Effective Date: 12 January 2015
1.1. Please review carefully these Terms and Conditions before using this Site.
1.2. By registering with us or using this Site, you acknowledge and agree to be bound by the Terms and Conditions herein.
1.3. We reserve the right to make changes to these Terms and Conditions at any time without your prior notice. By using the Site on or after the date on which the Terms and Conditions have been revised, your use would be deemed as acceptance of the revised Terms and Conditions.
2.1. In these Terms and Conditions, unless the context otherwise requires the following words or expressions shall have the following meanings:-
- “Artist” or “you” means the person using the Site to use our Services.
- “Artwork” means the artwork commissioned through the Site.
- “Artwork Fees” means the fees payable by the Buyer to the Artist for the commissioning of the Artwork, which shall be collected by The Commissioned for and on behalf of the Artist.
- “Brief” means the instructions provided by the Buyer for the commissioning of an Artwork.
- “Buyers” means the buyers who seek to commission Artwork from the Artists, and each is a “Buyer”.
- "Delivery Fees” means the fees payable by the Buyer to The Commissioned for the delivery of the Artwork to the Buyer.
- “The Commissioned”, “we”, “our” or “us” refers to The Commissioned Pte Ltd.
- “Service Fees” means the fees payable by the Artist to The Commissioned for the use of the Site to commission an Artwork.
- “Services” means the services provided by us through our Site, which shall include the commissioning of Artwork.
- “Site” means https://thecommissioned.com/.
- “Trade Marks” means the “THE COMMISSIONED” mark and such other marks and devices used by and belonging to us whether registered or not and all such other trade marks, trade names, service marks, trade dress, logos, and emblems which are under our control or ownership and which we stipulates are to be used from time to time by us.
3.1. You will need to register an account with us before using our Services.
3.2. To register, you must be 18 years old and above and must complete the registration process. You confirm that all information provided by you, including your capabilities, experience and sample artworks, are true, accurate, correct and up to date.
3.3. You are responsible for the confidentiality of your username and password and shall take ownership of all activity and transactions under your account.
Restriction, Suspension or Deletion of Account or Services
4.1. We shall have the right to restrict, suspend or delete your account or access to the Site, or to restrict, suspend or cease to provide any Services to you at any time at our sole discretion for any reason or no reason. If your account is suspended, restricted, or deleted, you are not permitted to continue to use the Services or the Site under a different or new account.
4.2. You may terminate your account at any time by writing to us at firstname.lastname@example.org. We may terminate your account for inactivity for at least a period of 365 days at our sole discretion.
Use of Site
5.2. You agree that you will not:
- use the Site for purposes of conducting and/or disseminating surveys, contests, pyramid schemes, chain letters, junk email, spamming or sending of any duplicative or unsolicited messages;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy) of others;
- publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information;
- upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you have ownership or control the rights thereto or have received all necessary consent to do the same;
- use any material or information, including images or photographs, which are made available through the Site in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
- upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;
- violate any applicable laws or regulations; or
- create a false identity for the purpose of misleading others.
Commissioning of Artwork
6.1. The Site is an online platform and marketplace to facilitate and allow Buyers to commission, co-create and purchase Artwork from Artists.
6.2. For the avoidance of doubt, title of the Artwork commissioned by the Buyer shall transfer from the Artist to the Buyer upon delivery of the Artwork to the Buyer. In no event shall The Commissioned be the merchant or purchaser of such transaction.
6.3. You agree and acknowledge that we shall have the right to reject any Brief or require suspension or cessation of work on any Artwork at our sole discretion by giving written notice to you and the Buyer.
7.1. All Artwork Fees stated in the Site are in United States Dollars.
7.2. Artwork Fees are based on per square inch basis, which can be determined by you at your sole discretion.
7.3. All Artwork Fees stated at the payment page are final.
7.4. You agree and acknowledge that we shall collect the Artwork Fee on your behalf upon your acceptance of the Brief, and that we will pay you the Artwork Fee within thirty (30) days of delivery of the Artwork to the Buyer, provided always that:-
- we receive full payment of the Artwork Fee from the Buyer;
- the Artwork is collected by our designated logistics partner and is satisfactory and merchantable condition;
- the Artwork is of satisfactory condition upon delivery to the Buyer, save where the Artwork is damaged or lost solely due to the fault of our designated logistics partner;
- we do not receive any complaint or notice of any issue raised by the Buyer within thirty (30) days of delivery of the Artwork to the Buyer.
7.5. You further agree that we shall have the right to deduct all or part of the Artwork Fee at our sole and absolute discretion in the event that the Artwork is not of satisfactory condition or if you fail to comply with the Terms herein in our sole opinion.
7.6. You agree that we have the right to determine the mode of payment at our sole discretion.
8.1. All Service Fees stated in the Site are in United States Dollars.
8.2. You agree that the Service Fee shall be payable by you to us and shall be paid by setting off the Service Fee against the Artwork Fee.
8.3. The Service Fee shall be 20% of the Artwork Fee stated at the payment page (which shall not take into account any amount deducted from the Artwork Fee).
9.1. You shall pay all applicable goods and services tax, duties or levies whatsoever at the rate which may from time to time be imposed or charged at any time by any government statutory or tax authority on or calculated by reference to the amount of the Artwork Fee, Service Fee and any other sums payable by you hereunder or to reimburse us for the payment of such taxes, duties or levies immediately on receipt of written notice from us.
9.2. If we shall at any time be compelled by any applicable law to withhold or deduct any tax on your behalf from any amount payable to you hereunder, we shall, when making payment to you, make payment of such tax at the applicable rate to the appropriate tax authority and shall promptly furnish to you written receipts from the appropriate tax authority certifying that such payments have been made.
10.1. All communications between the Buyer and the Artist must be through the Site.
10.2. All communications must be with a consistent and high level of courtesy, respect and professionalism.
10.3. You agree that we have access to all communications between you and the Buyers and such communications may be retained by us for our internal records.
11.1. A Buyer may request for collaboration in the creation of an Artwork through the Site by composing and sending a Brief to your account.
11.2. You may choose to accept any Briefs sent to your account. You agree and acknowledge that your acceptance of the Brief shall be binding.
11.3. The acceptance of the Brief shall be subject to the full payment of the Artwork Fee by the Buyer to us.
11.4. Any modification, variation or amendment to any Brief shall be subject to the Buyer’s consent. Requests for any modification, variation or amendment to the Brief shall not be unreasonable.
11.5. You shall create the Artwork based on the Brief and such other instructions as you may be given by the Buyer through the Site.
12.1. You agree to create initial draft sketches of the Artwork for the Buyer’s approval upon accepting the Brief and upon full payment of the Fees by the Buyer. Upon the approval of the initial draft sketch, you agree to create draft coloured sketches of the Artwork for the Buyer’s approval.
12.2. All drafts shall be completed and sent to the Buyer’s account within a reasonable period of time. You agree that all drafts shall comply with the Brief or other instructions provided by the Buyer which you have accepted.
12.3. You agree that all drafts of the Artwork created by you will be done free-of-charge.
13.1. Upon approval of the final draft by the Buyer, you shall create the Artwork based on the approved draft . Any modification or variation to the Artwork from the approved draft shall be subject to the consent of the Buyer.
13.2. You shall provide coloured photos of the Artwork produced for the Buyer’s approval prior to delivery of the Artwork. All photos must be taken with sufficient lighting and must show the whole Artwork clearly. You agree that the Artwork may only be delivered upon the Buyer’s approval of the Artwork.
14.1. Upon approval of the completed Artwork by the Buyer, you shall be responsible for the packing of the Artwork for delivery at your own cost and expense.
14.2. You shall ensure that the Artwork is properly packed with commercial packaging suitable for shipping and that the Artwork is not modified, damaged, stained or changed in any way.
14.3. Without prejudice to Clause 14.1 and Clause 14.2, for packing of an unframed Artwork:-
- The Artwork must not be rolled, folded or bent in any way. No fingerprint should be visible on the Artwork.
- The Artwork, including the four corners, must be fully covered with acid-free tissue paper on both sides.
- The Artwork must be firmly taped between two pieces of sturdy cardboard or foamcore of no less than 3mm thick each, such that the Artwork would not be able to move within the two pieces of cardboard or foamcore. Each piece of cardboard or foamcore must be larger than the Artwork at all sides. There must be no tape on the Artwork directly. No stapling allowed.
- Thereafter, place the taped Artwork between two pieces of corrugated cardboard, and tape all sides securely. Each piece of corrugated cardboard must be the same or larger than the above said cardboard or foamcore at all sides.
14.4. Without prejudice to Clause 14.1 and Clause 14.2, for packing of a framed Artwork:-
- No fingerprint should be visible on the Artwork.
- The Artwork must be fully wrapped with acid-free tissue paper, and then with bubble wrap, on all sides and corners. All corners of the Artwork must be adequately covered and protected.
- The Artwork shall then be packed into a box which fits the Artwork with approximately three (3) inches of space available on all sides of the Artwork.
- There must be a sufficient layer of padding on all sides of the Artwork (including the top and bottom) inside the box to protect the sides of the Artwork and prevent the Artwork from moving within the box.
- Thereafter, the box must be securely sealed on all sides.
15.1. Once the Artwork has been packed and is ready for collection, kindly contact us at email@example.com to arrange for collection.
15.2. All Artworks will be collected from you by our designated logistics partners to be delivered by courier to the Buyers. You shall not use any other delivery service provider to deliver the Artwork to the Buyers.
15.3. You shall complete the Artwork and have the Artwork ready for collection no later than two (2) weeks prior to the required delivery date as stated in the Brief. It shall be a breach of these Terms if you fail to complete the Artwork and have the Artwork ready for collection in accordance with this Clause.
16.1. This Site and the content therein are provided on an "as is", "as available" basis. We do not warrant the accuracy, adequacy or completeness of this Site and/or the content therein and expressly disclaims liability for errors or omissions in the content. No warranty of any kind, implied, express or statutory, including but not limited to the warranties of non-infringement of third party rights, title, merchantability, satisfactory quality and/or fitness for a particular purpose, is given in conjunction with the Site and the content therein.
16.2. We do not warrant that Site and/or any content therein will be provided uninterrupted or free from errors or that any identified faults will be corrected; further, no warranty is given that this Site and the content therein are free from any computer virus or other malicious, destructive or corrupting code/programme.
17.1. You acknowledge and agree that:-
- You are solely responsible for (and that we have no responsibility to you or to any third party for) any data that you transmit, update or upload while using the Site and for the consequences of your actions (including any loss or damage which we may suffer) by doing so;
- Your use of the Site and reliance on the content in the Site are entirely at your own risk, and therefore we specifically disclaim any liability arising from or in connection with your use of the Site.
- We reserve the right to review materials posted, to edit, refuse to post, to remove any content, terminate your access to the Site in our sole discretion at any time, without notice, for any reason whatsoever.
- The Site may become temporarily unavailable for a number of reasons, including but not limited to, capacity constraints, transmission limitations, equipment modifications, upgrades, relocations, and repairs. Notwithstanding this, we will use reasonable commercial efforts to minimize such non-availability of the Site.
Limitation of Liability
18.1. We shall in no event be liable for any death, injury, direct, indirect, incidental, special, consequential, exemplary damages or other indirect damages or costs of any kind suffered or incurred by you or any third party arising from or in connection with:
- any Artwork;
- any mishandling and/or abuse of the Artwork by you or other persons;
- any delay in delivery or payment;
- infringement of any third party rights, including but not limited to intellectual property rights;
- any unauthorized access by any person of your account with us;
- any access, use or the inability to access or use this Site, or reliance on the materials and/or any information in this Site;
- any system, server or connection failure, error, omission, interruption, delay in transmission, or computer virus;
- any use of or access to any other website linked to this Site, even if we or our agents or employees are advised of the possibility of such damages, losses and/or expenses. Any hyperlinks to any other websites are not an endorsement of such websites and such websites should only be accessed at your own risks.
18.2. You hereby fully and forever release and discharge us from any and all demands, claims, actions, obligations, losses, damages, costs, and expenses whatsoever whether now known or unknown which you now has or may have against us arising out of or in connection with your use of the Site or the acts or omissions of other persons, including the Buyers.
18.3. Without prejudice to the foregoing, our aggregate liability to you shall be limited to the Artwork Fee received by us with respect to the relevant Artwork.
18.4. This Clause 18 (Limitation of Liability) shall take effect to the fullest extent permitted by the applicable law.
19.1. You acknowledge and agree that we own, or have the licence to use, the Site, including the source codes, pages, documents and online graphics, audio, video and such other contents found in the Site and any and all intellectual property rights used or embodied in or in connection thereto (save for any intellectual property rights in the Artwork and such other artwork uploaded to the Site by you). The Site and the content therein shall not be reproduced, republished, transmitted or distributed in any way, without our prior written permission.
19.2. You further acknowledge that we own, or have the exclusive licence to use, the Trade Marks, and may from time to time apply for registration of other Trade Marks and service marks. We are not aware of other persons using any of the Trade Marks and we do not warrant that we have sole or exclusive rights in and to such Trade Marks. You agree not to at any time contest our ownership of the Trade Marks and undertake not to use the Trade Marks without our prior written consent and/or in derogation of our rights.
Intellectual Property Rights in the Artwork
20.1. Subject to the applicable law, you agree and acknowledge that all rights, title, benefits and interests in the Artwork, including but not limited to all copyright in the Artwork, will be and are hereby assigned to the Buyer upon the full payment for and delivery of the Artwork to the Buyer.
20.2. Subject to the Buyer granting us a perpetual, non-exclusive, royalty-free licence to display a copy of the Artwork on our Site, the Artwork may be displayed in your gallery, the Buyer’s gallery or such other pages of the Site.
Representation and Warranty
21.1. You hereby represent and warrant that:-
- you are the sole creator of all the Artworks and that you hold all rights, title, benefits and interests in the Artworks, including but not limited to all copyright in the Artwork, prior to and upon the delivery of the Artworks;
- you are the sole author and creator of the artworks uploaded by you on the Site and that you hold all rights, title, benefits and interests in the uploaded artworks, including but not limited to all copyright in such artworks, for as long as the artworks are uploaded on the Site;
- all Artworks and the commission and sale thereof do not infringe any trademarks, copyrights, patents, know-how or any other intellectual property rights whatsoever of any third party and will not give rise to any passing-off actions in relation to the Artworks and so far as you are aware of no claims of such infringement or passing off have been made nor are the Artworks or the commission or sale thereof the subject of any claims or proceedings, actual or threatened;
- all Artworks are free and clear of all liens, claims and encumbrances of any kind, with you having good and marketable title thereto;
- all Artworks delivered to the Buyers are new and of satisfactory and merchantable quality;
- you are not contractually and/or legally restricted from selling any Artworks under any jurisdiction;
- you have not contravene any applicable laws, statutory provisions, rules and regulations imposed by any authority with respect to the commission or sale of any Artworks.
22.1. You shall indemnify and hold us, our officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from all demands, claims, actions, proceedings, judgements, orders, decrees, damages, costs, losses and expenses of any nature whatsoever against us by any third party due to or arising out of or in connection with any failure by you to comply with any of these Terms or otherwise by your use of the Site.
23.1. In the event that:-
- the Artwork, or the Buyer claims that the Artwork, differs materially from the Brief or such other instructions given by the Buyer and accepted by the Artist;
- the Artist fails, or the Buyer claims that the Artist has failed, to deliver the Artwork; or
- any other issue or claim is raised by the Buyer or the Artist;
the Buyer or the Artist may submit a notice of such dispute or claim (“Dispute Notice”) to us submitting to us a Request for Dispute Review form available on the Site, within thirty (30) days of delivery of the Artwork to the Buyer.
23.2. In the event either party submits a Dispute Notice to us, you shall cooperate with us to resolve the dispute. You agree that we will use our best endeavours to resolve the dispute and does not guarantee that the dispute will be resolved. If we cannot resolve the dispute within thirty (30) days of our receipt of the Dispute Notice, then the party requesting relief may elect to resolve the dispute through other available dispute resolution.
23.3. You agree that we shall have the sole discretion to hold any monies in dispute in escrow without limitation in time, and/or to release any monies in dispute to you or the Buyer. You agree that you shall have no claim whatsoever against us with respect to the holding of such monies in escrow or the release of such monies.
23.4. You agree and acknowledge that if we determine that the Artwork that was delivered materially differs from the Brief or such other instructions given by the Buyer and accepted by you, we shall have the right not to pay you all or any part of the Artwork Fee with respect to such Artwork you shall have no claim whatsoever against us with respect to such Artwork Fee.
24.1. Any dispute arising out of or in connection with the transaction between the Buyer and the Artist or these Terms including any questions regarding its existence, validity or termination shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force which rules are deemed to be incorporated by reference into this Clause. The Tribunal shall consist of one arbitrator (“Arbitrator”) to be appointed by the Chairman of the Singapore International Arbitration Centre. The language of the arbitration shall be English.
24.2. The decision in writing of the Arbitrator shall be final and conclusive upon all Parties. The costs and expenses of arbitration, including the compensation and expenses of the Arbitrator, shall be borne by the Parties as the Arbitrator may determine. Either Party may apply to any court which has jurisdiction for an order confirming the award or commence legal proceedings to sue on the award. Except as provided below, any right of either Party to judicial action on any matter subject to arbitration hereunder is hereby waived, except suit to enforce the arbitration award.
24.3. Notwithstanding the provisions of this Clause 24 (Arbitration), and the arbitration provided for herein, actions initiated or maintained by either Party for injunctive relief, whether mandatory or prohibitory or similar relief in equity are not subject to arbitration and may be brought by either Party in any court which has jurisdiction. Actions may also be initiated or maintained by either Party where the same is relevant or necessary for such Party to obtain or secure any interlocutory or interim relief, including but not limited to proceedings for detention, custody or preservation of any property.
25.1. Nothing contained in these Terms shall be so construed as to create any agency, partnership or joint venture of any kind between the parties hereto.
25.2. No failure by us to exercise and no delay by us in exercising any right, power or remedy under these Terms will operate as a waiver. Nor will any single or partial exercise by us of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy by us. No waiver shall be valid unless in writing signed by us. The rights and remedies herein are in addition to any rights or remedies provided by law.
25.3. All rights and obligations hereunder are personal to the Parties and each Party shall not assign any such rights and obligations to any third party without the prior consent in writing of us.
25.4. Any one or more clauses, stipulations or provisions of these Terms, or any part thereof, which is declared or adjudged to be illegal, invalid, prohibited or unenforceable under any applicable law in any jurisdiction shall be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating, vitiating or rendering unenforceable the remaining clauses, stipulations or provisions of these Terms, and any such illegality, invalidity, prohibition or unenforceability in any jurisdiction shall not invalidate, vitiate or render unenforceable any such clauses, stipulations or provisions in any other jurisdiction.
26.1. These Terms shall be construed and its performance governed in accordance with the law of the Republic of Singapore.