General Terms and Conditions (GTC)
A. General Terms and Conditions of Use
§ 1 Use of FAM
1.1 The following terms and conditions govern the use of the online offering "fineartmultiple" on https://fineartmultiple.com ("website") operated by ATRIQ AG ("FAM"), Alpenquai 28a, 6005 Lucerne, Switzerland.
1.2 FAM operates a free service in the form of a shopping community by which galleries, artists or individuals interested in art collection and the convenient purchase of art can come together online without having to travel far distances to galleries and museums (see our General Terms and Conditions (GTC) for Purchasing Works on FAM).
1.3 FAM offers registered members of the community ("users") the ability to set up a personal profile.
1.4 FAM offers non-registered users ("guests") the ability to look at parts of the FAM member profiles.
§ 2 Registering as a Member
2.1 For the purpose of registration, the user must be at least eighteen (18) years old, and is obligated to truthfully provide all details requested. The use of fictitious names is not permitted. Users whose particulars change during the course of their membership are obligated to promptly adapt their membership profile accordingly.
2.2 Each user may be registered only once as of the given point in time. Multiple registrations may warrant expulsion of the user from the platform by way of membership termination. Following termination of the given contract by FAM, the user may not re-register except with the express consent of FAM.
2.3 Users will receive confirmation via e-mail to the effect that they have duly been registered complete with username and password protected access authorization ("access data"). They may not disclose their access data to third parties, are required to keep them confidential and must protect them from unauthorized access. Users are obligated to promptly notify FAM of any knowledge of abuse of his username or password. In this case, FAM is entitled to expel the user – if necessary only temporarily – from using FAM.
2.4 User registration for FAM membership occurs on the website. After the user has filled out the appropriate fields, selected a username and password, granted the applicable rights and declared the necessary consents, FAM reviews the provided data, the granting of rights and declaration of consents of the user and, in the event of a positive check result, sends an email with a confirmation link to the user at the email address provided as part of the registration process. If the user confirms the link sent to him in the email, he becomes a member of FAM and receives an account.
2.5 After the user has successfully registered with FAM, he can log in to his account by entering his username and password.
§ 3 User Obligations
3.1 The user is prohibited in his posts, ratings, comments and images ("content") from using profanities, insults, threats, obscenities, false factual assertions, disparaging comments, defamations, slander, abusive criticism, sexist, pornographic, racist, right-wing extremist, violent, extremist, other unlawful, political, promotional statements or formulations.
3.2 The user is forbidden to post content that may violate the law or the rights of others.
3.3 The user is forbidden to post content that has been generated automatically.
3.4 The user is forbidden to post content that is not related in content to FAM's subject matter or is likely to jeopardize the smooth operation of FAM in terms of content.
3.5 The user is forbidden to post chain emails, viruses, Trojans, etc. or other harmful elements.
3.6 The user is prohibited from sending messages via his account to third parties if this is contrary to competition law, personality right or other legal requirements.
§ 4 Rights Granted by the User
4.1 The user grants FAM the exclusive, transferrable rights of use, limited to the period of membership, to his content for the comprehensive evaluation of content within the scope of FAM and for the purposes of FAM.
4.2 The rights granted under section 4.1 includes, in particular, the rights of storage, archiving, copying, distributing, transmitting, making publicly available, sending and reproducing of content, regardless of the manner of transfer/transmission (in particular over the Internet, mobile digital services, telecommunications platforms and services, social media platforms) to be received by any receiver as well as the databank right. The granting of rights under section 4.1 also includes the right of FAM to export/to link or upload content posted by users on the website, in whole or in part for FAM presentations on social media platforms and other intercommunicative and/or user operated online services such as Facebook, Twitter, etc., and to make this content available to third parties – also for advertising purposes – also in the form that third parties then further disseminate this content over the above described platforms and services.
4.3 The user shall ensure and guarantee that his content does not infringe any third party rights (e.g. copyright and performance protection rights, patent rights, trademark rights, privacy rights, naming rights etc.) or violate any applicable law (e.g. youth protection law, competition law etc.).
4.4 In case of culpable violation of his obligations pursuant to paragraph 3, and culpable violation of the rights of third parties, the user shall indemnify FAM against the claims of third parties including reasonable costs of legal defense.
4.5 Regardless of the granting of rights in favor of FAM in section 4.1 and 4.2, the user is himself entitled to export/to link or to upload and make available to third parties any content that he has uploaded to FAM, in whole or in part, to social media platforms and other intercommunicative and/or user operated online-services such as Facebook, Twitter, etc. The user may use the content of other FAM members in this form if he has obtained the necessary rights for this from the relevant FAM member. Sections 4.3 and 4.4 apply to both the export of one’s own as well as third-party content accordingly.
§ 5 Liability
5.1 FAM is not liable for the up-to-datedness and completeness of content posted by FAM to the website. In addition, FAM assumes no liability for content posted to the website by it’s users. Furthermore, much of the website content is based on third party information, in particular from galleries, art associations (Kunstvereins) and artists, etc. FAM will review on a regular basis a random selection of information originating from third parties, but only assumes liability for the accuracy of these entries in accordance with section 5.4 and 5.5.
5.2 FAM does not assume any liability for the continuous and uninterrupted availability of the website, content accuracy or that the website is free of viruses; in particular, FAM is not liable in cases that are beyond the control of FAM, such as Internet connection problems or force majeure.
5.3 In the event disruptions occur in the availability of the website – whereby FAM will minimize periods of maintenance and further development to a necessary minimum – FAM is not liable to the user for loss of data or other damages resulting from such disruptions unless they are caused by intent or gross negligence.
5.4 In addition, FAM is only liable without limitation in cases of intent and gross negligence.
5.5 In cases of simple negligence, FAM only assumes liability – except in cases of injury to life, body or health – if essential contractual obligations (cardinal obligations) have been violated, although liability is limited to typical and foreseeable damages. Cardinal obligations are deemed to mean those obligations that the agreement imposes upon a party to the agreement in accordance with the sense and purpose of the agreement, or those obligations with which compliance actually makes it possible to properly execute the agreement and upon which compliance a party to the agreement may duly rely.
5.6 The aforementioned limitations or exclusions of liability shall not apply to a case of liability required by law or to liability arising from a contractually assumed no-fault related guarantee.
5.7 The aforementioned liability provisions also apply to FAM agents and legal representatives. They apply to all contractual and legal claims, including those based on fraudulent behavior.
§ 6 Termination of Membership / Exclusion
6.1 The user can terminate his membership at any time on the website. You can close your account at any time by writing to us at email@example.com.
6.2 FAM is entitled to remove, temporarily or permanently, content posted by the registered user and/or immediately expel the registered user, temporarily or permanently, and without notice of cancellation, if the user is in breach of his obligations specified in sections 2.1 to 2.4, sections 3.1 to 3.5, or section 4.3.
§ 7 Consequences of Termination or Exclusion
7.1 If the user ends his membership in accordance with section 6, FAM will delete the user's account, data and any content he might have posted.
7.2 If the user is expelled from FAM in accordance with section 6.2, the user’s account, data and any content he might have posted will be deleted after a period of two (2) weeks.
8.2 If the time period of four (4) weeks expires without the objection of the user, the changes are deemed accepted. FAM will inform the user of the time period in the notification and the significance of allowing the time period to lapse without the objection of the user.
9.1 The law of the Federal Republic of Germany applies exclusively to all legal relationships between FAM and the user. If you are the user and your habitual place of residence is located in another country at the time the website is used, the implementation of the mandatory legal provisions of that country remains unaffected by the choice of law specified in the first sentence.
9.4 These terms and conditions are not stored by FAM after the conclusion of the contract (membership). The terms and conditions are available in German and English. They are available in their current form at the URL https://fineartmultiple.com/terms-conditions.
B. General Terms and Conditions (GTC) for Purchasing Works on FAM
§ 1 Scope/Role of FAM
1.1 The business relationship between ATRIQ AG, Alpenquai 28a, 6005 Lucerne, Switzerland, represented by their business manager Roman Maria Koidl, and you as a member of the website https://fineartmultiple.com (hereinafter "website") shall be governed exclusively by these General Terms and Conditions (GTC) of business in the version valid at the time the order is placed. FAM does not recognize any other terms and conditions of the user/customer that may differ from those specified here unless FAM has agreed to their validity in writing.
1.2 Galleries, art dealers, artists and publishers, etc. can offer original prints and/or original objects (so-called multiples, hereinafter referred to as "works") for sale through the platform provided by FAM. Please note: works offered through FAM are generally not unique / individual pieces, but they are in fact originals. FAM also offers some unique / individual pieces.
As a registered member we offer you the possibility to purchase works through FAM that are offered for sale there. In this context, we advise you that the purchase contract does not take place directly between you and us, but between you and one of our reliable contract partners (e.g. gallery or publisher), which offers their objects for sale through FAM (seller). In this regard, we refer to the respective GTC of the seller. Our contract partners are established dealers, galleries and art printing houses etc. in the international art scene. We will act as representative of the seller when concluding the purchase agreements.
1.3 We provide the platform and handle purchases made through FAM in the name of and on behalf of our contract partners (sellers). In particular, we are authorized by our contract partners to conclude the purchase agreements on its behalf, to manage the processing of payments (e.g. billing, debt collections, deducting fees, transferring money to sellers), as well as organizing the transportation of works including insurance.
1.4 Please note: if you are a member of this website and purchase a work from one of our customers through the FAM platform (see section 10.1), the purchase contract does not take place with us but with the customer who resells his work to you through our platform (hereinafter "reseller"). For this case, we provide with our website the sales platform, represent the seller when concluding the purchase agreement, and support for the processing of the sale through the reseller.
§ 2 Point in Time of the Conclusion of Contract between the Sellers and You as Member in Connection with the Sale of Works through FAM
2.1 The presentation of editions, multiples and other works ("works") in our gallery on the fineartmultiple platform ("FAM") does not constitute a legally binding offer; it is a non-binding online catalog (so-called "invitatio ad offerendum").
2.2 By clicking the button to confirm purchase you submit a binding offer to purchase the works included in the shopping cart ("order"). We receive your order in the seller’s name.
2.3 You will receive notification of your order via email ("order notification") directly after placing your order. The order notification does not constitute the seller's acceptance of the contract; it informs you that your order has been received.
2.4 On behalf of and in the name of the seller, FAM accepts your order by sending you an email confirmation ("order confirmation") on behalf of the relevant contract partner ("seller") within fourteen (14) business days ("conclusion of contract"). The seller always reserves the right to accept your offer to conclude a purchase contract.
§ 3 Right of Withdrawal with Respect to the Seller (Contract Partner)
3.1 As a consumer (i.e. a natural person who places an order for a purpose that cannot be mainly attributed to his or her commercial or freelance professional activity), you have a right of withdrawal with respect to the particular seller. The seller in question is obligated to grant you the legal right of withdrawal and to inform you about this in a timely and thorough manner in accordance with applicable laws.
§ 4 Prices and Shipping Costs
4.1 All prices for works on our website are inclusive of VAT and, if applicable, royalties according to § 26 of the German Copyright Act.
4.2 Any additional costs for delivery within the EU will be noted separately.
4.3 For several orders placed at the same time, it cannot be excluded that these orders will be fulfilled by multiple deliveries.
4.4 If a work is to be shipped outside of the EU, or shipped from outside the EU, additional shipping costs, import duties and taxes etc. will apply.
Please note that cross-border deliveries are subject to opening and inspection by customs authorities and that you will be deemed the importer for your FAM orders and must comply with all laws and regulations of the country into which you intend to import the objects.
§ 5 Terms of Payment and Compensation
5.1 The total price is due immediately upon confirmation of your contract. In this context, FAM issues an invoice payable to FAM in the name and on behalf of the seller. We are authorized by the sellers to receive and forward money, as well as to receive and affirm declarations of consent.
5.2 You may pay the total purchase amount with the payment options of your choice as indicated on the FAM platform.
5.3 You are not entitled to compensation unless your counterclaims are legally binding or undisputed.
5.4 The seller retains the title to each delivered work until FAM has received full payment.
§ 6 Delivery/Returns
6.1 Works will be delivered within 21-30 business days following conclusion of the contract.
6.2 Unless otherwise agreed, delivery is made to the address specified by the user. If delivery is made through a shipping company, we or your contract partner where the work is located, or the shipping company they contract, will contact the customer to set up a specific delivery date. Accordingly, the customer must provide the correct telephone number and/or email address utilized during FAM membership registration.
6.3 If delivery to the customer is not possible, either because the work to be delivered will not fit through the customer's entrance door, front door or staircase, or because the customer is not at the delivery address provided, even though the delivery time was announced to the customer with reasonable notice, the customer is liable for the costs of the unsuccessful delivery.
6.4 If the customer has ordered several works at the same time, each of these orders represents an individual contract, and the deliveries will take place separately; we retain the right, however, to combine such orders into a single delivery. In this case, no additional costs will be incurred.
6.5 If you make use of your right of withdrawal with respect to the seller (see Section 3), the work(s) will be picked up from the customer. In the event of your withdrawal, please contact our Service Team by email at firstname.lastname@example.org to schedule a pick-up of the works(s). The Service Team is available at the times listed on our website. To arrange pick-up of the goods the customer must provide a telephone and/or email address.
For works valued at 25,000 EUR and above, we work with designated art shipping carriers that will also handle delivery in such cases (see section 6.2). For more information please go to: https://fineartmultiple.com/faq.
§ 7 Insurance, Packaging
7.1 Works purchased through FAM are shipped with transportation insurance arranged by FAM. For more information please go to https://fineartmultiple.com/faq.
7.2 Works purchased through FAM are properly packaged to allow for safe shipping.
§ 8 No Warranty in Case of Defects in Materials and Title
8.1 FAM is not liable for the authenticity or condition of works sold through the website since we act merely as brokers and are not the sellers. In this regard, we refer to the terms and conditions of the respective seller. Likewise, we are not liable for the authenticity or condition of the works sold by resellers through the website since in these cases we are also only acting purely as brokers. Accordingly, we assume no guarantees or liability for such resale transactions.
8.2 General Information Related to the Condition and Handling of Works
8.2.1 Variation in color and size from the images on the Internet are possible and do not constitute defects.
8.2.2 Similarly, works – in particular photographs – are environment dependent. Their appearance and coloration are subject to change and fading. Such irreversible, process-specific changes do not usually constitute defects. Photographs, prints and other works may not be exposed to sunlight either directly or in part, installed over heating ducts or radiators and should not be subjected to humidity levels exceeding those of the typical living space. Accordingly, photographs, prints and other works are not suitable for outdoor areas, basements, bathrooms and kitchens.
8.2.3 Defects incurred by the works due to natural wear and tear, abuse, improper handling and lack of improper maintenance or storage do not constitute defects for which the seller is liable according to warranty law. In this context, we draw your attention to the fact that the works are highly prone to scratching and staining. Extra care must always be taken when handling a work!
§ 9 Liability
9.1 FAM assumes unlimited liability for willful misconduct and gross negligence.
9.2 In cases of simple negligence, FAM only assumes liability – except in cases of injury to life, body or health – if essential contractual obligations ("cardinal obligations") are violated, although liability is limited to typical and foreseeable damages. Cardinal obligations are deemed to mean those obligations that the agreement imposes upon a party to the agreement in accordance with the sense and purpose of the agreement, or those obligations with which compliance actually makes it possible to properly execute the agreement and upon which compliance a party to the agreement may duly rely.
9.3 The aforementioned limitations or exclusions of liability do not apply in the case of: liability required by law or liability arising from a contractually assumed no fault-related guarantee.
9.3 The aforementioned liability provisions also apply to FAM's agents and legal representatives. They apply to all contractual and legal claims, including those based on fraudulent behavior.
9.4 Applicable to non-EU citizens: We expressly point out that the customer is responsible for the legal and/or de facto possibility of importing the work purchased by him. Neither the seller nor FAM assumes liability for this.
§ 10 Resale of Works Purchased by the Customer through the FAM Platform
10.1 As a registered user who has already purchased a work through the website, you have the possibility to sell this work to third parties through the website as platform under the conditions specified below. The conditions are: (a) You have owned the work for a minimum of six (6) months; (b) You authorize FAM to issue declarations for you and receive declarations from the buyer as well as the payments of the buyer and to forward these to you; (c) You use our own FAM services for insuring the work and sending it to the new buyer.
10.2 The brokerage commission payable to FAM by the user (here the "reseller") in the event of a successful resale of a work under the conditions specified in section 10.1 is 20%. The commission is calculated based on the net sales price. The brokerage commission plus VAT (if applicable) is due immediately after the resale contract is concluded and will be deducted directly from the purchase price and withheld by FAM. The settlement of accounts by FAM with respect to the reseller is made no later than the 30th or 31th of the month following the resale. The payment of the purchase price less the brokerage commission occurs no later than fourteen (14) days following the settlement of accounts.
10.3 If you as a user purchase a work from another user through the website (see section 10.1) the purchase contract does not take place with FAM but with the reseller. In this case we merely provide the sales platform, represent the reseller when concluding the purchase agreement and provide the support for the processing of the sale by the reseller.
§ 11 Applicable Law and Jurisdiction
11.1 German law applies; the UN Sales Convention is excluded. If you are the user placing the order and your habitual residence is located in another country at the time of the order, the implementation of the mandatory legal provisions of that country remain unaffected by the choice of law specified in the first sentence.
11.2 It is agreed that Berlin is the legal place of jurisdiction provided that the customer is a merchant as defined in the German Commercial Code, or a person without a permanent place of residence in Germany, or if the domicile or habitual residence of the customer is not known at the time legal action is filed.
§ 12 Compensation Claim
12.1 If through the submission of false information (knowingly or unknowingly) errors occur in our system and billing process, the sale can be cancelled on both sides. The processing time as well as incurred external costs will be invoiced to the buyer. A compensation of 175,00.- Euro net are to be payed, which are to rendered to FAM debt-free. The buyer reserves the right to prove that in the event of damage, less damage or no damage was actually incurred.
§ 13 Severability Clause / Modification of the Conditions
13.1 We reserve the right to make changes to our website, regulations and conditions, including these conditions of sale at any time. The conditions of sale, terms of contract and general terms and conditions of business that are in effect at the time the order is placed are applicable to your order, unless a modification of these conditions is due to a law or official order (in this case the modifications also apply to the orders that you have made previously).
13.2 If any provision of these GTC is wholly or partially invalid or unenforceable, or should these GTC include gaps, the validity of the remaining provisions of this GTC is unaffected. The invalid or unenforceable term is to be replaced, where possible, by statutory provisions. The same applies in the case of regulatory gaps.
13.3 These General Terms and Conditions are not stored by FAM following the conclusion of the contract. The terms and conditions are available in German and English languages. They are available in their current form at https://fineartmultiple.com/terms-conditions.
Status: October 2017