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ONLINE SELLER TERMS AND CONDITIONS

1. INTRODUCTION

1.1 Terms and Conditions

These terms and conditions together with the Policies (defined below) (the "Terms") provide information about Affordable Art Fair, and are the legal terms and conditions under which Affordable Art Fair will place Artwork (defined below) for sale on the Website on Your behalf and deliver the Services (defined below). In these Terms, "You" means the individual or entity making use of the Services and whose details are provided to us as the seller of the Artwork.

Affordable Art Fair reserves the right to alter these Terms at any time. Please ensure You review these Terms frequently so that You are aware of any such changes. If You do not agree to these Terms then You should not use the Website (defined below).

1.2 About us and our services

The Affordable Art Fair website is hosted at affordableartfair.com together with all subdomains and subdirectories (the "Website") and is operated by Affordable Art Fair Ltd, a company incorporated in England and Wales with company number 03688732 and having its registered office at Sadler’s House, 180 Lower Richmond Road, London SW15 1LY ("Affordable Art Fair", "we" or "us").

The services we make available through the Website (the "Services") comprise the provision of an online art marketplace, with website pages and content (each a "Listing") displaying and advertising the sale of authentic artworks (the "Artwork") and enabling You to sell Artwork direct to any visitor to the Website (the "Consumer"). You acknowledge that in providing the Services we are acting as a facilitator to enable You to conclude contracts for sale with Consumers and that we are not either buying or selling any Artwork.

We will provide Consumers with standard terms of sale on Your behalf (the "Consumer Terms of Use") which will apply to all sales of Artwork made by You using the Services. We may update the Consumer Terms of Use from time to time and all updates will be notified to You. You warrant that You will comply with the Consumer Terms.

1.3 Other definitions

"Data" shall mean information relating to individuals who may identified or who are identifiable, directly from the information in question, as described in 5. Below.

“Data Subject” shall have the same meaning as set out in Article 4 (1) of the GDPR and means an identified or identifiable natural person.

“EEA” means the European Economic Area – the 28 Member states of the European Union plus Iceland, Lichtenstein and Norway.

“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and the Council.

“Incident” has the same meaning as a personal data breach in Article 4 (12) of the GDPR and means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Data , transmitted, stored or otherwise processed under the terms of this Agreement.

"Processing" shall mean any operation or set of operations which is/are performed upon Data , (whether or not by automatic means) including collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Such processing may be wholly or partly by automatic means or processing otherwise than by automatic means of Data which form part of a filing system or one intended to form part of a filing system. A filing system shall mean any structured set of Data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographic basis."

1.4 Contact Us

If You have any questions or queries, You can email Affordable Art Fair at: [email protected], use the Website’s ‘Contact us’ page, or write to Affordable Art Fair at Sadler’s House, 180 Lower Richmond Road, London SW15 1LY.

On receipt of any correspondence, Affordable Art Fair will respond as soon as possible and keep You informed of progress and any need to investigate matters further.

1.5 Application of Terms

By registering for an online account on the Website ("Account"), You will be able to create and manage Your Listings. When You set up Your Account and upload Listings to the Website, You will be deemed to accept these Terms and a binding contract will be formed between You and us incorporating these Terms.

In order to set up Your Account, Affordable Art Fair need to collect certain information about You. This will include Your contact details, tax status, country of residence or registration, Your payment details, Your Tax Registration Number (as defined below) and debit/credit card payment authorisation from You. This is to enable us to open Your Account and to collect all fees and payments due by You to us under these Terms (and set out in more detail in Section 4 below). References in these Terms to Your Account shall refer to all of the information we hold about You, including these payment details and Your Tax Registration Number.

Any personal information collected in the opening of Your Account shall be processed in accordance with our Privacy Policy.

1.6 Policies

Below is a list from which You can access all the documents and policies (the "Policies") referred to in these Terms, which You should read through carefully as they form part of the contract between You and us.

Privacy Policy
Commission and Fees Policy
Seller Best Practice Guidelines
Customer Returns Policy
Packaging and Delivery Guidelines

Please note, Your general use of the Website as a visitor, and any purchases of Artwork You may make using the Website are governed by Affordable Art Fair’s separate Consumer Terms of Use which will apply to You in addition to these Terms.

2. YOUR OBLIGATIONS

2.1 Seller eligibility

We require the information referred to in Section 1.5 in order to open Your Account, from which You can upload Listings and sell Artwork. If You do not provide us with this information, or any other information we may request from You in order to open Your Account, you will not be eligible for an Account.

You warrant that all information provided by You to Affordable Art Fair (including but not limited to Your name, tax status, Tax Registration Number (if applicable) and country of residence or registration) is correct, truthful and kept up to date. You will immediately update any such information held by us in case of any changes. All information including Your Tax Registration Number will be collected, processed and maintained in accordance with these Terms and the Policies.

If You do not have a Tax Registration Number, You will not be eligible to open an Account unless You are able to verify that You are exempt from VAT or equivalent local sales tax.

In the event that You are an individual and/or sole trader, You must be over 18 years of age to open an Account and become a Supplier of Artwork on the Website. By accepting these Terms, You represent and warrant that You are at least 18 years of age.

2.2 Artwork rights 


You warrant that You are either (i) an agent authorised to sell Artworks as directly authorised by their creator (the "Creator"), or (ii) the sole and exclusive owner of the Artwork. The Service is not intended for use by individual artists and we will not approve and may remove any Listings in which a Creator purports to sell Artwork directly to Consumers.

You additionally warrant that You have obtained all permissions and clearances required from the Creator before Listing the Artwork on Your Account and that You have met all costs and expenses related to the procurement of the third party rights necessary to display the Artwork using the Service.

2.3 Permitted and Prohibited Artworks


Listings of Artwork require to meet the following criteria to be permitted ("Permitted Artworks") by Affordable Art Fair for sale on the Website:

  • One-of-a-kind pieces.

  • Original prints: made by the hand of the artist or with the artist’s close involvement and overseeing of the printing process i.e. etchings, screen-prints, monoprints, drypoint, stone lithographs, mezzotint. Edition size no larger than 200. 

  • Sculpture: unique pieces or sculptures in editions of 25 or less.

  • Photography: limited edition fine art photography is accepted, when signed and numbered, or accompanied by a certificate of authenticity, and when the print is produced to a high standard. Maximum edition size of 150, but frequently much smaller editions. 

  • Digitally generated artworks: any artwork created digitally will be considered on a case by case basis, taking into account the artistic merit of the work itself, the quality of the production method, and the edition size.

Listings of Artworks not permitted by Affordable Art Fair for sale on the Website ("Prohibited Artworks") include:

  • Offset lithography: prints run off a commercial printing press using a transparency of original work, even if the print is signed by the artist.

  • Digital prints: such as giclées, which use a scan of an original work such as a painting, even if the print is signed by the artist.

  • Craft or functional items.

All Artworks shall be signed by their Creator. We recommend that all Artworks are accompanied by a certificate of authenticity signed by the Creator.

In the same way that all applications to our fairs are reviewed by a Selection Committee of Affordable Art Fair (the "Selection Committee"), we will review all Listings submitted to ensure the quality of gallery and art remains consistent with our live events. The same rules surrounding artwork eligibility for showing at our art fairs apply to the Website. We will consider each Listing on a case by case basis, and You acknowledge that the decision of Affordable Art Fair on whether or not to accept any Listing is final and shall be exercised at our sole discretion.

2.4 Content

You acknowledge and agree that You are solely responsible for all content, including (but not limited to) text and/or imagery (the "Content"), You upload to the Website and contained within each Listing or Profile page, and contributed to Your Account.

You shall not upload Content, which in the reasonable opinion of Affordable Art Fair:

  • is misleading or inaccurate; 

  • is offensive, including (but not limited to) material that incites racial hatred or promotes discrimination; 

  • is obscene or pornographic; 

  • is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; 

  • contains materials which infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; 

  • breaches any applicable local, national or international law or regulation;

together, our "Content Requirements".

You shall only use the Website for lawful purposes. You may not use the Website:

  • to send, knowingly receive, upload, download, use or re-use any material which does not comply with our Content Requirements; 

  • to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); 

  • to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; 

  • to infringe the intellectual property rights of Affordable Art Fair or a third party; or

  • to reproduce, duplicate, copy or re-sell any part of our Website.

Should we have a reasonable belief that You are in breach of the requirements in these Terms, Affordable Art Fair reserves the right, at its sole discretion, to: (i) remove any Listing or Profile; and/or (ii) close Your Account; and/or (iii) disclose Your details to a third party in response to any court order to enable legal action to be taken against You.

2.5 Content usage

By registering a Listing on the Website, You are deemed to grant Affordable Art Fair a worldwide, non-exclusive, royalty-free, right and license (the "Licence") to access, view, use, copy, reformat, distribute, publicly display, publicly perform and transmit Your Listing and/or Content provided by You, in any format and as required for the purposes of promoting the Artwork and delivering the Service.

The Licence entitles Affordable Art Fair to use the Content and/or Listings contained on or within Your Account for promotional purposes. Affordable Art Fair shall not be entitled to any ownership rights in the Artwork, Content or Listing.

You acknowledge that the only payment You will receive for the License shall be in the form of Your Supplier Payment (defined below).

2.6 Accuracy of Artwork Listings

You undertake that all Listings and Content shall contain an accurate and fair reflection of the Artwork and the condition of the Artwork. Each Listing shall include (but not be limited to):

i. a description of the materials of the Artwork;
ii. the dimensions of the Artwork; and
iii. high quality resolution photographs of the Artwork.

In the event that Listings are inaccurate or misleading, Affordable Art Fair reserves the right to invoice You for all associated costs in relation to any claim received by Affordable Art Fair from a Consumer in relation to refund, return, compensation or price reduction.

2.7 Artwork prices and shipping costs

You shall clearly state the total price (the "Price") of each Artwork in each Listing, including any delivery charges. The Price of each Artwork shall be a fair reflection of the value of the Artwork. The Price of each Artwork shall not exceed £6,000, inclusive of any tax and/or any relevant outlay (including frame costs).

The Price shall be equal to the amount of the price as set for that particular Artwork on any other website or point of sale through which the Artwork is sold directly or indirectly by You.

In the event that a Consumer locates the Artwork offered for sale at an amount lower than the Price on any website or point of sale controlled directly or indirectly by You, Affordable Art Fair reserves the right to adjust the Price of the Artwork on Your Account to an amount equal to the lower price, before or after the Sale of the Artwork has be fulfilled, to return the excess to the Consumer and to adjust the calculation of the Supplier Payment (defined below) accordingly.

The shipping and handling fees specified in the Listing on Your Account shall be a true representation of any anticipated costs to be incurred in fulfilling the packaging and delivery of an Artwork to the Consumer following a Sale of an Artwork to a Consumer (an "Order"). You undertake to accurately research shipping costs ("Shipping Costs") in respect of each Artwork and any inaccuracies shall be met by You and not passed on to the Consumer. Affordable Art Fair shall not be found liable for any loss incurred as a result of inaccurately quoted Shipping Costs. Upon signing up to the online shop, Your Account has default shipping rates assigned to it. It is Your responsibility to check them and to amend them if you wish to change them.

For the avoidance of doubt, inflating the shipping and handling fees with a view to reducing or avoiding Affordable Art Fair’s commission is strictly prohibited.

2.8 Order fulfilment

In the event of a successful sale of an Artwork by You to a Consumer using the Services (the "Sale"), You shall procure the shipment and delivery of each Artwork to the Consumer in accordance with the Consumer Terms. We recommend using competitive shipping rates, however please be aware that these are not inclusive of insurance. It is advisable to use a fully traceable method of delivery and it is at Your sole discretion whether you choose to insure Your shipments or not. If you do not secure insurance for any Artwork before shipping it, you do so at Your own risk.

Artworks must be packaged and shipped in accordance with Affordable Art Fair’s Packaging and Delivery Guidelines. The Artworks shall be delivered within the specified timeframe on the Listing and in any event within thirty (30) calendar days (unless otherwise agreed with the Consumer) (the "Delivery Timeframe"). In the event that the Artwork is not delivered within the Delivery Timeframe, Affordable Art Fair reserves the right to debit any costs associated with Consumer returns or cancellation of Sales from Your Account. Affordable Art Fair shall treat any Orders which have not been marked as shipped beyond the expiration of the Specified Timeframe as unfulfilled. Affordable Art Fair reserves the right to suspend or terminate Your access to the Services if Orders are repeatedly cancelled or unfulfilled by You or Your sub-contractors.

You acknowledge that the Service is intended for international sales to Consumers and accordingly all prices shall be quoted inclusive of any applicable VAT or equivalent local sales tax. You shall be responsible for compliance with all local tax regulations in respect of Sales completed using the Service.

2.9 Quality, returns and refunds requests

As a seller of the Artwork, You warrant to Affordable Art Fair that You will comply with: (i) all laws, regulations and industry standards (including advertising standards) applicable to the sale of the Artwork ("Applicable Laws"), including but not limited to, the Consumer Rights Act 2015 and the Consumer Contract Regulations 2013; and (ii) Affordable Art Fair’s current Customer Returns Policy.

You also warrant that all Artwork will be of satisfactory quality, fit for the purpose advertised, and consistent with Your descriptions.

You acknowledge that under the Consumer Terms You are obliged to make available to Consumers all remedies which they have under Applicable Laws to return, repair, replace or seek a refund or price reduction to Artwork, which shall include the ability to return any Artwork within a 14 day cooling off period following receipt of the Artwork.

You shall be notified of any returns on the seller dashboard within Your Account and all returns shall be addressed in accordance with Affordable Art Fair's Customer Returns Policy. You shall receive immediate notice via Your nominated notification email address of any returns requests for Artworks You have sold through Affordable Art Fair, as well as a further confirmation email once a collection date and service has been arranged.

2.10 Responsibility for returns

In the event that Affordable Art Fair offer promotional free returns, Affordable Art Fair shall organise and pay for the return by courier to the nominated returns address as instructed by You, however, we exclude to the fullest extent permitted by law any liability for damage to Artworks during transit of the return, in accordance with Affordable Art Fair’s Customer Returns Policy. If any loss/damage is sustained to Artwork during shipment of a return, we will file an insurance claim on Your behalf subject to You providing sufficient details to enable us to do so.

If You decide to reject a refund after receiving the returned Artworks, it is Your responsibility to ship the Artworks back to the Customer and to ensure that Your refusal to supply a refund is consistent with Applicable Laws.

If any other reason is provided for the return, Affordable Art Fair reserves the right to investigate, and to debit any return shipment costs to Your account should it reasonably be believed that the return was a result of Your breach of either Applicable Laws, Seller Best Practice Guidelines or Packaging and Delivery Guidelines.

2.11 Damage liability

It is Your sole responsibility to ensure that You package Artworks sufficiently and ship them via a service that will minimise the likelihood of damage. Affordable Art Fair will accept no liability for damage to Artworks in transit from You to the Consumer, including any liability for refunds.

In the event that Affordable Art Fair organise the package and shipment of Artworks on Your behalf, we exclude to the fullest extent permitted by law any liability for damage to Artworks during transit.

If a Consumer receives an Artwork which is damaged on arrival, it is Your responsibility to resolve this issue in accordance with Applicable Laws.

You acknowledge that any postage or shipping guidance provided by Affordable Art Fair in the form of help articles or support correspondence comes with no guarantee of safe transit if followed. If You do not secure transit insurance for any Artwork before shipping it, You do so solely at Your own risk.

2.12 Artworks lost in transit

If You do not use a traceable shipment method to send Artworks, You do so at Your own risk. Affordable Art Fair will accept no liability for Artworks lost in transit on their way to the Consumer, or during the returns process. We reserve the right to issue a full refund immediately to the Consumer and to allow the Consumer to cancel their contract for purchase of Artwork on notice of non-delivery within the estimated timeframe and neither the Consumer or Affordable Art Fair shall be liable to You for any costs, losses, damages or expenses arising from such cancellation.

In the event that Affordable Art Fair organise the shipment of Artworks on Your behalf, we exclude to the fullest extent permitted by law any liability for Artworks lost in transit.

2.13 Tax Registration Number

You acknowledge and agree that You are solely responsible for registering with Her Majesty's Revenue and Customers ("HMRC"), or any other applicable tax authority where Your country of residence or registration is outside the UK ("Relevant Authority"), for the purposes of value added tax ("VAT") or equivalent local sales tax. You will submit Your VAT registration number provided to You by HMRC or any equivalent local sales tax registration number provided to You by the Relevant Authority if you are based outside of the UK ("Tax Registration Number") at the time of setting up Your Account. Except where You are exempt from VAT or equivalent local sales tax, if You do not have a Tax Registration Number, we will not be able to open Your Account or allow You to post any Listings until You have registered for a Tax Registration Number with HMRC and provided this to us.

You hereby confirm that (i) the Tax Registration Number which You submit to us belongs to the business you operate and from which you are selling on the Website; and (ii) all transactions on Your Account will be business-related transactions made by the business associated with the Tax Registration Number which You submit to us.

You acknowledge and agree that You are solely responsible for accounting all applicable VAT, or any other local sales tax applicable to the Sale, to HMRC or the Relevant Authority. We reserve the right to request additional information and to confirm the validity of Your Account information (including Your Tax Registration Number or validity of Your VAT or equivalent exemption) from You or government authorities as permitted by law, including the right check the validity of Your Tax Registration Number. You agree to provide any such information to us upon request and you hereby give Your consent to the provision of Your data, including all information relating to VAT or equivalent local sales tax applicable to Your Account, by us to government authorities where required.

In the event that (i) we consider (in our sole discretion) that the Tax Registration Number You have provided to us is invalid; or (ii) we receive a notice from HMRC or the Relevant Authority confirming that Your Tax Registration Number is invalid; then we reserve the right to immediately:

  • remove all of Your Listings from the Website

  • suspend or terminate Your Account

  • invoice you for the amount of VAT or other applicable local tax which we are jointly and severally liable to pay on Your behalf to HMRC or the Relevant Authority

  • any other outstanding amounts (including, without limitation, any Subscription Fees, Commission or Surcharges) shall immediately become due and payable.

3. AFFORDABLE ART FAIR'S OBLIGATIONS

3.1 Notification of orders

Affordable Art Fair, via its payment fulfilment provider, shall pre-authorise payment from each Consumer before placing an Order on Your Account. You shall receive confirmation notice of Orders ("Confirmation Notice") to Your nominated notification email address, inclusive of all details necessary for the dispatch of the Artwork to the Consumer. You shall have access to view all outstanding and completed Orders from the Orders page within the seller dashboard of Your Account ("Seller Dashboard").

In the event that You are unable to fulfil the Order You must notify Affordable Art Fair immediately and the pre-authorised funds will be returned to the Consumer by our payment fulfilment provider.

3.2 Collecting payments


Upon receipt of an Order a third party payment provider shall pre-authorise the payment with the Consumer's bank. You shall have a 7 day period in which to confirm to the Consumer that You have the Artwork available and that the Order can be fulfilled. Once You have confirmed that the Artwork is available the pre-authorised payment shall be released by the third party payment provider to Your account and a binding contract between You and the Consumer for delivery of the Artwork shall be formed. In the event that You do not confirm to the Consumer that the Artwork is available the pre-authorisation is removed from the Consumer's bank and the Order is automatically cancelled.

A third party payment processor shall be responsible for the pre-authorisation, secure processing and collection of the payment of the price of the Artwork ("Price") and Shipping Costs for the Artwork from the Consumer. To make use of the Services, You will be required to enter into a separate contract with our third party payment processor in respect of managing and processing all payments due under these Terms, and we will provide You with a contact point to enable You to complete this process. We shall receive confirmation from our third party payment processor to confirm that You have entered into a contract with the third party processor.

4. FEES AND PAYMENTS

Your access to the Services is conditional upon Your payment of the sums set out in this section 4.

4.1 Subscription fee

You shall pay to Affordable Art Fair a fixed subscription fee equal to an amount of £50.00 (plus VAT) in respect of Your Account on a monthly basis (the "Subscription Fee"). The Subscription Fee entitles You to list Artworks using the Service, create a profile page, create artist biographies, receive reports, and provides general marketing for You and Your Artworks. Affordable Art Fair reserves the right to vary the Subscription Fee at any time upon 30 days notice in writing to You.

4.2 Commission on sales


In addition to the Subscription Fee, You shall pay to Affordable Art Fair an amount equal to 15% (plus VAT) of the Price by way of commission ("Commission") in respect of each Order confirmed through the Website. For the avoidance of doubt, the Commission payable shall only be applied to the Price and not Shipping Costs.

Any attempts to complete Orders or any other monetary transactions with a Consumer originally initiated through the Website, outside of the Website are strictly prohibited. Your use of the Service shall be suspended for breach of this provision.

In the event that a sale or monetary transaction originally initiated on the Website is processed outwith the Website, Affordable Art Fair reserves the right to debit an amount equal to the Commission which would have become due from Your Account.

Commission payments will be returned to You in respect of Artwork which You have refunded. In the event that You provide a Consumer with a price reduction or replacement Affordable Art Fair shall adjust the Commission in accordance with the reduced Price or replacement Price.

4.3 Transaction Processing Fee

You shall pay to Affordable Art Fair a transaction processing fee for each sale through the platform to an amount equal to 1.8% (plus VAT) of the Price (the "Surcharge"). No commission will be taken on shipping.

4.4 Supplier payments

The Subscription Fee will be collected from Your Account monthly in advance using the payment details provided by You.

Affordable Art Fair shall deduct the Commission and the Transaction Processing Fee from the Price at the time the Order is processed by our payment processing provider. The remaining balance (the "Supplier Payment") shall be remitted to You in accordance with the terms of our payment processing provider, along with a statement showing the deductions made. It is Your responsibility to account for any taxes due on all Supplier Payments. You shall be able to access invoices from within your payment processing provider account.

Affordable Art Fair are entitled to withhold Your Supplier Payment for any given Sale if there is, or in Affordable Art Fair’s reasonable opinion is likely to be, a dispute between Affordable Art Fair and You or a dispute between You and the Consumer. The Supplier Payment shall be held until such dispute is resolved to Affordable Art Fair’s reasonable satisfaction.

4.5 Promotions and Discounts

Affordable Art Fair reserves the right to run at its discretion special offers and discounts on the Website and the costs of such discounts and/or promotions offered to Consumers shall be absorbed in full by Affordable Art Fair.

5. TERMINATION AND ACCOUNT CANCELLATION

5.1 Terminating this agreement

Affordable Art Fair may, at its sole discretion and without any liability to You, terminate its contract to deliver Services to You and/or cancel or restrict, access to the Website and/or Your Account without notice if we reasonably believe You are in breach of these Terms. In all other cases we may terminate Your contract by giving 5 business days' notice.

5.2 Cancelling Your Account

You may terminate this contract by giving no less than 5 business days' written notice ("Termination Notice") to Affordable Art Fair. Within 30 business days of receipt of a Termination Notice, Affordable Art Fair shall use reasonable endeavours to remove Your Account from the Website, including any reference to You and all Artworks, Listings or Content uploaded by You.

6. FURTHER PROVISIONS

6.1 Website Usage

Affordable Art Fair shall not be liable for any damages arising from loss of data, or profits, whether in action of contract, negligence or other tortious action, arising out of or in connection with the use, or inability to use the Website.

You acknowledge that no Website can ever be guaranteed to operate free of errors or downtime and whilst we will use commercially reasonable endeavours to ensure that the Website remains free from errors or viruses, we cannot accept any liability for downtime caused by events outside our control. You acknowledge that we may from time to time require periods of downtime in order to maintain and update the Website and we will endeavour to carry out such maintenance with as little disruption to the Service as possible.

Affordable Art Fair shall not be responsible for the privacy policies or content of any third party websites.

6.2 Data Processing Agreement

Recital 81 and Article 28 of the GDPR place certain obligations upon a Controller to ensure that the Processor it engages under the terms of this Agreement provides sufficient guarantees in terms of: i) expert knowledge, ii) reliability and resources, iii) ability to implement technical and organisational measures which will meet the requirements of the GDPR including for the security of processing.

The Controller must also take into account the specific tasks and responsibilities of the Processor under this Agreement in the context of the processing to be carried out and the risks to the rights and freedoms of the data subject1.

This Agreement exists to ensure that there are sufficient guarantees in place as required by the GDPR and that the processing complies with the obligations imposed on both the Controller and the Processor under the GDPR.

6.2.1 Data Processing Agreement

(a) This Agreement shall apply to all Data processed from the date of this Agreement by the Processor on behalf of the Controller until the date of termination of this Agreement.

6.2.2 Data Processing Agreement

a) The Processor shall process the Data it processes on behalf of the Controller, solely for the provision of Vendor Obligations and in accordance with the written instructions of the Controller (including when making a transfer of personal data to countries outside the EEA) unless required to do by law. The Processor must inform the Controller of what processing the Processor is required to do so by law unless the Processor is prohibited under the relevant law from notifying the Controller of such processing. The Processor shall not process the Data for any other purpose except with the express written consent of the Controller2.

b) The Controller confirms and warrants that the Processing of the Data, including the transfer of the Data to the Processor, has been and will continue to be carried out in accordance with the relevant provisions of the GDPR and does not violate the relevant provisions of the EEA country in which the Controller is established.

6.2.3 Duration of processing

a) The Processor shall process the Data for as long as the Contract remains in full force and effect.

6.2.4 Type of Personal data

The Processor will process the following types of personal information

  • personal details; including names, addresses, email addresses and telephone/fax numbers

  • goods and services

  • details of complaints, incidents and grievances

6.2.5 Categories of data subjects

The Processor will process information about the following categories of data subjects

  • customers

  • prospective customers

  • complainants or their representatives

  • subject of a complaint or their representatives

  • individuals contacted when responding to a complaint or enquiry

6.2.6 Security and Confidentiality of Data3

a) The Processor and the Controller shall implement appropriate technical and organisational measures to ensure a level appropriate to the risks that are presented by the data processing in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal transmitted, stored or otherwise processed.

b) Both the Controller and Processor shall take into account the following when determining the measures:

i) the state of the art, and
ii) the cost of implementation of the measures, and
iii) the nature, scope context and purposes of processing, and
iv) the risk of varying likelihood and severity for the rights and freedoms of individual Data Subjects

c) The Controller and Processor agree that the measures security measures taken in accordance with Clause 6 (a) of this Agreement after assessment with the requirements of the GDPR are appropriate to protect Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the Processing involves the transmission of Data over a network, and against all other unlawful forms of Processing, and that these measures ensure a level of security appropriate to the risks presented by the Processing and the nature of the Data to be protected having regard to the state of the art and the cost of their implementation; shall ensure a level of security appropriate to the risk.

d) The measures taken shall include amongst others the following items, where appropriate, from the non- exhaustive list below: i) the pseudonymisation and encryption of Data ii) the ability to ensure the ongoing confidentiality, integrity and availability and resilience of processing systems and services iii) the ability to restore the availability and access to Data in a timely manner in the event of a physical or technical Incident iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

e) The Controller and the Processor may use adherence to an approved code of conduct as referred to by Article 40 of the GDPR or an approved certification mechanism as referred to in Article 42 as an element by which to demonstrate compliance with the requirements set out above in clause 6 ) (b) (c) and (d) of this Agreement4.

f) The Processor shall ensure that each of its employees, agents or subcontractors are made aware of its obligations with regard to the security and protection of the Data and shall require that they enter into binding obligations with the Processor in order to maintain the levels of security, protection and confidentiality provided for in this Agreement.

g) The Processor shall not divulge the Data whether directly or indirectly to any person, firm or company without the express consent of the Controller except to those of its employees, agents and subcontractors who are engaged in the processing of the Data and are subject to the binding obligations referred to in Clause 6 (e) of this Agreement above).

6.2.7 Incident Reporting

a) The Processor must have effective processes for the identification, management and reporting of Incidents. Any Incident, suspected or actual, involving the Controller’s Data must be reported immediately to the Controller. An Incident may include but not be limited to:

  • Security breach or fraud

  • Misuse of relevant system storing Controller’s Data

  • Misuse, loss or corruption of the Controller’s Data

  • Unauthorised access to, use of, alteration, amendment or deletion of Controller’s Data

  • Physical security incident

  • Any unapproved requirement to disclose Controller’s Data to a third party

b) The Processor will be expected to promptly investigate any such Incident, provide status updates throughout the Incident, where appropriate cooperate with reasonable Controller requests during the management of the Incident or permit the Controller to support the management of the Incident, and send a written report to the Controller, describing the nature of the Incident, stating any control weaknesses discovered, and any actions taken/planned. A plan to agree any reasonable additional controls, either identified by the Processor or the Controller, to prevent or reduce the likelihood of a similar Incident must be agreed and monitored.

c) The Processor will assist the Controller in informing Data Subjects if there has been an Incident involving the Processor.

d) The Processor will assist the Controller in informing any relevant supervisory authority of an Incident.

6.2.8 Processor’s appointment of a sub - processor

a) The Processor will not engage a sub processor to process the Controller’s Data, without the prior specific or general or written authorisation of the Controller.

b) If the Processor employs a sub – processor under the Controller’s prior general written authorisation the Processor will inform the Controller in writing of any intended additions to or replacement of sub- processor(s) the Processor uses to carry out processing of the Controller’s personal data at least 2 days before the date of any intended additions or changes to the sub processors.

c) If the Controller objects to any such additions to or replacement the Controller shall inform the Processor within 1 days of receiving the notice in Clause 8 (b) of this Agreement. Upon receipt of such a notice of objection the Processor shall not make the intended addition or replacement of [a] sub – processor(s)

d) The Processor, upon receipt of a notice under Clause 8 (c) of this Agreement above may choose another sub – processor(s) it wishes to add to or act as a replacement to the existing sub- processor(s) it uses to carry out the processing. The Processor will then inform the Controller in accordance with clause 8( b) of this Agreement and the Controller will have the right to object in accordance with clause 8 (c) of this Agreement

e) The Processor shall ensure by written contract that any agent or sub-processor employed by the Processor to process Data to which this Agreement relates:

i) imposes the same contract terms as listed in Clause 6 – Security and Confidentiality of Data and Clause 7 Incident reporting of this Agreement on any agent or sub- processor5
ii) makes it clear that the Processor and not any agent or sub-processor will be liable to the Controller for the compliance of the agent or sub- processor with data protection law

f) The Processor will immediately inform the Controller of any Incident involving any of its’ permitted sub-contractors or sub-processors in accordance with Clause 7 Incident reporting of this Agreement.

g) The Processor will assist the Controller in informing Data Subjects if there has been an Incident involving any of its’ permitted sub-contractors or sub-processors in accordance with Clause 7 Incident reporting of this Agreement.

h) The Processor will assist the Controller in informing any relevant supervisory authority of an Incident.

6.2.9 Data Subjects rights6

a) The Processor shall have appropriate technical and organisational means taking account of the nature of the Processing in so far as this is possible for the fulfilment of the Controller‘s obligation to respond to requests for exercising the following Data Subject’s rights:

i) information rights under Articles 13 and 14 of the GDPR
ii) right of access by the Data Subject under Article 15 of the GDPR
iii) right to rectification under Article 16 of the GDOR
iv) right to erasure under Article 17 of the GDPR
v) right to restriction of processing under Article 18 of the GDPR
vi) notification regarding the right of rectification and/or erasure of personal data and/or restriction of processing under Article 19 of the GDPR
vii) right to data portability under Article 20 of the GDPR

6.2.10 Assisting the Controller7

a) The Processor will assist the Controller, taking into account the nature of the Processing and the information available to the Processor, to meet the Controller’s obligations:

i) to keep Data secure in accordance with Article 32 of the GDPR
ii) to notify Incidents in accordance with Article 33 of the GDPR
iii) to advise Data Subjects when there has been an Incident in accordance with Article 34 of the GDPR
iv) to carry out data protection impact assessments (DPIAs) in accordance with Article 35 GDPR
v) to consult with the Controller’s supervisory authority where a DPIA indicates there is an unmitigated high risk in accordance with Article 36 of the GDPR

b) The Processor will immediately pass on any notices, requests or other communications from a Data Subject. The Processor will not act on any request from a Data Subject, without the full written authority of the Controller.

c) If a privacy impact assessment indicates that there is an unmitigated high risk to the rights and freedoms of the Data Subject, the Processor will assist the Controller in consulting with the relevant supervisory authority or authorities

6.2.11 Audit, inspections and legal processing8

a) The Processor must provide the Controller with all the information that is needed to show that both the Processor and the Controller have met their obligations under Article 28 of the GDPR

b) The Processor must submit and contribute to audits and inspections conducted by the Controller or another auditor mandated by the Controller.

a) The Processor shall, allow the Controller and/or its auditors, or their representatives, to have access to and audit relevant processes, procedures, documentation, and/or any premises of the Processor. Such access may take place on 7 days’ prior written notice to the Data Processor. The Controller agrees to reimburse the Processor any reasonable charge for the audit.
b) If the Controller reasonably believes that the Processor is in breach of any of its obligations under this Agreement or in which case the Controller shall not be obliged to give such prior notice and the Processor shall ensure that a Processor appointed representative shall provide full co-operation and assistance to the Controller and/or its representatives, auditors at no additional charge to the Controller.
c) The Processor shall inform the Controller if any instruction that the Controller gives, infringes the GDPR or other EU, or EEA member state data protection provisions.

6.2.12 Processor’s responsibilities and liabilities under the GDPR

a) The Processor is aware that it may be subject to enforcement action by any relevant data protection supervisory authority to which the Controller is subject under Article 58 (Powers of the supervisory authority) of the GDPR.

b) The Processor is aware that if it fails to meet its obligations as set out in this Agreement and under Article 83 (General conditions for imposing administrative fines) of the GDPR, it may be subject to an administrative fine.

c) The Processor is aware that if it fails to meet its obligations under GDPR, it may be subject to a penalty under Article 84 (Penalties) of the GDPR.

d) The Processor is aware that if it fails to meet its obligations under GDPR, it may have to pay compensation to individual Data Subjects under Article 82 (right to compensation and liability) of the GDPR.

e) The Processor will appoint a data protection officer, if required in accordance with Article 37 (designation of the data protection officer) of the GDPR.

f) The Processor will appoint (in writing) a representative within the European Union if required because it is not established in the European Union and the provisions of Article 3 (2) apply in accordance with Article 27 (representatives of controllers or processors not established in the Union) of the GDPR.

6.3 Liability

Affordable Art Fair makes no representations or warranties of any kind to You in respect of the Website or the Services.

Affordable Art Fair shall not be liable for any damages of any kind including without limitation, direct, indirect, incidental, punitive and consequential losses (including loss of profits and loss of data) arising out of these Terms or use of the Website, provided always that nothing in these Terms shall exclude or limit liability for death or personal injury arising as a result of negligence, fraud or any other liability which may not be excluded or limited by law.

Affordable Art Fair shall not be liable for the acts or ommissions of providers of telecommunication services or for faults in or failures of their apparatus.

Any liability of Affordable Art Fair whatever arising under these Terms shall be deemed to end 6 months after the date on which You ought reasonably to have known of the event giving rise to the liability. For the avoidance of doubt, You acknowledge and agree that no claim or action by You can be validly made after the expiry of 6 months following such date.

Without limiting the foregoing, Affordable Art Fair’s aggregate liability to You shall not exceed the total amount actually received by You in any calendar year by way of Supplier Payments.

6.4 Indemnity

You hereby agree to indemnify Affordable Art Fair and keep Affordable Art Fair indemnified against all actions, proceedings, claims, demands, costs (including, but not limited to) legal costs, expenses, awards and damages arising as a result of any breach or non-performance by You of any of the undertakings, warranties, representations or obligations under these Terms or otherwise arising from a transaction between You and a Consumer.

Without prejudice to the generality of the foregoing, You shall indemnify and keep us indemnified against all losses incurred by us arising from any unpaid VAT or other applicable local sales tax due on Sales made by You via the Website (including, without limitation, any payments, fines or penalties payable by us to HMRC or Relevant Authority).

6.5 Third Party

These Terms do not create any right enforceable by any person who is not a party to them under the Contracts (Rights of Third Parties) Act 1999.

6.6 Entire Agreement

Save as expressly referred to in these Terms, these Terms shall constitute the entire agreement between You and Affordable Art Fair. These Terms shall supersede all prior arrangements and understandings, whether written or oral, pertaining to the subject matter of these Terms.

6.7 No partnership


These Terms shall not be deemed to constitute a partnership, joint venture, contract or relationship of employment between You and Affordable Art Fair.

6.8 Governance

These Terms and any non-contractual obligations or liabilities arising out of or in connection with these Terms shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the English courts.

 

1. See Recital 81 of the GDPR and page 13 of ICO GDPR guidance: Contracts and liabilities between controllers and processors (Reference checked 19/04/18).
2. This is a requirement of Article 28.3 and see page 13 of I ICO GDPR guidance: Contracts and liabilities between controllers and processors (Reference checked 19/04/18).
3. The above is required by Article 28.3 (c) of the GDPR and is a summary of the Article 32 GDPR requirements – see page 14 of ICO GDPR guidance: Contracts and liabilities between controllers and processors (Reference checked 19/04/18).
4. No code of conduct has been approved yet under Article 40 or an approved certification mechanism under Article 42. FEDMA is working on updating its current Code of Conduct which was approved under the 1995 Data Protection Directive and submitting it for approval under the GDPR.
5. These are the contract terms required by article 28.3 of the GDPR. See page 14 of ICO GDPR guidance: Contracts and liabilities between controllers and processors.
6. This is a requirement under Article 28.3 GDPR. The ICO will issue further guidance on this in due course – see page 15 of ICO GDPR guidance: Contracts and liabilities between controllers and processors.
7. The Processor’s obligations to assist the Controller is not infinite it is limited by “taking into account the nature of processing and the information available to the Processor.” This is a requirement under Article 28.3 (f) GDPR. The ICO will issue guidance on the specific requirements of each of the GDPR articles listed in Clause 10 (a) above}.
8. The ICO Guidance {page 16 of ICO GDPR guidance: Contracts and liabilities between controllers and processors ( Reference checked 19/04/18) suggests that the Data Processor could do this by providing the Data Controller with the necessary information or by submitting to an audit or inspection. The Data Processor will need to keep records of the Processing of the Data it carries out on behalf of the Data Controller.

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