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:-
- “Artists” means the artists with whom the Buyer requests for the commissioning of an Artwork, and each is an “Artist”.
- “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.
- “Buyer” or “you” means the person using the Site to use our Services.
- "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 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 to facilitate and allow Buyers to commission, co-create and purchase Artwork created by selected Artists.
6.2. You acknowledge that we have no control over the quality of the Artwork nor the ability of the Artist to deliver the Artwork that is satisfactory to the Buyer.
6.3. 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.
6.4. 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 Artist.
Artwork Fees and Delivery Fees
7.1. All prices stated in the Site are in United States Dollars.
7.2. All Artwork Fees and Delivery Fees stated at the payment page are final and non-refundable.
7.3. You acknowledge that the Artwork Fees will be collected by us for and on behalf of the Artist upon the acceptance of the Brief by the Artist.
7.4. You agree that any refund of the Artwork Fees and/or the Delivery Fees are subject to our sole and absolute discretion and that we shall have the right to deduct all or part of such amount to be refunded, including to deduct any applicable Service Fees, in the event that you fail to comply with the Terms herein in our sole opinion.
7.5. You agree that we have the right to determine the mode of payment at our sole discretion.
8.1. 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.
8.2. 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.
9.1. All our promotions are subject to availability and our prevailing terms and conditions.
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 Artists and such communications may be retained by us for our internal records.
11.1. You may request an Artist for collaboration in the creation of an Artwork through the Site by composing and sending a Brief to the Artist's account.
11.2. All Briefs are subject to acceptance by the Artists. Acceptance by the Artist is subject to full payment of the Artwork Fees to us. You acknowledge that the Artist is not obliged to commence any work if the Brief is not accepted and full payment of the Fees has not been made by you.
11.3. Any modification, variation or amendment to any Brief shall be subject to acceptance by the Artist. Requests for any modification, variation or amendment to the Brief shall not be unreasonable.
11.4. You acknowledge that the Artist would create the Artwork based on the Brief and such other instructions as you may give to the Artist through the Site. We and the Artist shall not be responsible for the unsatisfactory quality or delivery of an Artwork as a result of any unclear or insufficient instructions provided by you for the commissioning of such Artwork.
11.5. You agree that you will not send a Brief or give any instructions to the Artist with the intention of, or knowingly, infringing any third party rights, including but not limited to intellectual property rights.
12.1. The Artist will provide for your approval initial draft sketches of the Artwork based on the Brief and such other instructions as you may give to the Artist through the Site.
12.2. You acknowledge that once the initial draft is approved, the Artist may proceed to create draft coloured Artwork based on the approved initial draft. You agree that the approval of the initial draft shall not be unreasonably withheld or delayed.
12.3. You further acknowledge that once the final coloured draft is approved, the Artist may proceed to create the Artwork based on the approved draft. You agree that the approval of the final draft shall not be unreasonably withheld or delayed.
12.4. Any modification or variation to the Artwork from any approved drafts shall be subject to the consent of the Artist. Requests for any modification, variation or amendment to the Artwork shall not be unreasonable.
13.1. The Artist will create the Artwork based on the approved draft. The Artist will provide coloured photos of the Artwork produced for your approval.
13.2. You acknowledge that once the Artwork is approved, you shall not be entitled to reject the approved Artwork. You agree that the approval of the Artwork shall not be unreasonably withheld or delayed.
14.1. We will only deliver the Artwork to you after you have approved the completed Artwork and paid to us the Delivery Fees.
14.2. All Artworks will be delivered to you or your specified destination by courier through our designated logistics partners.
14.3. When the Artwork is shipped, the carrier, shipping date, estimated delivery date, tracking or delivery confirmation number and delivery status will be listed in your account and can be found in your shipment confirmation e-mail.
14.4. The estimated delivery dates are only estimates and we will not be responsible for any delay in delivery. International delivery may also be subject to customs clearance procedures which can cause delays beyond original delivery estimates.
14.5. Those Artworks for shipment internationally may be subject to taxes, customs duties and fees levied by the destination country ("Import Fees"). The Buyer will be deemed as the importer of record in the destination country and will be responsible for all Import Fees.
15.1. All Artworks commissioned through the Site are sold on an “as-is, where-is” basis.
15.2. We do not warrant that:-
- any images of the Artwork or its drafts shown on the Site are true and accurate representations of the final Artwork delivered or to be delivered to you;
- the quality of the Artwork commissioned through the Site will meet your needs or expectations.
15.3. We do not provide 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 Artwork through this Site.
15.4. 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.
15.5. 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.
16.1 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
17.1. 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 delivered to you or other persons;
- any mishandling and/or abuse of the Artwork by you or other persons;
- use of all delivered the Artwork by you or other persons in any manner, whether foreseeable or otherwise. You shall assume all risks associated with product usage and storage upon delivery;
- 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.
17.2. Without prejudice to the foregoing, our aggregate liability to you shall be limited to the Artwork Fee and Delivery Fee paid by you with respect to the relevant Artwork.
17.3. This Clause 17 (Limitation of Liability) shall take effect to the fullest extent permitted by the applicable law.
18.1. 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. The Site and the content therein (save for copies of the completed Artwork duly paid for and delivered to you) shall not be reproduced, republished, transmitted or distributed in any way, without our prior written permission.
18.2. 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
19.1. Subject to the applicable law, 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.
19.2. You hereby grant 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 Artist’s gallery or such other pages of the Site.
20.1. 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.
21.1. 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.
21.2. 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.
21.3. 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 Artist. 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.
The Commissioned Guarantee Programme
22.1. Under The Commissioned Guarantee Programme, we guarantee that:-
- the Artwork that delivered does not materially differs from the Brief or such other instructions given by you and accepted by the Artist; and
- the Artwork will be delivered to the designated address within eight (8) weeks of payment of the Delivery Fees.
22.2. You are eligible for The Commissioned Guarantee Programme with respect to the relevant Artwork if:-
- you have not breached any terms in the Terms and Conditions;
- you have submitted a Dispute Notice in accordance with Clause 21 (Dispute Resolution) with respect to a Covered Claim; and
we have determined that:-
- the Artwork that was delivered materially differs from the Brief or such other instructions given by you and accepted by the Artist; or
- the Artwork was not delivered to the designated address within eight (8) weeks of payment of the Delivery Fees.
22.3. For the purpose of this Clause 22 (The Commissioned Guarantee Programme), a Covered Claim shall refer to a claim by you that:-
- the relevant Artwork was not delivered at all within eight (8) weeks of payment of the Delivery Fees.
22.4. If you are eligible for The Commissioned Guarantee Programme, we will refund you the lesser of:-
- the Artwork Fees paid by you with respect to the relevant Artwork under the Covered Claim (excluding any taxes paid);
23.1. 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.
23.2. 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.
23.3. Notwithstanding the provisions of this Clause 23 (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.
24.1. 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.
24.2. 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.
24.3. 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.
24.4. 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.
25.1. These Terms shall be construed and its performance governed in accordance with the law of the Republic of Singapore.