We offer you the platform so that you can show yourself and your art to the public and so that exhibitors can request your artworks for exhibitions - if you work as an artist on the African continent or as a Black artist in the diaspora. You decide which of your artworks you show on the platform.
You also decide whether your artworks will be shown in an exhibition. If you agree to participate in an exhibition, a contract is made between you and the exhibitor. And a second contract is made between you, the exhibitor and us. In this contract your fee and our commission are regulated. The royalty you receive is based on the "Guidelines for Exhibition Fees“ of the Bundesverbands der Bildenden Künstlerinnen und Künstler (German Federal Association of Visual Artists), taking into account the fact that it is an augmented reality exhibition.
Of course, your artworks always belong to you. However, by registering on the platform, you give us the opportunity to use the content you have uploaded to promote the platform and exhibitions you participate in (e.g. on Twitter, Instagram, Facebook).
Exhibitors can use the platform to request and put together augmented reality exhibitions. An exhibition takes place when an exhibition contract has been concluded between the individual artists and the exhibitor, as well as an agency contract between the exhibitor, the individual artists and us. The second contract also regulates the artists' fees and our commission.
Terms and Conditions
Table of contents
- General, scope of application
- Contents of the platform
- Services of the Provider
- Admission and access to the platform
- Conclusion of the contract
- Liability of the Provider as platform operator
- Third-party contents
- Other obligations of the User
- Confidentiality and data protection
- Assignment and offsetting
- Duration of contract, termination and deletion of the profile
- Final Provisions
1. General, scope of application
These General Terms and Conditions of Use shall apply to the use of the arxafrica.net platform (hereinafter also referred to as “Platform”) between the provider of the platform and the users.
Here, Users are considered to be:
- Individual artists and associations/collectives of artists (hereinafter referred to as “Artists”, to the extent that provisions apply only to these)
- Institutions and galleries of the art industry and other potential exhibitors (hereinafter referred to as “Exhibitors” to the extent that provisions apply only to these)
The Provider in this case is:
Represented by the managing directors,
Mr Peter Howe and Mr Tim Ulrich
Hammer Str. 156, 45257 Essen
Furthermore, the Provider provides, via the Platform, the basis for potential brokering services of (augmented reality) exhibitions of the art showcased by the Artists on arxafrica.net to interested Exhibitors. To take advantage of services in the context of a specific exhibition, the Artist(s) and the Exhibitor(s) shall conclude an exhibition contract in which the nature, scope and time of the order/activity are described in detail. A brokerage contract is entered into for the exhibition with the Provider. The brokerage fees depend on the scope and type of the activity and are specified in a separate contract. The legal relationships between Artists, Exhibitors and the Provider as broker shall be governed by the contracts to be concluded between them within the context of an agreed upon (augmented reality) exhibition. The provisions in these contracts shall take precedence over the provisions in these General Terms and Conditions of Use.
For the opportunity to use the arxafrica.net platform, the provisions of these Terms and Conditions of Use shall apply. Users can call up and print out these General Terms and Conditions at any time under the link https://arxafrica.net/de/termsandconditions.
These Terms and Conditions of Use conclusively contain the terms and conditions applicable between the Provider and the respective Users for the services offered and provided by the Provider within the context of the Platform. Any provisions deviating from these Terms and Conditions of Use shall only apply if they have been confirmed in writing by the Provider.
2. Contents of the platform
arxafrica.net is a platform for showcasing art created by artists on the African continent and Black artists in the Diaspora. The platform showcases artists, works and topics and creates publicity. It offers opportunities for contact and provides new networking between artists as well as between creative professionals, exhibitors and institutions in Africa and Europe.
In addition to showcasing the art and artists, a pool for augmented reality exhibitions is being created. The objective of the arxafrica.net project is to embed select artworks in the environment in digitised form and to present them virtually on-site, at museums, on outdoor art trails, at special events. Arxafrica.net is intended to create a bridge between traditional and digital art and to make the infrastructure for this available to exhibitors through digitisation.
3. Services of the Provider
3.1 The services of the Provider as platform operator consist, inter alia, of:
Opening of use of the platform
(a) Making available the possibilities of use of the platform subsequent to the admission of the Users pursuant to § 4;
(b) Enabling the setting-up of an Artist profile and making it visible on the portal;
(c) Creating opportunities for information and communication among Users;
(d) Providing of public relations work for the Platform, wherein the type and scope of the public relations work for the Platform and/or the projects shall in each case be at the sole discretion of the Provider.
The Provider shall have the right to expand its range of services on the Platform at any time. Details regarding the utilisation of other services are described at the appropriate place on the Platform’s website.
The Provider does not owe any (permanent and uninterrupted) availability of the Platform.
The Provider shall have the right to have its services provided by third parties.
3.2 Services of Provider in the context of (augmented reality) exhibitions (as agreed upon)
3.2.1. Art exhibitions
(a) Matching of Artists with Exhibitors with the intention of staging (augmented reality) exhibitions;
(b) (Supporting) provision of digitisation services of works of art in the context of booked augmented reality exhibitions;
(c) Establishing contact with the responsible contact persons of exhibition venues such as museums, art halls, galleries etc.;
(d) Organising of the art exhibition, where applicable;
(e) Where appropriate, cooperation with the German Federal Foreign Office as well as ministries of culture, embassies and consulates as sponsors of art exhibitions.
The Provider does not owe any success in brokering.
4. Admission and access to the platform
4.1 Registration and prerequisites of use for the Artists
Prerequisite for the use of the platform is approval by the Provider. The platform is only available to artists who are of age (at least 18 years old) and legally competent who are working as artists on the African continent or creating art as Black artists in the Diaspora.
Upon registration, the Artist furthermore agrees to provide accurate, current and complete information. Pretending to be someone else is expressly prohibited. The Provider shall have the right to request information for identity verification purposes from the Artist. However, there shall be no verification obligation. Any changes to the details must be communicated immediately by e-mail to firstname.lastname@example.org.
The Artist must create a profile about him-/herself and his/her art so that an Artist Profile Page can be published on the Platform. The Artist specifies which works of art are to be exhibited and offered online at arxafrica.net. However, the Artist guarantees that the works and/or published content are his/her works. In particular, the Artist may not publish any works/content that infringe on the copyright, trademark or other proprietary rights of third parties. The Provider reserves the right to reject the profile pages or individual works of art, especially if the Provider is requested to take such action by an official, governmental or otherwise legally authorised body; if the Artist presents content or works to which the Artist does not hold any rights or which are not in the Artist’s legitimate possession; if works of art are illustrated in poor quality and thus impair the overall quality of the website. The Artists can avert these measures if they dispel the suspicion by submitting, at their own expense, suitable evidence and/or by improving the quality of the image at their own expense.
4.2 Registration and prerequisites for use of the platform by exhibitors
Institutions and galleries in the art industry and other potential exhibitors, provided that they are not consumers within the meaning of § 13 BGB (German Civil Code), can register on the platform by sending an e-mail to email@example.com. They will then receive a confirmation e-mail from the Provider.
This will enable Exhibitors to select works of art for an exhibition. The works of art do not automatically become part of an exhibition, but only when the selected Artist explicitly agrees to this, and an agreement has been reached regarding this.
By registering in accordance with Number 4.2.1 and opening an Exhibitor account, Exhibitor warrants to Provider and all other users that User will comply with the requirements of data protection law with regard to the data transmitted by them, and indemnifies Provider against any claims, including claims under German public law. In particular, User must inform the persons who are acting on their behalf on the Platform (in particular, employees) of the data processing procedures required in this context by the Provider in accordance with the Provider’s data protection policy stated under https://arxafrica.net/de/dataprotection and obtain the consent of these acting persons that may be required before their personally identifiable information is entered into the Platform in the context of setting up employee logins or in any other way.
4.3 General Terms and Conditions of Use for registered Users
Users shall be responsible for any and all uses that occur under the name of the registered user. Therefore, all logins are individualised and may only be used by authorised users. The User shall be required to keep confidential the login and password and to protect them from unauthorised access by third parties. In the event of suspected misuse by a third party, User shall inform Provider thereof without delay. Provider shall not be liable for any damage caused by a third party accessing or using the user account and/or gaining access to the information provided in connection with the account, or for any other loss or damage caused thereby. As soon as Provider becomes aware of the unauthorised use, Provider will block the access of the unauthorised user. Provider reserves the right to change a user’s login and password; in such a case, Provider shall inform the User thereof without undue delay.
User agrees to refrain from any activities that have an adverse effect on the provision of Provider’s services.
Provider shall be authorised to withdraw a User’s admission or to block access to the Platform if there is sufficient suspicion that User has violated these Terms and Conditions of Use. As a matter of principle, Provider will inform Users in advance of any intended blocking of the User’s account. Users may avert these measures if they dispel the suspicion by submitting suitable evidence at their own expense. If Provider has already removed a content, Provider shall subsequently inform User of this and republish the content if User has dispelled the suspicion that prompted the deletion by providing suitable evidence at their own expense. The right to initiate civil and/or criminal proceedings, in particular the assertion of claims for damages and/or the filing of criminal charges, shall remain expressly reserved in such cases.
By registering, User agrees to make lawful use, in particular to observe the General Terms and Conditions of Use, to comply with applicable law and to respect the rights of third parties. A lot of the information and content available to User in connection with the use of the arxafrica.net platform is the intellectual property of others and is protected by copyright, trademark or other proprietary rights. Users may not infringe upon any copyrights, trademarks or other proprietary rights of third parties by using the services of the Provider.
5. Conclusion of the contract
5.1 Conclusion of a contract with Artists regarding use of the platform
By registering free of charge in accordance with Number 4.1, Artist submits a binding offer to conclude a contract regarding the registration on the arxafrica.net platform. Provider reserves the right to refuse registration without giving reasons. After the successful registration process, an activation email will be sent to the Artist. Upon the complete registration of the Artist, the creation and activation of the profile page as well as the sending of the confirmation letter by Provider, a contract of use has been concluded between Artist and Provider for the use of the arxafrica.net platform. The usage contract shall, at a maximum, be valid for as long as the provider offers its service in the same form at www.arxafrica.net.
5.2 Conclusion of a contract with an exhibitor regarding use of the platform
The conclusion of the contract with the Exhibitor regarding the use of the Platform and the creation of an Exhibitor user account pursuant to Number 4.2 shall take place through the binding offer to conclude a contract by sending an e-mail to firstname.lastname@example.org, a confirmation e-mail by the Provider and complete registration of the Exhibitor. Provider reserves the right to refuse registration without giving reasons. At maximum, the contract for use shall be valid for as long as the Provider offers its service in the same form at www.arxafrica.net.
5.3 Brokering services
By presenting the works of art, the possibility of an interaction between Artist and Exhibitor is intended to be opened up. However, the publication of the art by the Artist him-/herself does not constitute a legally binding offer within the meaning of § 145 BGB, but only an invitation to submit an offer (“invitatio ad offerendum”) by an exhibitor for the purpose of holding an exhibition. Furthermore, no contract for an exhibition is concluded already by the fact that an exhibitor selects a certain work. Rather, it only signals that the exhibitor is, in principle, interested in a work of art. However, this does not constitute a binding offer either.
Artists are free to choose whether and with which exhibitor agreements are entered into. If the Artist and the Exhibitor agree that an augmented reality exhibition is to take place, details of this will be agreed in a separate exhibition contract between the Exhibitor and the Artist. Upon conclusion of an exhibition contract, Provider shall receive a brokerage fee. Details regarding this shall be specified in a brokerage contract, which shall take precedence over the provisions of these GT&C in the event of any contradictions.
This brokerage fee shall also apply if Exhibitor and Artist conclude an exhibition contract without the knowledge of the Provider, even though the brokerage was carried out via the Platform. A brokering via the platform shall be deemed to have taken place in this sense if art that was presented on the Platform and selected by the Exhibitor was also ultimately exhibited.
As a matter of principle, any activities performed using the respective login of a user shall always be attributable to that user. Users are responsible for all declarations of intent made by themselves on the platform. In accordance with the principles of a contract with protective effect for third parties, they shall be liable to a foreseeable extent for declarations made by third parties under the user’s membership account.
The handling of contracts brokered on the Platform shall be the sole responsibility of the respective users. For contracts concluded between the Artists and Exhibitors, the Provider neither guarantees the fulfilment of the contracts brokered on the platform nor assumes any liability for material defects or defects of title of the traded goods and services. The Provider is under no obligation to ensure the fulfilment of the contracts concluded between the users.
The Provider can neither guarantee the true identity nor the power of disposition of the users. In case of doubt, both parties to the contract shall be required to inform themselves in an appropriate manner about the true identity as well as the power of disposition of the other party to the contract.
6.1 Right of ownership
Artist shall retain all ownership rights to his/her content, i.e., images of his/her works of art, self-promotional photographs, descriptive texts relating to works of art and for self-promotion, which he/she discloses in the context of the presentation of his/her profile on the Platform. Artists guarantee that they hold the ownership rights to the content and have the right to make the content available free of charge on the arxafrica.net platform and other media.
Provider does not claim any ownership rights to any content in accordance with 6.1.1.
6.2 Granting of rights of use by Artists
6.2.1 Granting of rights of use in connection with the creation of an Artist profile
With the publication of their content on the Platform, Artists grant Provider the non-exclusive right to display, use and digitally reproduce all transmitted content and information, including the Artist’s name and images, on the arxafrica.net platform and affiliated websites as well as in arxarfrica.net communications, without restriction, for all purposes that correspond to the purpose of the individual services within the context of the Platform. Consequently, by uploading content and images, Artist transfers to Provider a non-exclusive, royalty-free, perpetual and transferable right of use to use the content in any form and in all media. This shall include, in particular, the right of reproduction, distribution and transmission as well as the right of public display, the right of making available to the public, the broadcasting right and the right of reproduction by means of image and sound carriers. Provider shall, however, not use the addresses, contact details and e-mail addresses made available by the Artist for purposes other than those contractually agreed upon. Here, the right to reproduction and distribution expressly does not refer to the sale of the Artist’s works of art. Depending on the content posted, the required use may also extend beyond the termination of the usage contract (e.g., expiring posts in social media, etc.).
Artist also grants Provider the right to offer its users the opportunity to share, recommend and forward all of the Artist’s content and information via third parties, in particular social networks (e.g., twitter, Instagram, Facebook) and e-mail. Provider shall furthermore have the right to publish information on third-party sites, in particular on social networks, about the Artist and his/her works of art with information, content and images sent in by the Artist, mentioning their names.
Furthermore, Artist shall grant to Provider the right to use the content posted by the Artist in advertising for the Platform or for exhibitions, in particular for advertising on the Internet. To that extent, Provider shall be permitted to reproduce, distribute, make publicly available, edit, broadcast and/or to reproduce broadcasts or public access broadcasts of Artist’s content for that purpose. The right to advertise shall end with the termination of the usage contract with the Artist; Provider shall, however, be entitled to continue to use advertising material already produced or available at that time for a reasonable transitional period of at least 6 months.
In addition, Provider shall be granted the right to modify and reduce image data, provided that no misleading impression of the work of art is created.
If Artist requests the removal of all content and information of the Artist on arxafrica.net, Provider shall delete such content and information within fourteen days. However, Provider cannot guarantee the complete deletion of all content and information. In particular, content in the news, social media and other channels will not be removed. Moreover, the removal of information that various search engines have stored and published shall not be owed by Provider.
Provider shall be allowed to transfer to third parties and sub-license the rights granted under Numbers 184.108.40.206 to 220.127.116.11 inclusive, provided that no legitimate interests of the Artist prevail.
6.2.2 Artist’s granting of rights of use in the context of augmented reality exhibitions
In addition to the content of the platform, the ARX Africa project also has the objective of generating augmented reality exhibitions of art created by artists on the African continent and Black artists in the Diaspora and making them accessible to a broad public. Registration on the platform does not constitute an obligation to participate in an augmented reality exhibition. Similarly, no claim arises against Provider for participation in an (augmented reality) exhibition. The carrying-out of an augmented reality exhibition itself shall require the conclusion of a separate contract. Unless otherwise stipulated in the contract regarding the granting of rights for the exhibition, the following shall apply:
When Artists exhibit their works on the Platform, they agree that digitised versions of their works may be created, edited and curated by the Provider for (potential) augmented reality exhibitions. However, this shall not give rise to any entitlement of the Artist to such digitisation of the work of art by the Provider. Even if Provider has already prepared a work accordingly, no entitlement to the participation of the digitised work in an augmented reality exhibition shall arise. The preparation is done by the Provider for presentation purposes in order to interest exhibitors in a specific augmented reality exhibition project. As such, Artist grants Provider all the necessary rights associated with the purpose of offering augmented reality exhibitions featuring their works of art, in particular the right of digital processing for the creation of an augmented reality environment and/or an augmented reality application.
When Artists agree to the use of the digitised works in the context of an exhibition, Provider shall receive the non-exclusive, royalty-free, temporary right to use the (digitised) works for the requested exhibition. This shall include, in particular, the right to reproduce, publish and distribute the digitally edited or modified work. In addition, Provider shall be entitled to the rights granted under 6.2.1 that correspond to the purpose of the individual services within the context of the exhibition, i.e., in addition to the reproduction, distribution and transmission right, also the right of public reproduction, the right of making available to the public, the broadcasting right and the right of reproduction by means of image and sound carriers.
Artist waives any joint copyright in the digital work created as part of the digitisation of the work, thereby allowing for the augmented reality exhibition. Artist shall not become co-author of any overall work, but shall transfer any right exclusively to the Provider and/or grant the latter all rights associated therewith.
In addition, Artist shall grant to Provider the right to display the contents of a completed exhibition among the reference projects and/or to use them for advertising purposes, even after the usage contract has ended.
7. Liability of the Provider as platform operator
Provider shall not be liable for the contracts entered into between the users unless an explicit written agreement to the contrary has been made with respect to this.
Provider shall be liable without limitation for intent and gross negligence, however, for slight negligence only in the event of a breach of obligations that are material to the contract. Material contractual obligations shall be those obligations the fulfilment of which is essential for the proper performance of the purpose of the contract and on compliance with which the user may therefore ordinarily rely (so-called cardinal obligation). Liability in the event of a breach of such a material contractual obligation shall be limited to the damage typical for such a contract, the occurrence of which Provider had to expect at the time of entering into the contract on the basis of the circumstances known at that time.
Except in case of intent or gross negligence, there shall be no liability for compensation for indirect damages, in particular for loss of profit.
Provider does not assume any liability for disruptions within the power grid for which Provider is not responsible.
Provider shall only be liable for the loss of data if such loss could not have been avoided by reasonable data backup measures on the part of the User.
Liability shall not extend to impairments of the contractual use of the services provided by Provider on the platform that were caused by an improper or incorrect utilisation by the User.
The above limitations of liability shall also apply mutatis mutandis in favour of Provider’s employees, representatives and vicarious agents.
To the extent that the Platform offers a possibility of forwarding to databases, websites, services, etc. of third parties, e.g., by placement of links or hyperlinks, Provider shall not be liable for the accessibility, existence or security of these databases or services, nor for the content thereof. In particular, Provider shall not be liable for their legality, correctness of content, completeness, topicality, etc.
The above paragraphs on liability shall neither apply in the event of injury to life, limb or health nor in the event of claims arising from mandatory statutory provisions nor in case of the assumption of express guarantees.
8. Third-party contents
Users shall be prohibited from posting content (e.g., through links or frames) on the platform that violates statutory provisions, official orders or good morals. Furthermore, they shall be prohibited from posting content that infringes upon the rights, in particular copyrights or trademark rights, of third parties.
Under no circumstances shall Provider adopt third-party content as its own. User warrants to Provider and the other users of the Platform that the works made available by User do not infringe any copyrights, trademarks, patents, other proprietary rights or trade secrets.
Provider reserves the right to block third-party content if such content is punishable under the applicable laws or is recognisably used for the preparation of offences.
To the extent that User is responsible for such, User shall indemnify and hold harmless Provider from and against any and all claims asserted by third parties against Provider for infringement of their rights or for violation of rights based on the images, works and/or content posted by User. With respect to this, User shall also bear the costs of Provider’s legal defence, including any and all court costs and lawyers’ fees.
9. Other obligations of the User
9.1 Users shall be required to
(a) establish and maintain necessary data security arrangements throughout the term of the contract. This refers, in essence, to the careful and conscientious handling of logins and passwords;
(b) notify Provider immediately of any technical changes occurring in their area, if these are likely to impair the provision of services or the security of Provider’s platform;
(c) cooperate in the investigation of attacks by third parties against the platform, to the extent that such cooperation by User is required.
User agrees to refrain from any and all activities that jeopardise or disrupt the functioning of the platform and to not access data to which User has not been authorised to access. Furthermore, User shall ensure that the information and data transmitted via the Platform is not infected with viruses, worms or Trojan horses. User agrees to compensate Provider for any and all damages resulting from User’s failure to comply with these obligations and, in addition, to indemnify Provider against any and all claims asserted by third parties against Provider, including attorneys’ fees and court costs, that result from User’s failure to comply with these obligations.
The data contained on the arxafrica.net platform is subject to third-party property rights, such as copyright protection. User shall therefore not be permitted to exploit this data beyond the rights of use granted by Provider or the respective rights holders in the individual case, in particular not to copy, edit and/or distribute it. This shall, in particular, also apply to the right of the Provider as database producer pursuant to §§ 87c et seq. German Copyright Act (UrhG). The repeated and systematic duplication, distribution or public reproduction of contents of the arxafrica.net platform runs counter to a normal utilisation of the database and impairs Provider’s legitimate interests.
10. Confidentiality and data protection
Provider’s servers are protected in accordance with the state of the art, in particular by firewalls; however, User is aware that there is a risk for all participants that transmitted data can be read while in transit. This shall apply not only to the exchange of information via e-mail leaving the system, but also to the integrated messaging system and all other transmissions of data. The confidentiality of the data transmitted within the context of the use of the platform can therefore not be guaranteed.
11. Assignment and offsetting
Any partial or complete transfer of the User’s rights under the contract with Provider to third parties is prohibited.
User shall only be entitled to set off counterclaims against Provider if such counterclaims are undisputed or have become res judicata.
12. Duration of contract, termination and deletion of the profile
The free-of-charge usage contract underlying these Terms and Conditions of Use regarding the use of the platform shall be entered into for an indefinite period of time. It shall commence with admission by the Provider in accordance with Number 4.
The contract may be ordinarily terminated by either party at any time without observing a period of notice and without stating a reason. A refund of costs for services and products already used shall be excluded.
However, the ordinary termination in accordance with Number 12.2 shall not take effect as long as an exhibition is already concretely planned with User, or such an exhibition is in progress. In concrete terms, an exhibition is planned from the point in time when the exhibitor has given their consent to hold an exhibition. It continues until the exhibition has been completely wound up.
Either party has the right to terminate the contract for cause without adhering to a period of notice.
Terminations must be declared in written form (e.g., by e-mail) or via the function technologically provided for this purpose by the platform.
13.1 Changes to our General Terms and Conditions of Use
Provider reserves the right to change the Terms and Conditions of Use without providing reasons. Provider will inform you of the changes in good time during the visit to the arxafrica.net website following the change and will ask for your consent to the amended Terms and Conditions of Use.
In concrete terms, User will be notified of the change in text form (e.g., by e-mail). If no objection is raised, the Terms and Conditions of Use shall be deemed to have been accepted. This consequence shall be specifically pointed out to User. The objection must be received by Provider in written form within six weeks of receipt of the notification about the change. In the event of an objection, Provider will perform an ordinary termination of the contract.
13.2 Change of the platform
Provider reserves the right to change or expand the content and structure of the platform as well as the associated user interfaces if this does not or not significantly impair the fulfilment of the purpose. Provider shall inform the users of the Platform about the changes accordingly.
14. Final Provisions
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. However, mandatory provisions of the country of habitual residence of the respective users shall remain unaffected if the user is a consumer within the meaning of § 13 German Civil Code (BGB).
In the case of contracts with merchants, legal entities under public law or special funds under public law, the place of performance and the place of jurisdiction for all disputes arising from this contract shall be the Supplier’s registered office in Essen, Germany. In addition, Provider shall also be allowed to file suit at User’s general place of jurisdiction.
Should individual provisions of these Terms and Conditions of Use be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the rest of the Terms and Conditions of Use. The ineffective provision shall be replaced by the parties to the contract by mutual agreement with a provision that comes as close as possible to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply mutatis mutandis in the event of gaps in the provisions.