Bluethumb Membership Agreement

 

OUR SERVICE 

Bluethumb acts as a service provider for Artists looking to sell their artwork, and those individuals interested in purchasing artwork, through an online gallery. At this point in time, Bluethumb only services the Australian community. This site is operated by Bluethumb, whose operations are based in the state of Queensland, Australia.

INTRODUCTION

Before you may become a member of the Bluethumb website you must read, agree with and accept all of the Terms and Conditions contained in this Membership Agreement and Bluethumb's policies, including its Privacy and Security PolicyShipping Policy, and Refunds and Returns Policy. These policies change from time to time, and you agree that they form part of this Membership Agreement.

Bluethumb reserves the right, at its absolute discretion, to change or modify all or any part of this Membership Agreement at any time, effective immediately upon publishing on the website (www.bluethumb.com.au). Your continued use of the membership sections of the Bluethumb website after such notice constitutes your binding acceptance of the terms and conditions in this Membership Agreement, including any changes or modifications made by Bluethumb. If at any time the terms and conditions of this Membership Agreement are no longer acceptable to you, you should immediately cease use of the membership sections of the Bluethumb website.

Each time you use our services you confirm your agreement to be bound by and acknowledge any changes to the Membership Agreement, including all policies. You must familiarise yourself with and comply with the policies relevant to your use of the Bluethumb website and the services provided under this Membership Agreement (as may be amended from time to time).

If you do not agree to accept and abide by this Membership Agreement, you should not access or use the membership sections of the Bluethumb website. In the event of any inconsistency between this Membership Agreement and the Terms and Conditions of Use, the terms of this Membership Agreement shall govern.

This Membership Agreement is separated into three sections:

Definitions
Terms & Conditions of Agreement
Contact & Acknowledgement


DEFINITIONS

Artist Artist is defined as the person who created the original artwork, has the right to sell the artwork, and is selling the artwork via the Bluethumb website.
Purchaser Purchaser is defined as the person who has made a purchase on the Bluethumb website through an online payment.
Member Member is defined as any person who has created an account on the Bluethumb website, whether they are an Artist or a Purchaser.
User User is defined as any person, member or not, who browses or uses the Bluethumb website for any purpose.
Content Content is defined as data, text, images, user names, graphics, photos, paintings, drawings, artworks, profiles or links or any other information whatsoever that is posted by Bluethumb or a member of the website.
Artwork Artwork is defined as any piece of original work that is offered for sale on, or sold via the website.
Copyright Copyright protects the original expression of ideas, not the ideas themselves. It is free and automatically safeguards your original works of art from copying and certain other uses. For more information refer http://www.ipaustralia.gov.au/ip/copyright.shtml or the Copyright Act 1968.
Original Original is defined as a primary and original work, as opposed to any copy, reproduction or imitation. Copies and reproductions are not considered original for the purposes of these terms and conditions. Prints (photography and electronically altered works must be approved by Bluethumb before listing) must be limited editions, numbered and signed by the artist. Copyright must belong to the creator of an artwork in order for it to be considered original.
ICIP Rights ICIP Rights refer to Indigenous peoples' rights to their cultural heritage, which includes songs, music, dances, stories, ceremonies, symbols, languages and designs.



TERMS & CONDITIONS OF AGREEMENT

Service Region: Bluethumb services and ships to the Australian community only. Artworks posted, or purchases made from other countries will not be accepted.
Governing Law: This agreement is governed by the laws of Queensland and the parties submit to the jurisdiction of the courts of that State.
Age and Responsibility: The user represents and warrants that they are of sufficient legal age to use the Bluethumb website and to create binding legal obligations for any liability they may incur as a result of the use of the Bluethumb website. The user agrees to be responsible for all of their use of the Bluethumb website (as well as for use of their username and password(s) by others, including without limitation, minors living with them). The user agrees to supervise all usage by minors of the website under their name or account. The user agrees that they reside in Australia.
Personal Information: All members must always provide and maintain valid and complete contact details, including name, billing and delivery addresses, contact information and a valid email address.

The Artist is responsible for ensuring that their bank account details or Pay-to and address details (where paid by cheque) remain current in their Bluethumb account, so that payment can be processed to them on the sale of their work.
Password: All members agree that they will not disclose their password to any other party, and will ensure that their password is safe and protected. Bluethumb does not take responsibility for any loss caused by the misuse of accounts due to password sharing or inappropriate storage of passwords.
Unauthorised Use: The Bluethumb website must not be used for any illegal or un-authorised purpose. The Bluethumb website must not be hacked and/or any adaptations made to any aspect of the website. Posting of advertisements or links to any other websites, including but not limited to social networking sites, is not allowed without express written permission from Bluethumb.
Acceptable Content: Bluethumb aims to promote hand-made, original artworks and only allows digitised or electronically produced mediums, such as photographs or other works created and/or modified by computer, on a discretionary basis.

The member posting an artwork for sale must be the Artist that created the artwork, must retain full and sole copyright of the artwork and the artwork must be an original.

The Artist will be liable for all administrative costs and refunds to Purchasers and related suppliers, and may face legal action should they post works that are not completely original and created by themselves.

Artworks may include drawings, watercolours, paintings, mixed media, ink works, etc.

Photography, sculptures, textiles, craft, jewellery, glassworks and electronically produced works are generally not accepted, but may be at the discretion of Bluethumb. Contact us if your art fall in these categories.

Artworks must be pictured and sold unframed.

Artworks must be unique or sold as one in a series of limited edition artworks and clearly titled so (eg. "My Artwork ed. 2 of 10").
Unacceptable Content: Users posting content on the Bluethumb site must not infringe any copyright and/or intellectual property rights of any person, entity, organisation, trademark or other. Users must not misrepresent content, including artwork for sale, in the picturing and description of that content.

Bluethumb does not accept content that is obscene in any way, pornographic, indecent, inflammatory, defamatory or racist to any person or group of people. Artistic nudes are accepted at the discretion of Bluethumb.

The content posted on the Bluethumb website must not be fraudulent or illegal in any manner nor contain viruses, Trojan horses, worms, or any other programming that may interfere, disrupt or corrupt the smooth operations of the entire Bluethumb website, including all databases.

Bluethumb encourages all users to the site to report any inappropriate content through the "Report this Content" link provided beside each artwork, or via the Contact Us page. Bluethumb will not manually screen all postings and therefore welcomes the assistance from the Bluethumb community where possible.

Bluethumb has the right, but has no obligation to, remove any content posted at its absolute discretion. Bluethumb does not condone the posting of inappropriate content and makes a concerted effort to remove such content as soon as possible.

Any unlawful, misrepresented or offensive content posted on the website is the sole responsibility of the user/member that posts such content.

Users of the site understand that exposure to inappropriate content may occur and browsing of the website is at the user's own risk.
Resale Royalty Rights Scheme: Bluethumb will provide the collecting organisation nominated by the Australian Government any necessary information required under the Resale Royalty Rights Scheme for all applicable sales of artwork made via the Bluethumb website.
ICIP Rights: If the Artist intends to sell and therefore post an artwork that incorporates, is sourced from or refers to Indigenous objects, knowledge or works, ICIP Rights should be considered. Permission should be obtained from the traditional owners of the Indigenous heritage before using Indigenous objects, knowledge or works. The traditional owners should be consulted on how the community should be attributed, and given the opportunity to approve the way in which the content is used.
License to Reproduce: By posting an artwork on the Bluethumb website, the Artist gives Bluethumb license to use the image of the artwork throughout the Bluethumb website wherever Bluethumb deems fit.
Agency: For taxation purposes only, Bluethumb acts purely as an agent to the Artist to facilitate the sale of artworks via the Bluethumb website.

The Artist's relationship with Bluethumb is that of principal and agent for taxation purposes. Neither the Artist nor Bluethumb has (nor may it represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other's name.

Nothing stated in this Agreement must be construed as constituting the Artist and Bluethumb as partners, or as involved in a joint venture, or as creating the relationship of employer and employee, franchiser and franchisee, or master and servant between the parties.
Exclusivity: Bluethumb does not demand exclusivity in the sale of an artwork. The Artist may attempt to sell their work via other means, however should an artwork be sold via other such means, the artist must remove the artwork from the Bluethumb website within 24 hours.
Guarantee to Supply: Where the duplicate sale of an artwork occurs (e.g. sold via Bluethumb's website at the same time as sold via other means), the Artist must either provide proof that the sale via other means was made at an earlier time, or supply the sold artwork to the Bluethumb Purchaser.

In all cases of a sold Artwork, the Artist guarantees to supply the exact artwork pictured and posted on the Bluethumb website.

The Artist will be liable for all administrative costs and refunds to Purchasers and related suppliers, and may face legal action should they not supply the exact artwork pictured and posted on the Bluethumb website.
Prices: All prices shown on the Bluethumb website are in Australian Dollars ($AUD). Prices are fixed and not negotiable. GST will be shown during the checkout/payment process, where relevant.

Prices of artworks shown on the Bluethumb website are set at the sole discretion of the Artist. Bluethumb will not discount or mark-up or have any control over the valuation of any Artist's artwork.
Taxation & GST: If the Artist is selling artworks as a registered business in Australia, the Artist will notify Bluethumb as to whether they are registered for GST during the sign-up process. The Artist will provide their ABN (Australian Business Number) and company name. Should these details change, or the Artist ceases to be registered, the Artist must update their account details to reflect the same.

The Artist is responsible for ensuring their record keeping and taxation responsibilities are met. Bluethumb takes no responsibility for the recordkeeping of the Artist. Bluethumb will ensure that a copy of any invoices issued on the Artist's behalf will also be sent to the Artist.

Any Artist registered for GST is responsible for notifying the Australian Taxation Office of the GST made on sales of their artworks. Bluethumb indemnifies the GST registered Artist for any liability for GST and penalty that may arise from an understatement by Bluethumb, on an invoice it issues, of the GST payable on any of the purchases.
Cancellation of Order: Bluethumb may cancel orders at any time if it is believed that the Purchaser or the Artist is in breach of this agreement or any other governing law.

Orders placed on the Bluethumb website cannot be cancelled at any time by the Purchaser or the Artist.
Third Party Invoicing: Bluethumb will invoice the Purchaser of an artwork on behalf of the Artist in all cases. The Artist must not issue a further invoice to the Purchaser.

Bluethumb will charge GST to the Purchaser only when the Artist is registered for GST and has notified Bluethumb of the same.
Packaging Artwork: The Artist agrees to package the artwork in a way that ensures damage which could otherwise be avoided during transit, does not occur. If the artwork is sold, but damaged prior to shipping, this information must be made immediately available to Bluethumb as the sale may be cancelled.

The Artist is responsible for any damage that occurs to their artwork prior to shipping.
Delivery of Sold Work: Bluethumb accepts no responsibility for the delivery process between Artist and Purchaser.

The freight provider will be chosen automatically online. The Purchaser and Artist are not able to change the freight provider.

The Artist must book the pickup of their sold artwork within five (5) business days of the artwork being sold. If the Artist books pickup of their sold artwork after five (5) business days, the Artist will be liable for any extra freight charges incurred by Bluethumb. These extra charges will be added to Bluethumb's commission.

The Artist understands that they will not receive payment for their artwork until the freight provider gives Bluethumb confirmation that the artwork has been picked up by their courier and a notice period has passed for the Purchaser to claim a refund.
Payment to Artist: Payment to the Artist on sale of their artwork will be made by Bluethumb within eight (8) business days of the artwork being delivered to the Purchaser. Bluethumb makes every effort to pay the Artist earlier where conditions of delivery are met (refer "Delivery of Sold Work" and Refunds and Returns Policy).

Bluethumb will pay the Artist all monies collected, including GST where relevant, less a commission fee as defined by the Artist's membership option (refer "Membership"), and less any extra delivery charges incurred due to shipping after five (5) business days since sale (refer "Delivery of Sold Work").

If a refund claim is made by the Purchaser, and accepted by Bluethumb, the Artist will not be paid for the sale of the artwork. The artwork will be returned to the Artist. The Artist will be liable for freight and administrative costs associated with the original delivery and return of the artwork. A commission will not be applied to refunded and returned artworks. Please refer to the Refunds and Returns Policy for full detail.
Insurance: Insurance of an artwork post-sale is the responsibility of the Purchaser. Bluethumb accepts no responsibility for any loss caused at any stage of purchase (including delivery) of the artworks sold on the Bluethumb website.

Bluethumb recommends that all Purchasers insure their artwork to cover for potential risks of loss, damage or destruction of the artwork in transit. Insurance options are made available through the purchasing process of the website.
Trademark: The Bluethumb logo is trademarked. Use of the Bluethumb logo is not authorised without express written permission from Bluethumb.
Copyright: All content on the Bluethumb website are copyright of either Bluethumb or the Artist. Content must not be downloaded or used without express written permission from Bluethumb, or the Artist where the content is their own work.

The Artist retains all copyright for physical artworks (which includes reproduction rights) even when the physical property is transferred to the Purchaser. If the Purchaser wishes to reproduce the Work, this must be separately negotiated with the Artist.
Refusal & Termination of Service: Bluethumb reserves the right to refuse service to anyone at any time and at its absolute discretion. Bluethumb reserves the right to modify, terminate or suspend member accounts, at any time, at its discretion, and without prior notice.

Bluethumb may terminate member accounts that have been completely inactive for an extended period of time, as reasonably determined by Bluethumb.

The Artist or Purchaser understands that they may remove their account at any time and that doing so will remove all user-associated content from throughout the entire website.

Bluethumb reserves the right to terminate the Bluethumb service at any time and at its absolute discretion without prior notice. In the unlikely event of this occurring, Bluethumb will make every reasonable effort to close out existing sales, in which case the Artist will continue to be paid as per normal, and will follow through to ensure Purchasers receive purchased artworks.

This agreement will terminate automatically should the service be terminated. This agreement will terminate if the member commits a breach or is in default of any warranty of this Agreement.

Upon termination, any rights granted by the Artist to Bluethumb under this agreement immediately revert to the Artist.
Warranties: Bluethumb offers an "as is" service. Bluethumb does not supply any warranties in relation to content represented on the Bluethumb website.
Disputes & Release: Bluethumb is released from any claims arising from disputes between users and members of the website, including disputes between Artists and Purchasers, between Artists and Artists, and between Purchasers and Purchasers.
Liability: The user assumes all responsibility and risk for use of the Bluethumb website including and without limitation any of the content or information contained therein. Bluethumb accepts no liability for any failure to comply with this agreement where such failure is due to circumstances beyond its reasonable control.

If Bluethumb waives any rights available to it under this agreement on one occasion, this does not mean that those rights will automatically be waived on any other occasion.

If any of the terms of this agreement are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
Disclaimer: Bluethumb does not represent or guarantee that the Bluethumb service or the Bluethumb website, or any other website that is accessible using a hyperlink from this website will be current, or free from errors or viruses. Bluethumb does not represent or guarantee that access to the Bluethumb service or these websites will be uninterrupted.

The user acknowledges that the Bluethumb service or the Bluethumb website may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including but not limited to technical difficulties with the performance or operation of Bluethumb's or another person's software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures.

Bluethumb does not warrant that any members' uploads to this website will be protected against loss, or misuse or alteration by third parties. Bluethumb does not warrant that all uploaded content will be available on our website. If Bluethumb elects in its sole discretion to make available content on its website, it does not warrant that it will be available within a certain time frame.

It is the responsibility of the user to ensure that they are not exposed to viruses, Trojan horses or any other code of a destructive nature.

Bluethumb does not accept responsibility for any loss or damage, however caused (including through negligence), that users may directly or indirectly suffer in connection with their use of this website or any linked website, nor does it accept any responsibility for any such loss arising out of a user's use of or reliance on information contained on or accessed through this website.

To the extent permitted by law, any condition or warranty that would otherwise be implied into the terms and conditions of this Membership Agreement is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following:
  1. if the breach relates to goods:
    • the supply of equivalent goods;
    • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    • the payment of the cost of having the goods repaired; and
  2. if the breach relates to services:
    • the supplying of the services again; or
    • the payment of the cost of having the services supplied again
This disclaimer does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.



CONTACT & ACKNOWLEDGEMENT

Contact: If you have concerns relating to the Bluethumb website or this Membership Agreement, please contact Bluethumb via any of the following means:
 
Email: [email protected]
Phone: +61 (0)413 272820
Post: Unit 19/2A Church St NSW 2047
Australia
Acknowledgement: You acknowledge that you have read this Membership Agreement, understand it, and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between you and Bluethumb, which supersedes any proposal or prior agreement, oral or written, and any other communication between you and Bluethumb relating to the subject of this Membership Agreement.