Artists terms and conditions

Artists terms and conditions 

Tones (The “service provider”, also referred to as “we”, “gallery”, “we”, “us”, “our”) is a company registered in Zuidwolde in the Netherlands. When this document refers to Tones, it is a reference to the service provider, the app, the service or the Tones gallery website (https://tonesgallery.com).

Tones is registered in the Chamber of Commerce under the Chamber of Commerce number 84528699 in The Netherlands.

By registering with Tones, you (The artist) declare that you agree to the terms and conditions set out below in this contract. These terms are legally binding and govern any use of the Tones e-commerce website in connection with the sale to the “customer” of products (including but not limited to printing) using licensed illustrations and graphics to Tones.

Tones reserves the right to change these terms from time to time and will be effective upon sharing on the Tones website. These changes can be made without prior notice, you have agreed to the terms and will automatically agree to the terms in the future if changes are made. Tones reserves the right to accept or reject any application for provision of the Tones Services. Our decision will be based on suitability of the products for which an artist/photographer applies for the Tones Services, and their potential for integration into our portfolio of products.

If you agree to the services of Tones, you are expected to comply with these and other applicable conditions.

1 Submission of content 

    1. By submitting your works, you agree to grant the service provider a fully paid, worldwide, non-exclusive, royalty-free license during the term of this contract with respect to the copyright and other Intellectual Property Rights vested in the Products for the sole purpose of providing the Services; producing prints; and other items of your Products as may be ordered by Customers on the Tones Website (https://www.tonesgallery.com); and to display and reproduce your Products for use by the service provider as may be necessary for the promotion of your Products and our services.
    2. You represent and warrant to the service provider that:
      1. You will not submit works to the service provider for the purpose of selling the products, or creating a template on the services, or for any other purpose, unless you own all of the proprietary rights in that material (or have obtained a valid license from the owner of that material) and you have obtained disclaimers of all related copyright, privacy and publicity rights;
      2. You have full authority to license the service provider to print (and reprint) the products;
      3. The products do not infringe any copyrights or other rights of third parties;
      4. You are not aware, after having made a full investigation, of any claims by any third party that; the products; pre-existing material incorporated into the products; or the exploitation of the products by you, the service provider or any customer, has or will infringe any rights of any third party and you agree to immediately notify the service provider if you become aware of any such claim.
      5. You are solely responsible for the products you submit to Tones for display in the gallery. The service provider has no control over the content you provide. The content is not necessarily reviewed by the service provider and does not necessarily reflect the views or policies of the service provider. The service provider makes no warranties, express or implied, as to the content or the accuracy and reliability of the content or any material or information you transmit or that are transmitted on your behalf using the services.
    3. You must ensure that any information you provide for display in the gallery:
      1. Is true, accurate, up to date and not misleading or defamatory;
      2. Complies with all applicable laws and regulations, and that it is in no way unlawful for you to submit the information to the Gallery or to be displayed in the country where you or customers will access the Site;
      3. Not be viewed by Tones (in its sole discretion) as defamatory, libelous, obscene, pornographic, harassing, threatening, inflammatory, abusive, discriminatory, racist or fraudulent or as encouraging or inciting criminal or harmful conduct;
      4. Does not violate the rights of Tones or the rights of any third party (including any intellectual property rights of Tones or any third party);
      5. Where it relates to a person, entity or brand (including any references that portray the person, entity or brand in a disparaging manner), it is provided only if the person, entity or brand has given its prior express consent to do so.
    4. Tones assumes no responsibility or liability for the storage or backup of Customer data or for any loss or damage incurred as a result of the loss of data;
    5. Tones may refrain from posting any work submitted that, in the service provider's judgment, violates these Terms and Conditions or that is objectionable, unlawful, or may infringe upon any person's rights or may harm or threaten the safety of any person.

2 Intellectual property 

    1. Copyrights of Tones
    2. All copyrights, trademarks, design rights, patents and other intellectual property rights (both registered and unregistered) related to the services and content (including all applications thereof) displayed on the website shall remain vested in the service provider and/or third parties including, without limitation, having license from whom Tones acquires licenses (if applicable).
    3. You may not sublicense, copy, reproduce, republish, disassemble, download, post, broadcast, make available to the public or otherwise use in any way, except to the extent expressly permitted by law. You also agree not to derive, modify or create any work from any of the works on Tones, except as expressly permitted otherwise by law. Any other use of the Services requires the prior written consent of Tones or the relevant artist.
    4. The names, images and logos identifying Tones or third parties and their products and services are subject to copyrights, design rights and trademarks of the service provider and/or third parties. Nothing in these terms should be construed as granting any license or right to use any trademark, design right or copyright of the service provider or any other third party.
    5. Tones acknowledges that it has no rights in or to your Intellectual Property, except with respect to the license provided in clause 1.1. Tones will not do or refrain from doing anything that could damage or jeopardize the goodwill and reputation associated with your Intellectual Property.
    6. You must immediately notify Tones in writing of any infringement or apparent or threatened infringement of your Intellectual Property. Even if you have become aware of reselling the products sold by the service provider. You may not make any representations or settlements without Tones' prior written consent; and you must provide any necessary assistance and information that Tones may require.

3 Indemnity

    1. You agree protect Tones and hold harmless, its officers, directors, shareholders, employees, affiliates and agents from and against all claims, damages, obligations, losses, liabilities, costs, debts and expenses including but not limited to reasonable attorneys' fees, expert witness fees and litigation costs arising out of or based on: (a) your violation of any term of these Terms; (B) your violation of any third party right, including any copyright, proprietary rights or privacy rights, as a result of your use of the Services; (c) your User Content; (d) any claim made by a third party regarding your failure to comply with these Terms.

4 Limitation of Liability

    1. Nothing in these Terms limits or excludes our liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation; or
      3. any other liability that cannot be excluded by law
    2. Except as set forth in sub-clause 3.1, we exclude all express or implied conditions, warranties, representations or approvals of any kind with respect to the Services, our Website or any information or services offered through our Website. The Services and all content and information in the Services are provided on an 'as is', 'as presented' and 'with all defects' basis and you assume full responsibility and risk for your use of the services, content and information from the services.
    3. The service provider will not be liable for any loss of profits, loss of business, business interruption or loss of business opportunity to you.
    4. The service provider assumes no responsibility for errors, omissions, interruptions, deletions, corruption, defect, delay in operation or transmission, communication failures, theft or destruction or unauthorized access to, or alteration of, communications with the Customer. The service provider is not responsible for any problems or technical failures of any telephone network or lines, online computer systems, servers or providers, computer equipment, software, failure of an email or transaction due to technical problems or visitor overload on the website or on any of the services or any combination thereof, including any damage to Customer's or third party's computer resulting from participating in or purchasing materials in connection with the service provider's services.
    5. The service provider expressly disclaims any warranty of fitness for a particular purpose or infringement. The service provider cannot guarantee and does not promise specific results when using the Services.
    6. Subject to clause 4.1, Tones will not under any circumstances be liable to you or any other person, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or in connection with the Agreement for:
      1. any loss of profits, sales, business or income;
      2. loss or damage to data, information or software;
      3. loss of business opportunities;
      4. loss of expected savings;
      5. loss of goodwill; or
      6. any indirect or consequential damages.
    7. Subject to clause 4.1 and clause 4.6, the aggregate liability of each party to the other in respect of all other losses arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, be limited to the commission paid to you in the 12 month period prior to the date on which liability arose.
    8. Except as expressly stated in these Terms, the service provider makes no representation, warranty or undertaking with regards to the services. Any representation, condition or warranty that might be implied or included in these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, Tones is not responsible for ensuring that the Services are suitable for your purposes.

 

5 Commission and Fees 

    1. Commission and Fees 
    2. For each completed purchase through the website of a product to a customer, Tones charges a fee for processing and handling. Charges will vary according to type, specification and size of Product.
    3. The artist may determine the sales price of any product and format (excl. frames) to be listed on the Tones website, taking into account the minimum processing and handling costs. 
    4. For each completed sale from a Product on the Website to a Customer, Tones will take a commission on the net sales after deduction of costs. 
    5. The definition of 'net' in this context is as follows: 
      1. the net amount includes VAT; 
      2. the net amount includes the shipping costs. 
    6. The costs and rate of the Commission will be agreed between the parties before the items are made available for purchase and will be confirmed in writing. Any subsequent changes to the Commission's charges and rate will be subject to further agreement and confirmation, if applicable. 
    7. The fees and commission become payable as soon as the customer completes the transaction. 
    8. Fees and commission are not payable if an order is canceled or if a customer requests a return or refund. If the commission has already been paid out, but is not payable to you, it will be deducted from commissions earned later.

6 Termination

    1.  Each party has the right to terminate the exhibition and sale of one or more collection(s) and/or works by giving written notice to the other party if either party wishes to terminate the collaboration.
      1. The termination or removal of collections and/or works in the gallery is subject to the same conditions as stated below for the termination of a contract.
      2. Cancellation of one or more collections and/or works does not affect the other paragraphs of this contract and they all remain in full force and effect.
    2. Either party may terminate this Contract by giving written notice to the other party if either party wishes to terminate the partnership.
    3. After termination of the Contract, all outstanding orders will be processed in the same way as if the Contract had not been canceled.
    4. Any breaches or actions not in compliance with the terms described herein will not affect either party's right to terminate this Contract under common law.
    5. You have the right to terminate this Contract at short notice by giving written notice to Tones if:
      1. The service provider commits a breach of any of the terms of this Contract and the breach (if it can be remedied) is not remedied within 14 days of you notifying the service provider in writing; or
      2. The service provider goes bankrupt.
    6. You can terminate the Contract by:
      1. Notifying the service provider with a minimum notice period of 3 months.

7 Customer contracts

    1. For all sales and customer-related transactions via Tones, these customers are exclusive customers of Tones who have entered the Tones e-commerce shop.
    2. Customer contracts are subject to Tones' Terms and Conditions for access to the Tones store. Tones reserves the right to cancel any order for any Product for any reason whatsoever, including orders that may infringe the Intellectual Property Rights of a third party, and to notify the Customer that their order has been canceled.
    3. Tones is solely responsible to the customer for all customer orders, customer service and related matters.

8 Data protection

    1. Tones will comply with all applicable requirements of European data protection law (General Data Protection Regulation ((EU) 2016/679) (GDPR)) and any other directly applicable EU regulation regarding privacy (Data Protection legislation) when performing its duties or exercising its rights under this Agreement.
    2. When Tones receives or processes Personal Data on behalf of the Customer, Tones will only process such Personal Data if the purpose is to provide the Tones services to you.
    3. By using the Tones services, you expressly consent to the disclosure and use of your personal data for the services, in accordance with Tones' privacy policy, which is accessible on the Tones Website.
    4. You acknowledge that for the purposes of data protection law, Tones is the data controller of: all personal data processed in relation to a Customer.

9 Force majeur

    1. Tones shall not be liable or responsible for any failure to perform or delay in performance of any of its obligations under this Contract caused by an Event outside our control (“Force Majeure”). An event outside our control is defined below in clause 9.2.
    2. Event outside our control means any act or event beyond our reasonable control, including without limitation: strikes, lockouts or other strikes by third parties, civil unrest, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat of or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster, or disruption of public or private telecommunications networks or transportation restrictions (railway, shipping, aircraft, motorized transportation or other means public or private transport).
    3. If an event outside our control affects the performance of our obligations under the contract:
      1. The service provider will contact the other party as soon as reasonably possible to inform them;
      2. Our obligations set forth in this contract will be suspended and the time for performance of our obligations extended for the duration of the event outside our control.
      3. When the event beyond our control affects our delivery of products to a customer, Tones will: agree a new delivery date with the Customer after the event outside our control is over.

10 Other important terms

    1. We may transfer our rights and obligations under the Contract to another organization, but this will not affect your rights or our obligations under these Terms. If this happens, the service provider will always let you know in writing.
    2. You may only transfer your rights or your obligations mentioned in this Contract to another person if the Service Provider agrees in writing.
    3. This Contract is between you and the service provider. No other person has the right to enforce any of its terms.
    4. Each of the sections of these Terms operates separately. If a court or relevant authority has ruled that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect
    5. If we do not insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we do postpone doing so, that does not mean that we have waived our rights against you and will not mean that you do not have to perform those obligations. If the service provider waives a failure by you, we do so only in writing and that does not mean we automatically waive a subsequent failure by you
    6. Any undertaking given by you to the service provider in relation to the performance by the service provider, of our obligations under this Contract or any failure or omission by you to enforce any of its terms shall not be construed as a waiver of or derogation from this Contract or otherwise impairing your rights under it.
    7. This Contract is personal to you and the Service Provider and may not be subcontracted or assigned by either party to a third party.
    8. Any notice required or permitted to be given concerning this Contract must be in writing and in person: delivered or sent by prepaid first class mail or other delivery service on the next business day to the registered address of the office or principal place of business, or by mail to the address provided in the Chamber of Commerce Register; or by mail sent to the address of the service provider set forth in this Contract, or by mail to Tones at artists@tonesgallery.com. Any notice shall be deemed to have been given at the time of personal delivery, or in the case of expedited delivery or unregistered or registered mail 5 business days after the date and time of mailing.
    9. This Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements between you and the Service Provider with respect thereto.
    10. In this Agreement, unless the context clearly indicates otherwise:
      1. reference to one gender includes all other genders;
      2. reference to the singular includes the plural and vice versa;
      3. reference to a clause, schedule or party is a reference to a clause of or a schedule or party to this Contract;
      4. reference to a statutory provision is a reference to that provision as amended or re-enacted from time to time or both and to any subordinate legislation made pursuant to the statutory provision;
      5. reference to a document is a reference to that document as supplemented or amended from time to time; 
      6. Reference to writing includes fax, email and similar means of communication;
      7. A number of days shall be counted only with the first day and including the last day, unless the last day falls on a day which is not a normal working day in the Netherlands, in which case the last day shall be the next day which is a normal working day in the Netherlands;

11 Governing Law and Jurisdiction 

    1. This Agreement shall be governed by and construed in accordance with the laws of The Netherlands and you irrevocably agree that the courts of The Netherlands shall have exclusive jurisdiction to settle any dispute which may arise out of, under or in connection with this Contract. Nothing in this clause shall limit the right of the Service Provider to bring any proceedings against you arising out of or in connection with this Contract (a) in any other court of competent jurisdiction or (b) simultaneously in more than one court of competent jurisdiction.