The following definitions and rules of interpretation apply in this Agreement.

Artwork means the paintings and other artistic works that are owned and sold by the Artist to the End Customers (or are owned by the author of the Artwork or another third party and are held, marketed and sold by the Artist with the permission of and on behalf of the owner, in their capacity as an agent).

Artwork Sales Information means all details and information uploaded to the Sales Platform by the Artist including, without limitation:

(a) pictures of the Artwork;
(b) descriptions of the Artwork;
(c) details of and information about the artists who are the authors of the Artwork;
(d) accurate availability status of the Artwork (i.e. once an item of Artwork has been sold, it must no longer offered for sale by the Artist via the Sales Platform)
(e) prices for the Artwork;
(f) time frames for delivery of the Artwork to the End Customer by the Artist;
(g) the Artist’s standard terms and conditions for the sale of the Artwork (this may be included in the Artist Profile; and
(h) details about the Artist such as; its location, contact information, details of artists and of the work that the Artist exhibits and sells, information about the Artist, the history of the Artist and information about the Artist team (in each case, including images and videos). These details may be included in the Artist Profile on the Sales Platform.

Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

End Customer means the consumer customers who purchase the Artwork via the Sales Platform.

End Customer Data means the delivery details, financial information and transaction details for the payment of price of the Artwork as necessary for the processing of the payment via WORLDPAY or an equivalent online payment services provider, and for the delivery of the Artwork to the End Customer and other Personal Data as required.

Artist Profile means the Artist’s portal page / home page / online storefront or other online presence, howsoever called, within the Sales Platform which provides details about the Artist such as; its location, contact information, details of artists and of the work that the Artist exhibits and sells, information about the Artist, the history of the Artist and information about the Artist team (in each case, including images and videos).

Intellectual Property (IP) means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Net Price means in relation to any Artwork, the price actually charged to the End Customer less any value added or other sales tax thereon included in the price.

Proceeds Payment Dates has the meaning set out in clause 6.1 to this Agreement.

Sales Periods has the meaning set out in clause 6.1 to this Agreement.

Sales Platform has the meaning set out at the background to this Agreement.

The Artist’s Intellectual Property (IP) shall have the meaning as in clause 7.1, that is, IP used on or in relation to the Artwork and the Artist’s business and the goodwill connected with the Artist’s business.

• Sales promotion. The Artist appoints Live Art to promote sales of the Artwork via the Sales Platform on behalf of the Artist on the terms of this Agreement, and Live Art accepts the appointment on those terms.
• Conclusion of sales on behalf of The Artist. Live Art is authorised by the Artist to conclude contracts for the sale of the Artwork in the name of and on behalf of the Artist, without prior reference to the Artist, but only on the Artist’s standard terms and conditions of sale, unless otherwise agreed in writing.
• Delivery information. The Artist appoints Live Art to collect the End Customer Data for the purposes of enabling the Artist to fulfil the End Customer’s order.
• Payment collection. The Artist appoints Live Art to take and process payment for the supply of the Artwork via WORLDPAY or an equivalent online payment services provider, and then to arrange for the payment to the Artist of the proceeds of sale in accordance with clause 6.1 below.

2.2 Freedom to appoint other intermediaries and engage in marketing and sales activities. The Artist shall be free to appoint other persons, firms or companies as its distributor, franchisee or other intermediary for the sale of the Artwork and to market the Artwork and to make offers or quotations to or negotiate with or sell the Artwork to any person.

2.3 Responsibility for Artwork Sales Information. The Artist shall be solely responsible for:

• (a) completing, updating and maintaining the accuracy of its Artist Profile which shall include the Artist’s standard terms and conditions of sale which it shall be responsible for ensuring are brought to the End Customer’s notice;
• (b) uploading the Artwork Sales Information to the Sales Platform and maintaining an accurate inventory of Artwork available for sale (by way of example, the Artist will be responsible for either; removing an item of Artwork from the Sales Platform following its sale; or marking the relevant Artwork Sales Information as ‘no longer available’ or ‘sold).

For the avoidance of doubt, the Artist will have sole responsibility for ensuring its proper entitlement to and ownership of the Artwork and the Artwork Sales Information, and the accuracy of the same.

Live Art undertakes and agrees at all times during the term of this Agreement:

3.1 Good faith. To act towards the Artist conscientiously and in good faith and not to allow its interests to conflict with the duties that it owes to the Artist under this Agreement and the general law.

3.2 Limited authority to incur liabilities. Except as authorised by the Artist, not to act in a way which will incur any liabilities on behalf of the Artist nor to pledge the credit of the Artist.

3.3 Advertising and Promotion obligations. Live Art shall advertise and promote the Artwork via the Sales Platform using the Artwork Sales Information uploaded to the Sales Platform by the Artist.

3.4 Complaints and after-sales reports. In the event that Live Art receives a complaint or after-sales enquiry concerning the Artwork, Live Art will notify the Artist within a reasonable period of time. For the avoidance of doubt, Live Art will have no responsibility for handling or responding to the complaint or enquiry and will only pass the same to the Artist.

3.5 Delivery Information and Payment. Live Art shall:

• collect the End Customer’s Data at the point of sale via the Sales Platform;
• take payment from the End Customer for the Artwork according to the price uploaded by the Artist to the Sales Platform within the Artwork Sales Information;
• promptly notify the Artist of the sale event via an automated and live time notification, and provide the Artist with the End Customer’s Data to enable the Artist to fulfil the order;
• promptly notify the Artist of any request from an End Customer regarding a return or a refund and provide the Artist with the End Customer’s Data to enable the Artist to process the return or refund. The Artist must process the return or refund regardless of whether it has yet received the proceeds in respect of any Artwork which is the subject of a refund. Payment of proceeds by Live Art to the Artist will be carried out in accordance with clause 6.1 below.

4.1 Art. Artists can sell art originals or prints from originals as they see fit.

4.2 Prices. All sales of the Artwork by Live Art on behalf of the Artist shall be at the Artist’s listed prices as specified by the Artist in the Artwork Sales Information which the Artist shall upload to the Sales Platform. The Artist undertakes to ensure the accuracy of the price details included in the Artwork Sales Information.

4.3 The Artist’s standard terms. All sales of the Artwork to the End Customers agreed by Live Art on behalf of the Artist shall be between the End Customers and the Artist, on the Artist’s standard terms and conditions for the sale of the Artwork as varied from time to time and which at all times shall comply with all statutory requirements and obligations governing the supply of good to consumers. The Artist undertakes to ensure that it uploads its current standard terms and conditions to the Sales Platform and to update this document as and when it is revised or amended in any way.

4.4 Limited authority re representations. Live Art shall not, without the Artist’s prior written consent, make or give any representations, warranties or other promises concerning the Artwork beyond those contained in the Artist’s standard terms and conditions referred to in clause 4.2.

4.5 Live Art has no ownership of the Artwork. Live Art shall not become the owner of the Artwork. Live Art shall not at any time hold any item of Artwork and shall not be responsible for any deliveries of the Artwork, all deliveries of the Artwork to the End Customers shall be carried out by the Artist.

The Artist undertakes and agrees with Live Art during the term of this Agreement:

• Good faith. To act at all times in its relations with Live Art dutifully and in good faith.
• Indemnity in favour of Live Art. Subject to the following, and provided Live Art performs its obligations under this Agreement, to indemnify Live Art against any liabilities which Live Art may incur as a result of acting with reasonable care and skill within the scope of its authority under this Agreement as Live Art for the Artist.
• (c) Artwork Sales Information.
  • To upload the Artwork Sales Information to the Sales Platform and to ensure its accuracy at all times.
  • Maintain an accurate inventory of available Artwork by updating the Artwork Sales Information uploaded to the Sales Platform following the sale of an item of Artwork.
• Obligation to honour sales contracts. Promptly on notification by Live Art of a sale, to perform any contracts on its terms and conditions of sale, which at all times shall comply with all statutory requirements and obligations governing the supply of good to consumers made on its behalf by Live Art under this Agreement.
• Management of complaints and refunds. Promptly and efficiently to deal with any refund, complaint, dispute or after-sales enquiry relating to the Artwork raised by an End Customer.
• Information re possible failure to perform. Where appropriate, to inform Live Art promptly if any contract concluded on its behalf by Live Art will not be performed by it, and of the reason for such non-performance.

6.1 Payments. Live Art shall take payment from the End Customers for sales concluded for the Artwork via the Sales Platform and shall pay to the Artist (minus the Live Art commission as set out at clause 6.2 below) the proceeds from all sales concluded:

• after the 25th day of each month and up to and including the 10th (Sales Period 1), on the 14th day of each month (Proceeds Payment Date 1); and
• after the 10th day of each month and up to and including the 24th (Sales Period 2), on the 28th day of each month (Proceeds Payment Date 2),

together the Proceeds Payment Dates and the Sales Periods.

6.2 Refunds. Where an End Customer requires a refund in respect of any Artwork sales concluded via the Sales Platform, the Artist shall process any such refund promptly and in accordance with its returns and refunds policy, whether the proceeds for the sale which is the subject of the refund have yet been paid to the Artist by Live Art.

6.3 Commission. The Artist shall pay to Live Art a commission equal to 10% (ten percent) of the Net Price of each item of Artwork for which Live Art concludes a contract for sale on behalf of the Artist pursuant to and during the term of this Agreement.

6.4 Commission payments. For the purpose of payment between the Artist and Live Art:

• Live Art shall on the Proceeds Payment Dates, provide the Artist with a statement showing the aggregate Net Price of the Artwork sold by Live Art during the preceding Sales Period to the Artist in the currency of the relevant sales together with, if any, VAT or other sales tax relating to the aggregate Net Price. At the same time Live Art will issue an invoice to the Artist for the commission due to Live Art in respect of that Sales Period; and
• the Artist shall, with the statement sent pursuant to clause 6.3(a), transfer to Live Art the commission due to Live Art in respect of that Sales Period as set out in the invoice.

6.5 Commission payable where the Artist fails to perform or where a refund is paid to the End Customer. If at any time the Artworks sold by the Artist under a contract made by Live Art are not, because of the Artist’s fault, delivered to an End Customer, or are at any later date, returned by the End Customer in exchange for a refund from the Artist, Live Art’s right to commission shall apply in relation to the sale of those the Artworks as if they had never been return, or had been duly delivered and paid for on the due date for payment of the price under the relevant contract for sale.

6.6 VAT or other sales tax. All sums payable under this Agreement are exclusive of any VAT or other applicable sales tax, which shall be added to the sum in question. A VAT invoice shall be provided against any payment.

6.7 Interest. If the Artist fails to make any payment due to Live Art under this Agreement by the due date for payment, then the Artist shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Artist shall pay the interest together with the overdue amount.

7.1 IP Ownership.

• The Artist warrants:
  • that it is the sole legal and beneficial owner of the Artist’s IP and of the Artwork; or
  • that it has the necessary rights and permissions in respect of the Artist’s IP and the Artwork and that by entering into this Agreement and carrying out any of the activities contemplated by this Agreement, the Artist is acting within the scope of the permissions granted by the legal and beneficial owner of the Artwork (by way of example, where the Artist is acting as the agent of the owner of the Artwork).
• Live Art acknowledges that the Artist’s IP rights to the IP in relation to the Artwork and the Artist’s business and the goodwill connected with that (the Artist’s IP) are the Artist’s property.

7.2 Limited licence to use The Artist’s IP. The Artist grants the following limited licence of the Artist’s IP and the Artwork to Live Art and Live Art accepts that:

• it is permitted to use the Artist’s IP only for the purposes of and during the term of this Agreement;
• it shall not seek to register any IP on behalf of the Artist without the Artist’s express consent; and
• it shall not do or omit to do, or authorise any third party to do or to omit to do, anything which could invalidate or be inconsistent with the rights that the Artist has in the Artist’s IP.

7.3 IP Infringement.

• The Artist warrants to Live Art that the exercise by Live Art of the rights granted in respect of the Artist’s IP, and any other rights under this Agreement, will not infringe the rights of any person, including without limitation the artist responsible for the creation of the Artwork.
• Live Art shall notify the Artist of:
  • any actual, threatened or suspected infringement of any of the Artist’s IP or the Artwork, of which Live Art becomes aware; and
  • any claim by any third party of which it becomes aware that the importation or sale of the Artwork infringes any rights of any other person.

8.1 The Artwork liability indemnity. Subject to fulfilment by Live Art of its obligations under this Agreement, the Artist shall indemnify Live Art against any liability incurred by Live Art in respect of damage to property, death or personal injury arising from any fault or defect in the Artwork and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability (Relevant Claim), except to the extent that the liability arises as a result of the action or omission of Live Art.

8.2 The Artwork liability insurance. The Artist shall maintain product liability insurance for the duration of this Agreement with a reputable insurer and shall provide a copy of the insurance policy to Live Art on request by the latter.

8.3 The Artwork liability claims procedure. Live Art shall, immediately after it becomes aware of a matter which may result in a Relevant Claim (whether against Live Art or only against the Artist):

• give notice to the Artist of the details of the matter;
• afford access to the Artist and permit copies to be taken of any materials, records or documents as the Artist may require to take action under clause 11.3(c);
• allow the Artist the exclusive conduct of any proceedings and take whatever action as the Artist shall direct to defend or resist the matter, including the use of professional advisers nominated by the Artist; and
• not admit liability or settle the matter without the prior written consent of the Artist.

9.1 Unlimited liability. Nothing in this Agreement shall limit or exclude the liability of either party for:

• Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
• Fraud or fraudulent misrepresentation.
• Liability under the indemnities contained in clause 5.1(b), clause 7.3(a), clause 8.1 and 11.7
• Any matter in respect of which it would be unlawful to exclude or restrict liability.

9.2 Limitations of liability. Subject to clause 9.1 above neither party shall, under any circumstances be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, or anticipated savings; or any loss that is an indirect or secondary consequence of any act or omission of the party in question.

10.1 Term. The term of this Agreement shall commence on execution by both parties and shall continue unless and until terminated by the Artist or Live Art as provided for below.

10.2 Termination. Either party may terminate this Agreement immediately for any reason by written notice to the other at any time.

10.3 Accrued rights. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

10.4 Consequences of termination. On termination of this Agreement:

• if and to the extent that the Commercial Agents (Council Directive) Regulations 1993 (as amended from time to time) apply, and provided that Live Art gives notice of its intention as required thereunder, Live Art shall, unless any of the circumstances mentioned in Regulation 18 of those Regulations applies, have the right to be indemnified as provided in Regulation 17 of those Regulations. For the avoidance of doubt, Live Art shall have no right to any compensation under those Regulations on termination of this Agreement;
• Live Art shall cease to promote, market, advertise or sell the Artwork;
• Live Art shall immediately cease to describe itself as an Live Art of the Artist and cease to use all trade marks, trade names and brand names of the Artist (including without limitation on stationery and vehicles); and

10.5 Commission on sales prior to termination. On termination of this Agreement, the provisions of clause 6 shall continue in force in relation to all sales of the Artwork where the sale has been concluded before the date of termination.

10.6 Clauses to remain in force on termination. On termination of this Agreement, any provision that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement, including without limitation clauses; 2.3, 5.1(b), 6.6, 6.7, 7.3(a), 9 – 11 and 10.5 which shall continue in full force and effect.

11.1 Compliance. Each party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

11.2 Anti-bribery. The parties shall comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.

11.3 Data Protection. Definitions.

• Agreed Purposes Live Art shall collect and process the End Customer Data for the purposes of providing the Seller with the necessary information to fulfil the End Customer’s order and to fulfil the obligations as between the parties, under this Agreement, including without limitation, Live Art’s promotion and advertisement of the Sales Platform.
• Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures have the meanings as set out in the Data Protection Legislation in force at the time.
• Data Protection Legislation means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
• Permitted Recipients mean the parties to this Agreement, the employees of each party, and any third parties engaged to perform obligations in connection with this Agreement and which shall be registered on the Sales Platform or listed on the user dashboard.
• Shared Personal Data mean the personal data to be shared between the parties under this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
  • Contact Data for End Customers and the Artist and Live Art – includes billing address, delivery address, email address and telephone number; and
  • Financial Data for End Customers and the Artist and Live Art – includes bank account and payment card details; and
  • Profile Data for the Artist – includes Artist username and password, purchases or orders or sales made by the Artist, and all Personal Data uploaded to the Sales Platform within the profile portal.

11.4 Shared Personal Data. The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party, (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:

• ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
• give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
• process the Shared Personal Data only for the Agreed Purposes;
• not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
• ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this Agreement;
• ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
• not transfer any personal data received from the Data Discloser outside of the European Economic Area unless the following conditions are fulfilled:
  • the transfer complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
  • the party ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.

11.5 Compliance. Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.

11.6 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

• consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
• promptly inform the other party about the receipt of any data subject access request;
• provide the other party with reasonable assistance in complying with any data subject access request;
• not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party;
• assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
• at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the Shared Personal Data;
• use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
• maintain complete and accurate records and information to demonstrate its compliance with this clause and the Data Protection Legislation; and
• provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

11.7 Indemnity. Each party shall indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of any breach by the other party of the Data Protection Legislation by that party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.

12.1 Assignment and other dealings. Neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the other’s prior written consent.

12.2 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

12.3 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

12.4 Notices

• Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered; (i) personally, or (ii) sent by pre-paid first class post or other next working day delivery service, or (iii) by commercial courier, or (iv) by fax or email.
• (a) A notice or other communication shall be deemed to have been received:
  • if delivered personally, when left at the party’s registered address;
  • if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
  • if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
  • if sent by fax or email, one Business Day after transmission.
• The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.5 Third party rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

12.6 Governing law and Jurisdiction. This Agreement, and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with the Laws of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.