General Terms and Conditions
port of art
Content
1. Scope of Application
2. Specification of our Service
3. Registration as User
4. Registration as Artist
5. Selling Arrangements, Conclusion of Contracts on the Marketplace, Payment
6. Artists Duty of Information, Buyer’s revocation rights
7. Prices and Payment Terms
8. Trust Service for Contracts concluded on the Marketplace, authorization of receipt
9. Term of Contract
10. User Generated Content, Code of Conduct, Indemnification
11. Use Rights
12. Availability
13. Liability
14. Applicable Law, Place of Performance and Jurisdiction
1. Scope of Application
1.1 These general terms and conditions shall apply to the contractual relationship between the user (hereinafter the “User”) and port of art, owned by Julia Brenner, Marienburger Straße 6, 10405 Berlin, Germany (hereinafter “port of art“) for the use of the port of art online marketplace (hereinafter „Marketplace“). These terms govern in particular the conclusion of the contract between port of art and a User as well as the respective rights and duties.
1.2 These General Terms and Conditions shall apply exclusively for the business relationship between port of art and the User in their version valid at the time of
registration. Any User’s different terms and conditions are not accepted by port of art unless port of art has explicitly consented to their application.
1.3 port of art may change these Terms and Conditions from time to time. In this case, port of art will provide the User with the amended Terms and highlight the changes made. If the User does not agree with the changes, he may object within six weeks after receipt of the amendment notice. If the User does not object to the changes within the time set forth above, changes are deemed accepted. port of art's amendment notice shall particularly indicate the right of objection, the consequences of the User’s action and
the resulting legal consequences. In the event of an objection, the contract shall be valid in its unaltered version, but port of art reserves the right to terminate the contract
according to section 9.
2. Specification of our Service
2.1 On its Marketplace, port of art provides registered Users with the opportunity to offer, sell or buy artworks, in particular paintings, drawings, outlines, prints, sculptures and other objects (hereafter collectively called “Artworks“). port of art has different selling arrangements that may set special requirements for the eligibility of the Artist (see section 2.2 and 2.3).
2.2 Users that are registered as Artists may sell their self-created Artworks on the Marketplace. Artist in the sense of these provisions and the Marketplace are visual artists, illustrators, designers, photographers, architects and/or students of visual and applied arts. The Artist has to prove his standing as an artist within the registration process.
2.3 In addition, port of art differentiates between different groups of Artists (students, professionals, Trusted Artists etc.) that may have different rights on the Marketplace. An overview is available under https://www.port-of-art.com/information-artists. Trusted Artists means Artists that are personally known by port of art or who have established trust based on their previous reliability. Trusted Artists may independently activate Artworks on the Marketplace and may offer Artworks within auctions. For other Artists a prior activation of every Artwork by port of art is required for publication on the Marketplace. port of art reserves the right to withdraw an attributed status at a later
point of time.
2.4 Generally speaking, port of art does not act as a seller or buyer of Artworks and does not accept any corresponding offers. Therefore, contracts on Artwork offered on the Marketplace are only concluded between the respective Users. port of art does not verify the Artists’ representations. Identity checks are made by port of art only on a limited basis. Therefore, Users shall verify the identity of other Users to their satisfaction.
2.5 However, port of art reserves the right to act as seller or buyer on the Marketplace. In this case port of art will be explicitly identified as seller or buyer.
2.6 For securing the respective rights of buyers and Artists port of art acts as trustee if the gross selling price (including VAT) of an Artwork is equivalent or more than EUR 100,00 (see section 8).
3. Registration as User
3.1 Using the Marketplace as Artist or buyer requires registration as a User. The registration is free of charge for the User. Only natural and legally fully competent persons may register as Users.
3.2 To register with port of art the User must click the “Register“ button on the port of art website and then accurately fill in the mandatory fields. The User may correct, change or delete any entries in the questionnaire at any time before sending it. By clicking the “create new account” button the User applies for registration and the questionnaire is sent to port of art. Thereafter, the User will receive a confirmation link to the e-mail address he provided. With the activation of the confirmation link the registration process is complete.
3.3 port of art reserves the right to deny the application or delete the User account if the User gives incomplete or incorrect data. However, the User may register again by
giving his complete and correct data.
3.4 Contract and Communication Language, Storing of Contract
3.4.1 Currently, the User may conclude the contract and communicate with port of art in German and English.
3.4.2 The User must accept these General Terms and Conditions during the registration process and may access them at the same time. He will also receive them during the registration process at e-mail address he provided. In addition, the updated version of these terms may be accessed at any time under https://www.port-of-art.com/general-terms-and-conditions.
4. Registration as Artist
4.1 During the registration process the User has to decide whether to register as User or buyer.
4.2 In order to sell on the Marketplace, the User must be registered as an Artist. To register as an Artist it is necessary that the User is a entrepreneur in the sense of § 14 of the German Civil Code (BGB). Entrepreneur in this sense means an Artist who when entering into a legal transaction, acts in exercise of his trade, business or profession. Consumers in the sense of § 13 of the German Civil Code (BGB) may not register as Artists. A consumer is a person who enters into a legal transaction for a purpose that is predominantly outside his trade, business or profession.
5. Selling Arrangements, Conclusion of Contracts on the Marketplace, Payment
5.1 Currently, the Artist may decide between different selling arrangements.
5.2 Fixed Price Sale
5.2.1 Fixed price sale means that the Artwork is offered with a fixed price set by the Artist. The User that wishes to buy this Artwork shall be informed about the purchase price and any additional costs he has to bear.
5.2.2 By activating the Artwork on the Marketplace the Artist submits a binding offer to sell the Artwork. However, the offer is subject to a reservation of revocation that provides the Artist with the opportunity to withdraw the offer before the buyer declares acceptance.
5.2.3 For Artworks with a purchase price of at least EUR 100.00 (gross) the User will be forwarded to the payment provider PayPal after clicking the button “buy now“. After filling in the data required by PayPal the buyer accepts the Artist’s offer to conclude a contract on the chosen Artwork subject to the displayed conditions by clicking the button “pay now”. The purchase price (including all other costs) will be debited against the buyer’s bank account and transferred to port of art’s PayPal bank account where it will be held in trust subject to section 8.
5.2.4 For Artwork with a purchase price of less than EUR 100.00 (gross) the buyer accepts the Artist’s offer to conclude a contract on the chosen Artwork subject to the displayed conditions by clicking the button “pay now“.
5.3 Auction
In auctions the Artwork will be sold to the highest bid at the end of the auction. Only Artists with the status “Trusted Artist” may employ auctions. With the placement of the artwork in an auction the Artist submits a binding offer to sell the Artwork to the highest bid. With his bid the buyer declares to accept the offer under the condition precedent that he has placed the highest bid at the end of the auction. Therefore, the bid expires when a higher bid has been placed. In the event of a premature termination of the auction the contract is concluded with the User who had placed the highest bid upon termination. This shall not apply and no contract is concluded, if the Artist was entitled
to terminate the auction for compelling reasons. This is in particular the case if the Artwork is destroyed, damaged or has been stolen due to reasons the Artist is not liable for. It is explicitly not a compelling reason if the Artist has sold or given away the Artwork in other manner or plans to do so.
5.4 Payment
5.4.1 For fixed price sale with purchase prices equivalent or more than EUR 100.00 (gross) the buyer shall pay the purchase price at the end of the order process to port of art’s PayPal bank account. The purchase price for Artworks bought in auctions shall be paid to port of art’s PayPal bank account within three working days. The payment to the Artist is only made subject to the provisions set forth in section 8.
5.4.2 For purchase prices under EUR 100.00 (gross) the type of payment (e.g. advance payment or pari passu against delivery of the Artwork) is subject to the Artist’s and buyer’s agreements.
6. Artists Duty of Information, Buyer’s revocation rights
6.1 As entrepreneurs in the sense of section 4.2 Artist have to observe particular legal provisions, especially those for distance marketing, if the buyer is a consumer. A buyer is a consumer, if he is a person who enters into a legal transaction for a purpose that is predominantly outside his trade, business or profession (§ 13 German Civil Code - BGB).
6.2 This particularly implies the duty to inform the consumer according to the statutory provisions and – if applicable – to grant a revocation right as well as to inform him thereof.
7. Prices and Payment Terms
7.1 port of art does not charge any fees for registration as a User of the Marketplace The same applies for buyers of Artworks.
7.2 Artists are charged a fee for selling of Artworks.
7.2.1 port of art charges a monthly fee of EUR 1.00/month for the activation of one Artwork for sale.
7.2.2 Additionally, port of art charges the following fee depending on the price of the Artwork and the selling arrangement:
- for Artworks with a purchase price between EUR 21.00 – 50.00 and an activation for four months: EUR 4.00
- for Artworks with a purchase price between EUR 51.00 – 99.00 and an activation for six months: EUR 6.00
- for Artworks with a purchase price equivalent or more than EUR 100.00 and an activation for eight months:
EUR 8.00 and plus 10% of the gross purchase price (purchase price including VAT) if the Artwork is sold
- for the activation of an auction and the eventual sale of Artworks in the course of an auction:
EUR 5.00 and plus 10% of the gross purchase price (purchase price including VAT) if the Artwork is sold.
7.3 The above mentioned fees include value added tax (VAT).
7.4 The fees for activation shall be paid to port of art’s PayPal account immediately upon activation of the Artwork for sale. Other incurred fees will be invoiced after the Artwork’s sale. Invoices shall be paid within 14 days after receipt using the indicated bank account details. For purchase transaction via the trustee setting (see section 8) port of art reserves the right to deduct the fees due from the amount to be paid to the Artist.
7.5 The Artist is only entitled to offsets against accounts receivable of port of art in case of uncontested or finally adjudicated counterclaims. He may only exercise his retention rights if the counterclaim is based on the same legal relationship.
8. Trust Service for Contracts concluded on the Marketplace, authorization of receipt
8.1 Contracts concluded on the Marketplace shall be executed over port of art’s trust account at PayPal under the following circumstances.
8.2 For auctions and purchase contracts with a purchase price equivalent or more than EUR 100.00 (gross) the handling of payments is made over port of art’s trust account. The Artist authorizes port of art to receive payment of the purchase price and any related payments (in particular shipping costs) as due according to the concluded contract. The buyer shall effectuate the due payment only to port of art. The Artist is only entitled to demand direct payment from the buyerif the trusteeship has failed.
8.3 Upon receipt of the entire payment port of art will inform both parties thereof. Unless otherwise agreed upon by the parties the Artist shall – at the latest – within 14 calendar days after being informed either dispatch the Artwork to the buyer or hold it ready for pickup by the buyer and inform the buyer of the type of handover.
8.4 port of art will pay the received amount to the Artist (as the case may be after deduction of due fees), if one of the following conditions has been fulfilled:
- the buyer has confirmed the Artwork’s receipt without any defects;
- 30 calendar days have passed since the conclusion of the contract
and the buyer has not objected to the payment by this date;
- the Artist has evidenced the receipt of the Artwork by the buyer
and the buyer has not objected to the payment;
- buyer and Artist both agree to the payment in text form.
8.5 A refund to the buyer is made, if one of the following conditions has been fulfilled
- the buyer can prove – prior to payment – revocation of the contract or withdrawal
of his declaration of intent subject to the statutory provisions;
- the Artist can prove that he has withdrawn his offer in due time;
- the buyer can prove that the Artwork received is not the Artwork he bought or
the Artwork shows more than minimal defects or is destroyed,
- without the buyer being responsible; buyer and Artist both agree to the refund in text form.
9.1 The User may terminate the contract at any time without giving reasons in written form, by e-mail or by clicking “deactivate User account” in his User account. If the User has made binding declarations (e.g. offers within auctions) the User account remains active and this contract applicable until the binding effect expires.
9.2 port of art may terminate the membership at any time within a period of 14 days. The termination does not affect the User’s activated Artworks or binding declarations on the Marketplace or made prior to the reception of the termination notice. However, in the event of a termination for cause, port of art may immediately delete the User’s account.
9.3 The right of both parties to terminate for cause shall remain unaffected. Cause exists for port of art in particular if the User is in more than marginal or repeated breach of these conditions, particularly if the User violates the code of conduct set forth in section 10 or provides untruthful information about his person.
9.4 After successful termination the User account and the User’s content will be deactivated. Upon the User’s request in text form port of art will entirely and irretrievably delete the User account.
10. User Generated Content, Code of Conduct, Indemnification
10.1 port of art shall not be responsible for content, data and/or information provided by its Users. In particular port of art gives no warranty that such content is true, or serves or may serve a certain purpose.
10.2 In particular the User shall not,
- post content without disposing of the therefore necessary rights;
- post legally protected content (e.g. by copyright, trademark, patent, design or utility patent law) or solicit,
offer or distribute legally protected goods and services, in each case without being entitled to do so;
- post racist, inhuman or offensive content or content against good morals;
- post pornographic content or content in contradiction of laws for the protection of minors or to solicit,
offer or distribute pornographic products or products in contradiction of laws for the protection of minors;
- disturb other users in unreasonable manner (particularly through spam);
- conduct or promote anticompetitive actions, including progressive user recruitment
(such as chain, snowball or pyramid schemes);
- perform activities suitable to interfere with the functionality of the infrastructure used by port of art,
particularly to overload it.
10.3 In the event of a breach of the preceding provisions or any other unlawful behavior port of art is entitled according to its sole discretion to exclude the User from further use of the Marketplace temporarily, permanently, and, to the necessary extent, to take other measures in order to end the violation. In such cases port of art is especially entitled to delete content without prior notice. In addition, the User shall indemnify, defend and hold harmless port of art as well as its respective owners from and against any claims, arising out of or related in any way to the User’s alleged infringement of these conditions or third parties’ rights.
11. Use Rights
11.1 Users registered as Artists grant port of art the non-exclusive, royalty-free and licensable right, not restricted in time or place to make publicly available, to reproduce, to distribute and to combine with other works the pictures of the Artworks offered by the Artists on the Marketplace, and outside thereof for the purposes of sales promotion. This in particular includes the right to use the pictures on websites or internet media for advertising purposes of port of art.
11.2 port of art will use best efforts to use the picture only in conjunction with the Artist’s name. However, the Artist waives his right to be identified as the author of the pictures within port of art’s sales promotion activities.
11.3 Artists may at the time of the registration or later in text form object to the use of pictures of their Artworks outside the Marketplace for the aforementioned purposes by port of art for the future. port of art will no longer make publicly available any pictures after deletion of the User account.
12. Availability
port of art will use best efforts to provide Users access to the Marketplace 24 hours a day and 7 days a week. However, temporary service interruptions due to usual maintenance, to system disturbances, to internet disturbances of other providers or of operators and to force majeure may occur. Therefore, the User has no right to a steady and continuous access to the Marketplace. port of art does not owe definite service availability.
13. Liability
13.1 port of art shall be liable without restriction according to the statutory provisions for damages of the customer caused by intentional or gross negligent conduct of port of art or its vicarious agents as well as for personal injury and damages according to the German Product Liability Act.
13.2 Any additional liability of port of art for damage claims is restricted in accordance with the following provisions irrespective of the legal basis, unless a guarantee assumed by port of art provides otherwise:
13.2.1 port of art is only liable for slight negligence if the damages have been caused by the violation of a material contract obligation (cardinal duties). Cardinal duties are such contractual obligations whose performance is required for the proper implementation of the contract and upon whose compliance the User could rely on. To the extent port of art is liable for slight negligence, its liability is restricted to the typically foreseeable damages.
13.2.2 port of art’s liability for damages caused by loss of data and/or software lost by slight negligence is limited to the standard cost of restoration, which would have been
incurred in case of regular and appropriate data backup by the User.
13.2.3 port of art’s liability for damages resulting from delays that is attributable to slight negligence is also restricted to the reasonably foreseeable damages.
13.3 The provisions of the above paragraph apply correspondingly to the limitation of damages for futile expenses (§ 284 of the German Civil Code [BGB]).
13.4 The above liability restrictions shall also apply to vicarious agents of port of art.
14. Applicable Law, Place of Performance and Jurisdiction
14.1 This contract is subject to the laws of the Federal Republic of Germany excluding the United Nations Convention on the International Law of Sales (CISG).
14.2 The Place of performance is port of art’s principle place of business.
14.3 port of art’s principal place of business is the exclusive venue for all current and future claims out of or in connection with this contract concluded with merchants, public law legal entities or special public law funds. The same venue applies if the User does not have a domestic general venue, moves its residence or usual domicile to another country during the term of the contract or his residence or usual residence is unknown at the time suit is filed.