These Terms set out your rights and obligations and those of Now 2 Now Limited and its duly appointed sub-contractors and licensees ("we" "our" or "us"), in relation to www.tagsmart.com and related sites including certify.tagsmart.com (the 'Sites') and to any services, products or materials of any kind accessible or available through the Sites or directly from us (altogether the "Service").
When we refer to "Tagsmart" in these Terms, we mean us/we/our, the Sites and/or the Service, according to the context.
The basics of Tagsmart
Tagsmart provides a suite of products for the art market consisting of a digital platform with account management and content creation editing management/storage and sharing functions (the 'Platform') and associated physical products (the 'Products') including inks, stamps, adhesive security labels ('Tags') and Certificates of Authenticity ('Certificates').
The Platform includes the provision of a database of artist profiles (the 'Register'). It also includes methods for sharing artwork data via portals ('Channels') to third parties for the purposes of marketing sale or other use by those parties, subject always to the terms and conditions of those third parties ('Channel T&Cs').
Our customers ('Users') include artists, collectors, galleries and other individuals and organisations.
Users may be required to verify their identity following processes specified by Tagsmart. Tagsmart may at its sole discretion determine that a user has failed to satisfactorily complete these processes and in such cases may decline to allow such a user to continue to use Tagsmart. References to "User(s)" in the remainder of these Terms do not include those we have refused on this basis.
1. Users may
- access the Service online and create an account, providing such accurate and truthful personal and/or corporate information as may reasonably be required by Tagsmart to establish such account;
- provide materials to Tagsmart for inclusion in the Register for presentation to other users and to members of the public. Tagsmart reserves the right to edit or otherwise modify these materials and reserves any intellectual property rights arising therefrom;
- create in good faith on the Platform information records ("Artwork Records") relating to artworks or other objects ('Work(s)') that exist or shall exist in the real world, by uploading information onto the Platform following the procedures specified by us. Users warrant that all such Artwork Records faithfully represent the Works and undertake to exercise all due care and attention in uploading such information and ensuring its veracity. By uploading such Information Users acknowledge that it may be publicly accessible (for the sake of example only, when 'publishing' or 'transferring' artworks on the Platform and/or when submitting artworks to Channels);
- optionally assert by direct communication with Tagsmart their identity, expertise and reputation insofar as it may be reasonably decided by Tagsmart at the Company's sole discretion that the User may be established as an 'Authority' on the system for the verification of Artwork Records attributed to a specific artist in the Register, where 'Verification' means the declaration in good faith that all information presented by the system is accurate in respect of a physical work created by the aforementioned artist.
- if they are Authorities, record on the system either within their own account or following an invitation that of another user their Verification of works attributed to the artist(s) for which they have been established by Tagsmart as an Authority. Such Works are referred to as 'Verified Works'
- order, pay for and use the Products in good faith and strictly in accordance with instructions issued by the Company and updated from time to time and in the case of Tags apply the same to Works with diligence and care
- use the Services to issue Certificates of Authenticity in respect of Verified Works and to exercise reasonable diligence in the care and safekeeping of such Certificates. Such Certificates may be handed to bona-fide purchasers ('Collectors') of the Verified Work and may be used in the process of transferring the Verified Work to the Collector's account.
- alongside members of the public with Internet access, use the Platform to search for Artwork Records and/or artists recorded on the Register.
2. Methods of Payment
Users pay online at the time of placing their order or by separate arrangement on receipt of invoice for Products and other chargeable items or services delivered as part of the Service. In addition, and by way of variation to the provisions set out above and elsewhere in these Terms, the Company may provide separate written agreements regarding methods of payment and deferred payment and where such agreements are in place and explicitly differ from these Terms they shall prevail over any of the provisions in these Terms.
3. Suspension of Service
If at any time we are informed of or reasonably suspect a material breach by a User of these Terms and Conditions, including but not limited to fraudulent or unauthorised use, we may at our sole discretion prevent that User's continued use of Tagsmart, and prevent further access by that User to all or part of the Service. No refund of any sums paid or payable to us will be due.
Without limiting the generality of this, any user behaviour which leads us to reasonably suspect an attempted fraudulent, unauthorised or use in bad faith of Tagsmart by a User (or a person applying to be a User) will result in the relevant account being suspended. Information input by the User in reference to Works subsisting at the time when the account was suspended may continue to be searchable through the Internet. References to "User(s)" in the remainder of these Terms do not include Users whose accounts we have suspended pursuant to this clause.
4. Product Returns
Our Service and Products are personalised to the Users who use or order them. Therefore, please note that the right in law for a consumer to cancel the purchase of a service and to return a (standard) product may not apply to the purchase of Products associated with the Service (such as, without limitation, Tags and Certificates). This clause and Clause 10 shall not in any way seek to limit the statutory consumer rights of a User who has acted as a consumer, for example when a collector becomes a User following the purchase of a Tagsmart Certificate from one of our partner sites.
5. Tags and Tagging of Works
Purchases of Tagsmart Tags and Certificates are governed by our Terms of Purchase for Products at Clause 10 below. Users must ensure that (a) they only apply Tags to Works for which the User has a clear documented entitlement to do so; (b) no unauthorised person has access to the Tags and any associated stamps or other accessories (the 'Tag Products'); and (c) the Tag Products are kept securely so as to avoid inappropriate or unauthorised use. If the inappropriate or unauthorised use of the Products is known of or suspected (such as the wrongful tagging of a work), the User must contact Tagsmart at firstname.lastname@example.org, providing as much information as is reasonably requested by Tagsmart about the use in question.
6. Artwork Records
The User in whose account a Work record is stored is referred to as the "Registered Holder". Being the Registered Holder does not necessarily connote ownership of, or the right to sell, the Work; we depend upon accurate and complete information being provided by Users, and we do not independently verify that information. The types of information that may be included in an Artwork Record, the User that is empowered to change or add to the information held in an Artwork Record, and levels of security and accessibility that a User may apply to information held in an Artwork Record, may be changed by Tagsmart over time. Where Tagsmart is informed of or reasonably suspects that the Artwork Record contains incorrect or inaccurate content (such as a wrongful or substantially inaccurate entry in the Artwork Record), we may suspend – temporarily or permanently – access to the relevant part of the Artwork Record, and any other parts of it that we reasonably consider to be affected. Each User acknowledges and agrees that the information they input into the Artwork Record may be made available by the Platform for access through the internet, except where the availability of such information is explicitly open to management by the User or the Registered Holder via the Service.
7. Tagsmart Accounts and Authority to Act
If we ask you to provide some information about yourself when you register for Tagsmart (or subsequently), you must ensure that this information is accurate and current. You may keep this information updated through your Account.
Note that we are entitled to treat anything done through a User's Account, or by means of an email address, phone number or other communications method associated with that Account, as having been done by the User; it is up to the User to maintain the security of his/her Account. If you tell us that you are acting on behalf of, or are a representative of, someone (such as an Artist) or of an entity (such as a limited company or a partnership), you undertake that you are duly authorised to act in that capacity in accordance with applicable law, that your authority so to do is fully and enforceably documented in writing, that you are acting and will act only within the bounds of your authority, and that you will produce to us immediately upon request all documentary and other evidence that we may request in order to prove the subsistence of that authority.
Note, however, that Tagsmart does not have any responsibility to confirm (a) anyone's identity, (b) that anyone has the capacity to represent another person (such as an Artist), or (c) that anyone is who he/she says he/she is. Our Verification processes are not a guarantee of provenance or that a User is genuinely who it is claimed he, she or it is.
You must ensure that the email address we hold for you is kept up-to-date and that you have full access to it – we will be sending you important messages there. So if you change email address, then you must notify Tagsmart. Should you provide an invalid email address or an email address that belongs to someone else, Tagsmart may de-activate your Account at any time without notice. You should not register as a User if you are under 16 years of age.
8. Certificates and Collectors
When ownership or custodianship of a Work that appears in the Artwork Record is first passed, whether by sale or otherwise, to an acquirer or keeper, in order to avail of the Service in relation to that Work, the acquirer must enter the Certificate ID of the Work in their account as described at www.tagsmart.com and/or in such instructional emails or materials as may be sent by the Company to the acquirer.
9. Content Rules
You must not input or upload into the Artwork Record information relating to a Work ("Content"), or otherwise deal with Content through Tagsmart, if you do not have the right to do so. You will ensure that Content and the Work to which it relates does not:
- misrepresent your identity in any way, impersonate any person or make out that you have an authority to represent someone if you do not;
- infringe anyone's copyright; in particular, you must ensure that you either own the copyright in Content or that you are fully licensed by the copyright holder to use and exploit it in the manner that you do;
- infringe any other rights, such as a trademark, of any person or entity or a duty owed to any person or entity, such as a duty of confidentiality;
- contravene any applicable law (including, without limitation, any criminal law) or regulation;
- contain any computer virus, macro virus, Trojan horse, worm, or anything else designed to interfere with, interrupt, or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority, or expropriate any system, data or personal information;
- include any material containing personally identifying information about another person, such as their real name, address, phone number, or email address, except with the written approval of that person; or
- contain material which promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or that may incite hatred or violence against any person or group.
Although we prohibit infringement of these Content Rules, we cannot control and do not monitor or pre-screen the input of content into our Service except to the extent required to support our users and validate certain data inputs. It is possible that Content may from time to time contravene our Content Rules. We are not responsible for such Content; however, if you become aware of any Content which infringes our Content Rules, please contact us at email@example.com We may without notice delete any Content which appears to breach our Content Rules, or prevent use of any aspect of the Service which includes any such Content.
10. Terms of purchase for Tags and Certificates
A contract between a User and Tagsmart for the purchase of Tags and Certificates is created as follows:
- The User places the order for the Tags and Certificates either on the Sites (by pressing an order confirmation button at the end of the checkout process) or by some other means.
- By doing to, you are agreeing to purchase the Tags and Certificates you have selected.
- At this point, we may take payment for your order by means of your nominated Payment Method.
- We will send to you an "order confirmation" email detailing your order for the Tags and Certificates, and other information we must provide to you.
When the Tags and Certificates you have ordered are shipped to you, we will send
you a "dispatch" email. Note that Tagsmart may reject an order in certain circumstances, namely:
- The Tags you order being unavailable.
- Our inability to obtain authorisation for your payment.
- A relevant pricing or Tag description error being identified.
- The absence of an option through Tagsmart to deliver to the territory you select.
- If your order is rejected, we will contact you to confirm this and reverse the payment you have made for that order.
- If you order Products for delivery outside the European Economic Area (EEA) or, after the UK leaves the EU, outside the UK), they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order. Note that there may be territories where delivery of Products is unavailable.
Note that we do not undertake to maintain the pricing of a Product at any particular level: pricing may over time rise or fall, in our discretion.
Please note that Products are intended to be bought and used by Users who are acting for purposes relating to their trade, business, craft or profession, and therefore the right in law for a consumer to cancel a purchase and return a (standard) product does not apply to the purchase of Tags, Certificate or other Products. You therefore do not have the right to return Products and cancel your purchase of them. You have the right to reject a Product which is faulty or not as described in our specifications: in doing so, please follow any procedure which we may specify from time to time. Please make sure to include your order number in the subject line. In order to qualify for a full refund you will need to email us within 7 days of receipt of the Product. This clause and clause 4 above shall not in any way seek to limit the statutory consumer rights of a User who has acted as a consumer, for example when a collector becomes a User following the purchase of a Tagsmart Certificate from one of our partner sites.
We will notify you of any refund due to you as a result of the rejection of a Product by email within a reasonable period of time and will usually process that refund within 30 days of the day we confirmed you entitlement to the refund. In such event, we will refund the price paid for the faulty Product in full and any applicable charges paid for delivery of the faulty Product. If the packaging of your Product has been damaged, please accept the delivery and (where possible) annotate on any proof of delivery documentation that you have accepted the package subject to checking. Once you have verified damage has occurred to the material inside the package you must then email firstname.lastname@example.org with photographic evidence, to inform us of the issue so we may issue a refund.
11. Closure of Accounts
You may choose to cancel your Account at any time; in order to do so, please contact Tagsmart Customer Services at email@example.com. You may be asked to provide further proof that you are the holder of the Account. Further, we are entitled (but not obliged) to close an Account five (5) years after the date when the User last purchased a Product from us through that Account. Note that closure of an Account will not affect any of the entries for Works in the Artwork Record, the continued inclusion of Content in the Artwork Record, or any obligations to make payments that you may owe to us at that time or (in respect of works purchased on a 'Pay On Sale' agreement) in the future. If your Account is terminated, suspended or de-activated because you have breached these Terms (including a breach of our Content Rules), we may prohibit you from establishing another Account and prevent Content related to your Account being searchable.
12. Intellectual Property
When you enter information onto the Platform, it may be used for the purposes of fulfilling your and other Users' requirements relating to features offered by the Service. For example, an artwork image may be required to be printed on a Certificate of Authenticity. We may also need to modify Content in order to conform it to Tagsmart or the requirements of a Product, for example by re-scaling an image, but without adversely altering its meaning. Strictly for those purposes only and in accordance with these Terms, you grant to us such rights as we may reasonably require to fulfil such requirements on a non-exclusive, royalty-free licence basis (including the right to grant sub-licences through multiple tiers).
You acknowledge that all copyright, trade marks, and other intellectual property rights in and relating to Tagsmart are owned by us.
13. Use of the Service
You may use and access Tagsmart to the extent required for the use of the Service in accordance with these Terms, and for the purposes that we make them available. No-one may copy, distribute, show in public or create any derivative work from Tagsmart or the Artwork Record, or any of the material which is found on Tagsmart or in the Artwork Record, unless separately licensed in writing to do so by us or by you as appropriate.
You are not allowed to remove, alter or tamper with any copyright, trademark, patent or other intellectual property notices contained in Products or the Service (including Artwork Records not created by you). No-one may use any robot, spider, scraper or other automated means to access the Platform and any content therein for any purpose without our prior express written permission.
15. Our Role
To the extent that the law permits, you release Tagsmart, its agents, directors, officers, shareholders and employees from all liability arising out of or in connection with any Content. We do not have any responsibility or liability for the deletion of, or any failure to store or deliver, Content. Our Service is designed to facilitate the verification of artwork information and our Products: we do not guarantee or give any undertaking as to (a) the authenticity of any Work, or (b) the right or entitlement of any User to sell or pass ownership to any Work.
We reserve the right at any time and without notice (a) to suspend or terminate your ability to access Tagsmart, (b) to suspend or terminate your use of all of part of the Service, (c) to remove from access via Tagsmart and/or prevent the searchability of any Content associated with you or your Account, and/or (d) to take technical and legal steps to stop you from using Tagsmart, if you appear to us to be in breach of any provision of these Terms.
Should we do so, you acknowledge that we shall not incur any liability to you or to any other person. In addition, we are entitled to suspend provision of all or part the Services, or the availability of Content associated with any User (including through the Artwork Record), at any time if we are obliged or advised to comply with an order, instruction or request of any limb of government, or any regulator, court or other competent authority.
17. Contact from Third Parties
If anyone contacts us in relation to Content, Products, Services or a transaction associated with you, then you agree:
- To provide all reasonable information and assistance we may require in connection with responding to that contact; and
- to respond promptly and accurately to it, should we pass the message to you for a response.
18. Additional Services
19. Operation of Tagsmart
We reserve the right to withdraw or modify all or part of the Service or Tagsmart where we have legal or commercial reasons to do so. There may be times when the operation of Service is adversely affected as a result of technical difficulties experienced by Tagsmart or on the Internet or other communications networks, or as a result of other matters that are beyond our control. Please note, however, that we cannot guarantee continuous, uninterrupted or secure access to Tagsmart or any of the material that appears on it. If we are conducting a period of planned unavailability of the Platform or other aspects of the Service, we will take reasonable steps to inform Users of this by a notice that appears on one or more pages of Tagsmart. For security or other reasons, we may require you to change your password or other information which facilitates access to Tagsmart; however, we will never ask you for your password. You are solely responsible for maintaining the confidentiality of your password and any additional identifying information.
We use reasonable care and skill to provide Tagsmart in accordance with our specifications for the Service but:
- the Service is provided "as is";
- there may be aspects of the Service that contain bugs or may be difficult to use; and
- we cannot and do not guarantee that Tagsmart or the Service will meet your requirements.
- damage to a Work which forms part of an edition or series of artworks (such as, without limitation, a print in a series of prints), Tagsmart's liability shall be limited to the marginal cost of replacing that Work (such as, without limitation, the marginal cost of creating a new print as part of a print run)
- damage to an original Work that does not fall within (a) above, Tagsmart's liability shall be limited to the cost of carrying out restoration to or repair of the relevant Work, using for the purposes of such restoration or repair such artists, restorers or repairers as we in our reasonable discretion determine to be amongst the best relevant industry practitioners
- for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption; or
- for any loss or corruption of data (including, but not limited to, Content); or
- for any loss or damage which does not directly result from (or which exceeds that which was caused as a direct result of) our breach of these Terms, howsoever caused or arising.
We shall have no obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise, save as expressly provided in these Terms. Nothing in these Terms excludes or restricts our liability for fraudulent misrepresentation or for death or personal injury resulting from our negligence, nor our contractual obligations in respect of Services or Products we agree to supply to you.
Tagsmart makes all reasonable efforts to apply best industry practice in the specification and sourcing of the components used in our Products. We endeavour always to use archival quality materials that are acid-free, light-fast and designed to minimise any risk of damage to artworks. We consult with conservators, printers, chemists and artists in the development of our Products and their components. As with all materials, however, the future performance and stability of our Products' components and their interaction with artwork media - especially but not exclusively when the very long term is taken into consideration - is necessarily speculative. Accordingly, Users acknowledge and agree that, while Tagsmart shall have taken all reasonable care in the construction of its Products, the Company has no liability for damage to a Work occasioned by or resulting from the application of a Tag to it.
If for any reason and despite the previous paragraph our liability for damage to a Work occasioned by or resulting from the application of a Tag to it has not been excluded, then instead in respect of:
Unless applicable law does not permit such a limitation, Tagsmart's liability under this paragraph shall in any event apply only to damage which both occurs and is notified to us in writing (at our address specified in Clause 28 below) within the period of twelve months after the date when the relevant Tag is supplied by us. Users acknowledge that, following the expiry of that period, Tagsmart shall have no liability for damage to a Work occasioned by or resulting from the application of a Tag to it.
Without limiting or prejudice to the remainder of this Clause 20: (a) we have no liability for events arising from any tampering with a Tag, failure to apply a Tag in accordance with our instructions here or where fraudulent or deceptive acts have been perpetrated by any User or other person; or (b) where our liability relates to a Product or Service, our liability will be limited to the amount paid for that Product or Service. We, our agents, directors, officers, shareholders, employees and subcontractors, will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:
Except as expressly stated elsewhere in these Terms, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law. We will not be liable for any failure to perform our obligations under these Terms caused by matters beyond our reasonable control. The provisions of this Clause 20 shall survive the termination or expiry of these Terms.
You agree to indemnify Tagsmart, its agents, directors, officers, shareholders, employees and subcontractors against all liabilities, claims and expenses that may arise out of or in connection with any:
- breach of these Terms by you or through your Account; or
- content associated with you or your Account.
We reserve the right to assign these Terms, and to assign or subcontract any or all of our rights and obligations under these Terms, but will not do so in such a way as to reduce any guarantees you are given under these Terms. Note that one respect in which we may assign rights and obligations is to assign responsibility for and rights in the Platform and the artwork records held within it to a separate entity established by us. You may not without the written consent of Tagsmart assign or dispose of these Terms or any of your rights and obligations under it.
23. Entire Agreement
These Terms are intended to contain your entire agreement with us relating to your use of and access to Tagsmart; we believe them to be fair and reasonable. They replace all earlier agreements and understandings with you relating to Tagsmart.
24. Changes to These Terms
We reserve the right to change these Terms from time to time, and post the new version on Tagsmart. The new version of these Terms will take effect:
- commencing seven days after the date of posting (or such later date as we indicate in the relevant posting), if any of the changes is to an operative provision of these Terms which is capable of adversely affecting you; or
- immediately upon the date of posting (or such later date as we indicate in the relevant posting), if the changes are not reasonably capable of adversely affecting you – examples of which would include, without limitation, (a) changing the details of a web-address that you use to access, Tagsmart, or (b) the refinement of provisions that are already included or referred to in these Terms.
If any part of these Terms is held to be invalid or unenforceable, the remainder shall remain valid and enforceable. Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to subsequent or similar breaches. The headings to the Clauses are for ease of reference only and do not affect the interpretation or construction of these Terms. A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Terms, provided that this shall not affect any right or remedy of a third party which exists or is available apart from that Act.
These Terms, the Services and each order and purchase of a Product shall be governed by English law. You and we each submit to the non-exclusive jurisdiction of the English courts in relation to disputes arising in connection with these Terms, the Services and any order for or purchase of a Product.
27. Keeping These Terms
We don't separately file the Terms entered into by Users when they register for Tagsmart. Please make a durable copy of these Terms by printing them. They are offered in English only.
Now 2 Now is a company registered in England and Wales (registration number 07477668) under the name Now 2 Now Limited; the address of our registered office is 3 Albany Road, London W13 8PQ. Our VAT registration number is 106956306. Operation of the Service is carried out under license and on our behalf by Tagsmart Certification Limited ("TCL"), a company registered in England and Wales (registration number 12503345); the address of TCL's registered office is 34 Stoneleigh Street, London, W11 4DU. You may contact us via TCL by email at firstname.lastname@example.org. We or TCL on our behalf will send notices to you by email to the email address specified in your Account.