Vendor Terms and Information

USER ACCEPTANCE
This document (the “Seller Terms”) contains important terms which are additional to the general Terms and Conditions relating to the general use of the Bay of Islands Creative Online Gallery (the “Website”) operated by Bay of Islands Creative Charitable Trust (“BOIC” or “we”).

These Seller Terms apply to you if you sell any kind of art through this Website. You are referred to in these Seller Terms as the “Seller” or as “you”.

You need to read these Seller Terms carefully, and we advise you to print and retain a copy for your reference.

By submitting your work of art (“Your Work”) to BOIC for sale you agree to these Seller Terms, and agree to have BOIC become a sales agent for Your Work. If you do not agree to these Seller Terms, you should not submit Your Work for sale and/or rental to BOIC.

These Seller Terms, together with the Artist Submission Terms relating to the submission of Your Work and the Terms and Conditions relating to the use of the Website constitute the whole agreement between you and BOIC in relation to the display, promotion, rental and sale of Your Work and they supersede all other agreements, statements, letters and other arrangements made between the parties.

These Seller Terms and any matter arising out of the subject matter of these Seller Terms shall be governed by New Zealand law.

OUR SERVICE
By entering into this Seller Agreement, you appoint BOIC as an agent for Your Work listed on the Website. As part of this service, BOIC may (in its sole discretion) showcase and sell Your Work on the Website.

Without prejudice to any other legal remedy that may be available to us, we reserve the right to turn down your work for sale and remove it from the Website and any other publications or circulars, if we determine, at our sole discretion, that Your Work does not comply with the covenants and warranties outlined below or for any other reason. BOIC expressly disclaims any and all liability in connection with Your Work.

YOUR COVENANTS
By agreeing to this Seller Agreement for the sales and/or rental Your Work, you hereby warrant, covenant and represent to us as set out below:

1 Your Work is your original artistic work, it has not been copied from any other work and does not contain any copies, reproductions, adaptations or versions of a third party’s work and it does not otherwise infringe any person’s copyright, design right, trade mark or confidential information.

2 You are the sole owner of all rights, title and interest in the copyright in Your Work and you are entitled to grant the rights granted to us under this Seller Agreement.

3 Your Work does not contain anything which is, or would be (if Your Work is published), in breach of any applicable laws or which infringes any third party rights (such as material which is obscene, pornographic, defamatory, offensive, threatening or liable to incite racial hatred).

You agree to indemnify BOIC, and keep it indemnified against any loss or liability arising to BOIC or any of its trustees, officers, employees or members of the BOIC selection committee out of the breach of any of the warranties and covenants above and against any breach of your obligations under this Seller Agreement.

SALES

1 Submission of Your Work: Upon acceptance of this Seller Agreement, you shall submit (via the process outlined by BOIC in its sole discretion) to BOIC your work to be sold under the terms of this Seller Agreement. BOIC reserves the right to (in its sole discretion) approve or decline Your Work for sale. Upon notification of a sale by BOIC, you must be able to ship Your Work to the purchaser customer within 5 working day’s notice unless otherwise mutually agreed by email with BOIC.

2 Non-Exclusivity: You may continue to sell Your Artwork outside BOIC so long as Your Artwork has not already been sold by BOIC. You will stop offering any of the pieces of your work for sale through any other medium immediately after we notify you of the sale of that piece of your work. If your work is sold via another channel, you must notify BOIC immediately so that the work may be marked as sold on the website. In the unlikely event of something selling twice, the first sale will be the one honoured.

3 Sale Price: The pieces of your work submitted and provided to BOIC online gallery will include the whole selling price for Your Work. This must include GST, commission, shipping or any other amount. This is the List price. You can change the List Price at any time by providing at least 7 day written notice to BOIC, via any tools provided by BOIC. BOIC may be allowed to discount the List Price with your consent if an offer is received for a lower price. When submitting your work you should provide the discount rate at your discretion.

4 Sales: BOIC agrees to list Your Work for sale at the List Price, including any discounts requested by you or agreed mutually as defined in clause 4.3 above (“Sale Price”).

5 Costs Incurred: BOIC will be reimbursed out of the proceeds of the sale of Your Work for any additional costs incurred by BOIC over and above the costs for providing the service set out at 2 above in relation to the receipt, delivery or sale of Your Work (“Costs Incurred”).

6 Commission: After deduction from the Sale Price of any Costs Incurred (any such costs will be mutually agreed by both parties), BOIC will be paid a commission on the sale of 30% of the net proceeds plus any Costs Incurred and you will be entitled to the balance.

7 Balance Payment: After deduction of Costs Incurred and Commission the balance of any sale price received by BOIC will be paid into a bank account nominated by you within 5 working days of receipt of the sale price from the purchaser.

8 Shipping: You are solely responsible for packing and shipping (through Courier Post) Your Work to the customer or BOIC. BOIC will provide you with packing and shipping instructions for you to follow. If you fail to pack and ship Your Work securely, you will be liable for any damage to Your Work in the shipping process. Please see our shipping and freight information and the Shipping and Returns Information required to be included on this website as part of the shopping cart process.

9 Damage:
(A) If Your Work is damaged or destroyed during shipment by You, you will be liable for any damage to Your Work.
(B) If Your Work is damaged or destroyed during shipment to a customer by the shipping company, you will be responsible for claiming any damages.
(C) You are responsible for taking out insurance for Your Work, and for the payment of any premium, should you wish to do so.

10 Removal: You may elect to remove Your Work for sale from BOIC website via any tools provided by BOIC in its sole discretion. Your Work will be removed from BOIC website within 10 days of notification (aside from being notified of the sale of your work via another channel) unless you choose to remove it yourself through your profile and login details. During this period, we may still exercise our right to sell Your Work under the terms of this agreement.

11 Promotions: You agree to assist BOIC with the marketing and promotions of Your Work on BOIC. This includes promoting BOIC and the online gallery through your social media, including a link to the BOIC website from your website, responding to media enquires, participating in interviews or editorial contributions and installing the BOIC badge on your website with a link to your BOIC profile.

OTHER

Good Faith: The parties agree to treat each other in good faith and shall endeavour wherever possible to act in a way that is mutually beneficial to achieve the aims of the relationship between the parties.

Intellectual Property: You acknowledge and agree that the words “Bay of Islands Creative” and “BayofIslandsCreativeGallery.co.nz” and any other name, logo and sign used on the Website, as well as the design, layout and all content of the Website are the trade marks, copyright and other intellectual property rights of BOIC and are owned solely by (or licensed to) BOIC. You shall not acquire any title, right or interest (including any user right) in any such intellectual property by reason of you selling Your Work on the Website. You acknowledge and agree that any use of our intellectual property is subject to our prior written consent.

Limitations On Liability: In no event shall BOIC be liable to you for any damages, including any lost profits or savings or anticipated profits or savings, loss of data, loss of opportunity, loss or reputation, goodwill or business, or any consequential, special, incidental, or indirect damages of any kind arising out of the services provided by BOIC or its failure to provide these services, the consideration, selection, rejection or sale of Your Work or any other artwork or out of the operation of the Website, or the content of the Website, or the exploitation of any artwork, or as a result of the exercise or inability to exercise the rights granted to BOIC hereunder or as a result of the termination or expiry of these Seller Terms, even if we have been advised of the possibility of such damages in advance. BOIC ‘s maximum aggregate liability for any single event (or a series of related events) giving rise to a claim in connection with these Seller Terms or in connection with the operation of the Website, either in tort, for breach of contract, misrepresentation or negligence, shall be limited to a sum equal to the amount or our Commission in respect of Your Work sold under these Seller Terms. Notwithstanding anything to the contrary above, nothing in these Seller Terms shall operate to exclude or restrict our liability that cannot be limited or excluded by law.

Termination: BOIC may terminate with immediate effect the services set out in these Seller Terms by giving you notice in writing (including email) upon any breach by you of any of the warranties or obligations under these Seller Terms or any of the Artist Submission Terms relating to the submission of Your Work or any of the Terms and Conditions relating to the use of the Website. BOIC can also terminate the services without cause by providing you with two weeks notice in writing (including by email) of such termination. Termination of these Seller Terms shall not affect any accrued rights or obligations of either party but shall release both BOIC and you from any further obligations to each other.

General terms: Nothing in these Seller Terms shall create, or be deemed to create, a partnership or joint venture between you and BOIC. Except as expressly provided herein, these Seller Terms shall not be construed as giving rise to any authority by either party to represent or act on the other’s behalf.

If at any time any provision of these Seller Terms are or become illegal, invalid or unenforceable in any respect under the New Zealand law, that shall not affect the legality, validity or enforceability in that jurisdiction of any other provision of these Seller Terms. A person who is not a party to this Agreement shall have no rights to enforce the provisions of this Agreement.

No omission or delay in exercising any right, power or privilege under these Seller Terms shall operate as a waiver thereof. The rights and remedies are cumulative with and not exclusive of any right or remedies provided by law.

Neither Party shall be deemed to be in breach of this Agreement or otherwise liable to the other Party in any manner whatsoever for any failure or delay to perform its obligations under this Agreement due to a Force Majeure Event. A party who becomes aware of a Force Majeure Event which is likely to give rise to any failure or delay in performing its obligations under this Agreement shall immediately notify the other and shall inform the other of the nature of the Event and the time for which it is estimated that such failure or delay shall continue. The affected Party shall take reasonable steps to mitigate the effect of the Force Majeure Event.

Each Party agrees that it shall at all times conduct its efforts under this Agreement in strict accordance with all applicable statutes, laws, regulations, rules, ordinances and judicial or government order (“Laws”) and to the highest commercial standards. Each Party shall render any and all information necessary for the fulfilment of legal obligations under GST and Tax Laws.