Terms & Conditions

  1. Definitions

    In these terms and conditions, the following expressions shall have the following meanings:-

    "Additional Services"

    the services set out in Appendix 2 which may be provided by Online Galleries to the Dealer for sums to be agreed;

    "CMS"

    the content management software embedded in the Online Gallery as described in the Dealer Manual;

    "Dealer Manual"

    the document produced by Online Galleries which provides details of the CMS (a copy of which may be requested)as may be amended by Online Galleries from time to time;

    "Dealer Parameters"

    the limitations on use of the Online Gallery and CMS as specified in Appendix 2 of the Provision Agreement

    "Downtime"

    a period during which the Online Gallery is unavailable on the World Wide Web/Internet;

    "Enhancement"

    a modification or addition to the Online Gallery or CMS which creates functionality or additional content not covered in the Dealer Manual;

    "Enhancement Specification"

    a written document setting out the parameters of an Enhancement;

    "Fees"

    the fee and any other monies payable by the Dealer to Online Galleries as specified in Appendix 1 of the Provision Agreement;

    "Hosting"

    the provision of the hosting services set out in paragraph 3;

    "Inappropriate Conduct"

    conduct that under the laws of any jurisdiction is any of the following:-unlawful, fraudulent, criminal, threatening, abusive, harmful,malicious, obscene, pornographic, profane, libellous, defamatory,constitutes or involves a misrepresentation, infringes any Intellectual Property Rights, infringes Netiquette or any advertising or other relevant codes, constitutes or encourages a criminal offence or the propagation of a virus, worm, Trojan horse or other harmful code;

    "Inappropriate Material"

    material that under the laws of any jurisdiction is any of the following:-unlawful, fraudulent, criminal, threatening, abusive, harmful,malicious, obscene, pornographic, profane, libellous, defamatory,discriminatory, stolen, constitutes or includes a misrepresentation,infringes any Intellectual Property Rights, infringes Netiquette or any advertising or other relevant codes, constitutes or encourages a criminal offence or contains a virus, worm, Trojan horse or other harmful code;

    "Intellectual Property Rights"

    all copyrights, patents, database rights, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets,know-how, rights to confidence and other intellectual and industrial property rights in any parts of the world;

    "Material"

    text, graphics, images, logos, music, photographs sound, video or any combination thereof;

    "Netiquette"

    generally accepted standards of conduct relating to use of the Internet including, without limitation, not sending or arranging/coordinating to send unsolicited mass e-mail, not impersonating another person, and not misrepresenting oneself to have authorisation from another person when one does not;

    "Online Gallery"

    the "Online Gallery" template described in the Dealer Manual;

    "Provision Agreement"

    the agreement between Online Galleries and the Dealer which describes the terms and conditions upon which the Dealer is entitled to use Online Gallery;

    "Start Date"

    The date as stated in the Provision Agreement;

    "Tolerances"

    instances of adverse effect on or interruption to the Hosting and/or Downtime asset out in paragraph 6.10 and for which Online Galleries is not to be regarded as having breached any provision of these terms and conditions;

    "Working Hours"

    9.30a.m.-5.30 p.m. UK time Monday to Friday excluding UK public and bank holidays.

  2. Licence
    1.  Inconsideration of the payment of the Fee Online Galleries hereby grants to the Dealer a non-exclusive, non-transferable Licence in object code to use CMS and the Online Gallery on these terms.
    2.  Any other use of CMS or Online Gallery shall be subject to Online Galleries' prior written approval and the payment of additional  Fees which shall be determined by Online Galleries.
  3.  Hosting Services
    1.  In consideration of the Fees, Online Galleries agrees to provide the following services from the Start Date:
      1.  installation and operation of the "Online Gallery" on Online Galleries' server;
      2.  facilitating and maintaining public access to the "Online Gallery";
      3.  the provision of any updates to CMS and/or "Online Gallery" as may be available from time to time;
      4.  monitoring the operation of the "Online Gallery"; and
      5.  use of reasonable endeavours to rectify any problems with the operation of CMS or the "Online Gallery".
      6.  forwarding of emails from Online Gallery to the Dealer;
    2.  If agreed between the parties and in consideration of any additional fee as provided for in the Provision Agreement, Online Galleries may provide the registration of an Online Galleries owned WWW domain name on behalf of the Dealer for use during the term of the Provision Agreement;
  4.  Price and Payment
    1.  The Dealer shall pay the Fees as set out and agreed in the Provision Agreement  and pay any invoice in relation to any other fees within 14days of the date of such invoice. Additional work requested by the Dealer or caused by the Dealer's Inappropriate Material and/or Inappropriate Conduct or other breach of these terms can be charged for by Online Galleries at its applicable rates from time to time. 
    2. If the Dealer fails to pay any sum due under either the Provision Agreement and/or these terms and conditions on time, Online Galleries shall be entitled to suspend Hosting and charge interest on a daily basis on all overdue amounts and on outstanding interest from the date of such failure until payment (both before and after judgement) at an annual rate 3% above the base rate for the time being in force of Barclays Bank plc.
      1.  For the purposes of these terms and conditions, time of payment by the Dealer shall be of the essence
  5.  Limitation of Liability and Warranties
    1.  The Dealer shall be responsible for ensuring that CMS and/or the Online Gallery meets its requirements and is compatible with the hardware/software configuration used by the Dealer.  
    2.  Online Galleries shall not be liable for any indirect loss, consequential loss, loss of profit, revenue, goodwill, data loss or reconstitution howsoever arising suffered by the Dealer or for any liability of the Dealer to any third party arising in any way (including negligence) in connection with these terms and conditions.  
    3.  Online Galleries shall not be liable in any way for any problems with the Hosting or any other act or omission which fall within the Tolerances.
    4.  Online Galleries shall not be liable for any loss or damage of what so ever nature suffered by the Dealer or the customers of the Dealer (whether in negligence or otherwise) arising out of or in connection with any breach of these terms and conditions by the Dealer or any act,misrepresentation, error or omission made by or on behalf of the Dealer(including without prejudice use of CMS or the Online Gallery by someone with inadequate training or experience) or arising from any cause beyond Online Galleries' reasonable control.
    5.  Subject to clause 6.7 below, no matter how many claims are made and whatever the basis of such claims, Online Galleries' maximum aggregate liability to the Dealer under or in connection with these terms and conditions, in respect of any loss (or any other loss to the extent that such loss is not excluded by clauses 6.1-6.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the annual Fees paid by the Dealer.
    6.  Whilst Online Galleries will make all reasonable attempts to exclude viruses from CMS and the Online Gallery, it cannot ensure such exclusion.Online Galleries will accept no liability for viruses.
    7.  Online Galleries does not warrant the quality of the images appearing on the Online Gallery which have been taken from the Material.
    8.  None of the clauses above shall apply so as to restrict liability for
      1.  death or personal injury resulting from the negligence of Online Galleries or its appointed agents; or
      2.  liability for fraudulent misrepresentation; or
      3.  any breach of the terms implied by section 12 of the Sale of Goods Act 1979or section 2 of the Supply of Goods and Services Act 1982.
    9.  Online Galleries gives no warranties in connection with CMS and the Online Gallery other than that CMS and the Online Gallery will perform substantially in accordance with the Dealer Manual for a period of 30days from the date hereof. All other warranties, express or implied,statutory or otherwise are excluded to the fullest extent permitted bylaw.
    10.  Online Galleries shall not be liable for any interruptions to the Hosting or Downtime arising directly or indirectly from:
      1.  interruptions to the flow of data to or from Online Gallery Website and other portions of the Internet;
      2.  changes to the "Online Gallery" or CMS or server on which the "Online Gallery"is hosted (including the implementation of any necessary upgrades and operating system patches) and other housekeeping tasks which need to be made and of which Online Galleries will use its reasonable endeavours to give the Dealer at least seven (7) days prior written notice by email;
      3.  the effects of the failure or interruption of services provided by third parties;
      4.  factors outside of Online Galleries' reasonable control;
      5.  any actions or omissions of the Dealer (including, without limitation,breach of its obligations set out in the Agreement) or any third parties;
      6.  third party equipment; and/or
      7.  where the  Dealer requests interruptions to the Hosting
  6.  Intellectual Property Rights and Indemnities
    1.  The Dealer acknowledges that:
      1.  Online Galleries is the exclusive owner of all Intellectual Property Rights in the ideas and expressions underlying CMS and the Online Gallery (which shall include the look, feel and format of Online Gallery as well as any modifications or updates);
      2.  the terms of this Clause 7 shall survive the termination for whatever reason of these terms and conditions; and
      3.  it obtains no Intellectual Property Rights whatsoever in any software or documentation by virtue of these terms and conditions.
    2.  Except for back-up purposes or otherwise in accordance with the law, the Dealer shall not, nor allow any third party to duplicate or otherwise reproduce in whole or in part CMS or the Online Gallery.
    3.  The Dealer undertakes not to remove, delete, disable or obscure any copyright notices, links or confidentiality notices on or in the Online Gallery or CMS.
    4.  The Dealer shall indemnify Online Galleries and BADA against all damages, liabilities, costs and expenses which Online Galleries may incur or sustain including the costs of defending any suit arising from misrepresentation, infringement of third party intellectual property and/or the use of any Material or data provided by or on behalf of the Dealer or appearing on the Online Gallery, including without limitation, any Inappropriate Material or relating to any Inappropriate Conduct.
    5.  The Dealer hereby grants a licence to Online Galleries without charge to use its Intellectual Property Rights to the extent necessary for the purpose of these terms and conditions.
  7.  Online Gallery Content
    1.  The Dealer shall have sole responsibility for the content of the Material which it provides to the Online Gallery, whether posted on the Online Gallery by the Dealer itself, or on the Dealer's behalf, and will operate its business (relating to Online Gallery) in compliance with all applicable law.
    2.  Online Galleries shall reserve the right  to refuse to post Material on the Online Gallery, to suspend availability of the Online Gallery at anytime and/or to remove any Material at any time.
    3.  For the avoidance of doubt, Online Galleries' rights to suspend the Hosting and availability of the Online Gallery and/or remove content under Clause 8.2 above shall be without prejudice to the responsibility of the Dealer for content of the Material provided by them under Clause8.1 and to the warranties given by the Dealer relating to that content in Clause 8.4 below.
    4.  The Dealer warrants, represents and undertakes in relation to all Material(including, for the purposes of this Clause 8.4, any Material which it requests Online Galleries to post on the Online Gallery) that:
      1.  the Material shall not be Inappropriate Material or relate to Inappropriate Conduct; and
      2.  the Dealer either owns all Intellectual Property Rights in such Material or has obtained full and effective licence(s) from all relevant third parties which allows the Dealer to use relevant Material and to permit its dissemination worldwide by Online Galleries.
    5.  Online Galleries shall be entitled to link from its own website to the Online Gallery and to use and retain copies of the Material on the Online Gallery at any time (including for the avoidance of doubt, details and images of works of art and collectables) in a reference library(available on Online Galleries' own website or elsewhere) and the Dealer hereby indemnifies Online Galleries against any third party claims relating to such use.
  8. Dealer's Obligations
    1.  The Dealer undertakes to secure copyright and other appropriate licences or consents where necessary for use of any Material, data or information provided to Online Galleries pursuant hereto.
    2.  The Dealer undertakes to keep secure from third parties any passwords issued to the Dealer by Online Galleries, in connection with these terms and conditions.
    3.  The Dealer undertakes fully to virus-check all Material supplied to Online Galleries pursuant to these terms and conditions.
    4.  The Dealer undertakes not to make any alterations to CMS or the Online Gallery otherwise than through Online Galleries unless it obtains Online Galleries' prior written consent.
    5.  The Dealer undertakes not to exceed the Dealer Parameters, or embark on any course of action, whether by use of the Online Galleries or any other means, which may cause a disproportionate level of website activity without providing at least seven day's prior notice in writing to Online Galleries.
    6.  The Dealer undertakes that it will provide or procure the provision of the information, data and material required for the purposes hereof as specified and reasonably requested by Online Galleries in whatever formats and timescales.
    7.  The Dealer shall be responsible for ensuring that it has a back-up of all data and Material provided to Online Galleries so that it shall be able to recover the same and provide the same to Online Galleries in the event that the version supplied to Online Galleries becomes degraded,corrupted or otherwise damaged or lost.
    8.  The Dealer shall not, except to the extent permitted by law, modify,reverse assemble, decompile or reverse engineer CMS or Online Gallery nor shall it permit whether directly or indirectly any third party to do any of the foregoing.
  9.  Termination
    1.  Either party may terminate these terms and conditions immediately by written notice to the other in the event that any of the following occur:-
      1.  the other fails to pay any amount due under either the Provision Agreement and/or these terms and conditions within 30 days of its due date or breaches any term of either the Provision Agreement and/or these terms and conditions and such breach is incapable of remedy or continues fora period of 30 days after notice requiring the same to be remedied has been given by the terminating party to the other party; or
      2.  an order is made or a resolution is passed for the winding up of the other party, or if a provisional liquidator is appointed in respect of the other party, or if an administration order is made in respect of the other, or if a receiver is appointed in respect of the other or all or any of its assets or if the other is unable to pay any of its debts within the meaning of Section 123 of the Insolvency Act 1986, or if any voluntary arrangement is proposed under Part 1 of the Insolvency Act1986 in respect of the other.
    2.  Either party may terminate the Provision Agreement and these terms and conditions by not less than 3 months' written notice to the other, such notice not to be given before the nine months from the Start Date.
    3.  Termination of the Provision Agreement and these terms and conditions shall be without prejudice to any other rights or remedies of the terminating party.
  10. General
    1.  No change, alteration or modification to the Provision Agreement and these terms and conditions shall be valid unless in writing and signed by duly authorised representatives of both parties.
    2.  If any provision of these terms and conditions or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
    3.  The Dealer undertakes that it shall not, without the prior written consent of Online Galleries, assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
    4.  Online Galleries reserves the right to sub-contract any of the work required to fulfill its obligations hereunder.
    5.  Any notice given under these terms and conditions may be served personally or sent by pre-paid registered letter or recorded delivery to the addresses given here above. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally,at the time of such service or, when posted, 48 hours (or if the Dealer is based outside the United Kingdom, 96 hours) after the same shall have been put into the post correctly addressed and pre-paid.
    6.  Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance(other than in relation to payment) resulting from acts or causes beyond its reasonable control or from any acts of God, acts or regulations of any governmental or supra-national authority.
    7.  Any delay or forbearance by either party in enforcing any provisions of these terms and conditions or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
    8.  The parties to the Provision Agreement and these terms and conditions do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
    9.  The Provision Agreement and these terms and conditions shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.