Ocula Terms & Conditions

Effective Date: 24th April, 2020

  1. Background
    1. This website platform: https://ocula.com (the “Website”) is owned and operated by Ocula Ltd (“Ocula”), a limited liability company incorporated under the laws of New Zealand, and your use is governed by these Website Terms and Conditions (the “Terms”). By accessing and browsing this Website you agree to be bound by the Terms whether or not you are a Registered User (as defined in clause 2.1 below). If you do not agree to these Terms then you are not permitted to access the Services (as defined in clause 2.4 below).
    2. Ocula reserves the right to amend these Terms, in whole or in part, for any reason, at any time and without notice. Amendments will be effective immediately upon posting of the amended Terms on the Website. The date at the beginning of these Terms will be updated to the date such amendments take effect. You are responsible for ensuring that you are familiar with the latest Terms. You will be deemed to have accepted these Terms as amended if you continue to use the Website and/or the Services.
  2. Registered Users
    1. A “Registered User” is a person that registers through the ‘Registered Users’ registration form contained on the Website to become a Registered User.
    2. You must be at least 18 years old to apply to be a Registered User. Any registration by a person aged under 18 is invalid.
    3. You may not register for more than one account as a Registered User.
    4. Ocula provides Registered Users with the following services:
      • (a) an ability to follow certain galleries and artists featured on the Website;
      • (b) notification of new exhibitions, viewing rooms and artworks by galleries and artists featured on the Website;
      • (c) facilitation of online enquires to Ocula and its member galleries (including transaction related) featured on the Website; and
      • (d) provision of Ocula’s regular e-newsletter,
      collectively, the “Services”.
    5. When registering as a Registered User, you must provide all the account information requested by Ocula (collectively, the “Account Data”). By submitting Account Data, you warrant that you have provided accurate, current, and complete Account Data and will keep the Account Data current and complete.
    6. Artworks which galleries upload to Ocula may be offered by them for sale. By making an enquiry to a gallery through Ocula, you submit automatically via email the following information to both Ocula and the relevant gallery: first name, family name, registered e-mail. You may disclose to the gallery and Ocula at your sole discretion additional information (such as that relating to where you live, your job title, and the art you own). When you enter a gallery's viewing room on Ocula you will be required to enter your email address and information regarding artworks you view within the relevant gallery's viewing room will be accessible by the gallery too.
    7. A Registered User is responsible for keeping its login information (including email address and password) secret and secure. Without limiting the foregoing, a Registered User agrees:
      • (a) not to permit any other person to use its user name or account or otherwise transfer its account or any access to or use of the Services to any third party;
      • (b) not to disclose, or provide to any other person, its password, email address, date of birth or any other information in connection with its account that may allow third parties to gain access to its account; and
      • (c) to notify Ocula immediately if the Registered User suspects or becomes aware of any unauthorized access to their account or password or breach of Ocula’s security in connection with the Services.
    8. A Registered User acknowledges and agrees that:
      • (a) it must make its own assessment of the suitability and appropriateness of the Services for its particular purpose;
      • (b) it will communicate in good faith with third parties through the Website and/or the Services;
      • (c) it will not involve Ocula in any disputes it has with third parties contacted via the Website or the Services;
      • (d) it will not use the Website to falsely state or otherwise misrepresent itself, its age, or affiliation with any person or entity, nor express or imply that any statements that it makes are endorsed by Ocula; and/or
      • (e) Ocula may send it, from time to time, emails relating to its registration and other activities conducted on the Website, and may contact it promoting and marketing Ocula products and services.
    9. Ocula will close a Registered User’s account on request in writing from the Registered User.
    10. Without limiting and other rights and remedies available to it, Ocula reserves the absolute right to suspend or terminate the account of a Registered User at any time or refuse to provide the Services to a Registered User with or without first issuing notice, including, without limitation, if Ocula believes that it is necessary to comply with the rights of a third party and/or where Ocula has reason to believe that a Registered User has violated any of its obligations contained in clause 4.2(a)-(i) inclusive below.
  3. Pricing and Availability of Artworks
    1. Some artworks are displayed by the galleries with a price tag or a price range tag in the gallery's relevant currency. Prices are always indicated as net amounts only and you understand that taxes and additional fees may apply in the event of sale. Ocula does not guarantee that any artwork presented on Ocula is available for sale or is tagged with an accurate price. If you have any concerns about the price, please get directly in contact with the gallery.
  4. Intellectual Property
    1. Ocula and/or its licensors (which includes, but is not limited to, Ocula’s members that supply information for the Website concerning their gallery, including their exhibitions, artists, artworks) own all the Intellectual Property Rights subsisting in the Website and in all materials distributed by Ocula to Registered Users as part of the Services (the “Content”), including in all text, graphics, logos, icons, photographs, film recordings and sound recordings, designs and look and feel as they appear on the Website and in the Content, as well as in the underlying software subsisting in the Website and where applicable, the Content.
    2. You acknowledge and agree that:
      • (a) you have no interest in the Intellectual Property Rights in the Website and/or the Content; and
      • (b) all Intellectual Property Rights in the Website and in the Content are and shall remain the property of Ocula and/or its licensors and these Terms and the use of the Website and/or the Services provided herein do not grant you any interest in the Intellectual Property Rights or in the Ocula brand.
    3. For the purpose of the Terms, the “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, database rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  5. Use of the Content and limitations
    1. Subject to these Terms, you may access and view Content within the Services for your own personal, non-commercial use, in the context of your Ocula user experience, within the normal functionality and restrictions of the Services.
    2. You may not:
      • (a) reproduce, copy, distribute, duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information (whole or in part) found in the Website or the Content;
      • (b) commercially exploit any portion of the Website or the Content (in whole or in part) or use the Website or the Content for any commercial purpose in any manner;
      • (c) prepare or develop derivative works based upon any portion of the Website or the Content;
      • (d) harvest, collect, store or use information about Ocula, other Registered Users or third parties featured on the Website for any purpose inconsistent with the Terms, including for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic mail or communications;
      • (e) use the Website or the Content in any manner that would infringe, dilute, misappropriate, or otherwise violate any personal rights or the Intellectual Property Rights of Ocula, its licensors or any other person;
      • (f) remove or alter any notices or other markings, such as trademark or copyright notices, affixed on or within the Website or in the Content;
      • (g) disassemble, reverse engineer, decompile, decipher, modify or alter the Website or any portion thereof;
      • (h) post or transmit to Ocula, galleries or artists featured on the Website or any other person any unlawful, threatening, harassing, libellous, defamatory, offensive, obscene, scandalous, inflammatory, pornographic, or profane material, or any other material that might give rise to any civil or criminal liability;
      • (i) engage in any conduct that:
        • (i) restricts, inhibits, or otherwise interferes with the ability of any other person to use or enjoy the Website, regardless of intent, purpose or knowledge;
        • (ii) uses manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Website;
        • (iii) uses the Website to transmit or distribute material that may be harmful to or interfere with the Website or any third party's networks, systems, services, or websites (such prohibited harmful content includes, but is not limited to, viruses, worms, or Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, overburden, or limit the functionality of any computer software or hardware or telecommunications equipment);
        • (iv) accesses, via automated or manual means or processes, the Website for purposes of monitoring its availability, performance or functionality or for any competitive purpose;
        • (v) interferes with or disrupts the Website, including but not limited to any servers or networks connected thereto; or
        • (vi) use the Website to impersonate any person or entity, forge anyone else's digital or manual signature, or perform any other similar fraudulent activity.
    3. You acknowledge and agree that Content covers a wide range of art and subject matter and may contain nudity or other visual or textual material containing nudity or material that is offensive and inappropriate for children and minors. If you allow a child or anyone other than you to use your computer, mobile or any other device when accessing the Website or the Services, it is solely your responsibility to prevent them from accessing any content that may be offensive or inappropriate to them.
  6. Indemnity
    1. To the maximum extent permitted by applicable law, you will defend, indemnify and hold Ocula, its subsidiaries, member galleries, affiliates, partners, and other parties with which Ocula is under contract or affiliated, and their respective officers, directors, employees, and agents, free and harmless from and against any claims, actions and demands, including, but not limited to, any attorneys’ fees and accounting fees, resulting from your use of the Website or the violation of these Terms, any law or regulation, any proprietary right, any privacy right or any Intellectual Property Rights.
    2. Ocula reserves the right to assume the exclusive defence of any matter subject to indemnification by you, in which case you agree to co-operate as fully as reasonably required by Ocula in conducting such defence. In any case, you agree not to settle any such matter without Ocula’s prior written consent. Your indemnification and defence obligations in these Terms will survive termination and your use of the Services.
  7. Limitation of liability
    1. Ocula gives no express or implied representations or warranties in relation to the accuracy of information generated by third parties presented on the Website or communicated to a Registered User as part of the Services. You acknowledge and agree that your access to and use of the Services is at your own risk and that the Services are provided to you on an “as is” and “as available” basis.
    2. All transactions conducted between a Registered User and third parties is solely between the Registered User and those third parties and is conducted entirely at the Registered User’s own risk and Ocula has no responsibility or liability for any loss or damage incurred as the result of a Registered User’s transactions with third parties.
    3. Ocula makes no representations or warranties or gives any undertakings relating to the artworks listed and/or sold (whether directly or indirectly) through the Website or as a result of the Services and specifically, relating to the authenticity, condition, ownership, export, provenance or quality of any artwork or their merchantability or fitness for purpose.
    4. Responsibility for the content of advertisements appearing on the Website rests solely with those third parties who are advertising. The placement of any such advertisements on the Website does not constitute Ocula's recommendation or endorsement of the advertised goods or service. Ocula has no liability whatsoever in respect of any advertisements or other promotions of third parties that appear on the Website or in the Content.
    5. The Website contains links to other sites on the Internet that are owned and operated by third parties (the “Third Party Sites”). These links are provided solely for your convenience, and do not constitute an endorsement or warranty by Ocula of the content or accuracy of such Third Party Sites or of the business practices of such other businesses, entities or individuals. You acknowledge and agree that Ocula is not responsible for the availability of, or the content located on or through, any Third Party Site. If you visit any Third Party Sites you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements.
    6. Ocula will not be liable or responsible for:
      • (a) any incorrect or inaccurate material or other information posted on the Website;
      • (b) any removal or disabling of access to any portion of the Website, including but not limited to any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction, or unauthorised access to, or alteration of, user communication;
      • (c) any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, or failure of email on account of technical problems or traffic congestion on the Internet or on the Website or combination thereof, including injury or damage to you or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Website; or
      • (e) the corruption of data or information.
    7. To the fullest extent permitted by law:
      • (a) all conditions, warranties or other terms concerning the Website and/or the Services which might otherwise be implied into the Terms (whether by statute or otherwise) are hereby expressly excluded; and
      • (b) Ocula will not be liable in respect of claims in connection with the Website or the Services in contract, tort (including negligence) or otherwise for any direct, indirect or consequential loss or for any loss of revenue, profits, goodwill, business or anticipated business, anticipated savings or for any business interruption, loss of data or other indirect or consequential loss or damage whether or not that loss was, or ought to have been, contemplated.
    8. If you are dissatisfied with any portion of the Website, the Services or the Terms, your sole and exclusive remedy is to discontinue using this Website and/or the Services.
  8. Privacy
    1. You can view Ocula's privacy policy here.
  9. General
    1. The Registered User and Ocula are independent contractors under these Terms. No agency, partnership, joint venture, employment or franchise relationship is hereby created or implied by these Terms or through your use of Ocula’s Services.
    2. If any part of the Terms is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of the Terms, which will remain in full force.
    3. No waiver by Ocula will operate as a waiver of any right or remedy of Ocula in respect of any breach of the Terms.
    4. If you are located in a jurisdiction other than New Zealand, you are responsible for ensuring your use of the Website and the Services complies with the laws of that jurisdiction.
    5. The Terms are governed by and will be construed solely in accordance with the laws of New Zealand and you unconditionally and irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of all matters arising out of your use of the Website, the Services and/or the Terms and you waive any right you may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction. Regardless of the above, Ocula reserves the right to bring proceedings for injunctive relief in any jurisdiction.
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