GTC
for Vendors
Zeichenfabrik Gallery General Terms and Conditions and Terms of Use for Vendors
Last revised: 11/22/2022
These Terms and Conditions apply to Vendors, who offer the works of art for sale on our platform. If you want to search for and buy works of art from us, the Terms and Conditions for Buyers, available here, shall apply.
Dear Artist, Welcome aboard!
Before using our sales platform to sell your works of art, please take the time to read these General Terms and Conditions and Terms of Use. By accepting these Terms and Conditions, you receive access to the Zeichenfabrik Gallery, an online sales platform for artists. The purpose of this website is to provide you with all necessary services to offer your works of art, make contact with buyers and sell your works of art.
In the event of any questions on this website and our services, please send us an email to buero@zeichenfabrik.at
1. Contractual partner
Operator of the Zeichenfabrik Gallery:
Zeichenfabrik Ausbildungsstätte für Kunst GmbH
Flachgasse 35-37/4-5
1150 Vienna
Austria
FN [Commercial Register no.] 468014g, Commercial Court Vienna
VAT no.: ATU72060235
Email: buero@zeichenfabrik.at
(hereinafter also referred to as “we” or “us”)
2. Subject of the contract
2.1 We use the Zeichenfabrik Gallery to provide you with an online sales platform for contemporary art. Artists (hereinafter in brief: the “Vendors”) may offer their works of art on this platform; other users (hereinafter in brief: “Buyers”) can buy these works of art. We organize the transport of the work of art from the Vendor to the Buyer.
2.2 These Terms and Conditions, as amended, govern the legal relations between you and us when you offer to sell a work of art on our platform. Your own Terms and Conditions shall only apply to us if we explicitly consent in writing thereto.
2.3 All contracts concluded through the Zeichenfabrik Gallery are exclusively entered into by and between the Vendor and the Buyer. We are not party to such contracts. We shall not operate as reseller or as representative or broker for our users. Please address any claims directly to the Buyer(s) in all cases.
Our service consists of mediating selling/buying opportunities by providing the website, using which Vendors and Buyers can contact one another, and in support for the transaction of sales. We receive a commission from Vendors in the event of successful brokering.
We will pass on any queries from users relating to a contract concluded on our platform to the other partner in the contract.
2.4 We hereby reserve the right to expand the Gallery’s range of services offered, to make improvements and replace the current range of services with equivalent alternatives.
2.5 The availability of the Zeichenfabrik Gallery depends on the operation and workload of the Internet and on network infrastructure, over which in some cases we have no control. We do not provide any assurance that our platform will be continually accessible and that all contents will be continually available there. We aim to remedy any outages in the platform as quickly as possible.
2.6 We are entitled to restrict access to and service provision on our platform temporarily if necessary for maintenance works, updates, security and system integrity. We will inform you in advance of any longer-lasting maintenance works.
3. Registration, user accounts
3.1 You can browse through the Zeichenfabrik Gallery without registering for a user account. The offering and sale of works of art on our platform however are only possible for registered users.
3.2 By registering for a user account, you conclude a legally-binding contract with us, based on these General Terms and Conditions. We hereby reserve the right to refuse registration without giving reasons. In order to prevent misuse, you will receive a confirmation email from us at the indicated email address, containing an activation link. The user account is only set up after clicking on this link.
3.3 In order to use our platform you must be an adult or be acting with the consent of your legal representative.
3.4 During the registration process, you should provide all data requested correctly and completely. Giving a PO box as an address is not permitted. We are entitled, but not obliged, to demand proof. You must update your user account in account management immediately in the event of any change. You are liable to us for any harm arising from incorrect data. Moreover, in this case, we are entitled to block or terminate the account without observing a notice period. You cannot derive any claims as a result. Multiple registration is not permitted. Transferring the user account to another person is not permitted.
3.5 The username that you select shall not infringe third-party rights (e.g. brands, company, names), shall not rely on third-party marks, and shall not contain advertising messages or misleading information (e.g. on the legal form or head office).
3.6 The password must be at least eight characters in length and consist of upper case and lower case letters, numbers and special characters.
3.7 You must keep your login data (username and password) confidential and protect such data from access by unauthorized third parties. If you suspect that unauthorized third parties have become aware of your login data, please notify us immediately and change your password. In this case we are entitled to block the user account temporarily in order to prevent misuse.
4. Terms and Conditions for offering works of art
4.1 You can introduce yourself and your works of art on our platform and offer these works of art to other users of our platform for purchase.
4.2 The following Terms and Conditions apply to the offering of works of art on our platform:
4.2.1 The Vendor must be the lawful owner of the work of art and hold rights of disposal thereof. In the event of joint ownership, the Vendor guarantees that he is entitled to sell the work of art on our platform on behalf of all co-owners.
4.2.2 The Vendor must be the sole author of the work of art or in the event of joint ownership must be authorized by all other copyright owners to present the work of art on our platform.
4.2.3 The Vendor hereby gives an assurance that the work offered for sale does not infringe third-party intellectual property rights (e.g. copyrights, ancillary copyrights, trademark and personal rights). He shall fully indemnify and hold us and the Buyer harmless from all third-party claims asserted as a result of an alleged infringement of such rights by the work of art.
4.2.4 The Vendor hereby gives an assurance that the works of art he offers on the platform do not infringe applicable law or good morals.
4.2.5 The Vendor shall enclose an authenticity certificate with the work of art in the event of a sale, informing the Buyer of the name of the Vendor, title of the work of art, year of origin and dimensions of the work of art. This authenticity certificate is provided to the Vendor by the Zeichenfabrik Gallery and must be enclosed with the shipped work of art completed and signed by the Vendor.
4.2.6 The Vendor hereby gives an assurance that his/her details provided to the Zeichenfabrik Gallery and users of the platform are correct, up-to-date and complete with regard to his/her person and his/her works of art for sale. He/she shall immediately correct, update or supplement this information, whenever necessary.
4.3 The Vendor is also entitled to publish and offer his/her work of art for purchase in other galleries or on other websites.
5. Offers and prices
5.1 You can describe the work of art that you have offered using the resources provided in the administrative area and upload images. Similarly, you shall specify the requested selling price there. In the offer on the platform, this price is increased by a surcharge calculated by us, which covers the costs of shipping and insurance, as well as our commission, plus applicable taxes and duties. This produces the total amount received by the Buyer, as notified in the offer, and to be paid by the Buyer.
5.2 Prior to accepting an offer to purchase, you may remove your work of art for sale from the platform at any time or amend the offer (including your requested selling price).
6. Contract conclusion with the Buyer
6.1 By clicking on “place order with obligation to pay”, the Buyer can submit a binding offer to purchase the relevant work of art. He/she is bound by this offer for 48 hours. We shall inform you of any received offer and the option to accept this offer within this deadline (“confirmation of availability”).
6.2 The purchase agreement is only entered into between you and the Buyer if you have accepted the offer in the administrative area of the platform. As a result, you are obliged to deliver the purchased work of art to the Buyer in compliance with the Terms and Conditions set out under section 7.
6.3 In the event of you failing to accept the offer within 48 hours, we will inform the Buyer via the email address indicated in the order that the requested work of art is not available. In this case no contract is entered into between you and the Buyer.
6.4 The work of art remains your property until payment of the total amount in full. We only organize transport of the work of art after full receipt of the total amount from the purchase price that you have selected and our surcharge, plus applicable taxes and duties, onto our trust account.
6.5 If the total amount has not been received or has only been partly received in our escrow account within 3 working days following confirmation of availability of the purchased work of art, we will inform you thereof. You then have the option of withdrawing from the purchase agreement after granting the Buyer a reasonable deadline.
- Delivery of purchased works of art
7.1 Once the sale of a work of art is concluded on our platform and the Buyer has paid the purchase price into our escrow account for Stripe, we will organize transport to the Buyer for you and inform you of delivery implementation. Unless indicated to the contrary, worldwide delivery is possible. You hereby undertake to carry out delivery exclusively through the carrier that we have organized and based on the following Terms and Conditions and to cooperate as far as possible in implementation.
7.2 You must pack the purchased work of art professionally, in compliance with the packaging instructions sent to you and available for download here within no more than 72 hours and enclose the authenticity certificate received from us electronically with the consignment, in the form of a printout.
7.3 Once you have packed the work of art, you shall inform us in the platform’s administrative area of readiness for collection and any necessary information for the shipment, so that we can organize collection and delivery to the Buyer of the work of art. This information includes in particular the dimensions and weight of the packed work of art and a day and timeframe for collection of the work of art.
7.4 We will organize collection by a carrier based on this information and on information already stored on the work of art in the administrative area (value of work, collection address and delivery address). You hereby consent to us commissioning the carrier in our own name and on our own account. Transport costs and insurance shall be compensated by our surcharge on the purchase price.
7.5 We will inform you of the day and timeframe for collection and give you contact data for the carrier. Moreover, we will send you a shipping label and the invoice addressed to the Buyer and the withdrawal/cancellation instruction, including cancellation form, which you should enclose with the shipment in the form of a printout.
7.6 You hereby undertake to pack the work of art professionally, in compliance with the provided packaging instructions, in such a manner that damage to the work of art during transport can, as much as possible, be excluded. You hereby acknowledge, by means of consent, that damage to the work of art incurred as a result of inadequate packaging is not covered by transport insurance taken out with the carrier and you therefore have to assume such damages yourself.
8. Commission
8.1 We receive a commission for each sale of a work of art transacted on our platform. This is calculated as a percentage of the gross selling price set by you (incl. any VAT) and includes applicable taxes and duties.
8.2 The selling price set by you is automatically increased by the relevant commission. This commission forms parts of the surcharge, increasing the selling price set by you. Prices, including this surcharge, are indicated on the platform.
8.3 If the Buyer withdraws from the purchase agreement based on the distance selling law, we shall not charge you any commission. Withdrawal by the Buyer for other reasons (e.g. due to delay, error or warranty) shall not affect the claim for commission.
8.4 We automatically deduct commissions imposed on us by the Buyer from the total amount.
8.5 We are entitled to adjust the amount of commission. In the event of any preparing or changing of an offer on our platform you can see the total amount including surcharge which the Buyers have to pay. By compiling or changing the offer, you declare your consent to the indicated amount of the surcharge.
9. Payment of purchase price
9.1 Once the carrier has confirmed delivery of the purchased work of art to the Buyer, we will arrange for your selected purchase price to be credited, including applicable taxes and duties and excluding the surcharge, onto your bank account within no more than 21 days.
9.2 You hereby acknowledge, by way of consent, that in the event of the Buyer not having paid the total amount in full and you failing to withdraw from the contract we will always retain the full surcharge and only transfer the remainder of the Buyer payment to your bank account.
9.3 You are personally responsible for taxation of your income.
10. Granting of rights
10.1 You hereby irrevocably grant us a non-exclusive, free right of use, unlimited in terms of timing and location, restricted to the purpose of presenting your offers and general applications to our platform, to all content (e.g. photos, graphics, texts) transferred for publication on the Zeichenfabrik Gallery and/or directly used there. This right allows us in particular to reproduce this content, to make it available on our platform and our other websites, video channels and social media profiles – for example as part of a showcase or a specific sales campaign –, disseminate it in advertising folders and other print materials, send it for advertising purposes, publicly display it and adapt it as required for such usage. You waive a separate copyright notice for this content, unless specifically agreed to the contrary. You shall inform us, without being requested to do so, of all necessary copyright notices (credits) and additional rights to be acquired, for example in case of photos from image databases.
10.2 You hereby provide us with an assurance that you are entitled to grant us such permission and shall indemnify and hold us harmless from all third-party claims due to any infringement of these rights. This also includes reasonable costs of legal defense. You must support us to the necessary extent in legal defense.
10.3 You are prohibited from using data of Buyers of whom you became aware on our platform for your own marketing purposes. Such data may only be used for activities related to delivery of the work of art and with regard to financial reporting. This obligation is applicable beyond the term of this contractual relationship.
11. Processing agreement:
If we operate on your behalf as a processor, data shall be processed in accordance with the following processing agreement:
11.1 General obligations on the processor
The controller has commissioned the processor with providing the following services (hereinafter: “data use” for short): provision of own offers on the Internet, order handling and billing
Processing is carried out throughout the business relationship.
Within the scope of data application, the processor shall process the following data categories:
Master data, customer data, order data, invoice and payment data, communications data, marketing-relevant data
Data in the following categories of data subjects are processed within the scope of data use:
Customers, suppliers, carriers
11.2 Subject of processing
As long as the processor makes use of data and processes personal data for the controller, the following terms and conditions shall apply, in compliance with Art 28 GDPR:
a) The processor hereby undertakes to comply with all legal requirements of the General Data Protection Regulation (GDPR) and the Austrian Data Protection Act (DSG) and solely to perform data use (logical and physical) within the EU or the EEA. Any form of transfer of data use (including relocation of the processor’s head office) to a third country (and therefore outside the EU or EEA) requires the prior written consent of the controller.
b) The processor will process data application in a documented way as separately instructed by the controller, unless he is under an obligation as a result of the law of the European Union or the Member States, to which the processor is subject; in such a case the processor shall inform the controller of these legal requirements before processing, unless the relevant law prohibits such communication due to an important public interest.
c) The processor hereby guarantees that persons, who may be or become aware of data processed in the order, will be subjected to a written confidentiality obligation prior to processing or becoming aware of such data, where they are not subject to a reasonable legal confidentiality obligation in any case.
d) The processor, with consideration for the latest technology, implementation costs and the nature, scope, circumstances and purposes of processing and for the varying level of probability and severity of risk in respect of rights and freedoms of natural persons, shall take appropriate technical and organizational measures to guarantee a reasonable level of protection for the risk. The Parties shall define and evaluate these measures by mutual consent. The processor hereby undertakes to implement the agreed measures.
e) The processor is allowed in principle to commission or use subcontracted processors (hereinafter in brief: Subcontracted Processors) if it informs the controller in writing in advance about any intended commissioning or utilization of subcontracted processors and the controller is free to object to such commissioning or utilization without giving reasons. In the event of such an objection, the processor will not commission or make use of the subcontracted processor. The processor is obliged to subject all subcontractors, as defined in Art 28(4) GDPR, to a written obligation under this contract and to transfer all obligations affecting the processor to the subcontractor. In the event of the subcontractor infringing its obligations, the processor shall be liable. The subcontractor must have a branch office within the EU or EEA. The subcontractor may exclusively operate data application within the EU or EEA. Alternatively, the level of data protection at the location of the branch office and data processing must be guaranteed as described in Chapter V of GDPR. The subcontracted processor is only allowed to commission or use further subcontractors under the conditions set out here.
f) The processor shall support the controller, through appropriate technical and organizational measures, in complying in good time with its obligation to reply to applications to exercise the rights of the data subject as set out in Chapter III of GDPR (access, rectification and erasure, information, data portability, objection, and automated individual decision-making). In the event of a data subject contacting the processor or a subcontractor instead of the controller, he hereby undertakes to forward the application to the controller, such that the controller is able to process the application on time.
g) The processor shall support the controller in complying with the obligations set out in Art 32-36 GDPR (adopting technical and organizational measures, security breach notification, compilation of a data protection impact assessment).
h) The processor shall either delete or return all personal data after completion of data application at the discretion of the controller, unless there is an obligation to store personal data under European Union law or the law of Member States.
i) The processor is obliged to provide the controller with all necessary information to prove compliance with the obligations imposed on the processor in this contract.
j) If the processor believes that an instruction issued by the controller infringes GDPR or other data protection regulations of the EU or its Member States, he shall notify the controller hereof immediately, giving reasons.
11.3 The controller is entitled to check on compliance with all applicable data protection regulations and compliance with contractual provisions itself or by third parties at the processor and any subcontractors.
12. Liability and warranty
12.1 We are only liable to you for damage which we or our vicarious agents have caused intentionally or through gross negligence. We strive to protect our platform with all reasonable security measures, based on the latest technology, from attacks by hackers and viruses.
12.2 If you are a contractor, as defined in KSchG [Consumer Protection Act], the following applies: Our liability for lost profit and consequential damage, where legally admissible, is excluded. Compensation is limited to damage typical of the contract, which we should have anticipated when concluding the contract as a result of the circumstances as known at the time.
12.3 We are not obliged to the check content published by you on the platform for accuracy, completeness and lawfulness. Similarly, we are not liable and do not assume any guarantee for any specific usability and specific business outcome from using the Zeichenfabrik Gallery.
12.4 You are aware that all contracts which you conclude with another user of the Zeichenfabrik Gallery exist exclusively between you and this user. We are not a party to this contract and are not therefore liable for the conclusion or enforceability of this contract. You should contact the respective Buyer with any claims under the purchase agreement.
12.5 You are liable to us for all damages and additional costs resulting from you having culpably frustrated timely collection of the work of art.
13. Term, termination and blocking
13.1 This contract is concluded for an indefinite term.
13.2 You can terminate this contract by deleting your account in writing by email and/or in account administration at any time. In order to prevent misuse, you receive an email from us in which you have to confirm deletion of the user account in writing.
13.3 We are entitled to terminate this contract with a notice period of one month at the end of any month. Notice of termination is issued by an email to the email address indicated by you.
13.4 Our right to terminate this contract for good cause without notice at any time is unaffected. Good cause, authorizing us to issue termination without notice, arises if and when:
- you have entered incorrect data (name, company, address, etc.) for your user account;
- you make your user account available to third parties or transfer it to third parties;
- you otherwise culpably infringe a contractual obligation.
13.5 In all such cases we are also entitled to warn you and/or temporarily block your account without advance notice. You cannot derive any claims as a result. At the same time as blocking, we will ask you to eliminate the infringement within a reasonable period of time.
13.6 If we have issued termination without notice, you have no right to re-registration, not even under another name.
13.7 In the event of termination, we will offer you a reasonable period of time to protect your data from deletion. This does not apply to termination for good cause. Your data cannot be restored following deletion. You are personally responsible for timely protection.
14. Offsetting of claims
You can only offset our claims against your own claims which are legally related to your commitment, have been established in court or recognized by us, or in the event of our insolvency. If you are a contractor, as defined in KSchG [Consumer Protection Act], the following provision applies at variance from the above: offsetting against your own claims is excluded.
- Language of contract, dispute resolution, applicable law, court of jurisdiction
15.1 The language of the contract is German. Versions of these Terms and Conditions in other languages merely serve as guidance. The German version is solely applicable.
15.2 In the event of individual provisions of these General Terms and Conditions being legally invalid, this shall not affect the validity of the remaining provisions or contracts concluded with the client based on these Terms and Conditions. A provision which comes closest to the ineffective provision (in compliance with the economic purpose) in a legally admissible way shall replace any ineffective provision.
15.3 The competent arbitration bodies for consumers in respect of transactions concluded on our platform are:
Online ombudsman
c/o Austrian Institute for Applied Telecommunications (ÖIAT)
Ungargasse 64-66/3/404
1030 Vienna
Phone: +43 1 595 211 275
Fax: +43 1 595 21 12 99
Email: kontakt@ombudsmann.at
“Arbitration for Consumer Transactions” Association
Mariahilfer Strasse 103/1/18, 1060 Vienna
Phone: +43 (0)1 890 63 11
Fax: +43 (0)1 890 63 11 99
office@verbraucherschlichtung.at
We and the suppliers represented in the Zeichenfabrik Gallery shall decide in the individual case whether to take part in arbitration proceedings.
15.4 The European Commission has set up a platform for online dispute resolution for consumers, which you can find at https://ec.europa.eu/odr.
15.5 This agreement is exclusively subject to Austrian law, in exclusion of the UN Convention on Contracts for the International Sale of Goods and of international conflict of laws rules, where they refer to law other than Austrian law.
15.6 Place of performance is the head office of Zeichenfabrik Ausbildungsstätte für Kunst GmbH. The relevant competent court at the head office of Zeichenfabrik Ausbildungsstätte für Kunst GmbH has jurisdiction for any disputes arising under this agreement, including the matter of effective conclusion and termination hereof. If you are a consumer, as defined in KSchG [Consumer Protection Act], and have your domicile or usual residence in Austria, or are employed in Austria, action can only be brought against you, the above notwithstanding, by courts in the judicial district in which you have your domicile, usual residence or place of employment.
16. Amendments to these GTC
We hereby reserve the right to adjust these Terms and Conditions from time to time, in order to consider the wishes of our users or an amended offer. Revised versions of Terms and Conditions are published on the website https://www.nowornever.gallery. You can find the date of the relevant version right at the top of the document. We will inform you of all amendments to the email address most recently provided to us. This communication takes place at least six weeks before the amendment takes effect. The amended Terms of Use shall be agreed unless you terminate your user account before the date on which they take effect. We will separately advise you of the importance of your actions at the start of the stipulated deadline.