Blue Dragon Fine Art LLC Terms of Sale for Artists
Certain areas of the Services and your access to certain Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific area of the Services or for access to specific Services, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Services.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. IF YOU WANT TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, YOU MAY DO SO PROVIDED YOU FOLLOW THE PROCEDURES SET FORTH BELOW IN THE SECTION ENTITLED “AGREEMENT TO ARBITRATE”. THE DISPUTE RESOLUTION SECTION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A PROPOSED CLASS. THESE TERMS ALSO INCLUDE A WAIVER OF YOUR RIGHTS TO A TRIAL BY JURY IRRESPECTIVE OF WHETHER YOU AGREE TO ARBITRATE YOUR CLAIMS.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Modifications to these Terms
BDFA reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Services or provide you with notice of the modification. We will also update the “Last Updated Date.” By continuing to access or use the Services after we have posted a modification on the Services or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. We encourage you to check back regularly to review these Terms.
Modifications to the Services
We reserve the right to change the URL, modify or discontinue, and restrict or block access to, the Services without notice to you. We may modify or remove any Original Works of Art (as defined below), or Member Content (as defined below) from the Services at any time without notice to you, including the removal of any works of art or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Services that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by applicable local, state, federal or international laws, regulations, or statutes. No specified update or refresh date applied to the Services should be taken to indicate that all information on the Services has been modified or updated.
The Services are intended solely for persons who are 18 or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services you represent and warrant that you are 18 or older.
In order to list a work on the Services or to make a purchase through the Services, (other than users who utilize the guest checkout option), you must first create an account (“Account”) by completing our registration process. During the registration process you will be required to provide certain information and you will establish a username and a password. Upon completion of our registration process or by utilizing our guest checkout option you will become a “Member.” You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete, for example if you become VAT registered (if applicable). BDFA reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify BDFA of any unauthorized use of your Account.
Seller Terms and Conditions
Listing Works on the Services
As a Member, you may submit listings for original works of art (“Original Works of Art”) that you have created and that you desire to sell through the Services. You may not submit listings for Original Works of Art that were created by another artist. In order for your listings to be accepted, you must provide BDFA with all the information requested by BDFA and you must comply with any other BDFA requirements as identified to you. Without limiting the generality of the foregoing, if you submit listings for sale you may be required to verify your identity by separately providing BDFA with a copy of a government-issued ID, your IRS Employment Identification Number (“EIN”) or tax identification number, VAT ID (if applicable), or similar documentation and information. Your listings must be accurate and complete and comply with all BDFA terms, conditions, and policies. BDFA reserves the right to edit any listings to ensure that they do not violate any BDFA policies, terms, conditions, or agreements. If your Original Work of Art is for sale on the BDFA website, you may not make the same Original Work of Art for sale on another website or gallery as to insure BDFA has the ability to complete and satisfy any order made through its website. The only exception is if Member’s Original Work of Art is sold through Member’s personal website. In such circumstances, Member must immediately notify BDFA is the Original Work of Art has been sold and can no longer be offered for sale by BDFA. You acknowledge that your listings may not be immediately searchable by keyword or category for several hours (or up to 24 hours or more in some circumstances). The placement of your listings in search and browse results may be based on factors that include without limitation title, keywords and price.
If you want to remove a listing for an Original Work of Art from the Services you must go to your account, click on the image you want to delete and then click on Delete and follow the steps set forth on that page.
Responsibility for Works
You acknowledge and agree that you are solely responsible for all Original Works of Art that you make available through the Services. Accordingly, you represent and warrant that: (i) as to Original Works of Art that you make available through the Services, you are the creator of all such Original Works of Arts and you are the sole and exclusive owner of all such Original Works of Art; and (ii) the Original Works of Art that you make available through the Services nor BDFA’s use and exploitation thereof as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, intellectual property rights or other third party rights, or result in the violation of any applicable law or regulation.
BDFA and/or its third-party service providers will be responsible for collecting billing and shipping information from the purchaser and for processing payment for such purchases via the Services. For Offline Sales at the BDFA gallery, BDFA will be responsible for collecting billing and shipping information, as applicable, from the purchaser and for processing payments, and will remit applicable payments relating to such sales as agreed upon between BDFA and the Member.
For Original Works of Art, BDFA will provide you with the name and address of the purchaser and, unless otherwise instructed in writing by BDFA, you will be responsible for shipping the purchased Original Work of Art directly to the purchaser. BDFA will provide you with information regarding its preferred shippers with which BDFA maintains an account. You agree to ship the purchased Original Work of Art to the purchaser within seven (7) days following the date of purchase (the “Shipping Period”). If you do not ship the purchased Original Work of Art to the purchaser prior to the expiration of the Shipping Period, then the sale may be cancelled. If you ship the purchased Original Work of Art via a BDFA preferred shipper account, BDFA will be responsible for the cost of shipping. You are responsible for providing accurate shipping weight, shipping dimensions and shipping address to BDFA if you are using a BDFA preferred shipper. If actual shipping weight, shipping dimensions and shipping origination information at the time of shipment varies from the information provided by you, BDFA (after providing documentation) reserves the right to deduct the resulting increased shipping costs from your Artist Revenue Share (defined below). If you do not ship the purchased Original Work of Art via a BDFA preferred shipper or if you pay for the cost of shipping yourself, BDFA will reimburse you for the amount you paid for shipping, up to the amount that BDFA would charge the purchaser for shipping. You agree to review and abide the BDFA shipping guidelines that will be provided to you by BDFA.
Artist Revenue Share
For sales of Original Works of Art via the Services, subject to BDFA’s receipt of confirmation of delivery to the purchaser, BDFA will remit payment corresponding Artist Revenue Share pursuant to BDFA’s then-current rate schedule which is 70% of the sales price to the artist following the expiration of the return period and for sales of Original Works of Art, BDFA will credit your Account with the corresponding Artist Revenue Share within a commercially reasonable time after it has received payment and the Original Work of Art has been confirmed to have been successfully delivered to the purchaser, as determined by BDFA, in its sole discretion. Artists shall be responsible for setting the price of their Original Works.
You agree to comply with the terms and conditions of BDFA’s then-current Return Policy at https://bluedragonfineart.com/terms-of-sale/ that are applicable to any Original Works of Art that are sold through the Services.
You will have the right to request BDFA to remit the Artist Revenue Share in your Account in accordance with a BDFA-designated payment schedule. Upon the termination of these Terms or cancellation of your Account, BDFA will remit to you the remaining balance of Artist Revenue Shares in your Account, if any.
If you are a Member and have submitted a listing for an Original Work of Art and have been contacted through the Services by a buyer with respect to purchasing either of the foregoing, or a similar work or custom piece related to a listed work of art, you may not sell such Original Work of Art to such customer independent of BDFA and the Services. Violation of this provision may result in the termination of your Member account as an artist or buyer, in addition to any other remedies available to BDFA including, without limitation, injunctive or other appropriate relief.
All prices, commissions, fees and other amounts referred to in these Terms, including any prices, commissions and fees set forth on the Services, are stated in U.S. dollars and do not include any sales, use, value added (“VAT”), goods and services (“GST”) or similar taxes or withholding taxes or any customs, duties or tariffs that may be assessed by any governmental tax authority or that are otherwise payable under applicable law with respect to the purchase, sale and licensing transactions contemplated hereunder (collectively, “Taxes”). If you are a seller of Original Works of Art, you acknowledge that BDFA will withhold the Taxes required to be withheld from the payments BDFA makes to you. Seller must fill out appropriate Tax forms prior to any amounts being paid, as follows:
- For an artist living within the United States, a W9 Tax Form must be filled out for the sale of an Original Work of Art.
- For an artist living outside the United States, a W8BEN Tax Form must be filled out for Original Works of Art.
All information provided will be treated as confidential.
In addition to submitting listings for Original Works of Art, BDFA may, in its sole discretion, designate areas of the Services in which Members can post, upload, publish or submit text, graphics, audio, video, images of works of art or other content on or to the Services (individually or collectively, “Member Content”). “Member Content” excludes any images of Original Works of Art for which a Member submits a listing, as described under “Seller Terms and Conditions” above. BDFA does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that a Member may have to use and exploit any such Member Content. By making available any Member Content on or through the Services, (i) you grant BDFA a worldwide, nonexclusive, transferable, royalty-free, commission-free license to crop, resize, publicly display, publicly perform, distribute, broadcast and transmit such Member Content on or through the Services in any form, medium or technology now known or later developed, for the purpose of promoting BDFA, the Services, and (ii) you grant directly to other Members the right and license to view your Member Content on or through the Services only in connection with such Member’s authorized use of the Services. You reserve all other rights and licenses in and to any Member Content that you make available on or through the Services.
You acknowledge and agree that you are solely responsible for any Member Content that you make available on or through the Services. You represent and warrant that: (i) you are the sole and exclusive owner of all Member Content that you make available on or through the Services or that you have all rights, licenses, consents and releases that are necessary to make available such Member Content and to grant all rights and licenses in such Member Content as granted under these Terms; and (ii) neither the Member Content nor your making available any Member Content on the Services nor any use of any Member Content as permitted under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
BDFA Intellectual Property
Termination and Account Cancellation
If you breach any of these Terms herein or in any other terms, conditions, policies, or agreements incorporated herein by reference, BDFA will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. BDFA reserves the right to revoke your access to and use of the Services and Member Content at any time, with or without cause. In the event BDFA terminates these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Account at any time by sending an email to firstname.lastname@example.org
THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BDFA EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BDFA MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BDFA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY WORKS, SERVICES, CONTENT OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BDFA OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. NO ACTION SHOULD BE TAKEN OR PURCHASE MADE BASED UPON ANY OF THE INFORMATION CONTAINED IN THE SERVICES. YOU SHOULD SEEK INDEPENDENT ADVICE FROM A PROFESSIONAL AND/OR A PERSON WHO IS KNOWLEDGEABLE IN THE APPLICABLE AREA BEFORE ACTING UPON ANY OPINION, ADVICE, OR INFORMATION CONTAINED IN THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, BDFA DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF MEMBERS OR OTHER USERS OF THE SERVICES, NOR DOES BDFA MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF ANY MEMBERS OR USERS OF THE SERVICES. BDFA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold BDFA, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services or your violation of these Terms.
Limitation of Liability
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Services remains with you. Neither BDFA nor any other party involved in creating, producing, or delivering the Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Services or from any communications, interactions or meetings with other Members or users of the Services or other persons with whom you communicate or interact as a result of your use of the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not BDFA has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will BDFA’s aggregate liability arising out of or in connection with these Terms or from the use of or inability to use the Services exceed, if you are a Member who has sold Original Works of Art and has received any Artist Revenue Share from BDFA from the sale of Original Works of Art, the total payments made or credited to you by BDFA for the sale of your Original Works of Art during the three (3) month period preceding the date a claim for liability arises under these Terms. The limitations of damages set forth above are fundamental elements of the basis of the bargain between BDFA and you.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of BDFA used herein are trademarks or registered trademarks of BDFA or its licensors. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Resolution of Disputes
Governing Law and Jurisdiction
All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
Mutual Agreement to Arbitrate
YOU AND BDFA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Dallas, Texas before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Right to Opt-Out
YOU HAVE A RIGHT TO OPT-OUT OF THIS AGREEMENT TO ARBITRATE by sending an email to email@example.com or by mailing us, postage prepaid, to Janik Vinnakota LLP, 8111 LBJ Freeway, Suite 790, Dallas, TX 75251. Such opt-out must be given within thirty (30) days of approving your first upload of artwork to the Services. Any opt-out received after such deadline will be ineffective and this Agreement to Arbitrate will remain in full force and effect, except as expressly provided above. If you opt-out of this Agreement to Arbitrate, we also will not be bound by the terms of this Agreement to Arbitrate.
Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR OTHER CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS, COLLECTIVE, AND/OR REPRESENTATIVE ARBITRATION PROCEEDINGS WILL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable with respect to any particular claim otherwise subject to arbitration, then that claim will not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that occurs, however, this Agreement to Arbitrate and this Class Action Waiver still will be fully enforceable as to all other claims, which must be resolved in arbitration on an individual basis.
Limitation of Actions
You and we agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services, or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
Users from Other Jurisdictions
The Services are controlled and operated by BDFA from the United States. We do not represent or warrant that the Services, or any part thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Services, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
These Terms herein and set forth elsewhere as incorporated by reference herein constitute the entire and exclusive understanding and agreement between BDFA and you regarding the Services and these Terms supersede and replace any and all prior oral or written understandings or agreements between BDFA and you regarding the Services.
You may not assign or transfer these Terms, by operation of law or otherwise, without BDFA’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. BDFA may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by BDFA via email (in each case to the address that you provide) or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of BDFA to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of BDFA. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact BDFA at firstname.lastname@example.org
Last Updated: January 3, 2020