TERMS AND CONDITIONS OF USE AND SERVICE
Effective November 1st, 2016
a) “Art Work” shall mean any artistic work including hand oil paintings, photography, printmaking, sculptures, crafted collectibles, hand crafted jewellery, charcoal work, and water colour art that is displayed, marketed and/or sold through the Website, whether by TAH or by Sellers.
b) “Authenticity Certificate” means a valid authenticity certificate issued by a Seller, physically signed by the Seller or an authorized signatory of the Seller, containing a detailed description and a picture of the concerned Art Work and a seal of the Seller, if so required.
c) “Buyers” shall mean Users who or which use Services to purchase Art Work through the Website.
d) “Listed Price” with respect to an Art Work means the sale price displayed against such Art Work on the Website.
e) “Person” shall mean any natural person, limited or unlimited liability company, corporation, partnership (whether limited or unlimited), proprietorship, Hindu undivided family, trust, union, association, government or any agency or political subdivision thereof or any other entity that may be treated as a person under applicable law.
g) “Sellers” shall mean Users who or which use the Services in order to display, market and sell the Art Work through the Website but excludes TAH .
h) “Services” shall mean services provided by TAH , including provision of Website to Users and display, marketing and/or sale of an Art Work by TAH through the Website and other services provided through the Website to promote art and Art Work.
i) “Terms” shall means these terms and conditions of use and service which form a part of the Agreement governing Users’ relationship inter se and with TAH .
j) “Users” shall mean any Person who or which uses the Services, including Buyers, Sellers and Persons who or which access the Website or any content displayed thereof.
k) “Website” shall mean the online platformwww.thearthubicac.com as provided by TAH to provide Services, including facilitating display, marketing and sale of Art Work and promotion of art, from time to time.
a) Any reference to the singular includes a reference to the plural and vice versa, unless explicitly stated otherwise.
b) Any reference to one gender includes a reference to the other gender(s), unless explicitly provided for.
c) Headings and captions are used for convenience only and not for interpretation of the Agreement.
d) Any reference to a natural person shall, include his/her heirs, executors and permitted assignees and any reference to a juristic person shall, include its affiliates, successors and permitted assignees, unless repugnant to the context.
3 USER’S APPROVAL
a) Users approve of and accept this Agreement by accessing any of the Services offered by TAH , including by simply accessing the Website, either by itself (if the User is a natural person) or through its authorized representative (if the user is a juristic person).
b) A User may accept this Agreement only if:
- If such User is a natural person, is of the legal age, eligibility and mental capability to form a binding contract.
- If such User is a juristic person, is lawfully existing and has all the authorizations, permits and allowances to enter into this Agreement and form a binding contract.
- Such User is not legally barred or restricted from using any of the Services.
TAH reserves the right to terminate the membership of an User and refuse to provide any User with access to the Website if TAH discovers that an User is under the age of 18 years. The Website is not available to persons whose membership has been suspended or terminated by TAH for any reason whatsoever. If an User is registering as a business entity, the User represents that he/she has the authority to bind the entity to this Agreement.
e) The Agreement shall govern the relationship of each and every User with TAH. TAH may also execute separate written agreements with its Users. In case of conflict between terms of such separate written agreement and this Agreement, the terms of the separate written agreement shall prevail.
4 PROVISION OF SERVICES
4.2 The purpose of provision of Services is to facilitate an online market place for the Buyers and Sellers for display, marketing and/or sale of Art Work and promotion of art through various activities, including online exhibitions, curations, art blogs and providing art advice.
4.3 The Services may be availed by the Users by:
registering on the Website for display, marketing and/or sale of Art Work through the Website;
promoting Art Work or art through the Website;
placing an order through the Website for delivery of an Art Work;
writing blogs or putting any content on the Website for display, marketing and/or sale of Art Work and/or promotion of art through the Website;
accessing (either though itself or through another Person) the Website or any content thereof; and/or
simply surfing and/or browsing the Website.
4.4 In order to provide certain parts of Services to the Users, TAH may require the Users to register on the Website by providing certain information (“Registrable Services”). Users agree and understand that Registrable Services shall not be provided by TAH to the Users unless the Users register on the Website in the form and manner required by TAH .
4.5 Users agree and acknowledge that provision of Registrable Services is dependent on the information provided by a User to access such Registrable Services. Users shall ensure that all information provided by it to TAH in order to access the Registrable Services will always be true, accurate, complete and updated.
4.6 The Website may include links to other online platforms which may contain materials that are objectionable, unlawful, or inaccurate. TAH does not endorse or support these links or the products and services they provide; these links are provided for Users’ convenience only. TAH is not responsible or liable for the content or accuracy of such links.
4.7 Subject to applicable law, TAH may stop provision of Services (or any part of Services), permanently or temporarily, to a User or to Users generally or may modify or change the nature of Services and/or these Terms at its sole discretion, without any prior notice to the Users. Use of Services by a Person following any such modification constitutes such Person’s deemed acceptance to be bound by this Agreement (or as it may be modified).
5 USE OF SERVICES
5.1 In order to use Services, a Person will require accessing the Website through internet in such form and manner as provided by TAH. TAH may update the Website from time to time in order to ensure a better User experience and consequently may temporarily cut or restrict Users’ access to the Website or to the Services.
5.2 Users shall use the Services only for such purposes as is permitted by:
- This Agreement; and
- If User is a natural person, any law, regulation or generally accepted practices or guidelines applicable in the country of which User is a citizen, in which User is a resident or from where User accesses the Services; or
- If User is a juristic person, any law, regulation or generally accepted industry practices and guidelines applicable in the country where User is registered, where User maintains its principle office or from where User accesses the Services.
5.3 While most parts of the Services are available to Users free of cost, certain parts of Services may be provided to the Users at a cost. TAH reserves the right to amend these Terms and impose a cost on free parts of Services in future. TAH will use its reasonable efforts to give Users a prior intimation as and when any part of free Service becomes a paid Service. If, after being so intimated, any User access paid parts of Services, cost for such paid Services shall become due and payable by such User to TAH and TAH shall have the right to recover the cost for provision of such paid Service to the User, from the User.
5.4 Users agree and acknowledge that with respect to any content that may be created, accessed or uploaded by another User on the Website and/or through the Services, including any blogs, images, comments on discussion forums, pictures of Art Work, graphs, tables, audios, videos or any other forms of audio-visual representations (“Content”), Users shall be bound by specific roles and obligations detailed in Section 7 of these Terms, in addition to other obligations contained elsewhere in the Agreement.
5.5 Users who or which have registered for accessing Registrable Services shall be provided access to an online account on the Website through which such Users may access the Registrable Services. It shall be the sole responsibility of the Users to maintain the privacy and confidentiality their access details (user id, password etc.) with respect to Registrable Services. Any access to or use of Registrable Services from the registered account of a User shall be construed as access to or use of such Registrable Services by such registered User.
6 RESTRICTION ON USE OF SERVICES
6.1 Users will not use the Services or any Content for any purpose that is illegal, unlawful or prohibited by this Agreement.
6.2 Users will not access (or attempt to access) the Services or Content provided through the Services by any means other than in the form and manner provided by TAH , unless such User has been specifically allowed to do so in a separate written agreement with TAH .
6.3 Users will not redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Services or Content, in full or in part, available to third parties unless allowed to do so by TAH in writing.
6.4 Users will not circumvent or disable any digital rights management, usage rules, or other security features of the Website; remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Website; and not use Services in any manner that threatens or is likely to threaten the integrity, performance or availability of Services.
6.5 Users will not attempt to or engage in any activity that may:
- Reverse engineer, decompile or otherwise extract the source code(s) related to the Services or any part thereof, unless it is expressly permitted by TAH in writing or is required by applicable law;
- Use any robot, spider, retrieval application, or other device to retrieve or index any portion of Services or Content;
- Collect information about other Users in any illegal or unlawful manner for any illegal or unlawful purpose;
- Register on the Website to access Registrable Services or create any online accounts by automated means or under false or fraudulent pretences for using the Services;
- Transmit any viruses, worms, defects, trojan horses, or any items of a destructive nature through Services;
- Use Services in any manner that can damage, disable, overburden, or impair, or undertake any action which is harmful or potentially harmful to, any of the servers, networks, computer systems or resources connected to any of the servers connected, directly or indirectly to the Services, or interfere with any other third party's access to and/or enjoyment of Services;
- Carry out any denial of service (DoS, DDoS) or any other harmful attacks on the Website or; disrupt or place unreasonable burdens or excessive loads on, or interfere with or attempt to make, or attempt any unauthorized access to Services or any part of Services or any User;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website; or
- Obtain any materials or information through any means not intentionally made available, in the opinion of TAH, through Services.
6.6 Users agree and undertake not to impersonate another Person or impersonate, guide or host on behalf of, or falsely state or otherwise misrepresent its own affiliation with any Person, including, but not limited to TAH’s officials, employees, agents, partners, affiliates, dealers and franchisees.
7 ROLES AND OBLIGATIONS OF TAH AND USERS
7.1 Users agree to the following roles and obligations in order to avail Services:
(a) Display, Marketing and/or Sale of Art Work: Users may display, market and/or sell any Art Work to other Users through the Website. For such display, marketing or sale of Art Work, in addition to other applicable terms of the Agreement, Users specifically agree to the roles and obligations of the Sellers set out under Section 7.3 of these Terms. Users agree to remove the Art Work from the Website if such Art Work has been sold by other means as permitted under these Terms.
(b) Purchase of Art Work: Users may purchase any Art Work from Sellers through the Website. For such purchase of Art Work, in addition to other applicable terms of the Agreement, Users specifically agree to the roles and obligations of the Buyers set out under Section 7.2 of these Terms. Any sale of Art Work through the Website will constitute a contract of sale between the Buyer of such Art Work and the Seller of such Art Work and all Art Work shall be delivered by such Seller to such Buyer directly.
(c) Content in relation to Art Work: Users may create and/or display Content (including articles, descriptions of Art Work, images, comments and replies in discussion forums) on the Website and make such Content accessible to other Users. By displaying any Content on the Website, unless agreed to and provided for to the contrary, Users waive off any intellectual property rights associated with such Content and agree to use of such Content by other Users in any form and manner.
(d) Content Responsibility: Users acknowledge and understand that TAH shall not review, and cannot review, all of the Content displayed on the Website, and cannot therefore be responsible for such Content (unless such Content has been created by TAH itself). Each User is entirely responsible for any Content displayed or accessed by such User through the Website, and any harm resulting from display or use of such Content.
(e) Removal of Content: Users understand and acknowledge that if a User deletes or removes any Content from display, TAH will use reasonable efforts to facilitate removal of such Content from the Website, but cache, cookies, back up files and/or references to such deleted Content may not be immediately removed and/or disposed off.
(f) Commercial Use: Unless agreed to the contrary in writing, Services provided by TAH are for non-commercial and personal use of the Users only. Users are not allowed to copy, reproduce, alter, modify, create derivative works of, or publicly display any Services or any part thereof without a prior written consent of TAH .
(g) Art Advisory: TAH may, within Services, provide a platform where Users can avail art advisory and consultancy Services from other experts. This part of Services may be provided as a Registrable Service and may be provided by TAH on a paid or unpaid basis. Users understand and acknowledge that TAH is only providing a platform for Users to interact with such art experts and has no responsibility with respect relevancy, adequacy or standard of art advice rendered by art experts through such platform.
(h) Gift Vouchers: Any gift voucher purchased by Users with respect to Services will be valid for a period of 1 (one) year from the date of purchase of such gift voucher and such validity shall not be extended beyond 1 (one) year from the date of purchase, under any circumstances.
(i) Overseas Sale: Pricing and payments with respect to any overseas sale made through the Services will automatically be calculated on the basis of exchange rate, as applicable from time to time.
(j) E-Platform for Communication: The Website is an online platform that enables Buyers to purchase products listed on the Website at the price indicated therein at any time from any location. TAH is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the Website. Accordingly, the contract of sale of products on the Website shall be a strictly bipartite contract between Buyers and Sellers on the Website.
7.2 Buyers agree to the following roles and obligations in order to avail the Services:
(a) Purchase of Art Work: Buyers may purchase Art Work from Sellers through the Website at the Listed Price in such form and manner as provided herein. Buyers acknowledge that such purchase of Art Work is being made directly from the Seller through the Website and TAH is only providing a platform for the Buyers and Sellers to interact online with respect to such sale through the Website.
(b) Pricing: All Art Work made available for sale on the Website will be sold at the Listed Price only unless contrary has been specifically mentioned with respect to a particular Art Work. The Listed Price includes taxes, shipping and handling costs. Transactional costs may be additional. TAH is not liable for any additional charges that may be levied on the Art Work at the destination of delivery, whether in India or overseas, over and above the taxes collected and paid by TAH at the time of sale. Nothing in this Sub-section prohibits TAH from changing its pricing policy anytime with a prior intimation to the Buyers.
(c) Registration: Buyers will need to register with TAH through the Website by providing such information as may be requested by TAH from the Buyer. The information provided by the Buyer while registering or at the time of finalizing a purchase (as the case may be) shall be the final billing address and shipping address for delivery of the Art Works.
(d) Adequacy of Information: The Buyer represents and warrants that all the information furnished by such Buyer at the time of registration will be true, complete, correct and updated and any change in such information will be updated by the Buyer and intimated to TAH immediately. TAH is entitled to act on the basis of the information provided by the Buyer and seek such further information, clarifications or verifications as it may deem necessary for granting registration. Such registration may be suspended or cancelled if TAH is of the view that any of such information may be fake, incomplete, false, redundant or inaccurate. A suspended registration may be restored immediately upon Buyer furnishing the requisite information to the satisfaction of TAH .
(e) Confirmations and Invoicing: All order confirmations and invoices will be raised by TAH based on the registration information provided by the Buyer and available with TAH at the time of making a purchase and accordingly payments will be accepted by TAH only from the Buyer so registered.
(f) Payments: Once Buyer has placed an order on the Website for delivery of an Art Work;Buyer is required to make advance payment of Listed Price of the Art Work in such form and manner as permissible by the Website. TAH may use third party platforms in order to facilitate such payment by the Buyers and will not be responsible for any loss or damage caused to the Buyer by any such third parties.
(g) Acceptance of Delivery: Buyers acknowledge that placing an order for purchase through TAH constitutes an irrevocable obligation of the Buyer to accept delivery once such order has been delivered, unless rescinded/cancelled by TAH within a reasonable time on account of a default by the Seller or any prior or continuing breach by the Buyer. Buyers may not accept delivery of an Art Work if it has been damaged or is not accompanied by an Authenticity Certificate from the Seller.
(h) Limitation of Liability: Buyer acknowledges that Seller (and not TAH ) will be responsible for adequacy and accuracy of information displayed with respect to Art Work, the entire process of sale of Art Work including pricing the Art Work, delivery, return, packaging and insurance with respect to such Art Work and authenticity of the Art Work. TAH ’s limited responsibility in terms of provision of Services is dependent on the information provided by the Buyer. In case of any inaccuracies in any information provided by a Buyer, TAH shall not be responsible for any consequences thereof. TAH is not obligated to provide any physical preview of the Art Work either before or after the sale.
(i) Damaged Art Work: On delivery, if Buyer receives the Art Work in a damaged condition or if the Art Work is not as per the specifications provided on the Website with respect to such Art Work then the Buyer should not accept the parcel and notify TAH immediately. Buyers are expected to understand that since each Art Work is individually created there may be slight variations in shade and colour of Art Work. No complaints in this regard will be entertained by TAH. In case an Art Work is returned, TAH will refund the payment or issue a credit note to the concerned Buyer and cancel the order. However, NO GOODS WILL BE RETURNED ONLY BECAUSE THE BUYER DID NOT LIKE THE ART WORK HE HAS PURCHASED.
(j) Authenticity: Buyers may note that all Art Work posted for sale by Sellers on the Website is supported by an Authenticity Certificate from the Seller and TAH does not issue any Authenticity Certificate or guarantee. Sellers are bound to deliver such Authenticity Certificate to the Buyer along with the delivery of the concerned Art Work.
(k) Resale of Art Work: Buyers may use the Services to resell an Art Work purchased through the Services. With respect to such a resale transaction, the Buyer will act as a Seller and will be bound by the roles and obligations of the Seller contained in these Terms.
(l) Custom / Octroi & Import Duties: The Custom Duty / Octroi/ Local Taxes / Import Duties are borne directly by the buyer, to be paid at the time of delivery to our courier partner or as advised by our courier partner. Mojarto.com does not include these extra charges on our price (as displayed on the e-shop). These taxes will be chargeable over & above the product/order price you pay on the e-shop.
7.3 Sellers agree to the following roles and obligations in order to avail the Services:
(a) Listing Art Work on Website: Subject to TAH ’s rights contained in this Agreement, Sellers will have a right to list Art Work on the Website for display, marketing and/or sale. However, Sellers will not display, market and/or sell any Art Work through the Website if such Art Work (i) is defamatory, obscene, pornographic, vulgar, offensive or against the public policy of India; (ii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iii) is violent or threatening or promotes violence or actions that are threatening to any Person; (iv) harms minors in any way; or (v) promotes illegal or harmful activities or substances.
(b) Maintain Online Presence: Sellers will register, maintain an online presence and have an independent profile page on the Website in a form and manner acceptable by TAH .By virtue of registering on the Website, Sellers will have access to Content Management System (“CMS”) to manage its online profile and Art Works, and to keep track of any orders received.TAH shall facilitate provision of CMS to a Seller upon such Seller registering itself on the Website. TAH may also maintain, upgrade and enhance such CMS from time to time, as it may deem fit.
(c) Pricing the Art Work, the Seller will choose the amount of Listed Price. The Seller may edit and/or update the Listed Price from time to time provided such updated price is at par with the fair market value of the Art Work. Listed Price shall not be revised for an Art Work if order for sale of such Art Work has been received on the Website.
(d) TAH Marks: TAH may grant to a Seller a non-exclusive, royalty-free, limited license to use, display and reproduce the trademarks, service marks, logos and/or any other such marks of TAH as TAH may notify to the concerned Seller from time to time in writing at its discretion (“TAH Marks”). The TAH Marks shall be used solely in connection with such purposes as may be communicated in writing by TAH to the concerned Seller. Sellers acknowledges that TAH is the sole and exclusive owner of TAH Marks and TAH may at any time, immediately and without advance notice prohibit any User from using any of the TAH Marks for any reason.
(e) Display Information on Website: Each Seller will display, with regard to each Art Work a descriptive information including name, size, details of Art Work and availability status of Art Work, as and when requested for by TAH through its Website or otherwise. Once order for sale of an Art Work has been received, then any information provided by a Seller with regard to such Art Work on the Website cannot be altered. However, a Seller may alter the information with regard to an Art Work if no order for sale of such Art Work has been received.
(f) Adequacy and Accuracy of Information: Each Seller shall ensure that all the information and data requested for by TAH from such Seller is promptly provided within the requested timelines and is accurate, adequate and updated. Sellers shall verify the details of each Art Work proposed to be displayed, marketed and/or sold through the Website and will inform TAH in writing if any discrepancy is found in or change is required to be made to such details within 24 (twenty four) hours of such discrepancy being brought to the Seller’s knowledge.
(g) Sale of Art Work: Sellers are responsible for completing the sale orders received through the Website and dispatching the concerned Art Work within promised timelines. Sellers will not dispatch any Art Work if TAH has cancelled such order for any reason within a reasonable time of the order being placed.
(h) Delivery, Packaging and Insurance Costs: Sellers will be responsible for and pay the costs for use of adequate material for proper packaging and timely delivery of Art Work and insurance costs with respect to Art Work required to be delivered to a Buyer. Such costs shall not be paid and/or reimbursed by TAH (either to the Buyer or to the Seller) for any reason and may be taken into account by the Seller while deciding the Listed Price. It will be the Seller’s responsibility to ensure that all Art Work ordered through the Website is securely packaged, neatly labeled and adequately insured for safe and timely delivery to the concerned Buyer.
(i) Delay in Delivery: Should a Seller become aware of any reason which may cause a delay in delivery of an Art Work, seller will notify TAH immediately of such reason and expected delay time. On being so notified, TAH may attempt to contact the concerned Buyer and/or offer a refund with regard to such sale of the Art Work and/or cancel the order with respect to such Art Work, if so requested by the Buyer. The Seller, and not TAH , is responsible for any orders that may be delivered to an incorrect address or for loss or damage of any Art Work in transit while being delivered.
(j) Exclusivity: Sellers may market or sell their Art Work through any other channels (not engaged in a business similar to business of TAH ) provided that this shall not affect timely delivery of an Art Work once order for sale of such Art Work has been received through the Website. In case an Art Work is sold through another channel (not engaged in a business similar to business of TAH ) the Seller shall immediately remove such Art Work from sale on the Website and within no later than 30 (thirty) minutes from the time of sale through another channel.
For avoidance of any doubt, it is hereby clarified Seller will not sell any Art Work displayed, marketed and/or listed for sale on the Website through any third party online marketplace or e-commerce platform. Sellers may sell other art works (not displayed, marketed or listed for sale on the Website) through third party online marketplaces and e-commerce platforms.
Subject to this Section 7.3(j), if a Seller is selling its Art Work displayed, marketed and/or listed for sale on the Website through other channels, Seller shall maintain parity in pricing of such Art Work on the Website, without any malafide intention.
(k) Non-compete and Non-solicit: Sellers will never, directly or indirectly, (i) solicit or attempt to solicit, induce or recruit, engage or in any other way encourage employees or consultants of TAH , its subsidiaries, divisions, or affiliates to terminate their respective contracts with TAH and/or engage with itself and/or any third party; or(ii) engage in any activity which is same or similar to the business of TAH .
(l) Authenticity of Art Work: Sellerswill ensure that all Art Work proposed to be displayed, marketed and/or sold through the Website, is authentic and is accompanied by a valid Authenticity Certificate. No Art Work proposed to be displayed, marketed and/or sold through the Website should be fake or infringing, misappropriating or violating any third party’s patent, copyright, trademark, moral rights or other intellectual property rights or rights of publicity or privacy, or results in violation of any applicable law.
(m) Damaged Art Work and Return:Sellers will be responsible and liable for retrieval of any Art Work that is delivered in a damaged condition and/or that is not as described on the Website. Seller shall bear all the costs of and/or arising from such damaged and/or improper Art Work and retrieval thereof from the concerned Buyer.
(n) Payments: Seller will be entitled to pay to TAH an amount equal to certain percentage(such percentage to be agreed by TAH and Seller in a separate written agreement on a case by case basis)of Listed Price against each Art Work sold through the Website (“Commission”) plus such service tax per transaction as may be applicable (“Service Tax”).On completion of a transaction, such amount shall become due and payable to the Seller by TAH as calculated by deducting applicable Commission plus Service Tax from the Listed Price. Listed Price will be paid by the Buyer to TAH on placing the order for delivery of an Art Work through the Website.
(o) Limitation of Liability: In the event a third party raises any allegation in relation to copyright, sale right and/or authenticity of an Art Work listed by aSeller on the Website, TAH will have no liability in this regard, and if a third party chooses to take any action against TAH , then Sellerwill indemnify and hold harmless TAH against any such action in addition to damages for financial and reputational loss suffered by TAH .
7.4 TAH shall play the following role and have the following rights with respect to provision of Services:
(a) Accept or Decline Art Work: TAH may accept or decline display, marketing and/or sale of any Art Work proposed to be displayed on the Website, at its sole and absolute discretion. TAH may decline the display, marketing and/or sale of Art Work, inter alia, if: (i) the image of the Art Work uploaded by the Seller does not meet the standards set by TAH ; (ii) the Art Work is not accompanied by complete and/or clear details, including an Authenticity Certificate, back image, history, price, category, shipping condition, size or medium of Art Work or any other details requested by TAH ; (iii) the Listed Price (as defined hereinafter) quoted by Seller, in the opinion of TAH , is not fair or is not in line with current pricing trends in the market; (iv) the Art Work is not as per these Terms or is not suitable for display, marketing and/or sale in the opinion of TAH ; or (v) the Authenticity Certificate with regard to a particular Art Work is not acceptable to TAH due to any reason.
(b) Promotion of art and Art Work: TAH may feature any Users or any Art Work in any curation, assortment, marketing story or other social media content on the Website and make press releases to give due credit to requisite Users. TAH may also engage with specific Usersin joint online activities, like brand creation, brand promotion, online exhibitions, sale and discounts.
(c) Non-Exclusivity: TAH has a right to engage with multiple Users at the same time for provision of Services or somepart of Services or for engagement in same or similar activity.
(d) Prohibit Access: TAH reserves the right to, at its sole and absolute discretion, deactivate any User’s account on the Website and block any User’s access to CMS upon a material violation of this Agreement by such User. TAH also reserves the right to block or suspend the use of Website, Content, or Services at any time for any reason. TAH shall use best efforts to give a reasonable notification of such prohibition to the concerned User.
(e) Seller Marks: Sellers grant to TAH a non-exclusive, royalty-free, limited license to use, display and reproduce the trademarks, service marks, logos and/or any other such marks of the Seller (“Seller Marks”). Seller Marks shall be used by TAH solely in connection with provision of Services and promotion of art and Art Work and in such other form and manner as may be reasonably acceptable to the concerned User. TAH acknowledges that the concerned Seller and not TAH is the sole and exclusive owner of Seller Marks.
(f) Content License: Users hereby grant to TAH and TAH hereby accepts a worldwide, non-exclusive, royalty-free, sub licensable, limited license to use any Content uploaded by the User on Website for using the Services or otherwise. For avoidance of any doubt, ownership of all Content uploaded by the User on the Website shall rest with such User and TAH shall use such Content only for limited purposes as agreed herein.
(g) Information regarding Orders: TAH will inform the Sellers of any orders received for the sale of an Art Work displayed by such Seller through the Website. TAH shall also inform the Seller in case such order has been cancelled or modified and should not be dispatched by the Seller due to any other reason. It is the Seller’s duty to be active in all sorts of communication with TAH and respond to all the e-mails and/or messages received from TAH within 1 (one) working day of receipt of such e-mails and/or messages.
(h) Marketing and Promotion: TAH shall use its best efforts to: (i) drive traffic, customers and Buyers to Seller’s profile and other online pages and Art Work on the Website and promote the Seller on the Website, social media pages of TAH and/or to its registered Users; (ii) extend reasonable discounts and offers to Users on a particular Art Work and/or Seller from time to time, as it may deem fit; (iii) undertake public relation activities, jointly with a Seller, from time to time, wherein the Seller or a spokesperson of the Seller may be invited by TAH to give a quote or speak to the media about experience with TAH ; (iv) promote the Sellers on the Website through curations, assortments, exhibitions, discounted sale or offering other discounts on the Website.
(i) Open Edition Prints and Reproductions: TAH shall have a right to reproduce and reprint such Art Work for which the concerned artist has granted printing rights. The size and price of the prints may vary from painting to painting and from time to time. Open edition prints may be printed on paper or canvas by high quality printing machines and shipped directly by TAH without being accompanied by any Authenticity Certificate, as this work is a reproduction.
Such prints may be rolled and packed in protective cylinders for shipping through a reliable courier. One a print order has been received by TAH , the transaction will be automatically closed within 2 (two) days of delivery, and no complaints whatsoever will be entertained thereafter. Any prints received in an unsatisfactory condition may be brought to the attention of TAH at the time of delivery. In such a case, TAH may replace the prints with a fresh copy or issue a credit note to the Buyer.
8.1 Each User is bound by the Agreement from the time such User commences using the Services till the time such User ceases to use Services. All the rights and obligations of Users under this Agreement, which either expressly or by their nature survive the termination of this Agreement (such as TAH ’s right to be indemnified, non-compete, non-solicit), will not be extinguished by termination of this Agreement.
8.2 User may terminate this Agreement by ceasing access to Services in any manner, including disabling access to Registered Services. TAH may terminate this Agreement with respect to any User by suspending or permanently barring accessto Services.
8.3 TAH reserves the right to terminate Users’ access to Services or any part of Services, at any time if:
(b) such User does not pay the requisite cost of using such part of Services which is not provided by TAH free of cost;
(c) a third party (if any) with whom TAH offers Services has terminated its relationship with TAH or ceased to offer the related services to TAH or to such User;
(d) provision of Services or any part of Services is no longer commercially viable or feasible for TAH ;
(e) TAH believes that such User is a repeat infringer of the terms of this Agreement; or
(f) TAH is required to terminate this Agreement by applicable law, Government order or order of a court with requisite jurisdiction.
8.4 Upon termination of this Agreement with respect to a User, all the legal rights, obligations and liabilities that such User and TAH have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and shall continue to apply to such rights, obligations and liabilities indefinitely.
At its sole discretion, TAH may modify or discontinue the Website, or may modify or terminate Your account or Your access to this Website, for any reason, with or without notice to You and without liability to You or any third party.
9 INTELLECTUAL PROPERTY RIGHTS AND DATA OWNERSHIP
9.1 Use of Services shall, at all times, be governed by and subject to the applicable laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property and Users agree to abide by such laws. A User shall solely be responsible for any violation of any law or for any infringement of any intellectual property rights caused by such User’s use of Services.
9.2 The User shall retain ownership of any intellectual property rights that such User holds with respect to any Content that such User displays, uploads, submits, stores or sends through the Services. Users shall ensure that they have the necessary rights to grant TAH the license with respect to Content as specified in Section 7.4(f) and Section 9.3 of this Agreement.
9.3 When a User uploads, submits, stores or sends any Content to or through the Services, such User givesTAH including, TAH ’s employees, agents, consultants, as the case may be) a worldwide license to use, copy, transmit, host, store, reproduce, modify, create derivative works of, communicate, publish, publicly perform, publicly display, print, edit, translate, reformat and distribute such Content. The rights Users grant in this license are for the limited purpose of operating, promoting, and improving Services, and to develop new services. This license shall continue to operate even if a User stops using Services.
9.4 Unless specified to the contrary and subject to applicable law, ownership of all intangible and/or intellectual property developed or existing (including any data generated as a result of Services) shall ab initio rest with TAH . Nothing in these Terms shall be construed as granting of any implied licenses by TAH and all rights not expressly granted to a User are reserved solely by TAH unless specified otherwise.
9.6 Users acknowledge that certain underlying technology or software used by TAH in connection with Services and certain Content displayed on Website may contain rights of a third party and for use of any such third party’s intellectual property, Users may need to get permission directly from the owner of such intellectual property. All third parties owning any intellectual property have a right to take appropriate actions against any User for any violation, infringement or passing off by such User.
9.7 TAH respects the intellectual property rights of Persons and does not hold any responsibility for any violations of any intellectual property rights by Users.
10.2 Users are responsible for maintaining the confidentiality of passwords associated with any device or online accounts that Users use to access Services. Accordingly, a User is solely responsible for all activities that occur with use of such Users’ online account or device. If a User becomes aware of any unauthorized use of its online account of device, such User will immediately notify the relevant authorities of the same.
11 LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1 Use of Services and/or Content is entirely at User’s own risk and TAH shall not be liable for any direct, indirect, incidental, consequential, special, exemplary, punitive, monetary or any other damages, fees, fines, penalties or liabilities whatsoever arising out of or relating to a User’s use of Services.
11.2 TAH shall make reasonable efforts to make the Services available to Users in the best possible manner. However, a User may cease from accessing the Services if such User is not satisfied with Services.
11.3 Users agree and understand that Website may be accessed by multiple Users who or which act as Buyers and Sellers. Users acknowledge that Services only include providing an online platform for displaying, marketing, buying, selling and promoting art and Art Work. Any sale transaction made between a Buyer and a Seller shall constitute an agreement of sale between such Buyer and Seller and TAH shall have no liability with respect to quality, appropriateness, merchantability, authenticity and accuracy of the goods sold or the delivery, delivery condition, packaging and insurance costs associated with the goods sold through the Website. TAH , by providing the Website, does not constitute an institution of agency with any of its Users and TAH ’s relationship with each and every individual User shall be on a principal to principal basis. Please refer to Section 7to access and understand the roles and obligations of Users and TAH in relation to provision of Services by TAH .
11.4 Users shall defend, indemnify and hold TAH , and TAH ’s officers, directors, employees, representatives, consultants and agents harmless from and against any claims, actions, demands, liabilities, judgments, and settlements, including without limitation, reasonable legal fee that may result from or alleged to result from (a) such User’s access to or use of the Services; (b) such User’s breach of any rules, regulations and/or orders under any applicable law; or (c) such User’s breach of any obligation under this Agreement.
11.5 Each User is responsible for any breach of its obligations under the Agreement and/or for the consequences of any such breach.
In no event shall TAH , its parents, affiliates, subsidiaries or service providers, its licensors, or the officers, directors, employees, shareholders, or agents of each of them, be liable for any damages of any kind, including without limitation any direct, special, incidental, indirect, exemplary, punitive or consequential damages, including lost profits, whether or not advised of the possibility of such damages, and on theory of liability what so ever, arising out of or in connection with the use or performance of, or Your browsing in, or Your links to other Websites from, this Website. You acknowledge by Your use of this Website, that Your use of this Website is at Your sole risk. Certain laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages: if these apply to You, some or all of the above disclaimers may not apply, and You might have additional rights.
Rights to Contents and Intellectual Property
The copyrights to all original materials, content, selection, and arrangement of the Website (including text, user, and visual interfaces, images, look and feel, design, sound, etc. and any underlying software and computer codes) are proprietary to TAH , its parents, affiliates, subsidiaries, or third party licensors. You may not copy, reproduce, post on any other Website, republish, upload, encode, modify, translate, publicly perform or display, commercially exploit, distribute or transmit any portion of this Website or make any derivative works from this Website in any way without the express prior written consent of TAH .
Any name, logo, trademark, service mark, patent, design, copyright, domain name or other intellectual property appearing on this Website is owned or licensed by TAH or its parents, affiliates, or subsidiaries and may not be used by You without the prior written consent of TAH or the appropriate owner. Your use of this Website does not grant You any right, title, interest or license to any such intellectual property appearing on this Website. Any unauthorized use of the content of this Website may subject You to civil or criminal penalties.
You agree to defend, indemnify and hold TAH harmless from and against any and all claims, damages, costs and expenses, including reasonable attorney's fees, arising from or related to Your use of the Website.
Additional Terms and Conditions
Use of this Website
TAH maintains this Website for Your personal purchases, entertainment, information and education. You should feel free to browse the Website. However, all copying (whether electronic, hard copy, or other format) is prohibited and may breach intellectual property laws and other laws worldwide. All commercial use of all or part of this Website is prohibited except under TAH 's express written consent. All rights not expressly granted here are reserved to TAH .
You may not use any computer program tools, including, but not limited to, web spiders, bots, indexers, robots, crawlers, harvesters, or any other automatic device, program, algorithm, or methodology, or any similar equivalent process ("Tools") to access, acquire, copy or monitor any portion of the Website or content, or in any way reproduce or circumvent the navigational structure or presentation of the Website or any content, to obtain or attempt to obtain materials, documents or information through any means not purposely made available through the Website. Tools that use the Website shall be considered agents of the individuals who control or author them.
TAH DOES NOT REPRESENT THAT THIS WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THIS WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THIS WEBSITE WILL PROVIDE SPECIFIC RESULTS. THIS WEBSITE AND ITS CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY.
TAH assumes no responsibility, and shall not be liable for any damages caused by viruses or other forms on contamination or destructive features that may affect Your computer equipment, software, data or other property on account of Your access to, use of, or browsing in the Website or Your downloading of any materials, text, images, video or audio from the Website or any linked Websites.
Communications with this Website
You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate the law. TAH will fully cooperate, including but not limited to, maintaining and disclosing any transmittals or communications that You have had with this Website, disclosing Your identity or helping to identify You, with any applicable law or regulation, law enforcement authorities, court order, or governmental authority.
Any communication or material You transmit to the Website by email or otherwise, including data, questions, comments, or suggestions, or the like is, and will be treated as, non-confidential and non-proprietary. TAHcannot prevent the harvesting of information from this Website, and You may be contacted by TAH or unrelated parties, by email or otherwise, within or outside of this Website. Anything You transmit may be edited by or on behalf of TAH , may or may not be posted to this Website at the sole discretion of TAH and may be used by TAH or its affiliates for any purpose, including but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, TAH is free to use any ideas, concepts, know-how, or techniques contained in any communication You send to the Website for any purpose what so ever including, but not limited to, developing, manufacturing and marketing products use of such information. If You transmit any ideas, concepts, materials or other communications to the Website, You accept that it will not be treated as confidential and may be used by TAH without compensation in any manner whatsoever, including without limitation to reproduction, transmission, publication, marketing, product development, etc.
Although TAH may from time to time monitor or review discussion, chats, postings, transmissions, and bulletin boards, and the like on the Website, TAH is under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such locations, on the Website. TAH assumes no responsibility or liability for any actions or communications by You or any related third party within or outside of this Website.
Notice and Procedure for Making Claims of Copyright Infringement
If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide a Notice with the following information to the Website's Copyright Agent:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. A detailed description of the copyright work that You claim has been infringed;
3. A description of precisely where the material that You claim is being infringed is located on the Website;
4. Your address, telephone number, and email address;
5. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
6. A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
We may give notice to our users by means of a general notice on our Website, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's physical address in our records. If You receive such a notice, You may provide counter-notification in writing to the designated Copyright Agent. To be effective, the counter-notification must be a written communication that includes the following:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access had been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of mistake to misidentification of the material to be removed or disabled; and
4. Your name, physical address, and telephone number, and a statement that You consent to the jurisdiction of Federal District Court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which TAH may be found, and that You will accept service or process from the person who provided notification of alleged infringing material or an agent of such person.
TAH will terminate user accounts that have been the subject of five (5) separate notices. In the event a user's materials are removed due to a notice and then subsequently restored due to the filing of a counter-notification, TAH will treat the underlying notice as withdrawn. TAH reserves the right to terminate user accounts that are the subject of fewer than five (5) notices in appropriate circumstances - such as where the user has a history of violating or willfully disregarding TAH 's Terms of Service.
Unaffiliated Products and Websites
Descriptions of, or references to, products, publications or Websites not owned by TAH or its affiliates do not imply endorsement of that product, publication, or Website. TAH has not reviewed all material linked to the Website and is not responsible for the content of any such material. Your linking to any other Websites is at Your own risk.
Jurisdiction / Void Where Prohibited
This Website shall be governed by, and Your browsing in and use of the Website shall be deemed acceptance of and consent to, the laws of Jurisdiction of Mumbai, Republic of India, without regard to principles of conflict of laws. Notwithstanding the foregoing, this Website may be viewed internationally and may contain references to products or services not available in all countries. References to a particular product or service does not imply that they are appropriate or available to all persons of legal purchasing age in all locations, or that TAH intends to make such products or services available in such countries. Any offer for any product, feature, service, or application made on this Website is void where prohibited. Your information will be transferred to TAH in India, which may be outside of Your own country, and by providing us with Your information, You are consenting to such transfer. Although we will use all reasonable efforts to safeguard the confidentiality of any personal information collected, we will not be liable for disclosure of personal information obtained due to errors in transmission or the unauthorized acts of third parties.
12 NO WARRANTIES
12.1 TAH disclaims all warranties in relation to access to or provision of Services, whether express or implied, including but not limited to:
(a) Services being constantly available or available at all;
(b) Services being successfully executed in all cases;
(c) Services being always functional without any disruption, delay or error;
(d) User’s ability to use the Services, directly or indirectly;
(e) Users’ satisfaction with the Services;
(f) The accuracy of the data provided in the course of Service;
(g) The security and privacy of each User’s data;
(h) That all bugs or errors in relation to Services will be fixed or corrected;
(i) That Website will be compatible with all devices, all networks and all browsers;
(j) That use of Services is fit for a particular purpose or use, except as provided herein; or
(k) That Services and Contents is accessible in every location.
12.2 TAH , TAH’s officers, directors, employees, affiliates and agents and any other service provider responsible for providing Services in connection with this Agreement will not be liable for any acts or omissions, including of a third party, and including those vendors participating in TAH ’s offerings made to Users, or for any unauthorized interception of data or breaches of this Agreement attributable in part to the acts or omissions of third parties, or for damages associated with TAH , or equipment that it does not furnish, or for damages that result from the operation systems, equipment, facilities or services provided by third parties that are interconnected with TAH .
13 GOVERNING LAW AND DISPUTE RESOLUTION
13.1 The Services may be provided from and the Website may be controlled and operated from and through any country and may be subject to the laws of that country. When a User accesses the Services from any location, then, the User is responsible for compliance with the local laws applicable to such User.
13.2 This Agreement shall be governed by and shall be construed in accordance with the laws of India. All disputes relating to this Agreement shall be settled in the courts located at Delhi, India.
13.3 Any cause of action arising out of a User’s use of Services must be commenced within 30 (thirty) days after (a) when such cause of action accrues; or (b) such User becomes aware of the facts giving rise to the cause of action, whichever is later, else, such cause of action shall be permanently barred.
14.1 TAH may post notices within the Website or send Users notices on the registered e-mail address or the telephone numbers as shared by the Users with TAH . Users will deemed to have received such notices,if sent via e-mail, within 24 (twenty four) hours of TAH sending the notice. Use of Services by any User after expiry of 3 (three) days from the day notice was sent, shall constitute receipt and acceptance of the notices sent to the User.
15.1 The information, software, products, and services forming parts of the Services have been contributed by various Users and may include inaccuracies or typographical errors. Any advice received or inferred via the Services should not be relied upon by the Users for any personal, legal or financial decisions and Users should consult an appropriate professional for tailored advice, specific to such User’s situation.
15.2 TAH shall not be responsible for viruses, worms, trojan horses, and other harmful or destructive Content. The Website may contain Content that is offensive, indecent, or otherwise objectionable. The Website may also contain Content that infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to certain additional terms and conditions, stated or unstated. TAH disclaims any responsibility for any harm resulting from the use of the Website, or from any downloading of Content posted on the Website.