Terms & Conditions

Parties

(1)            1stdibs.com Limited (trading as Online Galleries) incorporated and registered in England and Wales with company number 05228751 whose registered office is at 35 Ballards Lane
London N3 1XW (Online Galleries).

(2)            Full company name:
incorporated and registered in England and Wales with company number:
whose registered office is at:
(Dealer).

OR

Name of trader:
Trading as:
of:
(Dealer).

Background

(A)            These terms and conditions cover the use by traders of a digital marketplace for the display and advertisement for sale of a wide range of artefacts. 

(B)            Online Galleries owns the technology and hosts the platform underlying the digital marketplace but is not and does not intend to be a party to any relationship between the Dealer and its individual customers. 

(C)            Online Galleries has agreed to provide and the Dealer has agreed to pay for the use of the Online Galleries marketplace subject to the terms and conditions of this agreement.

Agreed terms

1               Interpretation

1.1           The definitions and rules of interpretation in this clause apply in this agreement.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14.6 or clause 14.7.

Dealer Administration Dashboard: the secure part of the Platform available only to dealers.

Dealer Customer: any user of the Platform who enters into or indicates an interest in entering into a contract with the Dealer for the purchase of Dealer Goods.

Dealer Data: the digital data inputted by the Dealer or by Online Galleries on the Dealer's behalf for the purpose of using the Platform or facilitating the Dealer's use of the Platform.

Dealer Data Limits: the digital limits on the volume of Dealer Data the Dealer may upload and store on the Platform from time to time as set out in Schedule 1.

Dealer Goods: the artefacts offered for sale to the general public by the Dealer via the Platform.

Documentation: the document made available to the Dealer by Online Galleries online via the Dealer Administration Dashboard from time to time which provides dealer user instructions for the Platform.

Effective Date: the date of this agreement.

Initial Subscription Term: the initial term of this agreement.

Normal Business Hours: 9:00am to 5:30 pm local UK time, each Business Day.

Renewal Period: the period described in clause 17.1.

Platform: the platform provided by Online Galleries to the Dealer under this agreement via the Website or any other web address notified to the Dealer by Online Galleries from time to time, as more particularly described in the Documentation, and comprising the Online Galleries public website, the Dealer Administration Dashboard, the underlying database and the other software tools and applications.

Set-up Fee: the fixed fee payable to set up the Dealer's account and access to the Dealer Administration Dashboard.

Subscription Fees: the subscription fees payable by the Dealer to Online Galleries as set out in paragraph 1 of Schedule 1.

Subscription Term: has the meaning given in clause 17.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

1.2           Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3           A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4           A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5           Unless the context otherwise requires, words in the singular shall include the plural and in the plural, shall include the singular.

1.6           Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7           A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8           A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9           A reference to writing or written includes faxes and e-mail.

1.10        References to clauses and the schedule are to the clauses and schedule of this agreement.

2               Variations

2.1           Online Galleries may vary the terms of this agreement (including the Subscription Fees) at any time on giving at least 30 days' notice to the Dealer via the Dealer Administration Dashboard.

2.2           If the Dealer does not accept any notified variation it may terminate this agreement at the end of the calendar month following the month in which notification of the variation was given and no further Subscription Fees will be payable.

3               Licence to use the Platform

3.1           Subject to payment of the Subscription Fees, to the restrictions set out in this clause 3 and to the other terms and conditions of this agreement, Online Galleries grants to the Dealer a non-exclusive, non-transferable and non-sub-licensable licence to access the Platform and the Documentation during the Subscription Term, for the purpose only of advertising Dealer Goods for sale to the general public and solely in connection with the Dealer's own business.

3.2           The licence granted under clause 3.1 includes a right to provide a link from the Dealer's website to the Platform, provided that the link is not associated with:

3.2.1      any information or representations about Online Galleries or the Platform unless they have prior written approval from Online Galleries; or

3.2.2      any suggestion or implication that Online Galleries has endorsed or approved or is any way associated with the Dealer's website or business. 

3.3           In exercising the licence granted under clause 3.1, the Dealer acknowledges and agrees that it must not:

3.3.1      knowingly or negligently introduce any Viruses to the Platform; or

3.3.2      upload onto the Platform any Dealer Data in breach of any third-party rights; or

3.3.3      upload onto the Platform any misleading information about Dealer Goods; or

3.3.4      display or advertise for sale Dealer Goods which have been stolen or fraudulently obtained; or

3.3.5      upload onto the Platform any material that:

(a)             is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)            induces or facilitates illegal activity;

(c)             depicts sexually explicit images;

(d)            promotes unlawful violence;

(e)             is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f)              is otherwise illegal or causes damage or injury to any person or property;

and Online Galleries reserves the right, without liability to the Dealer and without prejudice to its other rights arising under this agreement, to remove from the Platform any material that breaches, or that Online Galleries has reason to believe may breach, the provisions of this clause and/or to disable the Dealer's access to the Platform either temporarily or permanently under clause 17.

3.4           The Dealer must not:

3.4.1      except to the extent expressly permitted under this agreement:

(a)             copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (including its "look and feel") in any form or media; or

(b)            de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or

(c)             attempt or invite or induce any third party to do either of the above;

unless permitted to do so by any law which cannot be excluded from this agreement;

3.4.2      access all or any part of the Platform in order to build a product or service which competes with the Platform; or

3.4.3      sub-license, sell, rent, lease, transfer, assign, distribute or otherwise make the Platform and/or Documentation available to any third party.

3.5           The Dealer must use all commercially reasonable efforts to prevent unauthorised access to the Platform and/or the Documentation and, in the event of suspecting any such unauthorised access, promptly notify Online Galleries of its occurrence.

3.6           The rights provided under this clause 3 are granted to the Dealer only and not to any subsidiary, holding company, affiliate or business associate of the Dealer. 

4               Dealer Data

4.1           Subject to the licence and permission expressly granted in clause 4.2, Online Galleries acknowledges and agrees that the Dealer owns all right, title and interest in the Dealer Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality.

4.2           The Dealer grants licence and permission to Online Galleries to process and use the Dealer Data in order to perform its obligations and exercise its rights under this agreement (including those set out in Online Galleries' privacy statement from time to time http://www.onlinegalleries.com/privacy-policy)

4.3           The Dealer acknowledges and agrees that its ability to upload Dealer Data onto the Platform is subject to the Dealer Data Limits and that the Dealer may not be able to upload Dealer Data in excess of the Dealer Data Limits.

4.4           In the event of any loss or damage to Dealer Data, the Dealer's sole and exclusive remedy will be for Online Galleries to use reasonable commercial endeavours to restore or procure the restoration of the lost or damaged Dealer Data from the latest back-up of such Dealer Data maintained by Online Galleries or any third party hosting the Platform on behalf of Online Galleries.

5               Data protection

5.1           If Online Galleries processes any personal data on the Dealer's behalf when performing its obligations under this agreement, the parties record their intention that the Dealer shall be the data controller and Online Galleries shall be a data processor and in any such case:

5.1.1      the Dealer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Dealer and the Authorised Users are located;

5.1.2      the Dealer must ensure that it is entitled to transfer the relevant personal data to Online Galleries for processing on the Dealer's behalf in accordance with the terms of this agreement;

5.1.3      the Dealer shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.1.4      each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data or its accidental loss, destruction or damage.

6               Third party links

6.1           The Dealer acknowledges that:

6.1.1      the Platform may include links to third-party websites and that if the Dealer uses those links it does so solely at its own risk; and

6.1.2      Online Galleries makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Dealer, with any such third-party. 

6.2           Online Galleries acknowledges that the Dealer may include links to its own or third party websites as part of the Dealer Data, provided that:

6.2.1      any content made available via such links would not be in breach of clause 3.2, in which event Online Galleries may proceed as if the content formed part of the Dealer Data and exercise its rights under clause 3.2 and any other rights arising generally under this agreement or at law; and

6.2.2      the Dealer acknowledges that Online Galleries shall have no liability or obligation whatsoever in relation to the content or correspondence with, any such third-party websites.

6.3           Online Galleries does not endorse or approve any third-party website nor its content and recommends that, in connection with clause 7.2, the Dealer should refer Dealer Customers to the third party's website terms and conditions and security and privacy policies and any other similar policies, clarifying that these documents will apply to the Dealer Customers' use of the relevant third-party website.

7               No responsibility for Dealer Data or Dealer Goods

7.1           The Dealer acknowledges and agrees that Online Galleries has no liability or responsibility either to the Dealer or to any Dealer Customer or any other third party for or in connection with any of the following:

7.1.1      the Dealer Data, including for its content, accuracy, currency or completeness;

7.1.2      the Dealer Goods, including for the Dealer's right to sell them, the accuracy and completeness of their description, their fitness for purpose, their quality and durability or their failure to comply with any warranty;

7.1.3      any other matter in respect of which the law or any contract concluded by the Dealer as a result of the Dealer's use of the Platform confers rights on any Dealer Customer or any other third party;

7.1.4      any contact between the Dealer and any Dealer Customer and any contract entered into between them, including any transaction completed via any third-party.

7.2           The Dealer must indemnify Online Galleries against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by Online Galleries arising out of or in connection withany claim made against Online Galleries in respect of any of the matters referred to in clause 8.1.

7.3           The indemnity in clause 8.2 applies whether or not the Dealer has been negligent or at fault or is itself in breach of any contract with the Dealer Customer.

8               Online Galleries' obligations

8.1           Online Galleries undertakes that the Platform will be available and perform substantially in accordance with the Documentation.

8.2           The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused or contributed to by the Dealer's breach of this agreement.

8.3           Online Galleries will, at its expense, use reasonable commercial efforts to correct any such non-conformance promptly and such correction constitutes the Dealer's sole and exclusive remedy for any breach of the undertaking set out in clause 9.1. 

8.4           Notwithstanding clauses 9.1 to 9.3, Online Galleries:

8.4.1      does not warrant that:

(a)             the Dealer's use of the Platform will be uninterrupted or error-free, or

(b)            the Platform is suitable for the Dealer's requirements; or

(c)             the Dealer's use of the Platform will generate any specific or enhanced levels of business for the Dealer; and

8.4.2      is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including any third party hosting the Platform under clause 10, the internet, and the Dealer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.5           This agreement shall not prevent Online Galleries from entering into similar agreements with third parties, or from independently developing or licensing platforms or services which are similar to those provided under this agreement.

8.6           Online Galleries warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

9               Platform hosting

9.1           Online Galleries reserves the right to transfer the hosting of the platform to any third party providing secure website hosting services.

9.2           If the Platform is hosted by a third party the Dealer acknowledges that the Dealer's rights in relation to the availability and support of the Platform and any loss or corruption of Dealer Data will be limited to those of the third-party host.

10            Dealer's further obligations

10.1        The Dealer must:

10.1.1   provide Online Galleries promptly on request with:

(a)             all necessary co-operation in relation to this agreement; and

(b)            all necessary access to such information as may be required by Online Galleries

in order to provide and support the Platform;

10.1.2   comply with all applicable laws and regulations with respect to its activities under this agreement;

10.1.3   ensure that its own network and systems and the Dealer Data are compatible with the Platform and comply with any technical specifications provided by Online Galleries from time to time; and

10.1.4   be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Platform and for all problems, delays, delivery failures and any other losses arising from or relating to the Dealer's network connections or telecommunications links or caused by the internet.

11            Charges and payment

11.1        The Dealer shall pay the Subscription Fees to Online Galleries monthly in advance in accordance with this clause 12 and Schedule 1.

11.2        On or before the Effective Date the Dealer must provide to Online Galleries valid, up-to-date and complete credit card details and/or any other relevant valid, up-to-date and complete contact and billing details and:

11.2.1   if the Dealer provides its credit card details to Online Galleries, the Dealer hereby authorises Online Galleries to bill such credit card by way of direct debiton the Effective Date for the Set-up Fee and the Subscription Fees payable in respect of the first month of the Initial Subscription Term andto bill the Subscription Fees on the first day of each calendar month thereafter; or

11.2.2   Online Galleries shall invoice the Dealer in advance and the Dealer shall make payment to Online Galleries on the Effective Date for the Set-up Fee and the Subscription Fees payable in respect of the first month of the Initial Subscription Term andfor the Subscription Fees on the first day of each calendar month thereafter.

11.3        If Online Galleries has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of Online Galleries, Online Galleries may:

11.3.1   without liability to the Dealer, immediately disable the Dealer's access to the Platform and terminate this agreement in which case the Subscription Fees for the remainder of the Initial Subscription Term or any subsequent Renewal Period shall immediately become due and payable; and/or

11.3.2   charge interest on a daily basis on all due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment; and, in either case

11.3.3   Online Galleries may charge a late payment administration fee in such sum as Online Galleries may reasonably determine.

11.4        All Subscription Fees and other sums due under this agreement:

11.4.1   shall be payable in pounds sterling;

11.4.2   are non-cancellable and non-refundable;

11.4.3   are exclusive of value added tax, which shall be added to invoices at the appropriate rate.

11.5        Online Galleries shall be entitled to increase the Subscription Fees at any time provided that such increases will not take effect until at least 30 days after notification and subject to the Dealer's rights under clause 2.2.

12            Proprietary rights

12.1        The Dealer acknowledges and agrees that Online Galleries and/or its licensors own all intellectual property rights in the Platform and the Documentation. Except as expressly stated herein, this agreement does not grant the Dealer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform or the Documentation.

12.2        Online Galleries confirms that it has all the rights in relation to the Platform and the Documentation that are necessary to grant all the rights it purports to grant under this agreement.

13            Confidentiality

13.1        Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party's Confidential Information excludes information that:

13.1.1   is or becomes publicly known other than through any act or omission of the receiving party;

13.1.2   was in the other party's lawful possession before the disclosure;

13.1.3   is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

13.1.4   is independently developed by the receiving party, which independent development can be shown by written evidence.

13.2        Subject to clause 14.4, each party undertakes to hold the other's Confidential Information in confidence and not make the it available to any third party, or use it for any purpose other than the performance of its rights and obligations under this agreement.

13.3        Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

13.4        A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

13.5        Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.6        The Dealer acknowledges that details of the Platform and the Documentation and the results of any performance tests of the Platform constitute Online Galleries' Confidential Information.

13.7        No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

13.8        The above provisions of this clause 14 shall survive termination of this agreement, however arising.

14            Dealer general indemnity

14.1        Without prejudice to the indemnity at clause 8.2, the Dealer must defend, indemnify and hold harmless Online Galleries against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Dealer's use of the Platform and/or Documentation, provided that:

14.1.1   the Dealer is given prompt notice of any such claim;

14.1.2   Online Galleries provides reasonable co-operation to the Dealer in the defence and settlement of such claim, at the Dealer's expense; and

14.1.3   the Dealer is given sole authority to defend or settle the claim.

14.2        Online Galleries must defend the Dealer, its officers, directors and employees against any claim that the Platform or Documentation infringes any UK patent effective as of the Effective Date, or any UK copyright, trade mark, database right or right of confidentiality, and shall indemnify the Dealer for any amounts awarded against the Dealer in judgment or settlement of such claims, provided that:

14.2.1   Online Galleries is given prompt notice of any such claim;

14.2.2   the Dealer provides reasonable co-operation to Online Galleries in the defence and settlement of such claim, at Online Galleries' expense; and

14.2.3   Online Galleries is given sole authority to defend or settle the claim.

14.3        In the defence or settlement of any claim, Online Galleries may procure the right for the Dealer to continue using the Platform, replace or modify the Platform so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Dealer without any additional liability or obligation to pay liquidated damages or other additional costs to the Dealer.

14.4        In no event shall Online Galleries, its employees, agents and sub-contractors be liable to the Dealer to the extent that the alleged infringement arises as a result of any breach of this agreement by the Dealer.

15            Limitation of liability

15.1        Except as expressly and specifically provided in this agreement:

15.1.1   the Dealer assumes sole responsibility for its use of the Platform and the economic results of such use;

15.1.2    the Dealer assumes sole responsibility for the Dealer Data and the Dealer Goods;

15.1.3   all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

15.1.4   the Platform and the Documentation are provided to the Dealer on an "as is" basis.

15.2        Nothing in this agreement excludes the liability of Online Galleries:

15.2.1   for death or personal injury caused by negligence; or

15.2.2   for fraud or fraudulent misrepresentation.

15.3        Subject to clause 16.1 and clause 16.2:

15.3.1   Online Galleries shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

15.3.2   Online Galleries' total aggregate liability in contract (including in respect of the indemnity at clause 15.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees payable for any unexpired period of the Initial Subscription Term or (if this has expired) any then current Renewal Period.

16            Term and termination

16.1        This agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

16.1.1   either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

16.1.2   otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

16.2        Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

16.2.1   the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;

16.2.2   the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

16.2.3   the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

16.2.4   a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

16.2.5   an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

16.2.6   the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

16.2.7   a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

16.2.8   a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

16.2.9   any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2.3 to clause 17.2.9 (inclusive); or

16.2.10the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.3        The Dealer may terminate this agreement in the circumstances set out in clause 2.

16.4        On termination of this agreement for any reason:

16.4.1   all licences granted under this agreement shall immediately terminate and Online Galleries shall immediately terminate access to the Platform by the Dealer;

16.4.2   the Dealer shall return and make no further use of any copies of the Documentation;

16.4.3   Online Galleries may delete or remove the Dealer Data from the Platform; and

16.4.4   any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

17            Force majeure

17.1        Online Galleries shall have no liability to the Dealer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Online Galleries or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Online Galleries or sub-contractors, provided that the Dealer is notified of such an event and its expected duration.

18            Conflict

18.1        If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

19            Waiver

19.1        No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

20            Rights and remedies

20.1        Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21            Severance

21.1        If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2        If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22            Entire agreement

22.1        This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

22.2        Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

22.3        Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

22.4        Nothing in this clause shall limit or exclude any liability for fraud.

23            Assignment

23.1        The Dealer must not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

23.2        Online Galleries may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

24            No partnership or agency

24.1        Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

25            Third party rights

25.1        This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

26            Notices

26.1        Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement or sent by email to the email address notified to Online Galleries or customarily used by the Dealer.

26.2        A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by email shall be deemed to have been received at the time of delivery.

27            Governing law

27.1        This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

28            Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).