallery, collector auction house or the like.
Artfundi provides the following Services and features:
The uploading of an unlimited amount of Artwork;
An authorised amount of set individuals using Artfundi under one User;
Pre-formatted templates carrying a User’s specific branding;
The ability to manage an inventory through a cloud based cataloguing system including but not limited to sub-features allowing the content of the inventory to be shared with interested parties;
The inbuilt Customer Relationship Manager enables a User to compile a database of collectors, museums and artists as well as providing an organisational tool for telephone calls and appointments;
The creation of a tracking system as to where a User’s works of art may be displayed, exhibited or housed at any given time together with any agreements and/or commissions governing the display of such Artwork;
The capacity to create online exhibitions and publications on a User’s Site, including the price of each piece of Artwork displayed and an up to date currency converter;
Sales management features such as the preparation of quotations and invoices;
The design and display of a Site as created through Artfundi and hosted by us, which Site is also functional on mobile devices;
Access to articles, online courses and publications designed to assist the User in achieving success; and
The running of reports on specific projects, art shows and fairs, and the creation of sales reports and the like.
The above Services are available to a User by way of individual picked packages.
Currently, payment may be effected directly into our banking account by way of EFT, the banking details of which appear on the Website.
No Service shall be provided to a User until such time as payment has been reflected in our bank account irrespective as to whether or not proof of payment has been transmitted to us prior thereto.
Upon receipt of payment into our banking account we shall provide the User with a link via e-mail enabling such User to download Artfundi. Such link shall be valid for as long as a User continues to make payment of the monthly subscription rate (or any increase thereto as the case may be).
Subject to, and on the basis of a User’s acceptance of the Terms, we grant the User a limited, revocable, non-transferable license to access and use the Website in accordance with the various policies and agreements which may govern such use and access.
A User agrees not to use Artfundi for any illegal or unauthorised purpose.
The User warrants and represents that the information provided to us is and shall remain accurate, true and correct and that the User will update the information held by us to reflect any changes as soon as possible.
Any User signs up for Artfundi warrants that if registering on behalf of an entity, such User will be taken to have represented to us that it has the authority to act on behalf of the entity, and that these Terms will be binding on the entity.
Users further warrant that when using the Website or registering for Artfundi, you:
are not impersonating any person or entity;
are not violating any applicable law regarding use of personal or identification information;
are authorised to create an account; and
will provide, on demand from us, verification of such User’s credentials in such form as required by us.
We make no express, implied or statutory representations, warranties, or guarantees in connection with this Website, Artfundi, any other Users of the Website, including but not limited to partners, or third parties, or any materials on the Website relating to the quality, suitability, truth, accuracy or completeness of any information or material contained or presented on this Website.
Unless otherwise explicitly stated, to the maximum extent permitted by applicable law, this Website and Artfundi and any information or material contained or presented on this Website and/ or Artfundi is provided to you on an “as is,” “as available” basis with no warranty of implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights. We do not warrant the timeliness, workmanship, or completion of the Website or Artfundi. We do not provide any warranties against viruses, spyware or malware that may be installed on your computer as a result of you accessing or using this Website or Artfundi.
Without limiting the generality of the foregoing, we make no warranty that this Website or Artfundi will meet a User’s requirements, or that the Website or Artfundi will be uninterrupted, timely, secure, error free or that defects in this Website or Artfundi will be corrected.
We make no warranty as to the results that may be obtained from the use of the Website or Artfundi or as to the accuracy or reliability of any information obtained through the Website or Artfundi. No advice or information, whether oral or written, obtained by a User through the Website or Artfundi or from us or its third party service providers shall create any warranty enforceable as against us.
To the maximum extent permissible by applicable laws, we denounce any fiduciary responsibilities to any Users of the Website or Artfundi.
You are specifically not permitted to use the Website or Artfundi in any of the following ways (which list should not be deemed to be exhaustive of our rights in this regard):
For any public or commercial exploitation which includes the use of the Website or Artfundi on another site or through a networked computer environment;
In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Website or Artfundi;
To stalk, harass, or harm another individual;
To impersonate any person or entity or otherwise misrepresent the true state of affairs;
To interfere with or disrupt the Website or Artfundi or servers or networks connected to the Website or Artfundi;
To use any data mining, robots, or similar data gathering or extraction methods in connection with the Website or Artfundi; or
Attempt to gain access to any portion of this Website, to which you are not ordinarily permitted, or any other accounts, computer systems, or networks connected to the Website or Artfundi, whether through hacking, password mining, or any other means.
Users are solely responsible for Artwork used and/or uploaded onto Artfundi and such Artwork is considered both non-confidential and non-proprietary.
In submitting any Artwork to Artfundi, Users make the following representations and warranties:
all rights in and to such Artwork (including, without limitation, all rights to the reproduction and display of such Artwork are obtained by such User, or, alternatively, all necessary rights in and to such Artwork providing the rights in and to such Artwork as described in these Terms have been obtained;
all necessary license fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of the Artwork, if any, have been paid prior to your submission of same to the Website.
the Artwork does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
the Artwork does not violate any law including, but not limited to, those governing export control, consumer protection, unfair competition, or false advertising;
By submitting Artwork, Users grant us an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty free license (sub-licensable through multiple tiers) to utilise the Artwork for the purposes of providing the Services.
Artfundi and the contents of the Website and Artfundi are the property of Artfundi, with the exception of the Artwork, and are protected by South African and international copyright laws. We do not permit copyright infringing activities and infringement of intellectual property rights on Artfundi or the Website.
Except as stated in the Terms, none of the contents may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission or the copyright owner (in respect of a vendor), and further, should such consent be provided, we reserve our right to withdraw such consent at any stage, in its sole and absolute discretion.
You are expressly prohibited to “mirror” any content, contained on the Website or Artfundi on any other server unless with our prior written permission, and further, should such consent be provided, we reserve our right to withdraw such consent at any stage, in our sole and absolute discretion.
You are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of the Website, so long as the link does not portray us, our affiliates, or its products or services in a false, misleading, derogatory, or otherwise offensive manner. You may not use our logo or other proprietary graphic or trademark as part of the link without our express permission, its affiliates or content suppliers.
You may not assign your rights and/or obligations under these Terms to any other party without our prior written consent. We may assign our rights and/or obligations under these Terms to any other party at our discretion and without any prior notice to you.
You agree not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Services including any algorithm used by us.
We either own or are licensed to use all intellectual property on the Website and Artfundi. You may not use any of our intellectual property for any purpose other than may be required to use the Website and Artfundi for its intended purpose.
The Website and Artfundi are used entirely at your own risk.
We are not responsible for, and you agree that we will have no liability in relation to, the use of and conduct in connection with the Website or Artfundi.
You hereby indemnify us and undertake to keep us indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute on the advice of our legal advisers) incurred or suffered by us arising out of any breach by you of any provision of these Terms or arising out of any claim that you have breached any provision of these Terms.
To the maximum extent permitted by law we exclude all implied representations and warranties which, but for these Terms, might apply in relation to your use of the Website.
Nothing in these terms and conditions will: (a) limit or exclude our or your liability for death or personal injury resulting from negligence; (b) limit or exclude our or your liability for fraud or fraudulent misrepresentation; (c) limit any of our or your liabilities in any way that is not permitted under applicable law; or (d) exclude any of our or your liabilities that may not be excluded under applicable law.
To the extent that the Website and the information and services on the Website are provided free-of-charge, we will not be liable for any loss or damage of any nature.
We will not be liable to you in respect of any business losses, including, loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill and all indirect and consequential losses or damages.
Without prejudice to our other rights under these Terms, if you breach these Terms in any way, we may take the action we deem appropriate. We may suspend your access to the Website and/or Artfundi, prohibiting you from accessing the Website and/or Artfundi, block computers using your IP address from accessing the Website and/or Artfundi, contact your internet service provider to request that they block your access to the Website and/or bringing court proceedings against you.
Our failure to act to enforce a right in these Terms does not mean that we have waived any right in terms of these Terms.
Any consentto depart from the Terms will be ineffective unless it is confirmed in writing and signed by us.
Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with these Terms is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
The rights, powers and remedies provided to us in these Terms are in addition to the rights, powers and remedies provided by law independently of these Terms.
These Terms constitute the entire agreement, read together with any policy included in the Terms.
These Terms will be governed by and interpreted in accordance with the laws of the Republic of South Africa.
Any claims, legal proceeding or litigation arising in connection with these Terms shall be subject solely to the jurisdiction of the courts of the Republic of South Africa.
If any provision in these Terms is found unenforceable, the remaining provisions will remain in full force and effect.
All notices and other communications required under these Terms will be in writing and will be addressed to the Parties at the following addresses:
Talking Sense (Pty) Ltd
Address: 15 van Zyl street
Riebeek West, Wc 7306
Email Address: firstname.lastname@example.org
Marked for the attention of Tamzin Miller
To the address you have provided to us.
Any Party may change their above address. The change will only be effective once the other Party has received notice of the change.
Notices and communications must be delivered by prepaid registered post, by hand (to a responsible person during ordinary business hours) or by email, to the respective addresses provided by the Parties.
Delivery by hand is considered received on day of delivery unless delivered after business hours in which case the following Business Day will constitute delivery. Delivery by registered post 10 days after posting (unless proved otherwise) provided it is addressed correctly. Delivery by email will be considered to have been received on the date of transmission (unless the contrary is proved).
Any notice given in writing and actually received by the other Party, will be deemed to have been properly delivered and received, despite the fact that such notice has not been given in accordance with this clause.
These Terms have been custom created for us, Talking Sense (Pty) Ltd, by the good folks at Legal Legends www.legallegends.co.za.