TERMS AND CONDITIONS OF SALE
These terms and conditions (‘Terms and Conditions’) apply to the sale to you by Pastel and Pencil Gallery Limited trading as ‘Darren Baker Gallery’ of any limited edition print or any other piece of artwork (the "Artwork") by any artist (the ‘Artist’) either at the Darren Baker Gallery’s premises or through its website.
1 – Formation of the Contract
1.1 - Your access to and use of DarrenBakerGallery.co.uk (‘the Website’) and any Services referred to in Clause 2, is subject exclusively to these Terms and Conditions. You will not use the Website/Services for any purpose that is unlawful or prohibited by these Terms and Conditions. By using the Website/Services you are fully accepting the terms, conditions and disclaimers contained in this notice. If you do not accept these Terms and Conditions you must immediately stop using the Website/Services.
1.2 - We reserve the right to update or amend these Terms and Conditions at any time and your continued use of the Website/Services following any changes shall be deemed to be your acceptance of such change. It is therefore your responsibility to check the Terms and Conditions regularly for any changes.
2 - The Services
The Website may provide communication tools such as image galleries, administration areas, email, bulletin boards, chat areas, news groups, forums and/or other message or communication facilities (‘the Services’) designed to enable you to communicate with others. Unless stated otherwise the Services are for your personal and non-commercial use only.
3 - Child Supervision
3. 1 - We are concerned about the safety and privacy of our users, particularly children. Parents who wish to allow their children access to and use of the Website/Services should supervise such access and use. By allowing your child access to the Website/Services you are allowing your child access to all of the Services. It is therefore your responsibility to determine which Services are appropriate for your child. Always use caution when revealing personally identifiable information about yourself or your children via any of the Services.
3.2 – You must be at lest 18 years old to order goods from the Website. By accepting these Terms and Conditions you are confirming that you are no less than 18 years old. If you are using the Website to purchase goods on behalf of a business, by accepting these Terms, you confirm that you have authority to bind such business to a contract with Darren Baker Gallery for the purchase of goods.
4 - Orders and Prices
4.1 - Select the number of items you wish to buy, then click on checkout and enter your personal details onto the form. Your order will then be sent to the Darren Baker Gallery by e-mail. You can also order by telephone on +44 (207) 580 5332.
4.2 - Artwork prices are subject to change. Prices may rise as an edition of an Artwork begins to sell out. All prices are inclusive of VAT.
5 - Title and Passing of Risk
5.1 - Title and risk in the Artwork shall pass to you when the Darren Baker Gallery has received the payment price for the Artwork in full, in cash or in cleared funds, whether or not delivery has been made. Upon such payment, you will be responsible for the Artwork, the risk of damage to or loss of the Artwork will pass to you and you shall be responsible for insuring the same.
5.2 – If we agree with you payment by set instalments the Artwork will be kept at the premises of the Darren Baker Gallery until the full balance is paid.
5.2.1 – Payment by set instalments will only be eligible on Artworks with a sale price of £2,000 or more.
6 – Delivery
6.1 - Delivery of the Artwork shall be made by you collecting the Artwork from the premises of the Darren Baker Gallery at the time of purchase or at any other date and time so agreed.
6.2 - If you purchase the Artwork through the Internet or Mail Order, delivery will be made by the Darren Baker Gallery delivering the goods to the address specified in your order. Delivery will be made through Royal Mail Special Delivery (or alternative courier services if applicable) for UK orders and International courier services for non-UK orders. All delivery charges will be payable by you. Please allow up to 21 days for delivery.
6.3 - Delivery to you will be deemed to have occurred once the packaged, stamped and addressed Artwork is placed with the Royal Mail, or such other carrier as we may use.
6.4 - Where you request for delivery other than in accordance with condition 6.1, the Darren Baker Gallery shall be under no obligation under section 32 (2) of the Sale of Goods Act 1979.
7 - Export
7.1 - If the Work is to be exported from the United Kingdom, whether to other countries within the European Union or outside the European Union, we will normally make appropriate arrangements for export and shipment and may make a reasonable additional charge for doing so.
7.2 - If, contrary to our normal practice, we allow you to make arrangements for export of the Work, you must:
7.2.1 comply with all requirements of any relevant tax authorities (that is, any authority imposing administrating or collecting any tax, duty or levy including HM Revenue and Customs), any export licensing authorities and any other relevant official bodies and:
7.2.2 provide us with all the relevant documents showing proof of export without delay and in any event within 7 days from the date of shipment; and
7.2.3 reimburse to us any sum claimed if HM Revenue and Customs, any relevant tax authorities or any other official body makes any claim against us for VAT, sales tax, use tax or any other expense or penalties resulting from your failure to comply with the relevant requirements for export and import
7.3 When on its sale to you the Work is intended for export, you will be charged for VAT on the Work should it not be exported.
7.4 In any event you will be responsible for paying any taxes including but not limited to import tax, duty, merchandise, sales or user tax that have to be paid in the country of destination whether on shipment or on import or at any other time.
7.5 Unless otherwise agreed in writing, the sale of the Work is not dependent on either us or you obtaining an export licence and failure or delay in obtaining a license will not constitute a basis to cancel a purchase or delay payment for it.
8 – Breach by the Buyer
8.1 If you fail to pay the purchase price in full (or if we agree with you payment by set instalments and you fail to pay any one or more instalment) by the due date, or if prior to you paying the purchase price in full you fail to comply with the obligations set out in clauses 6 and 7 above, or otherwise do or fail to do anything which may in any way imperil our ownership of the Work or the Work itself, we are entitled (without prejudice to our other rights and remedies at law) to either:
8.1.1 terminate the contract for sale, repossess the Work and claim damages for any loss we have suffered;
8.1.2 or at our election, treat the sale as cancelled, and repossess the Work, in which case (and only in which case) we shall following the safe return of the Work, refund to you any part of the purchase price you have paid, after deduction of any sums due to us including but not limited to costs of recovery and restoration of the Work.
8.2 We shall also have the right to repossess the Work and cancel the sale if before you make full payment of the purchase price to us, proceedings occur in the UK or elsewhere involving your solvency (including but not limited to the presentation of a bankruptcy petition or winding-up petition; or the convening of a meeting to wind you up voluntarily; or an application for an interim order for a voluntary arrangement, or for the appointment of an administrator; or the appointment of an administrative or other receiver).
8.3 Where we notify you of the exercise of our right to repossession, you will within seven days of such notice, return the Work to our premises at your cost and risk or tell us where the Work is kept and allow us to enter the premises where the Work is (separately) kept and take the Work away at your cost (it being understood that where the Work consists of more than one item, our rights of repossession extend to all such items).
9 – Disclaimers and Limitation of our liability
9.1 – Use of the Website/Services is at your own risk. The Website/Services are provided on an ‘AS IS’ and ‘AS AVAILABLE’ basis without any representation or endorsement made and without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. 9.2 – To the extent permitted by law, the Website and companies associated with the Website will not be liable for any indirect or consequential loss or damage whatsoever (including without limitation loss of business, opportunity, data, profits) arising out of or in connection with the use of the Website/Services. 9.3 – DarrenBakerGallery.co.uk or companies associated with DarrenBakerGallery.co.uk makes no warranty that the Website/Services will meet your requirements, that Content will be accurate or reliable, that the functionality of the Website/Services will be uninterrupted or error free, that defects will be corrected or that the Website/Services or the server that makes them available are free of viruses or anything else which may be harmful or destructive. 9.4 – DarrenBakerGallery.co.uk or companies associated with DarrenBakerGallery.co.uk is not responsible in any way for any artwork sales that you or third parties may engage in. 9.5 – DarrenBakerGallery.co.uk or companies associated with DarrenBakerGallery.co.uk reserve the right to refuse use of the Services. 9.6 – DarrenBakerGallery.co.uk or companies associated with DarrenBakerGallery.co.uk reserve the right to refuse or remove images or text posted on the Website.
10 – Rescission
We will have the right, but not the obligation, to rescind a sale without notice to you, where an adverse claim is made by a third party, including but not limited to, someone claiming ownership of the Work. Upon notice of our election to rescind the sale, you will promptly return the Work to us. We will then refund the price and any amount paid to us that represents a royalty due to the Work's author upon the resale of the Work ("Resale Royalty"). The refund of the price and any Resale Royalty will constitute your sole remedy and recourse against us with respect to such claims.
11 – Copyright
11.1 - The Artwork was produced with the intention that it will be sold exclusively through the Darren Baker Gallery or any other outlet approved by the Darren Baker Gallery. It is the Artist’s expectation that the Artwork will not be purchased for resale and will be retained by you for your own personal enjoyment
11.2 - In addition, but without prejudice to your undertakings set out at condition 11.1 above, you may not sell or offer to sell the Artwork on any internet-based site of any description.
11.3 - In accordance with the Copyright, Designs and Patents Act 1988, copyright in the Artwork shall remain the property of the Artist at all times.
11.4 - You may not produce any image of the Artwork and may not, at any time, publish or submit for publication or reproduction of any image of the Artwork to any third party, including any internet website, for any purpose.
11.5 - If you breach any of your obligations set out under condition 11.3 you agree that the payment of damages alone may not be a sufficient remedy to compensate Darren Baker Gallery or the Artist for any such breach. We and/or the Artist may carry out all or any of the following actions:
11.5.1 apply to the Court seeking an Order to prevent you from continuing to breach your obligations under these Terms and Conditions;
11.5.2 apply to the Court seeking an Order that the Artwork or any item or items produced in breach of these Terms and Conditions shall be delivered up to us carriage paid;
11.5.3 apply to the Court seeking an Order to require that any items produced in breach of these Terms and Conditions shall be destroyed; or
11.5.4 apply to the Court seeking an Order to require that any offer for sale or image of the Artwork placed by you (whether directly or indirectly) on any internet website is removed.
11.6 - The list set out above is not exhaustive and you will indemnify us in respect of the cost of any steps taken pursuant to condition 11.5 as a result of your breach of these Terms and Conditions.
12 - Data protection
12.1 - You confirm that you are aware of and consent to the use by Darren Baker Gallery of any personal data within the meaning of the Data Protection Act 1998 and that the Darren Baker Gallery may create and maintain computer and paper records, collect, hold, control, use and transmit personally identifiable information obtained from you in the course of the purchase of the Artwork.
12.2 - By agreeing to these Terms and Conditions you consent that such personal data may be used for promotions connected with Darren Baker Gallery and may be provided to any third party in a similar business to Darren Baker Gallery.
12.3 - You consent to Darren Baker Gallery revealing personal data to the Artist should you breach these Terms and Conditions.
13 - Rights of Third Parties
No third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 in connection with these Terms and Conditions other than in respect of condition 11 above, which confers a benefit on the Artist and is intended to be enforceable by the Artist.
14 – Cancellation Rights
Please note that you cannot cancel this contract. Accordingly, once purchased you may not return the Artwork and the Darren Baker Gallery does not offer refunds.
15 - Waiver
No failure or delay by the Darren baker Gallery in exercising any right, power or privilege shall impair the same or operate as a waiver of the same, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right power or privilege. The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights and remedies provided by law.
16 – Severance
If any provision of these Terms and Conditions is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Terms and Conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms and Conditions.
17 - Governing Law and Jurisdiction
17.1 - These terms and conditions and any non-contractual obligations arising from or in connection with them shall in all respects be construed and take effect in accordance with English law.
17.2 - If you are purchasing the Work as a consumer, the courts of England and Wales will have non-exclusive jurisdiction in relation to any dispute (a) arising from or in connection with these terms and conditions or (b) relating to any non-contractual obligations arising from or in connection with these terms and conditions. If you are not purchasing the Work as a consumer, the courts of England and Wales will have exclusive jurisdiction in relation to any dispute (a) arising from or in connection with these terms and conditions or (b) relating to any non-contractual obligations arising from or in connection with these terms and conditions.
18 - Arbitration
18.1 Notwithstanding clause 17.2 above, either party may, by giving written notice to the other, elect to have any disputes arising out of, or in connection with, the sale and purchase of the Work referred to a single arbitrator in London to be resolved in accordance with the Arbitration Act 1996. The seat of such an arbitration will be London and the language to be used in the arbitral proceedings will be English. In the event that the parties cannot agree upon an arbitrator either party may apply to the President of the Law Society of England and Wales for the time being to appoint as arbitrator a Queen's Counsel of not less than 5 years standing. The decision of the arbitrator shall be final and binding.
18.2 Save that the parties acknowledge each other's right to seek, and the power of the High Court to grant, interim relief, no Court action shall be brought in relation to any claim or dispute until the arbitrator has made a final award.