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Terms of Service

Version February 1, 2017
Note: Our legally binding Terms of Service text is in German and can be found at https://wrklst.art/terms-and-conditions/. This english version is merely for the purpose of information.

1. Scope

1.1 These terms and conditions shall apply to contracts between the WL Artworld Solutions UG (haftungsbeschränkt), a limited liability company established and registered under the laws of Germany (in the following called “WrkLst”), and a user (“User”) about the use of the WrkLst online art market platform and database software (the “WrkLst Service”) as provided by WrkLst.

1.2 Conflicting or deviating terms and conditions of the User shall not be part of the contract and will not be acknowledged, unless WrkLst expressly agrees to the applicability of such. This shall apply even if WrkLst performs its services without any reservations despite being aware of the conflicting or deviating terms and conditions of the User.

1.3 The WrkLst Service is meant to be used specifically by Users who are entrepreneurs and use it for business transactions. It is not intended to be used by consumers. An entrepreneur in the context of the preceding sentences means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (“Entrepreneur”). A consumer means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession (“Consumer”).

2. Provider and Contractual Partner

The WrkLst Service is provided by the following company:

WL Artworld Solutions UG (haftungsbeschränkt)
Herrfurthstrasse 12
12049 Berlin
Germany

phone: +49 (0)30-120 860 92
email: info@wrklst.art
web : https://wrklst.art

A limited liability company established and registered under the laws of Germany. Registered with the company registry (Handelsregister) at Amtsgericht Charlottenburg,
HRB 181926 B.
VAT ID number: DE309612366
Director (Geschäftsführer): Mr. Tobias Vielmetter-Diekmann

3. Subject Matter of the Agreement: Description of the WrkLst Software and Service

3.1 Essentials: WrkLst provides an online platform and personalized database which allows Users to keep track of their artwork inventory and contacts and any additional information relating to the sale and purchase of works of art and the management of art collections. In this regard, it is designed to meet the needs of artists, galleries, consultants and collectors, as well as artwork-based publishing and exhibition projects.

3.2 Personalized User Accounts: Users may set up a personalized account and upload, manage and edit data, information and images relating to their artwork. WrkLst does not provide any particular content of its own.

3.3 Functionality: The WrkLst Service software is a database software for asset tracking of artwork and contacts linked to this artwork such as for example authorship (artist), exhibitions (curator, location), consignments, shipping, offers, reservations, sales (collectors/collections). For a detailed description of the WrkLst Service and software functionality see the separate WrkLst product specifications https://wrklst.art/features/.

3.4 Hosting: The WrkLst Service is hosted and the data is stored on servers provided by a third party data center or server farm provider such as for example Google Cloud Services or Amazon Web Services or similar, as the case may be.

3.5 Access: The User may access the WrkLst Service online using modern browser software, which may require periodic updates, and a compatible end user device with (mobile) Internet access. For a detailed description of the technical requirements for using and accessing the WrkLst Service and software see the separate WrkLst technical specifications https://wrklst.art/requirements/. Users are responsible for creating the technical requirements to access the WrkLst Service and keeping them up-to-date and secure. The User’s access to the Internet is not part of the scope of the WrkLst Service.

3.6 Changes and further development of the WrkLst Service: WrkLst may modify and adapt the content of the WrkLst Service including the WrkLst software, especially in the case of technological progress, provided that this does not impair the contractually agreed functionality. WrkLst will inform the customer of such changes appropriately in advance. The general terms of termination apply.

4. Registration and User Account, Conclusion of Contract, Right of Withdrawal for Consumers

4.1 User Account: In order to use the Services, Users need to register and set up a user account. In the process they need to confirm that they are an Entrepreneur. Consumers may not set up a user account.

4.2 Registration: To set up a user account, Users need to state truthfully and correctly their name, contact data including address, the name of a contact person, if applicable, credit card information for the purpose of payments, and a valid email address, and also select a password.

4.3 Update of User contact data: Insofar as the User’s data as listed above in section 4.1 changes after registration the User shall update the account without delay.

4.4 Conclusion of Contract: Step-by-step description of how a binding contract with WrkLst regarding the Service is concluded:

a) The presentation of the Service on the WrkLst website as such shall not constitute a binding offer by WrkLst to the User but is intended merely as an invitation to treat (invitation to bargain), similar to a non-binding display in a catalogue.

b) By registering Users submit a binding offer for the conclusion of a contract to use the Services to WrkLst, subject to these terms and conditions.

c) By accepting the first login and providing its service, WrkLst accepts the Users’ offers to conclude a contract regarding the WrkLst Service. Thus, a legally binding agreement with WrkLst shall become effective at the moment that WrkLst actually takes up the Service for the User.

d) WrkLst reserves the right to refuse the User’s offer until and/or unless WrkLst accepts the above actions and accordingly provides access to the Service.

4.5 Right of Withdrawal for Consumers: If Users qualify as Consumers under applicable law (cf. section 1.3, notwithstanding the restrictions set forth in section 4.1) they may exercise their statutory right of withdrawal from this contract (please refer to section 24 below for details).

5. User Account and Login Data Security

5.1 Users must protect the login data and all passwords against unauthorized access. If Users suspect or become aware that the password has become known to a third party they are advised to change their password. Users are solely responsible for maintaining the confidentiality and security of the user account from the user side, and for all activities that occur on or through their user account. Users must protect the login data and all passwords against unauthorized access. Users shall inform WrkLst without delay when they become aware of a third party accessing or manipulating their User account and the related content without authorization.

5.2 Users are not allowed to use the login data of other Users without prior consent or share their login data with other users or third parties.

5.3 Transfer of the user account from Users to third parties is prohibited without the express consent of WrkLst.

6. User License

6.1 For the term of this contract, WrkLst grants to User a restricted, non-exclusive, non-transferable, non-sub–licensable, and revocable right of use in the WrkLst Service and software insofar and to the extent necessary to enable the agreed use of the WrkLst Service.

6.2 The User is not permitted to copy (except as expressly permitted by this agreement), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the WkLst Service software, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by this agreement).
If the User is located in the European Union, sentence 1 shall not limit the User’s mandatory rights of use according to Art. 6 of the EU directive 2009/24/EC and the applicable national legislation, in particular the right use the App and the Service in a way and to the extent necessary to obtain the information necessary to achieve the interoperability of an independently created computer program.

7. Territory where the Service is available

7.1 In principle, the WrkLst Service is offered world-wide, without geographical limitations, however subject to the User being technically able to establish a (mobile) internet connection with the WrkLst Service’s servers. This means that whether it is accessible to the User at all times and at the User’s location may depend on technical circumstances for which WrkLst is not responsible, namely the User’s (mobile) internet connection.

8. Remuneration and Payment Terms

8.1 In consideration for using the WrkLst Service the User shall pay a remuneration to WkrLst.

8.2 Unless otherwise agreed, the pricing structure will reflect the following factors, regarding the individual User Account:

i. monthly prices;

ii. number of records: The number of contacts and artworks stored in the system (managed editions are grouped and each count as one record);

iii. storage space used by documents and image files;

iv. number of users: how many active User Accounts have access to the WrkLst Service

8.3 The applicable detailed prices are set forth in the separate price and fee schedule https://wrklst.art/pricing/.

8.4 All pricing information is quoted net and excludes VAT.

8.5 If a User requires an account with storage space exceeding a certain maximum (at this time either managing more than 50.000 contacts and artworks or more than 30 users or more than 800 GB storage space the details and prices must be agreed on separately and individually.

8.6 Payment method: Unless otherwise agreed, payments shall be made on a monthly basis in advance online by credit card via the third party payment service provider Stripe (https://stripe.com/de) which is integrated in the WrkLst Service.

8.7 Extra payment for extra services: For extra services beyond the scope of the WrkLst Service as described in these Terms and Conditions WrkLst may charge a fee on an hourly basis.

8.8 Any and all costs and expenses regarding the internet connection charged by telecom providers or other vendors shall be solely borne by the User.

8.9 WrkLst reserves the right to issue electronic invoices pursuant to section 14 subsection 1 of the German Value Added Tax Act (UStG). The User agrees that he may receive the invoice in electronic form, and hereby declares his consent in this regard.

9. Right of retention

9.1 In the case of an outstanding payment by a more than insignificant amount, WrkLst may temporarily suspend performance of the service until the payment has been made in full.

10. Availability of Service and Warranty

10.1 The Service may have the available capacity of 98% of access for Users on average per month within the framework of the technical and operational conditions. Disruption arising outside the operations of WrkLst, such as severe weather or faults and failures of the internet or mobile networks, is excluded from this calculation of availability. During a beta test phase, if applicable, lower availability is possible.

10.2 WrkLst nevertheless strives to provide access to the Service for all Users 24 hours a day, 7 days a week. Temporary operational interruptions due to standard maintenance and inherent disruptions of the internet due to third party providers or third party network operators as well as instances of force majeure are possible. Accordingly, no continuous access to the Service is warranted to the User.

10.3 With regard to mobile phones and the internet error free performance is not warranted. In particular, WrkLst is not liable for the continuous availability of its technical system, nor for the completeness, accuracy or up to date nature of the information made available to the User by himself or other Users or visitors or members of the public for errors in the transmission of data.

10.3 With regard to mobile phones and the internet error free performance is not warranted. In particular, WrkLst is not liable for the continuous availability of its technical system, nor for the completeness, accuracy or up to date nature of the information made available to the User by himself or other Users or visitors or members of the public for errors in the transmission of data.

10.4 Regarding warranty, the general statutory provisions shall apply.

10.5 The parties agree that insofar as the providing of the Service can be considered a lease contract under German civil law, WrkLst shall not be liable according to section 536a subsection 1 of the German Civil Code, and this statutory provision shall not be applicable (meaning: no warranty without culpability for defects present from the outset).

11. Limitation of Liability

11.1 WrkLst shall be liable according to statutory law for damages suffered by User that were caused by intentional or grossly negligent behavior on the part of WrkLst or its vicarious agents (Erfüllungsgehilfen); and for personal injury; and for damages under the German Product Liability Act (Produkthaftungsgesetz).

11.2 In all other cases, WrkLst’s liability for damages – regardless of the legal grounds on which a claim is based – shall be limited as set out below unless WrkLst has accepted a guarantee which states otherwise:

a) WrkLst shall only be liable for damages caused by slight negligence to the extent that such damages result from breach of essential contractual obligations (cardinal duties, Kardinalpflichten), i. e. such obligations whose fulfilment is a prerequisite for properly fulfilling the Agreement and in which User may normally trust. Insofar as WrkLst is liable for slight negligence, WrkLst’s liability shall be limited to the typically foreseeable damage.

b) Cap on Liability in the cases of subsection a) above: The parties agree that the typically foreseeable damage will not be higher than 50% of the amount that the User has paid, or is obliged to pay, under this Agreement, for the contractual Services concerned by the damaging event, within the 12-month period immediately preceding the damaging event (or, in case of a linked chain of damaging events, the first one of these), and that, therefore, the maximum liability in cases of slight negligence, insofar as WrkLst is liable under this Agreement at all, is limited accordingly.

c) WrkLst’s liability for slightly negligent loss of data and/or software programs shall be limited to the typical recovery costs that would have been accrued if Customer had made regular backup copies as required in the circumstances.

d) WrkLst’s liability for damage resulting from delays which are attributable to slight negligence shall be limited to the typically foreseeable damage, but shall not in any event exceed a maximum of 5% of the total price agreed for the affected Agreement.

11.3 The above provisions shall apply to a limitation of the obligation to indemnify the Customer for futile expenses (section 284 German Civil Code).

11.4 The above limitations of liability shall also apply in favour of WrkLst’s vicarious agents as well.

12. Responsibility for Content, Data and/or Information of Users

12.1 WrkLst assumes no responsibility for data, information, or content provided or uploaded or linked by Users. In particular WrkLst does not warrant that such data, information, or content is true, or up-to-date, or complete, or does or does not serve a specific purpose.

13. Indemnification by User

13.1 The User shall indemnify and hold harmless WrkLst from any and all actions, judgements, proceedings, liabilities, losses, cost, expenses, damages, claims or demands (including without limitation court costs and reasonable legal fees), made by any third party or incurred or suffered by WrkLst arising out of or in connection with the Customer’s breach of this Agreement or that third parties may assert against WrkLst on the grounds that data, information, or content provided or uploaded or linked by the User onto his User Accounts or otherwise onto the WrkLst Service infringe upon third party rights or are otherwise illegal.

13.2 Any further rights and remedies of WrkLst in such cases are reserved.

13.3 The preceding obligations of the User do not apply if the User is not responsible for the breach or infringement.

14. Suspension from the Service and other legal consequences of violations by Users

14.1 Without prejudice to any other legal or contractual rights, WrkLst can partially or completely exclude Users who breach laws, third party rights, or the terms and conditions of this Agreement in a more than merely insignificant manner, from individual parts or functions or the entire further use of the WrkLst Service, temporarily or permanently, without liability, unless the User is not responsible for the infringement. WrkLst may also temporarily or permanently block such User to access to the Service. The User who has been blocked or excluded is not permitted to re–register or use the Service without the prior consent of WrkLst. The right to terminate for cause, if any, remains unaffected.

15. General obligations regarding presented Artwork and User Content

15.1 The User shall make certain that his presentation of his artwork through the WrkLst Service as such will not constitute a binding offer by him to any interested third party but is intended merely as an invitation to treat (invitation to bargain), similar to a non-binding display in a catalogue.

15.2 Regarding his use of the WrkLst Service and his User Account in general, the User hereby agrees and acknowledges

a) to only make public such information or content within the WrkLst Service as is permitted to be made available to the public including via the Internet that do not breach the rights of third parties;

b) to comply with applicable laws and all rights of third parties when using the WrkLst Service;

c) not to make public such information or upload content, if applicable, that is racist, inhuman, offensive or immoral, including what qualifies as hate speech, while using the WrkLst Service;

d) not to upload, offer or distribute any pornographic content, or to advertise, offer or distribute pornographic products or products contrary to the protection of children or minors or make public any such information;

e) not to harass other users or visitors or members of the public unreasonably (particularly with spam);

f) not to upload content protected by law (e.g. copyright, trademark, patent, or utility model or design law) or to advertise, offer or distribute goods or services without being entitled to do so;

g) not to act or promote user advertising, including progressive advertising, which is in violation of applicable laws against unfair competition and illegal advertising;

h) not to block, overwrite, modify or copy the WrkLst Service completely or in part to more than the extent necessary for the proper use of the WrkLst Service;

i) not to distribute and publish third–party user–generated content of the WrkLst Service outside of the WrkLst Service if, and as far as, this is not provided by the WrkLst Service’s features; own user–generated content may only be reproduced if it does not infringe the rights of third parties or include parts of the WrkLst Service;

j) not to act by any means which affects the functionality of the infrastructure of the WrkLst Service, in particular to overstrain it;

k) not to distribute or otherwise disseminate, or enable others to do so, viruses, Trojans, or other malware.

15.3 WrkLst reserves the right to review and monitor any content uploaded or published on the WrkLst Service or website for compliance with statutory provisions and these Terms and Conditions. WrkLst is, however, under no obligation to actually do so at any time.

16. Data Protection

16.1 The operation of the WrkLst Service is based on the User himself uploading his information, data and content and, if applicable, exchange this information, data and content with other Users or visitors or members of the public of the WrkLst Service. Each User can decide which information they would like to make available to other Users. Confidentiality of any submissions by Users to other Users or visitors or members of the public, on this third party’s part, is not guaranteed.

16.2 The User agrees that WrkLst may collect and use technical data and related information – including but not limited to technical information about the User’s device, system and application software, and peripherals – that is gathered periodically to facilitate the provision of software updates, product support, and other services to the User (if any) related to the WrkLst Service. WrkLst may use this information, as long as it is in a form that does not personally identify a particular user, to improve its products or to provide services or technologies to the User.

16.3 In addition the terms of the separate WrkLst Privacy Policy shall apply https://wrklst.art/privacy-policy/.

17. No assignment or transfer of User Account

17.1 Transfer of the User Account, if provided by WrkLst, from the User to a third party is prohibited without the express consent of WrkLst.

18. Term and Termination

18.1 The Agreement is concluded for an indefinite period. The minimum contractual period is one full month, and it will renew automatically for one additional month until terminated according to these Terms and Conditions.

18.2 Each Party may terminate the Agreement at any time to the end of the billing cycle, which is one full month after the last payment. The right to terminate for cause remains unaffected (see the following paragraph).

18.3 Either party may immediately terminate the Agreement for a compelling reason without notice. There is a compelling reason if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship for the agreed term or until the expiry of a notice period. If the compelling reason consists of a breach of a duty under the Agreement, the Agreement may be terminated only after:

a) a period specified for remedy of the breach has expired without remedy; or

b) after receipt of a warning notice without remedy of the breach.
The grace period to remedy the breach shall be thirty (30) days from the receipt of written (text form) notice thereof, unless there are special circumstances which, when the interests of both parties are taken into account, justify a shorter grace period or even an immediate termination. In addition if a party is in serious breach of the Agreement and the breaching party refuses performance, the other party may terminate immediately. The right to demand damages, if any, is not excluded by such termination.

18.4 Notice of termination may be given in text form (in writing or by email) or online (using the appropriate function in the User Account under Settings -> Subscription).

19. Export of User’s Data, Content and Information upon expiry or termination of this Agreement

19.1 At any time during the Agreement, upon expiry or termination of this Agreement the User may download the data, content and information he has uploaded and stored to his User Account. This will be held available by WrkLst for this purpose for a period of 14 calendar days after expiry or termination of this Agreement. The export will be possible in the following format: data in JSON, gzip or zip compressed, images and documents in the original format, gzip or zip compressed.

19.2 Alternative forms and formats for exporting the data from the User Account may be available on request and may require a migration into the desired format, however, unless specifically agreed, WrkLst is under no obligation to provide such service. WrkLst may charge a fee for such services on an hourly basis.

20. Modifications of these General Terms and Conditions

20.1 WrkLst may change these General Terms and Conditions at its sole discretion from time to time. In case the User has established a User Account, if applicable, WrkLst shall notify the User of such changes in text form, particularly highlighting any differences in regard to the version previously in force.

20.2 The User may object to such changes to the General Terms and Conditions according to the following provisions: The User shall direct his objection against the changes to the General Terms and Conditions (hereinafter „Modifications“) to WrkLst via email or in writing within one (1) month after reception of WrkLst’s notification concerning the Modifications. To comply with the time limit, the objection must be received by WrkLst within the time limit. If the User does not object in due form and time, the Modifications shall be deemed accepted and the modified General Terms and Conditions shall become an integral part of the contract. The WrkLst Modification notice will expressly refer to this effect and to the form and term of the objection. In the event of an objection in due form and time, the contract will remain in force in its unaltered version. In this case, WrkLst may terminate the contract for cause with a period one (1) month with a notice in text form to the User, if for WrkLst the adherence to the unmodified contract is economically or technically impossible or cannot reasonably be expected.

21. Governing Law, Place of performance, Place of Venue, no Class Actions:

21.1 Choice of Law: This Agreement and the entire contractual relationship between the Parties are subject to the laws of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

21.2 The place of performance is Berlin, Germany.

21.3 Place of Venue: In case the User is a merchant (“Kaufmann”) in terms of the German Commercial Code (HGB), or has no general place of jurisdiction inside Germany, or if the User relocates his residence or habitual abode out of the country, or if the User’s residence or habitual abode is not known at the time of institution of legal proceedings, the exclusive jurisdiction for all present and future claims from this Agreement shall be in Berlin, Germany. Mandatory provisions of the European Union Regulation (EC) No 44/2001 (Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) shall remain unaffected hereby.

21.4 No Class Actions: By agreeing to these terms and conditions, in the event of any claim the User may have arising from or related to the WrkLst Service or these General Terms and Conditions the User agrees that he hereby waives any right to participate in any type of law suit brought and/or maintained as a class action or similar in nature to a class action.

22. Language of the Agreement

22.1 This Agreement is concluded in the German language, the original text can be found at https://wrklst.art/terms-and-conditions/. This english version is merely for the purpose of information.

23. Saving and retrieving the text of the Agreement

23.1 The text of these terms and conditions is logged and stored by WrkLst. Users may store and retrieve the details and text of these terms and conditions by accessing them at any time on WrkLst’s internet homepage and websites, in the then current version. Outdated versions are not held available, however. Users may download and print this document, using the appropriate functions of their browser (typically “print file”, “save as” or similar).

24. Information on Right of Withdrawal for Consumers

If Users qualify as Consumers under applicable law (cf. section 1.3) they may exercise their statutory right of withdrawal from this contract according to the following terms:

Beginning —
Right of Withdrawal
You have the right to withdraw from the contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us
WL Artworld Solutions UG (haftungsbeschränkt)
Herrfurthstrasse 12
12049 Berlin
Germany
email: info@wrklst.art
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If following your request the services are started during the withdrawal period, you will have to pay us an appropriate compensation for the amount of services delivered until the point in time on which you inform us of the fact that you are exercising your right of withdrawal for this contract, with the compensation being proportionate to the overall value of the services covered by the contract.
— End

Beginning Model Withdrawal Form —
Model withdrawal form
Complete and return this form only if you wish to withdraw from the contract.
(*) Delete as appropriate.
To
WL Artworld Solutions UG (haftungsbeschränkt)
Herrfurthstrasse 12
12049 Berlin
Germany
email: info@wrklst.art

I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract for the provision of the following service (*),
Ordered on (*)/ received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date

— End Model Withdrawal Form