These Terms and Conditions of Use (to be referred to below as the ‘Terms
and Conditions’) govern every use of the Service and the Online Platform as
defined below. Please read these Terms and Conditions carefully so that you,
the User, know your rights and obligations when you use the Service. You can
download and print this document.
Definitions
In these Terms and Conditions, the terms listed below have the following meaning:
Account: the personal section on the Online Platform containing the personal data and other details that the User has entered or that have been retrieved from the User’s social media account(s), which the User creates by registering for the Service and which is administered by the User.
Artwork/s: one or more Artworks that the Seller offers for sale on the Online Platform.
Buyer: a User who concludes a Contract of Sale with a Seller through the Online Platform.
Consumer: a User who is a natural person and who uses the Service or concludes a Contract of Sale as a Buyer for purposes that are unrelated to his trade, business, craft or professional activities. Contract of Sale: the contract of sale that is concluded through the Online Platform between the Seller on the one hand and the Buyer on the other, with respect to a particular Artwork.
Fumogallery: The individual enterprise Belluzzi Andrea, with registered office in Italy, at Via Nuova, 3/A 46026 Quistello (MN) and head office in Italy, at Via Nuova 3/A, C.A.P. 46026, Quistello (MN), VAT no. 02545220200, certified email address: belluzziandrea@pec.it, registered in the Chamber of Commerce and Industry of Mantova, and in the Business Register with tax code and inscription number BLLNDR74T23H143K, classified as a Minor Entrepreneur (special section).
Information: all the material and all the information that Fumogallery places on the Online Platform or makes accessible through the Online Platform. Information does not include User Material.
Intellectual Property Rights: any and all intellectual property rights and related rights, such as copyrights, trademark rights as well as patent rights.
Online Platform: Fumogallery’s digital environment, which enables Users to access the Service using software that Fumogallery has developed and offers, which can be accessed through the Internet via.
Professional Seller: a User - either a natural person or a legal entity - who uses the Service to sell Artworks in connection with his trade, business, craft or professional activity.
Purchase Price: the amount of the Artwork, which the Buyer owes the Seller. All of the prices indicated the Online Platform regarding any Artworks on sale are expressed in Euro (€).
Seller: the User who offers one or more Artworks for sale on the Online Platform.
Seller’s Commission: the percentage (15%) of the Purchase Price as communicated by Fumogallery on the Online Platform, that the Seller owes Fumogallery for the use of the Service.
Service: the services that Fumogallery offers on the Online Platform, which appear from and are described on the Online Platform and in these Terms and Conditions, including the service that Sellers can use to sell Artworks using an online, computer-based and the related supplementary services. For any related supplementary service, such as payment services, provided to you through the Online Platform, Fumogallery may make use of Third Party Service Providers.
Third Party Service Provider: a third party, not affiliated with Fumogallery, that makes certain products, services, or websites available to you through our Online Platform, such as, but not limited to, payment or shipping services. Your use of such products, services, applications or websites will be governed by and subject to the Terms and Conditions and Privacy Policies of the Third Party Service Provider. User: any natural person who or legal entity that creates an Account, uses the Service or is active on the Online Platform without registering.
User Material: information on the Online Platform that is provided by Users or that Users make accessible or publish using the Online Platform including – but not limited to –Artworks, descriptions of Artworks, photographs, price, event and /or specifications.
VAT: value added tax and any other taxes of a similar nature.
Applicability of and amendments to the Terms and Conditions
The Terms and Conditions govern every use of the Service or the Online Platform. The User accepts these Terms and Conditions by using the Service, by visiting the Online Platform and/or by accepting these Terms and Conditions when creating an Account. The applicability of any other general terms and conditions is excluded. Fumogallery is entitled to amend or supplement the Terms and Conditions at any time by posting the amended Terms and Conditions on our Online Platform. The most up-to-date version of the Terms and Conditions can be found on the Online Platform.
General
The User accepts that the Service and the Online Platform contain only the functionalities and other characteristics that the User finds at the time of use (‘as-is basis’). Fumogallery expressly excludes any and all explicit and tacit guarantees, undertakings and indemnifications, of any kind whatsoever, including but not limited to those with respect to the quality, safety, lawfulness, integrity and correctness of the Service. The User accepts that the functionalities of the Service and the Online Platform may change. Sellers offer Artworks on the Online Platform, and Users purchase those Artworks directly from Sellers. Fumogallery plays only a facilitating and supporting role, by offering an Online Platform and supplementary services. Fumogallery has no control over or responsibility for the quality, safety, lawfulness or correctness of the Artworks that are offered, the Seller's’ authority to sell Artworks, or the authority or ability of Buyers to purchase Artworks. The User acknowledges and accepts the special circumstances that may arise in connection with an Internet sold and the errors that may occur. That includes – but is not limited to – an inability to access the Online Platform in whole or in part, an inability to place a purchase , or breakdowns of or defects in the Online Platform or the underlying hardware, network connections or software. Maintenance work on the Online Platform or on the underlying system also may prevent access in whole. In no event is Fumogallery liable for any damage that the User sustains as a result of such technical problems or other errors. Notwithstanding any other provision stipulated in these Terms and Conditions, the User acknowledges and accepts that Artworks are the property of the Seller and not of Fumogallery. No contract of sale will be concluded between Fumogallery and the Buyer, and Fumogallery does not transfer any ownership rights from the Seller to the Buyer. In order to secure its own rights and those of other Users, e.g. in the event of a breach of these Terms by a User, Fumogallery will at all times be entitled, at its discretion, to suspend payment of any and all funds of the Users in question, to set-off any claims Fumogallery might have, and if necessary, to freeze any balances that those Users may have related to any account linked to or associated with those Users. Insofar as suspending payments, setting-off claims or freezing funds is regulated by mandatory (consumer) law, Fumogallery may only do so in accordance with such mandatory law. Restrictions to the use of Fumogallery’s Service may apply. For example, we are entitled to restrict you from creating an Account, and from selling on the Online Platform if you reside in a certain country that is not supported by our third party payment provider or that is not commercially attractive to Fumogallery. Fumogallery is also entitled to restrict its Service if it has sufficient reason to believe that you are not acting in accordance with these Terms and Conditions. You will be informed about such restriction while using our Service, for example upon registration. If Fumogallery decides to introduce (further) restrictions to certain countries, it is entitled to off-board Users who reside in the countries to which the restrictions will apply. Of course we will inform these Users about this. Furthermore, Fumogallery will be entitled to off-board Users who do not act in accordance with these Terms and Conditions and/or, if applicable, the seller policy as can be found on the Online Platform. When off-boarding Users, regardless of the reason, Fumogallery cannot be held liable or responsible for any damages resulted from the User not being able to sell or buy on the Online Platform.
Registering for the Service
In order to make optimal use of the Service, the User must create an Account in the manner described on the Online Platform. The User can also sign in using certain services of third parties, such as a Facebook account. The User warrants towards Fumogallery that the information that he provides when he creates his Account is complete, truthful and up-to-date. The User must provide a username and password during the registration, which will give him access to the Account. The User is obliged to comply with all applicable tax laws and regulations and in that respect to register in the correct capacity and to provide all required information when registering. The User is fully liable for the consequences of providing any incomplete or incorrect information with respect to his tax position and fully indemnifies Fumogallery against any and all claims brought by third parties, including the tax authorities, and against any and all damage and/or costs that ensue from or are related thereto, and Fumogallery will immediately recover such claims, damage and costs from the User. Users are not permitted to create an Account in the name of another person and/or to provide false information. Users may not sign in via third-party services accounts of other persons or allow other persons to sign in on behalf of the User. The User himself is responsible for keeping his username and password combination secret. Thus, the User is liable for any and all use of the Service using his username and password and the User indemnifies Fumogallery with respect to any damage that ensues from misuse or use of his username and password. Fumogallery is entitled to assume that the User is the actual party that signs in using the User’s username and password. The User must notify Fumogallery as soon as the User knows or has reason to suspect that a username and/or password has become known to unauthorised parties, without prejudice to his own obligation to immediately take effective measures, such as changing his password. For register with Fumogallery, the User warrants, by accepting these Terms and Conditions, that he is in fact 18 years of age to create his Account. If the User is not 18 or older they may not register on Fumogallery. Any abuse of the registration process will be prosecuted according to current legislation. Fumogallery reserves the right to change the registration sign in procedure, the password, the username and/or certain User information in the event that it considers it necessary to do so in the interest of Fumogallery, third parties or the operation of the Service. Fumogallery reserves the right to deny Users the right to register and/or to terminate that right unilaterally.
Sell Artworks
The User must enter certain information in his Account, including his address, in order to be able to sell Artworks on the Online Platform. Which Artworks are suitable to be sold on the Online Platform will be determined on the basis of characteristics such as the attractiveness, the possible proceeds of and the expected demand for the type of Atworks in question. Some Artworks may be refused for selling without statement of the reason therefor. When the Seller poses for sale an Artwork, he must clearly and comprehensively provide information regarding the Artwork. That information must in any event include: Title, Year, Materials, Size, Prize, shipping costs and one or more clear photographs of Artworks. Fumogallery is neither responsible nor liable towards other Users for the description of Artworks, including the Seller’s information and statements. The Seller guarantees that he is the rightful owner of or is authorized to sell the Artworks he offers on the Online Platform and that by selling an Artwork he is not infringing any law or regulation, any rights of third parties, including rights from agreement and Intellectual Property Rights, is not acting fraudulent in general or is otherwise acting unlawful and/or fraudulent towards third parties or Fumogallery. The Seller indemnifies Fumogallery against any claims brought by the Buyer or third parties with regard to the legality of the sale of an Artwork. The Seller also guarantees that the offering and selling of the Artwork is a genuine and authentic transaction.
The Seller is obliged to truthfully state whether he is registering as a private individual or in a professional capacity. The Seller accepts that he will be designated as a Professional Seller for all use through that Account. In order to be treated as a Professional Seller for VAT purposes, Professional Sellers are obliged to provide Fumogallery with a valid VAT identification number or, if the Seller does not have a VAT identification number, alternative proof to Personal Code In the event that the Seller is a Professional Seller, he acknowledges and accepts that in certain cases Consumers who reside in a country within the European Economic Area will be entitled to withdraw the Contract of Sale within the statutory term stipulated in that respect. The Seller will fully cooperate therewith in the manner indicated by Fumogallery.
Consumers’ rights
Consumers have a statutory guarantee of conformity of the Artworks. Consumers who reside in a country within the European Economic Area who purchase an Artwork from a Professional Seller will be entitled, for a term of 14 days (the ‘cooling-off period’), to withdraw from the purchase, without stating the reasons, on the basis of the statutory right on the basis of any applicable foreign law implementing article 9 of Directive 2011/83/EU. The Professional Seller may ask the Buyer to state the reason(s) for the withdrawal, but he cannot oblige the Buyer to do so. The cooling-off period will enter into effect on the day after the Consumer, or a third party whom the Consumer has designated in advance (who may not be the transporter), has received the Artwork. The Consumer is obliged to handle the Artwork and the packaging with all due care during the cooling-off period. The Consumer will unpack or use the Artwork only to the extent necessary to determine the characteristics and the operation of the Artwork. The Consumer will be liable only for any decrease in value of the Artwork that is caused by handling the Artwork. In the event that the Consumer exercises the statutory right of withdrawal, the Consumer must give notice of withdrawal within the cooling-off period using the Cancellation Form model. Fumogallery will notify the Professional Seller of the withdrawal. The Consumer must send the Artwork back to the Seller, as quickly as possible, but in any event within 14 days after the notification, unless the Seller has offered to collect the Artwork. The Consumer must return the Artwork together with all the related accessories that have been delivered, if possible in the original condition and packaging, and in accordance with the reasonable and clear instructions given by or on behalf of the Seller. The Consumer bears the direct costs of sending back the Artwork. If the Seller has not been paid out yet, the Purchase Price will be reimbursed to the Consumer, including any delivery costs, but only after the Professional Seller has received the Artwork in original condition. In the event that the Purchase Price has already been paid out to the Professional Seller , the Professional Seller will be obliged to reimburse the Purchase Price , including any delivery costs. The Consumer bears the risk and the burden of proof with respect to its exercising the right to withdraw properly and in a timely manner.
Payment
The Buyer must pay the Purchase Price on the basis of the payment instructions. The Buyer guarantees that he does not buy the lot as part of a fake transaction, enabling him and/or third parties to transfer the entire or partial Purchase Price and launder the money involved. The Purchase Price will be paid out to the Seller (after deduction of the Seller’s Commission) only after the Buyer has paid the Purchase Price and the Seller has shipped the Artwork. Payment may be suspended, in particular in the event that the Buyer has given notice of a dispute due to, e.g., alleged damage to or nonconformity of the Artwork. Payment processing services on the Online Platform are provided by our payment service providers PayPal, Stripe, or Bank Transfer, depending on which country you are situated in. The payment processing services are subject to the respective terms of these payment service providers.
For PayPal, the services are subjected to the https://www.paypal.com/uk/brc/, which includes the https://www.paypal.com/webapps/mpp/ua/legalhub-ful .
For payments processed by Stripe, the services are subjected to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service.
For payments processed by Bank Transfer (Sepa Area) to following bank account:
Delivery Artworks
The Seller is responsible for sending and delivering the Artworks to the Buyer. The Seller is obliged to send the Artworks sold to the Buyer, carefully packaged, within Ten (10) business days after the Seller has received confirmation of payment from Fumogallery. The Seller is obliged to ship the Artwork from the address as stated in his Account. If the Seller ships the Artwork from a different address, they shall indemnify and hold the Buyer harmless from any costs suffered by the Buyer (such as, but not limited to, import taxes and levies) that would not have been suffered by the Buyer if the Artwork had been shipped from the address stated in the Seller’s Account. The Seller may only change the status of the shipment after the Seller has actually shipped the Artwork. All Artworks sold must be sent using Track & Trace. Furthermore, we strongly recommend using registered and/or insured transport. The Seller will bear the risk of damage to and/or loss of the Artworks during shipment. The address that the Buyer has indicated will be deemed the delivery location. Fumogallery is entitled to deem the signature for receipt and/or Track & Trace delivery confirmation at the delivery location to be proof of receipt by the Buyer. The Seller accepts that Fumogallery is entitled not to accept any other proof of receipt. This provision does not in itself grant any rights to the Seller. If an Artwork does not arrive properly, the Buyer and Seller are obliged to cooperate in an investigation by the transport agency in the event they fail to reach a solution amongst themselves. A running investigation does not prejudice the right of Fumogallery i to decide whether the Purchase Price will be refunded to the Buyer or will be paid on to the Seller. In the event the Track & Trace code shows an Artwork has been delivered, Buyers have three (3) days after the moment of delivery to inform Fumogallery about any issues related to the delivered Artwork. If the Buyer informs Fumogallery after a period of three (3) days, Fumogallery will not assess the complaint and the Seller will receive their payment. In the event that the Seller fails to properly, completely and timely comply with his obligation to deliver, even after he has been given proper notice of default, the Seller will be in default and the Buyer will be entitled to dissolve the Contract of Sale. Without being obliged to do so, Fumogallery may send the notice of default and the notice of dissolution to the Seller on behalf of the Buyer. In that context, the Seller’s obligations will include compensating the Buyer’s damage, without prejudice to any other right, in which case the Seller, not Fumogallery, will be obliged to reimburse the Buyer with any Purchase Price that it has already received. Dissolution of the Contract of Sale as a result of the Seller’s failure to comply with his obligation to deliver (which includes, but is not limited to, failure to deliver an Artwork in accordance with the Artwork description) will not affect the Seller’s liability to pay the Seller’s Commission. In such event the Seller will be liable for any and all damage and costs that Fumogallery sustains and/or incurs as a result, which in any event will be equal to the amount of the Buyer’s Commission that Fumogallery has missed out on. Moreover the Seller will forfeit to Fumogallery an immediately payable penalty of 15% of the Purchase Price. The Buyer will be obliged to accept delivery of the Artwork. The Buyer acknowledges and accepts that special rules and/or conditions may apply with respect to the import of Artworks in connection with a cross-border Contract of Sale, including – but not limited to – customs duties, VAT, import levies and clearing charges. The Buyer must take note of such rules before the Contract of Sale is concluded. The Buyer will be obliged to pay any and all additional costs in this regard. Any complaints and disputes between the Seller and the Buyer must be reported to Fumogallery as quickly as possible. Although, in principle, the Buyer and the Seller must resolve disputes between themselves, if necessary Fumogallery will make reasonable efforts to mediate between the Seller and the Buyer. In the event that the Seller and the Buyer are unable to agree on a solution and Fumogallery is still in possession of the Purchase Price, the Seller and the Buyer hereby accept that Fumogallery will have the final say and may decide whether the Purchase Price will be refunded to the Buyer or will be paid on to the Seller. In that context Fumogallery will not be liable to compensate any damage or pay any other compensation to the Buyer or the Seller. Fumogallery is not a party to any dispute.
Use of the Service
Each use of the Service and the Online Platform is for the risk, account and responsibility of the User. By placing User Material on the Online Platform or making it available via the Service, the User guarantees that:
1- He is authorised to do so and entitled to grant the rights to Fumogallery as referred to in these Terms and Conditions.
2- The User Material that he makes available iIs not misleading, Is not discriminatory with regard to appearance, race, religion, sex, culture, descent or otherwise offensive, does not call for violence against and/or the harassment of another person or other people, is not in conflict with public morality or good taste, is not violent, does not contain a link to pornographic material or pornographic websites, does not promote committing illegal activitie, does not contain the personal data of others and Cannot does not infringe any rights of third parties, including rights from agreement, Intellectual Property Rights and privacy rights. In using the Service, the User is obliged to comply with all applicable national, European and international regulations - including but not limited to - in respect of his activities with regard to the purchasing and selling of Artworks via the Online Platform. In using the Service, the User guarantees that he will not circumvent or manipulate the Online Platform and the payment process, such as by directly contacting other Users or third parties to conclude a purchase agreement outside of Fumogallery. On breach of this provision all Users involved in such circumvention or manipulation are severally liable for all damage and costs incurred by Fumogallery as a result, which in any case includes the amount in Sellers’ Commission Fumogallery missed out on if the Artwork has been sold.
User Material
The User retains all Intellectual Property Rights to his User Material, but hereby grants Fumogallery a free, unencumbered, global, non-exclusive, perpetual and irrevocable licence to communicate his User Material to the public and/or to reproduce it for all purposes Fumogallery deems necessary, including - but not limited to - promotional purposes. This licence does not end when the User or Fumogallery removes the User's Account and/or the User discontinues the use of the Service. The User hereby waives his moral rights to User Material, in so far as applicable and in so far as possible. Under the aforementioned licence, the User grants Fumogallery, among other things, but without exclusion, the right to print and/or use his User Material in social media and the right to use his User Material for promotional purposes. The User hereby waives his moral rights to User Material, in so far as applicable and in so far as possible. The User understands and accepts that he is responsible and accountable for User Material he places on the Online Platform or makes using the Service. The User understands and accepts that Fumogallery is under no obligation to check or (re)view User Material of other Users. If the User is of the opinion that certain User Material is unlawful, the User can report this to Fumogallery. The User can find more information here on how he can file a notice.
Availability and interruption of the Service
Fumogallery does not guarantee that the Service and all parts of the Service and/or the Online Platform are at all times available and without interruptions or failures. Failures in the Service can occur, but not exclusively, as a result of failures in the internet or telephone connection or due to viruses or faults/defects. Fumogallery is in no way liable or liable for compensation towards the User for any damage resulting from the (temporary) inaccessibility or (interim) failure of the Service and/or the Online Platform.
Intellectual Property Rights
The Intellectual Property Rights in respect of the Online Platform, the Service, the Information and the database, including - but not limited to - the Intellectual Property Rights to the texts, images, design, photos, software, audiovisual material and other material lie with Fumogallery or its licensors. Subject to the conditions as set forth in these Terms and Conditions, Fumogallery grants the User a limited, personal, revocable, non-exclusive, not (sub)licensable, non-transferable right to use the Service and to view the Information in the manner and in the format as it is made available via the Service. It is expressly not permitted to copy or publish the Service, the Online Platform, the User Material not originating from the User and/or the Information and/or other data, or to use the above for direct or indirect commercial purposes or for any other purpose than the purposes stated in these Terms and Conditions, unless Fumogallery or the right holder in question have given their express and written permission therefor.
Notice of alleged unlawful material
Fumogallery retains the right to refuse to grant a request to block or remove User Material.
Privacy
When creating an Account and using the Service, the User will provide (personal) data to Fumgogallery. These personal data will be saved and processed in accordance with the Fumogallery Privacy Policy and applicable laws and regulations. In accordance with the Fumogallery Privacy Policy, Fumogallery may provide Users with certain personal data of other Users. The User who receives personal data of another User guarantees to only process such data for the performance of his obligations or to pursue any right orremedy under or arising from the Contract of Sale. Without permission from the User in question, personal data may not be used in a commercial way, for instance sending unsolicited communications or approaching him for such. Both Fumogallery and the User receiving personal data are considered separate and independent data controllers of the User’s personal data under applicable data protection laws and regulations. The User receiving personal data of another User will process such data inaccordance with applicable (data protection) laws and regulations. If Fumogallery and a User are found to be joint data controllers of the relevant personal data, and if Fumogallery is sued, fined, or otherwise incurs damages for any shortcoming that can be attributed to that User, the User agrees to indemnify Fumogallery for those damages. Fumogallery cannot be held responsible for the accuracy of a User’s personal data provided to another User. The User is liable towards Fumogallery for, and fully indemnifies Fumogallery against, all damage and costs Fumogallery suffers or incurs as a result of a breach of this Article by the User.
Liability
Fumogallery accepts no liability whatsoever for damage resulting from the provision of the Service, including - but not limited to - damage resulting from or in connection with the use of the Online Platform and/or the Service or from wrongful acts or otherwise, in so far as this is permitted pursuant to mandatory law. Fumogallery accepts no liability for any use of services, products, applications or websites made available by a Third Party Services Provider, such as shipping and payment services and/or any issues between a User and any Third Party Service Provider. It is a User’s responsibility to read the terms and conditions and/or privacy policies of such Third Party Services Providers before using them. Fumogallery can among other things never be held liable for any damage suffered as a result of the conclusion of a Contract of Sale by a Buyer or Seller, including - but not limited to - damage that ensued because the User concluded unfavourable agreements, for example because more or less money was paid for the purchased Artworks than the expected value. The only action the User can take if he believes that he has suffered damage is discontinuing the use of the Service and deleting his Account.
Guarantees and indemnifications
The User is liable towards Fumogallery for, and fully indemnifies Fumogallery against, all damage and costs Fumogallery suffers or incurs as a result of an attributable failure to perform the Terms and Conditions by the User, any actions of the User in the use of the Service or a wrong ful act. All costs incurred by Fumogallery and damage suffered by Fumogallery that is in any way related to such claims will be compensated by the User. The User guarantees that the User Material that he shares via the Service is unencumbered and that there are no third parties that can claim Intellectual Property Rights to it, as well as that the User Material does not infringe or is in conflict with any right of third parties and that the use there of is also not wrongful towards third parties in any other way. The User indemnifies Fumogallery against all claims of third parties, for any reason whatsoever, in respect of compensation of damage, costs, interest, taxes, levies and/or deductions in connection with or resulting from his User Material, his use of the Online Platform, the Service and/or a breach of these Terms and Conditions and/or any rights of third parties, including – but not limited to - Intellectual Property Rights.
Term and termination
The User has the right to discontinue his use of the Service and to delete his Account at any time. Fumogallery has the right to refuse deletion of his Account if the User still needs to perform certain obligations (such as payment or delivery obligations) towards Fumogallery or other Users or in the event there is a chance any complaints related to recently sold Artworks may still arise. The User acts in conflict with these Terms and Conditions, Fumogallery is entitled, in addition to any other (legal) means available to Fumogallery, to limit or suspend the User's activities in connection with the Service or to put them out of operation immediately, in whole or in part, temporarily or otherwise, to discontinue and/or remove his Account temporarily or permanently ,to issue a warning, to terminate the Service or to refuse to provide the Service to the User. Fumogallery will in no way be liable or liable for compensation towards the User therefore.
Applicable law and jurisdiction
The Terms and Conditions, the use of the Service and the Online Platform, any disputes following therefrom, as well as all Contracts of Sale between Sellers and Buyers, are governed by Italian law, unless otherwise provided in or pursuant to mandatory law. Users acknowledge that international private-law rules may have the result that another law than Italian law (also) applies to transactions with other Users, particularly to transactions with Consumers. All disputes that arise between the User and Fumogallery will be submitted to the competent court of Mantova. With regard to Consumers, disputes must be submitted to the competent court of Mantova.
