terms and conditions
General Terms and Conditions of dot-art
In these Terms and Conditions unless the context otherwise requires, the following words have the following meanings:
"Agreement" any agreement between the Artist and dot-art, the Venue and dot-art or the Artist and the Venue for the supply of the Services and the sale of Works in accordance with these Conditions;
"Artist" the provider of the Works as may be set out in any Agreement and who has agreed to provide the Works in accordance with the Conditions;
"Conditions" these terms and conditions;
"Delivery" when the Works are delivered to the address specified in the Agreement;
"Delivery Date" the date the Works are requested for delivery and agreed by dot-art in writing;
"dot-art" Lucy Byrne trading as dot-art, 4 Princes Park Mansions, Liverpool L8 3SA;
"dot-art Services" the services of dot-art as may be set out in the Agreement including but not limited to providing the Venue with an Artist to deliver the Works and providing the Artist with a Venue in which to exhibit the Works or the sale of the Works;
"Fee(s)" the Fee(s) payable to dot-art for the dot-art Services or the Works as set out in any Agreement including any invoice;
"IPR(s)" all vested, contingent and future intellectual property rights including but not limited to patents, copyrights, registered and unregistered trademarks, service marks, domain names, database rights, registered designs, design rights, know-how, inventions, get-up, confidential information, trade and business names, and any other similar protected rights in any country subsisting now or in the future together with, in relation to any of the foregoing rights: (i) the right to sue for past infringements; (ii) any applications for registration; and (iii) any licences;
"Payment Schedule" the schedule detailing the dates, amount and manner of payment to dot-art for the provision of the dot-art Services as may be set out in any Agreement;
"Purchaser" the purchaser of any of the Works for the Fees;
"Services Schedule" a schedule set out in any Agreement detailing the dot-art Services;
"Space" the spacial area provided by the Venue;
"Specification" the specification for the Works and the dot-art Services as set out in the Agreements.
"Venue" the party contracting for the dot-art Services including the exhibiting of Works;
"Works" the works of art created by the Artist that may be listed in the Schedule.
In these Conditions, unless the context otherwise requires: (a) words in the singular include the plural and vice versa and words in one gender include any other gender; and (b) a reference to: (i) "dot-art " includes any sub-contractor or agent of dot-art for the purposes of receiving any rights or benefits under an Agreement; (ii) any party includes its successors in title and permitted assigns.
In the event of any conflict or inconsistency between the Conditions and (a) any project plan; (b) the Payment Schedule; or (c) Services Schedule, or (d) or any Agreement then these Conditions shall prevail.
The headings to the clauses, schedules and paragraphs of these Conditions or Agreement will not affect the interpretation. Any reference to an enactment includes reference to that enactment as amended or replaced (unless such amendment or replacement would increase the liability of dot-art) from time to time and to any subordinate legislation or byelaw made under that enactment. dot-art shall be entitled at any time to modify these Conditions and any such modified Conditions shall apply to the Venue and the Artist when the Conditions are available on dot-art’s website www.dot-art.co.uk.
Agreements
These Conditions apply to all Agreements between :dot-art and the Venue; dot-art and the Artist; dot-art and the Purchaser; the Artist and Venue; the Purchaser and the Venue; the Purchaser and the Artist.
Any Agreement will be on these Conditions to the exclusion of all other representations, warranties, terms and conditions whether rendered prior to or subsequent to these Conditions (including without limitation any terms or conditions which the Venue or the Artist purports to apply). No variation of any Agreement shall be binding unless agreed in writing between the authorised representative of dot-art. No action by dot-art shall purport to dot-art’s acceptance of any terms or conditions of any Venue, Artist, Purchaser or third party and only in circumstances where there is a so called battle of forms dot-art’s Conditions shall always be subsequent to any other party’s terms and conditions unless otherwise stated in writing by an authorised officer of dot-art. Any order placed by the Venue, the Purchaser or the Artist shall be deemed an offer that shall be capable of acceptance by dot-art and shall be deemed accepted at the initial point of delivery of the dot-art Services or signature of the Agreement whichever is the earlier.
The Purchaser, Venue or Artist may not use nor have the benefit of any of dot-art's Services nor the Works before reading these Conditions.
By signing an Agreement or using the dot-art Services or providing the Works the Artist and/or the Venue indicates acceptance of the Conditions
The Services of dot-art
dot-art shall supply the purchaser, the Artist and/or Venue with the dot-art Services exercising reasonable care and skill. The parties other that the Purchaser may meet from time to time in order to review progress on the provision of the Services and to agree any minor variations to any Services Schedule. The parties may enter into a new Agreement in respect of any requirement for variations that are substantial. Subject to compliance by the Purchaser, the Venue and Artist with the payment of Fees, dot-art shall provide the dot-art Services in accordance with the applicable Agreement and Services Schedule. In the event of the Venue requiring further services, these services will be for the avoidance of doubt covered by these Conditions.
Orders
Any tariffs, proposals, offers, forms or similar documents from dot-art shall not be treated as offers capable of acceptance by the Purchaser, the Venue and/or the Artist and shall be treated as invitations to treat only, providing information and do not place dot-art under any obligations to enter into any binding contract. All orders for dot-art Services by the Purchaser an/or the Venue shall be deemed offers to receive such Services in accordance with these Conditions and capable of acceptance by dot-art who shall not be obliged to make such acceptance. dot-art representatives shall not be authorised to accept orders or offers nor are they granted the right to enter into agreements on behalf of dot-art. dot-art does not guarantee that Works ordered will be available. dot-art does not guarantee that any Works will be ordered or exhibited by a Venue. dot-art does not guarantee the sale of any Works.
Assistance from the Venue and Artist
The Venue and the Artist shall at all times provide dot-art with such assistance, co-operation, information, entrance onto premises permission, licences and source materials as may reasonably be necessary to enable dot-art to fulfil its obligations under the Agreement. The Venue shall ensure at its own cost that it possesses and shall make available to dot-art or the Artist all necessary space to enable dot-art to perform the dot-art Services. The Venue and the Artist shall comply with all necessary laws and regulations and shall fully indemnify dot-art against all losses incurred by dot-art caused by the Venue's or the Artist's failure to comply. It shall not be dot-art's responsibility to ensure compliance in accordance with this clause 5.3. The Venue shall use best endeavours to ensure that its premises are secure. The Venue shall use best endeavours to ensure that any property of dot-art or the Artist or third parties that is under the control of the Venue remains in good condition and secure. Following termination the Venue shall return any property as referred to in clause 5.5 to dot-art or the Artist in the same condition as when provided by dot-art or the Artist. The Venue may be charged for any delay in returning the property to dot-art at a rate equal to a five percent of the price of the property each day not returned . The Venue and the Artist shall immediately on its occurrence inform dot-art of any change of agent, key player or officer of the Venue, or Artist respectively The Artist shall provide the Works accurately, in good time and at no further cost than that set out in the appropriate Payment Schedule unless otherwise agreed in writing by an authorised officer of dot-art. The Venue and the Artist shall avoid damaging the reputation or goodwill of the Venue, the Artist or dot-art. Both the Venue and the Artist shall keep dot-art fully informed of all matters, dealings, negotiations, correspondence and communications between the Venue and the Artist. The Venue shall give no less than fourteen days notice of its wish to have Works removed and dot-art can arrange to have the Works removed at any time during this notice period. dot-art shall have at its sole discretion the right to charge the Venue and/or the Artist an additional fee for the removal, transportation and storage of the Works. Only a person, business or corporate body approved by dot-art may install or remove the Works as fittings in the Venue. If requested to do so by dot-art, the Artist will install or remove the Works on times and dates provided by dot-art. dot-art shall provide the Artist with no less than three days notice that the Artist may remove the Works from the Venue or be available to have them returned or pick up from dot-art, whichever dot-art so chooses. If the Artist does not remove or take the Works on the date set, dot-art shall be entitled to charge a daily storage fee to the Artist. In consideration of the Services provided to the Artist by dot-art the Artist shall not enter into any agreements with a Venue introduced by dot-art nor sell any Works without the prior written consent of dot-art. In consideration of the dot-art Services provided to the Venue, the Venue shall not enter into any agreements with an Artist introduced by dot-art nor sell or purchase any of the Works without the prior written consent of dot-art. The Artist and Venue shall notify dot-art of any prospective Purchaser and provide the Purchaser's details.
Term
The term of the Agreement between dot-art and Venue or dot-art and the Artist shall be for a minimum period of 12 months unless otherwise agreed in writing and signed by an authorised officer of dot-art. The term shall commence on the date as set out in the Agreement unless otherwise agreed in writing and signed by an authorised officer of dot-art. The term shall automatically continue for a minimum period of 12 months. Notice of termination of the term shall be provided in writing no later than three months prior to the end of the respective periods set out above.
Delivery
The Artist shall deliver the Works in accordance with the Agreement and Specification. If the Artist fails to deliver any of the Works in accordance with the Agreement or Specification then (in the absence of any default on the part of the Venue or in the absence of Force Majeure) the Venue shall notify dot-art and dot-art shall then notify the Artist of its failure to deliver and request that the Artist cure such failure. If Delivery has not occurred at the end of seven days following the Delivery Date dot-art shall be entitled to terminate the Agreement with the Artist and/or Venue and/or provide the Venue with alternative Works from another artist and such replacement shall be the sole remedy available to the Venue and there shall be no further obligation to the Artist. The failure of the Venue to provide any space within seven days following the Delivery Date shall be a material breach for the purposes of these Conditions in the absence of any written agreement to the contrary. dot-art reserves the right to charge the Venue and/or the Artist in respect of any additional work involved by dot-art due to delay caused by a failure by the Artist to provide the Works or the Venue to provide space. dot-art shall supply the dot-art Services to the address provided by the Venue or the Artist unless otherwise agreed in writing by an authorised officer of dot-art. The Works shall be inspected by the Purchaser or the Venue who shall notify dot-art within three days of Delivery of any alleged losses, defects, shortage, errors, poor service or damage. Failure to do so shall be deemed as acceptance by the dot-art Services and the Works. At no point shall dot-art be held responsible for any failure by the Purchaser, the Venue or the Artist in complying with the terms of any Agreement or these Conditions. Delivery costs shall be changed to the Purchaser.
Change Control
At any time prior to the Delivery Date dot-art may in writing recommend (or the Venue in consideration of a further payment may in writing request) from time to time changes to any part of the Services Schedule. Notwithstanding anything to the contrary in these Conditions dot-art shall not be under any obligation to agree to any request for a change. Should dot-art wish to proceed with the proposed change it will instruct the Artist and Venue in writing of its wish within 7 working days of the receipt of the written estimate (or such longer period as may be agreed). Those parts of these Conditions affected by the change will then be deemed to be modified accordingly. Until any change is formally agreed the Artist and the Venue will continue to perform and be paid for the Services as if the change had not been proposed. If the proposed change represents a significant alteration from any Services Schedule then dot-art may make a reasonable charge for implementing the proposed change.
Payment
In consideration for the performance of the dot-art Services, dot-art shall be entitled to the Fees in accordance with the Payment Schedule or Agreement. All sums payable under any Agreement are exclusive of VAT and other taxes, if any, which shall be charged in addition at the prevailing rate and shall be paid by the Purchaser, the Venue and/or the Artist on submission of a valid tax invoice. Title to any property or any Services, where applicable, shall not pass to the Purchaser until the Artist and dot-art have received full payment of the Fees . Payment of the Fees and other charges are due within 14 days of the date of an invoice from dot-art. dot-art shall be free to issue any invoice at any time. dot-art shall be entitled to charge interest, compounded monthly, on late payments at the rate of 4% above the base rate of the NatWest Bank current during that time on any amount outstanding, which is not paid in accordance with these Conditions and such interest shall continue to accrue until payment or judgement is made (whichever the later). dot-art is aware of its rights under the Late Payment of Commercial Debts (Interest) Act 1998. If the Purchaser, the Venue or the Artist fails to pay any of the Fees in accordance with the Payment Schedule or these Conditions the directors of the Purchaser, the Venue or the Artist where applicable shall be personally liable for payment of all unpaid Fees where the Purchaser, the Venue or the Artist is a Company. Unless otherwise stated the Fees and tariffs are those in force at the time of payment being due and may be set out in the Payment Schedule. dot-art shall be entitled to increase any Fees in any Payment Schedule following prior notice to the Purchaser, the Venue and/or the Artist. The Venue authorises dot-art to offset at any time and without notification any amounts owed to the Venue, the amount owed by the Venue to dot-art. The Artist authorises dot-art to offset at any time and without notification any amounts owed to the Artist, the amount owed by the Artist to dot-art.
Intellectual Property Rights
Intellectual Property Rights in the dot-art Services and the Works shall remain vested in the authors of the works unless otherwise agreed in writing. dot-art shall be entitled to use the trading names and trade marks of the Venue and/or the Artist (in a reasonable manner) in the production of corporate brochures, press releases and similar printed or online materials solely for the purposes of promoting dot-art and dot-art services to third parties.
Confidentiality
Each party ("the Recipient") shall ensure that any confidential information ("Information") disclosed to it by the other shall not be used or disclosed save as is strictly necessary for the purposes of any Agreement and shall return to the other promptly on request any such Information provided by the other on any media. These confidentiality restrictions shall not apply to the extent that (a) disclosure or use of the Information is required by law; (b) evidence is available that the Information was already in the unrestricted possession of the Recipient before disclosure to it by the other party; or (c) the information falls within the public domain other than through the default of the Recipient. The obligation of confidentiality in clause 11 shall continue in force following termination of the Agreement.
Security and control
~The Venue and the Artist shall during the continuance of any Agreement effect and maintain adequate security measures to safeguard the dot-art Services and the Works from access or use by any unauthorised persons.
Liability
Nothing in these Conditions shall exclude or restrict any party's liability for: (a) death or personal injury resulting from its negligence or that of its employees while acting in the course of their employment; (b) fraud or fraudulent misrepresentation; or (c) breach of the relevant warranties contained in these Conditions. dot-art shall not be liable to the Purchaser, the Venue nor the Artist in contract, tort or otherwise howsoever arising out of or in connection with the Agreement for any indirect loss, consequential loss, loss of profits, business opportunity, goodwill or reputation. dot-art shall not be responsible for any property of the Purchaser, the Artist nor the Venue that the Artist or the Venue has requested be under the control of dot-art. The Venue, the Purchaser and the Artist shall undertake to have adequate insurance cover for any damage or loss to its property whilst under dot-art's control and to indemnify for any costs, losses or damages incurred by the Venue, the Purchaser or the Artist. The Venue, the Purchaser and the Artist warrant that they have the right to enter into any Agreement and shall indemnify dot-art for any losses, costs, damages, claims, expenses or demands which dot-art may reasonably incur to the extent that: (a) any claim that the dot-art Services infringes the Intellectual Property Rights of any third party; and (b) any claim that the dot-art Services are defamatory, obscene, blasphemous or otherwise actionable under the laws and regulations of any jurisdiction. The Artist and the Venue warrant that they are responsible for and is in receipt of all insurances necessary for any dot-art Services. The Artist and the Venue warrant that they are responsible for the activities of any of their agents, employees or contractors who are on dot-art or Venue premises or premises shared by the parties or leased or purchased for the benefit of dot-art or the Artist. The Venue shall indemnify dot-art for all losses, damages and costs incurred by dot-art as a result of any breach by the Venue of any warranty or term set out in the Conditions or Agreement. The Artist shall indemnify dot-art for all losses, damages and costs incurred by dot-art as a result of any breach by the Artist of any warranty or term set out in the Conditions or Agreement. The Purchaser shall indemnify dot-art for all losses, damages and costs incurred by dot-art as a result of any breach of the Purchaser's warranties or term set out in these Conditions of Agreement No indemnity shall be due from dot-art subject to damages to the Venue as a result of wilful misrepresentation by an officer of dot-art. dot-art shall have no responsibility to repair or replace any damaged property owned, licensed or rented by the Venue or the Artist. dot-art is not bound by any third party guarantee including that of the Venue or the Artist. Nothing in these Conditions shall affect the Artis's or Venue's statutory rights where applicable dot-art shall not be liable for any loss, damages, costs or similar incurred by the Venue as a result of reliance upon the Artist's services.
Suspension
dot-art shall be entitled to suspend any Agreement without notice and without liability to itself where the Purchaser, the Venue or the Artist: has failed to pay the Fees; has breached a warranty or term of the Agreement or Conditions; has failed to complete any necessary documentation; has used the dot-art Services or the Works in an abusive or unlawful manner or has failed to comply with any acceptable use policy or similar in the reasonable opinion of dot-art; has a lack of security in the reasonable opinion of dot-art; has damaged the reputation of dot-art. dot-art shall be entitled to continue invoicing the Purchaser, the Venue or the Artist during any period of suspension and shall be entitled to continue any other Agreements not the subject of the suspension.
Termination
A party (the "Initiating Party") may terminate the Agreement with immediate effect by written notice to the other party (the "Breaching Party") on or at any time after the occurrence of: (a) an irremediable material breach by the Breaching Party of the Agreement or these Conditions; (b) a remediable breach by the Breaching Party of a material obligation under the Conditions or Agreement where the Breaching Party fails to remedy the Breach within 30 days starting on the day after receipt of written notice from the Initiating Party giving full details of the breach and requiring the Breaching party to remedy the breach and stating that a failure to remedy the breach may give rise to termination under these Conditions; or (c) more than one breach of the Conditions or Agreement by the Breaching Party, the cumulative effect of such breaches being: (i) sufficient to justify the inference that the Breaching Party would continue to deliver a substandard performance in relation to a substantial portion of the Agreement over the entire remaining period of the Agreement (or, in the case of the Artist or the Venue, in relation to its obligations these Conditions; or (ii) serious in the widest sense of having a serious effect on the benefit which the Initiating Party would have otherwise derived in relation to a substantial portion of the Conditions or Agreement. A party may terminate the Agreement and these Conditions upon 30 day's written notice if the other is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation) or compounds with or convenes a meeting of its creditors or has a receiver, administrative receiver or administrator appointed or if any circumstances arise which would entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order. dot-art shall be entitled to terminate any Agreement for the reasons as set out in clause 14.1 above. dot-art's reasonable costs and expenses incurred by dot-art by reason of any delay variation, interruption or suspension of work arising from any act or omission of the Venue or the Artist or their employees, agents or their subcontractors will be reimbursed to dot-art by the Venue or the Artist, subject to dot-art. The innocent party shall be entitled to terminate the Agreement and these conditions where the Force Majeure event of has been in existence for 3 months.
Consequences of Termination
Upon termination of the Agreement all rights granted in the Conditions and Agreement shall cease and the Venue shall return any Works to dot-art or the Artist as set out solely by dot-art The termination of the Agreement for whatever cause shall not affect any provision of the Conditions or Agreement which is expressed to survive or operate in the event of the termination of the Agreement and shall not prejudice or affect the rights of any party against the other in respect of any breach of the Conditions or Agreement or in respect of any monies payable by either party to the other in respect of the period prior to termination.
Force Majeure
No party shall be liable in damages or have the right to terminate any Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary licenses), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
Data protection
The parties undertake to comply with the provisions of the Data Protection Act 1998 (the "Act") and any related legislation in so far as the same relates to the provisions and obligations of the Conditions or Agreement. dot-art may hold information relating to the Purchaser's, the Venue's or Artist's non-payment, late payment or other payment history which may be held subject to the Act with an appropriate third party.
Exclusivity, Assignment and Sub-Contracting
Unless otherwise agreed: (a) the dot-art Services shall not be exclusive to the Venue nor the Artist (meaning that dot-art may provide equivalent services to any third party); (b) dot-art shall be entitled to sub-contract any of the dot-art Services to a suitable third party; (c) the Venue shall not assign its rights or obligations under any Agreement without dot-art's prior written consent. Unless otherwise agreed in writing by an authorised representative of dot-art the Artist provides the Works and the right to sell, promote and exhibit the Work exclusively to dot-art during the Term.
Waiver
Failure by dot-art to exercise or enforce any right under any Agreement or these Conditions (including in the case of suspension) shall not be deemed to be a waiver of any such right nor operate so as to prevent the exercise or enforcement of such right on any other occasion.
Validity
If any part, term or provision of any Agreement or these Conditions be held illegal or unenforceable, the validity or enforceability of the remainder of that Agreement or these Conditions shall not be affected.
Third Party Rights
Subject to the paragraph below the Contracts (Rights of Third Parties) Act 1999 shall not apply to any Agreement or these Conditions and no person other than the parties to the Agreement or these Conditions shall have any rights under them, nor shall they be enforceable under that Act by any person other than the parties to them. dot-art shall benefit from its rights but shall be under no obligation under the Contracts (Rights of Third Parties) Act 1999 relating to Agreements between the Venue and Artist, the Purchaser or third parties.
Partnership
The Conditions or any Agreement shall not constitute or imply any partnership, joint venture, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement and these Conditions.
Amendments
The Conditions or any Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of dot-art.
Announcements
The Venue, the Purchaser nor the Artist may issue or make any public announcement or disclose any information regarding any Agreement unless prior written consent has been obtained from dot-art.
Notice
All notices under any Agreement or Conditions shall be in writing. Notices shall be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or on the tenth business day following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
Entire Understanding
These Conditions and any Agreement under them set out the entire agreement and understanding between the parties in respect of its subject matter and the Venue, the Purchaser and the Artist acknowledge that it has entered into such Agreement in reliance only upon the representations, warranties and promises expressly contained or incorporated in these conditions and/or Agreement and save as expressly set out therein, dot-art shall have no liability in respect of any other representation, warranties or promise made or given prior to the date of the Agreements, howsoever made or given, unless it was made or given fraudulently.
Successors and assignees
The Conditions and any Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in any Agreement shall include its successors and permitted assignees. In any Agreement references to a party include references to a person: who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under that Agreement (or any interest in those rights); or who, as administrator, liquidator or otherwise, is entitled to exercise those rights, and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under any Agreement include any similar rights to which another person becomes entitled as a result of a novation of the Agreement. Neither the Venue nor the Artist shall be entitled to assign or transfer the benefits or obligations of these Conditions or Agreement to any third party without the prior written consent of dot-art.
Law and Jurisdiction
These Conditions and any Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of its Courts.