“AML Legislation“ shall mean any applicable anti-money laundering, anti-terrorist financing, government sanction and “KYC”-laws, whether within Switzerland or elsewhere, including any guidelines, orders such as the Swiss Federal Act on Combating Money Laundering and Terrorist Financing of 10 October 1997, as amended.
“Arcual” shall mean Arcual AG (CHE-439.010.112), a company limited by shares, incorporated in accordance with laws of Switzerland.
“Artist” shall mean the creator of an Artwork.
“Artist Resale Terms (ART)” shall mean the contractual share of the Purchase Price owed to the Artist for each Secondary Sale on the Platform. The ART gets determined by the Artist during the registration process of the Artwork.
“Artwork” shall mean any unique physical work of art made by an Artist registered in the Platform.
“COA-Token” shall mean a non-fungible cryptographic token on the Platform which represents the authenticity of the Artwork and records the Owner.
“COA-Token Transfer” shall mean the transfer of the COA-Token from one User Account to another in association with the Sale of an Artwork on the Platform.
“Collector” shall mean the buyer of the Artwork on the Platform.
“Consignment Agreement” shall mean the agreement between the Artist and the Gallery which gives the Gallery the right to custody and to sell the Artwork on behalf of the Artist.
“Force Majeure” shall mean any cause beyond the reasonable control of the Party which delays, hinders or prevents (whether partially or wholly) the Party from complying with its obligations towards each other including, but not limited to, any act of God or the elements, war, hostilities, mobilisation, confiscation, terrorism, riots, pandemics, acts of the public enemy, civil commotion, fires, strikes, labour disputes, accidents, radioactive contamination as well as attacks with chemical, biological, bio-chemical and electromagnetic weapons, cyber-attacks, any act in consequence of compliance with any order of any government or governmental or executive authority or any event affecting the supply of energy and raw materials that adversely affects the Party’s ability to make deliveries on time or in full.
“Gallery” shall mean a User to whom the Artist or the Owner has granted certain rights in connection to the Artwork, in particular to consign the Artwork on the Platform and to enter into agreements relating to inter alia the Sale of an Artwork, the COA-Token Transfer on behalf of the Artist or Owner.
“Gallery Resale Terms (GRT)” shall mean the contractual share of the Purchase Price payable to the Gallery for each Secondary Sale on the Platform. The GRT gets defined by the Gallery and Artist during the registration process of the Artwork.
“KYC-Check” shall mean the verification of the User in accordance with AML-Regulations.
“KYC Service Provider” shall mean the third-party service provider which performs the KYC-Check.
“Owner” shall mean the User whose Account holds the COA-Token connected to an Artwork registered on the Platform.
“Payment Service Provider” shall mean a third-party payment service provider which collects the Purchase Price on behalf of the Users.
“Platform” shall mean a DLT-based Platform operated by Arcual enabling the issuance of COA-Tokens and the transfer of ownership of these tokens between the Users.
“Platform Fees” shall mean the fees charged by the Platform as defined in section 8 for the use of the Platform by the User.
“Platform’s Services” shall mean the services provided by Arcual on the Platform as described in Section 2 of these Terms.
“Primary Sale” shall mean first sale of an Artwork on the Platform.
“Prohibited Jurisdictions” shall mean each jurisdiction or individual listed in the sanction lists of SECO, the European Union, UK, OFAC, UN or any other relevant national jurisdiction list. In particular, Cuba, Iran, North Korea, Syria, Russia and the Crimea, Donetsk, and Luhansk Regions are considered as Prohibited Jurisdictions.
“Purchase Price” shall mean the purchase price for the Artwork agreed by the Users in the Sales Agreement including ART, GRT, Platform Fee, fees for the COA-Token Transfer and fees of Payment Service Provider (if applicable).
“Registration Information” shall mean the information required to register an Artwork on the Platform.
“Registration Request” shall mean the request submitted on the Platform regarding the registration of an Artwork.
“Sale” shall mean collectively the Primary Sale and the Secondary Sale.
“Sales Agreement” shall mean the sales agreement between the Seller and the Collector regarding the sale of an Artwork on the Platform.
“Secondary Sale” shall mean every sale of an Artwork after the Primary Sale on the Platform.
“Seller” shall mean the User who is entitled to sell the Artwork on the Platform.
“Swiss Civil Code” shall mean the Swiss Civil Code of 10 December 1907 (ZGB, SR 210), as amended.
“Terms” shall mean these terms and conditions.
“User” shall mean Artist, Collector, and Gallery.
“User Account” shall mean the account of the User accessible via the Website.
“User Account Access Data” shall mean information and data necessary to log-in to User Account.
“User Information” shall mean the information requested on the Website to create a User Account.
“Website” shall mean the website which gives access to the Platform.
The Platform enables its Users to register Artworks and facilitate COA-Token Transfers associated with the Sales on the Platform, while enabling Artists and Galleries to receive ART and GRT respectively in connection with Sales on the Platform.
In order to use the Platform’s Services, User needs to set up a User Account by providing the User Information requested on the login interface on the Website and accepting these Terms. Any input errors during setting up a User Account can be corrected by the User using the inputs provided in the Website. Arcual may request from the User additional personal information for verification purposes at any time.
Once User has submitted User Information, the KYC Service Provider and/or the Payment Service Provider may request the User to complete certain verification procedures which will be conducted by the KYC Service Provider and/or the Payment Service Provider. The KYC-Check will be subject to the terms and privacy policies of the KYC Service Provider and/or the Payment Service Provider, respectively. Additional KYC-Checks may be performed before each Sale.
User acknowledges that pursuant to AML Legislation, KYC Service Provider and/or the Payment Service Provider may be required to obtain, verify and record information regarding User, User’s directors, User’s partners or User’s authorized signing officers and the Sale (e.g. source of funds) contemplated by terms of the KYC Service Provider and/or the Payment Service Provider, respectively.
User undertakes to promptly provide or cause to be provided to KYC Service Provider and/or to the Payment Service Provider all required information, including supporting documentation and other evidence, as may be reasonably requested by the KYC Service Provider and/or the Payment Service Provider, in order to complete the KYC Service Provider’s and/or the Payment Service Provider’s KYC-Check to ensure compliance with applicable AML Legislation, whether now or hereafter in existence.
User understands that the outcome of the KYC-Check, e.g. the non-admission of the Sale, or his exclusion at any time later, lies in the sole discretion of KYC Service Provider and/or the Payment Service Provider. User further understands that the amount of information requested to provide as part of the KYC-Check may be subject to change over time and that User may at a later point in time be required to provide additional documents and/or information, based on which User’s Sale and/or purchase of Artworks may be rejected.
After successful registration and successful KYC-Check (if applicable), User will receive User Account Access Data and information applicable for the User.
User shall not be permitted to make these User Account Access Data available to third parties and User is responsible for any use and activities in connection with the User Account. User shall inform Arcual immediately if User becomes aware of any an unauthorised access to his User Account.
In order to register an Artwork on the Platform for Primary Sale, the Gallery (subject to respective rights based on a Consignment Agreement) must submit a Registration Request for an Artwork. The Registration Request must include the Registration Information such as:
Arcual may request additional information in relation to the registration of the Artwork at its own discretion.
The Artist will be notified of the Registration Request of its Artwork. The Registration Request requires the approval of the Artist. The Artist may deny its approval for registration of its Artwork for any reason. By approving the Registration Request the Artist confirms the authenticity of the Artwork.
By submitting the Registration Request the Gallery and the Artist confirm and warrant that (i) the Artwork is authentic and was created by the Artist, (ii) the submitted information during the registration of the Artwork is true and correct, if applicable, (iii) the Artwork is consigned to the Gallery by the legal owner of the Artwork, and, if applicable, (iv) any existing paper or electronic certificates of ownership and/or authenticity in relation to the Artwork and terms contained therein are replaced and invalidated by these Terms and the COA-Token.
If the registration of the Artwork is successful, a COA-Token linked to the Artwork will be generated and assigned to the relevant User Account.
Once an Artwork is registered on the Platform, the Users expressly accept and acknowledge that all Sales shall take place on the Platform in accordance with Sections 6 and 13 of these Terms.
Upon registration of an Artwork, the Gallery and Artist each accept and agree that the COA-Token shall be deemed to be the certificate of authenticity for such Artwork and prevail as a proof of authenticity over all and any (potentially) pre-existing certificates of authenticity. The Artist and/or the Gallery agree not to issue any other certificate of authenticity in any or all mediums.
An Artwork cannot be de-registered from the Platform save that Arcual may allow for de-registration to address fraud or when required by law. In case of de-registration, the COA-Token will be destroyed. Arcual shall have no liability for de-registering an Artwork for any reason.
The Sale of Artworks on the Platform requires that the Seller and Collector conclude a Sales Agreement. To facilitate this, Arcual will provide Sale Agreement templates.
The Seller will submit on the Platform the necessary details required for the sale of an Artwork (e.g. identification information of the Artwork, Purchase Price, terms regarding delivery of the Artwork). Any input errors can be corrected by the User prior to the conclusion of the Sales Agreement using the buttons provided on the Platform. After submission by the Seller, a Sales Agreement will be generated. The Sales Agreement includes terms which are not at disposal of the Users (in particular terms regarding to the transfer of ownership in the Artwork).
The Sales Agreement has to be approved by the Collector. Once the Collector has confirmed the Sales Agreement, the Seller and the Collector will be bound by the Sales Agreement.
The Seller may require the Collector to complete a KYC-check. The performance of a KYC-check lies in the sole discretion of the Seller. The KYC-Check will be subject to the terms and privacy policies of Art Money UK Ltd, 16 Great Chapel St, London, W1F 8FL, UK (“Art Money”) which serves in this case as KYC Service Provider. See the link for Art Money Terms and Conditions.
Once the Purchase Price is paid by the Collector via the Payment Service Provider, the COA-Token Transfer is executed by Arcual.
The Users hereby agree that the COA-Token Transfer effects the transfer of ownership in the Artwork to the Collector based on a Sale of the Artwork on the Platform and is
The Users waive their potential right to COA-Token Transfer by any other possible mean or legal instrument including the factual transfer of control over a User Account to a third party.
Should a third party become entitled to ownership in the Artwork due to death of the legal owner, the heir of the deceased legal owner has to provide proof of legal succession to Arcual for the purposes of COA-Token Transfer.
If the Gallery is in possession of the Artwork on behalf of the Owner before the Sales Agreement has been concluded, the Users agree and acknowledge that COA-Token Transfer represents a possessive statement in the sense of art. 924 al. 1 Swiss Civil Code and thus the Gallery will possess the Artwork on behalf of the Collector.
Accordingly, the transfer of the COA-Token effects the transfer of ownership in the Artwork from the Owner to the Collector. The Gallery and the Collector shall agree in the Sales Agreement on the terms regarding the possession of the Artwork by the Gallery (e.g., potential compensation, delivery, insurances, etc.).
If the Seller is in possession of the Artwork before the Sales Agreement has been concluded, the Users agree and acknowledge that COA-Token Transfer represents a constitutum possessorum in the sense of art. 924 al. 1 Swiss Civil Code and thus the Artwork will be possessed by the Seller on behalf of the Collector.
Accordingly, the transfer of the COA-Token effects the transfer of ownership in the Artwork from the Seller to the Collector. The Seller and the Collector shall agree in the Sales Agreement on the terms in relation to the possession of the Artwork by the Gallery (e.g., example potential compensation, delivery, insurances, etc.).
All Platform Fees charged by Arcual will be reflected in the User’s Account and/or during the Registration of Artworks and Sale of Artworks.
Arcual may collect in particular the following Platform Fees from the Users:
The collection of the Purchase Price shall be made by Arcual on behalf of the Seller, the Gallery, and the Artist. Accordingly, the Gallery, the Artist and the Seller authorise Arcual to collect the Purchase Price from the Collector on behalf of them and to transfer the Purchase Price in accordance with selected collection method made available on the Platform.
Arcual has the right to use a Payment Service Provider for the collection of the Purchase Price. In such cases (a) fee(s) may be charged by the Payment Service Provider. These fees shall be deducted from the Purchase Price owed to the Seller. The distribution and processing of the Purchase Price will be subject to the terms and privacy policies of such Payment Service Provider.
For refund requests due to contract rescissions and/or execution of a possible right of withdrawal, the Seller must be contacted directly. Returns and refunds are entirely within the discretion of the Seller. So far as legally and practicably possible, Arcual will help facilitate whatever decision has been mutually agreed by the Seller and Collector and confirmed to Arcual in writing by both parties.
To process refunds to Collectors, Arcual can be contacted here. So far as legally and practicably possible, Arcual will support whatever decision you have agreed with the Collector /customer to unwind the Sale and execute COA-Token Transfer accordingly.
In any dispute in connection with bank or credit card payments the User can contact Arcual and Arcual can – at its own discretion – assist the User to liaise with the payment service provider.
If the User has successfully disputed a credit card or bank payment, Arcual will assist as far as possible to resolve matters.
The Users hereby acknowledge and accept that ART and GRT based on the terms of the Sales Agreement are contractual rights, enforceable only against the Collector by Artist and Gallery in connection with Sales on the Platform. Arcual cannot be held liable for non-payment of the ART and GRT by Collector and any resulting loss and damages.
The Users acknowledge and accept that any ART and/or GRT and associated monetary rights in connection to the Sales Agreement are contractual rights and exist and are charged independently from all and any rights the Artist may have under applicable artist royalties’ laws.
The Users agree and acknowledge that Arcual has no influence on applicable artist royalties’ laws and therefore bears no responsibility and liability for any obligations, claims and disputes arising out of, in relation to, or in connection with applicable artist royalties’ laws.
All Users represent and warrant to Arcual that
By confirming the existence of a Consignment Agreement, the Gallery and the Artist represent and warrant to the Users and to Arcual that:
By using the Platform, the Users agree to exclusively use the Platform for all sales of Artworks. Accordingly, the Users agree and acknowledge that they will neither consign the Artwork, sell the Artwork, nor transfer the COA-Token or ownership in the Artwork outside of the Platform.
If a User breaches the obligations in accordance with para 42, the User is obliged to pay a contractual penalty to the Artist equal to the amount of 100 % of the Purchase Price of the Primary Sale.
The payment of the contractual penalty according to para 43 does not discharge the User from the performance of the obligations in accordance with para 42 of this Agreement and from the payment of any further, additional or other damages to the Artist, Gallery or Arcual or the contractual penalty to the Gallery or Arcual in accordance with para 45 and 46.
If a User breaches the obligations in accordance with para 42, the User is obliged to pay a contractual penalty to the Gallery equal to the amount of 25 % of the Purchase Price of the Primary Sale.
The payment of the contractual penalty according to para 45 does not discharge the User from the performance of the obligations in accordance with para 42 of this Agreement and from the payment of any further, additional or other damages to the Artist, Gallery or Arcual or the contractual penalty to the Artist or Arcual in accordance with para 43 and 46.
If a User breaches the obligations in accordance with para 42, the User is obliged to pay a contractual penalty to the Arcual equal to the amount of 5 % of the Purchase Price of the Primary Sale.
The payment of the contractual penalty according to para 46 does not discharge the User from the performance of the obligations in accordance with para 42 of this Agreement and from the payment of any further, additional or other damages to the Artist, Gallery or Arcual or the contractual penalty to the Artist or the Gallery in accordance with para 43 and 45.
The payment of the contractual penalty according to para 45 or 43 does not discharge the User from the performance of the obligations in accordance with para 42 of this Agreement and from the payment of any further, additional or other damages to Arcual, the Artist and/or the Gallery.
All taxes (including VAT, if any), charges, levies, other fees of any kind imposed on the receipt or import of Artworks shall be the solely responsibility of the Users. Arcual does not provide any tax advice to its Users and shall not bear any responsibility in connection to payment and/or collection of taxes. The Users agree to hold in this regard Arcual harmless against any tax claims of any party.
Any dealings, use of the Platform Services, or sale of Artworks linked directly or indirectly with Prohibited Jurisdictions is prohibited.
Users in breach of para 48 will be excluded from the Platform.
The liability of Arcual is limited to acts of intent and gross negligence and direct damages. Any liability for indirect damage or consequential damage including loss of profit is excluded. In particular, Arcual shall not be liable for damages resulting from Sales, COA-Token Transfer failure, or for any conduct of Payment Service Provider or any other third parties.
Arcual is furthermore not responsible for any conduct of the Users. Arcual can in particular not guarantee to the Users that Users will always use the Platform for Sales, for generating certificates of authenticity, and for transfer of ownership in the Artwork. Thus, Arcual shall not be liable for any damages (including loss of profits) which result from, including but not limited to, ales, other certificates of authenticity than the COA-Token, and transfers of ownership in the Artwork outside the Platform.
Arcual does not verify whether the statements and/or information provided by the Users are accurate and true. Accordingly, Arcual shall have no liability resulting out of inaccurate statements and/or information provided by the Users.
Arcual cannot guarantee that the Website and the Platform’s Services may be available all the time. The Website and the Platform’s Services may be unavailable for various reasons, including routine maintenance. The User accepts that due to circumstances within or outside the control of Arcual the use of the Platform’s Service may be interrupted, suspended or terminated. Arcual expressly excludes any liability for damages due to such circumstances.
Arcual shall be liable for the acts or omissions of their subcontractors in the same way as for itself.
The Users accept and acknowledge:
The User shall defend, indemnify and hold Arcual harmless from and against any and all third party liabilities, claims, suits, and expenses arising out of or in any way attributable to or resulting out of the usage of the services of Payment Service Provider and/or KYC Service Provider, breaches of the terms of service of Payment Service Provider and/or KYC Service Provider by the User or any third party. In particular, the User shall hold Arcual harmless of any claims associated with any inaccurate or incomplete information provided to Payment Service Provider and/or KYC Service Provider.
In addition, the Users shall defend, indemnify and hold Arcual harmless from and against any and all third party liabilities, claims, suits, and expenses arising out of a breach of payment and/or collection of taxes out of the Sale of Artworks, and the breach of Exclusivity Right as defined in Section 13.
User accepts that any and all rights (including copyrights, design rights and/or other intellectual property rights) of Arcual (in particular but not exclusively in the Arcual Website and the Arcual Services) shall remain in the sole property of Arcual. Arcual does not assign any right, title and interest in any and all work results created or developed by Arcual under this Agreement, including, but without limitation, all patents, copyrights, trade secrets and other proprietary rights.
These Terms shall be governed by and construed in accordance with Swiss law, excluding the Swiss conflict of law rules. The application of the United Nations Convention for Contracts for the International Sale of Goods (CISG) is hereby expressly excluded. In the event that the User is a consumer with its residence in a member state of the European Union, Swiss law shall apply to the extent that the application of Swiss law is not in conflict with mandatory rules more favourable and applicable to consumers in the member state in which the place of residence is located. Such rules shall remain unaffected.
Any dispute, controversy, or claim arising out of, or in relation to, these Terms including regarding the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in force on the date on which the Notice of Arbitration is submitted in accordance with those Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Zurich, Switzerland. The arbitral proceedings shall be conducted in English. The Expedited Procedure shall not apply.
These Terms do not create a principal or agent, employer or employee partnership, joint venture, or any other relationship except that of independent contractors between the Parties. Nothing contained herein shall be construed to create or imply a joint venture, principal and agent, employer or employee, partnership, or any other relationship except that of independent contractors between the parties, and neither party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other in connection with the performance hereunder.
Neither Party shall have the right to assign or transfer these rights and obligations under these Terms, in full or in part, to any third party without the prior written and express consent of the other Party. The Parties agree that any assignment or transfer in violation of this Section shall be null and void.
Arcual shall be entitled to use subcontractors to perform the obligations under these Terms.
Arcual reserves the right to change these Terms at any time, effective immediately upon accepted by the User upon the next login to the User Account.
The contract text will not be stored by Arcual after the registration in a manner such that it can be accessed by the User. These Terms contain the entire agreement between Arcual and User regarding the use of the Platform and supersedes all understandings and agreements whether written or oral.
The contractual language between the parties is English. No other languages are currently available for the conclusion of the Terms.
If any provision of these Terms should be invalid in any jurisdiction under applicable law, the legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. In such an event, the Parties commit themselves to compose a legally valid replacement rule which approaches the invalid provision as closely as possible within the economic intent of this Agreement. With this in mind, these Terms will be interpreted as though the invalid clause had been omitted from the outset.
If any Party waives the enforcement or exercise of its contractual right in a particular case, this may not be considered a general waiver of the respective right or any other contractual right or the exercise and enforcement thereof.
A consumer is any natural person who concludes a legal transaction for purposes which cannot predominantly be attributed either to their commercial or self-employed activities. If the User is a consumer domiciled in a member state of the European Union, the following provisions apply.
Arcual is obligated to make consumers aware of the European online platform for the out-of-court resolution of disputes which arise between vendors and purchasers in connection with, amongst other things, online purchase contracts. The European ODR platform is available at the following link: http://ec.europa.eu/consumers/odr.
Arcual´s email address is: email@example.com.
Actual is neither obligated nor willing to participate in a dispute resolution procedure before a consumer conciliation body.