Terms and Conditions

1. Introduction

1.1 These Terms and Conditions govern your relationship with Deepest Darkest Contemporary Gallery (‘the Gallery’) and apply to all quotations, offers, orders and contracts for sale of Goods. Please ensure that you read these Terms and Conditions carefully, and check that the details on any quotation, offer, order or contract and in these Terms and Conditions are complete and accurate. Should you suspect  an error, kindly contact the Gallery to ensure that any changes are confirmed in writing prior. 

1.2 In these Terms and Conditions, unless stated otherwise:

The Buyer – means the purchaser of the Goods from Deepest Darkest Contemporary Gallery;

The Gallery – means the company selling the Goods being a trading name of Deepest Darkest Contemporary Gallery located at 20 Dixon Street, De Waterkant, Cape Town, South Africa.

Goods – means the items / artworks to be sold to the Buyer by the Gallery, either all or part of them as set out in the written invoice issued by the Gallery pursuant to clause 2.2;

Terms and Conditions – means the terms and conditions set out in this document.

1.3 The Terms and Conditions constitute the entire understanding of the parties and supersede all prior discussions, negotiations, agreements and understandings, whether oral or written.

1.4 No change or modification of the Terms and Conditions (including change orders) is valid unless in writing and signed by all the parties.

1.5 If any part of the Terms and Conditions is held invalid, unenforceable or void by a court of competent jurisdiction, the Terms and Conditions are considered divisible as to such part, and the remainder of the Terms and Conditions are valid and binding as though such part was not included in the Terms and Conditions to the fullest extent permitted by law.

1.6 The Terms and Conditions are governed by the laws of South Africa (without regard to the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect and performance and both parties agree to the exclusive jurisdiction of the South African courts.

1.7 The Terms and Conditions may be executed in two or more parts, each of which shall be deemed an original but all of which together shall be one and the same instrument.

1.8 Nothing in these Terms and Conditions affects the statutory rights of any consumer.

1.9 If the Gallery fails, at any time while these Terms and Conditions are in force, to insist that the Buyer performs any of its obligations under these Terms and Conditions, or if the Gallery does not exercise any of its rights or remedies under these Terms and Conditions, that will not mean that the Gallery has waived such rights or remedies and will not mean that the Buyer does not have to comply with those obligations. If the Gallery does waive a default by the Buyer, that will not mean that it will automatically waive any subsequent default by the Buyer. No waiver by the Gallery of any of these Terms and Conditions shall be effective unless it expressly says that it is a waiver and it tells the Buyer so in writing.

1.10 A person who is not party to these Terms and Conditions shall not have any rights under or in connection with them. 

2. Order

2.1 Any offer or acceptance of a quotation made by the Buyer will be deemed an offer to purchase the Goods governed by these Terms and Conditions.

2.2 No offer or acceptance of a quotation will be deemed a binding agreement of sale until confirmation with a written invoice has been issued by the Gallery. Upon confirmation, these Terms and Conditions (as they may be amended by the Gallery from time to time) form a binding agreement between the Buyer and the Gallery.

2.3 Any Goods or services not confirmed by written invoice issued by the Gallery are deemed additional work and must be agreed in writing signed by both parties. These Terms and Conditions are applicable to any additional work or additional sales to the Buyer by the Gallery. 

3. Purchase Price and Payment Methods

3.1 The purchase price shall be the price offered by the Gallery and confirmed to the Buyer by written invoice issued by the Gallery.

3.2 The purchase price does not include any additional cost of packaging, delivery, shipping, sale, use, excise or similar duty which may be applied. Any fees, duty or taxes applied will be billed to and paid by the Buyer as set forth on the written invoice issued by the Gallery.

3.3 All payment shall be made in South African Rands (ZAR) and the agreed price is due in full at the time the offered price is accepted and confirmed by invoice, unless agreed otherwise in writing.

3.4 The Buyer will have 5 workings days from the date of invoice to make payment in full, unless agreed otherwise.

3.5 For goods placed on reserve by the Buyer, a 50% non-refundable deposit of the full price of Goods must be paid by the Buyer and will be reflected as such on the Gallery invoice. 

3.6 Ownership (legal title) of Goods will not pass to Buyer until the accepted and confirmed price is paid in full by the Buyer and received by the Gallery in cleared funds.

3.7 Late Fees. Any payment not paid in full as per the Terms and Conditions will be subject to interest assessed on funds due at 6.5 percent per annum as per standard rates of the South African Resever Bank. 

4. Goods (Artwork)

4.1 The Goods to be delivered shall be specifically described in the written invoice provided by the Gallery.

4.2 In the event the specific Good is not available as of the date the order is confirmed by written invoice, the Gallery agrees to source Goods of similar or greater quality.

4.3 In the event the Gallery cannot source Goods acceptable to the Buyer because the ordered Goods are not available, the Buyer will have 7 days to provide written notice to cancel the order. The Gallery will, upon receipt of such notice, refund moneys paid in full.

4.4 The Buyer agrees and acknowledges that all specifications and advertising issued by the Gallery and any descriptions or illustrations contained in the Gallery marketing materials are provided for the sole purpose of giving an approximate idea of the Goods described in them. The Gallery is not bound by such descriptions which do not form a part of these Terms and Conditions, nor are they a part of the sales agreement and this is not a sale by sample.

5. Product Delivery

5.1 Unless otherwise agreed by the parties, delivery of the Goods shall be to the Buyer’s home or business address, as provided by the Buyer.

5.2 The Goods may be delivered framed or unframed. The frame will encase the product and is separate from the actual delivery packaging for the Goods. The Buyer acknowledges that the Goods are unique, rare and of value and that the value of the Goods can be reduced by merely handling the Goods.

5.3 The Gallery will make its best effort to deliver the Goods by the agreed date or within a reasonable time if no dates are stated. All delivery dates are estimates only and time of delivery is not of the essence. It is to be noted that the Gallery relies on third party delivery / courier / shipping contractors. In-transite insurance and required protective packaging will therefore be included in the delivery / shipping quote to the Buyer.

5.4 The Buyer must inspect the Goods upon delivery and advise the Gallery of any defects within 48 hours of delivery or all complaints as to defects are waived.

5.5 Risk of loss or damage to the Goods passes to the Buyer upon delivery.

5.6 Where the Buyer requests that the Goods be placed directly in the safe custody of another party on behalf of the Buyer, delivery shall be deemed to take place on the date the Goods are transferred into safe custody.

6. Warranties

The Gallery makes no warranties, expressed or implied, except as specifically stated herein. Such warranties are in lieu of all other warranties, written or oral, statutory, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose.

7. Termination by The Gallery

The Gallery may terminate this agreement if the Buyer fails to make payment when due or substantially breaches any other obligation of these Terms and Conditions. The Gallery may notify the Buyer in writing of such termination and recover from the Buyer payment for Goods sold or work completed. The Buyer is liable for any and all costs incurred by the Gallery in connection with collection of such unpaid funds.

9. Force Majeure

Provision of Goods supplied to the Buyer covered by the Sales Agreement is contingent upon the non-occurrence of strikes, accidents, delays of carriers, delays of delivery, delay of personnel or other causes unavoidable or beyond the control of the Gallery. If performance of the Sales Agreement or any obligation under the Sales Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“force majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, wars, supplier failures, shortages, breach, or delays. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

11. Indemnity

The Buyer hereby agrees to indemnify the Gallery and undertakes to keep the Gallery indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by the Gallery to a third party in settlement of a claim or dispute on the advice of its legal advisers) incurred or suffered arising out of any breach by Buyer of any provision of these Terms and Conditions or arising out of any claim that Buyer has breached any provision of these Terms and Conditions.

12. Liability

12.1 If the Gallery fails to comply with these Terms and Conditions, it will be responsible for loss or damage that the Buyer suffers which is a foreseeable result of the Gallery’s breach of the Terms and Conditions or its negligence, but it is not responsible for:

12.1.1 any loss or damage that is not foreseeable;

12.1.2 any loss which that is not caused by a breach of the Gallery or its agents or employees; and

12.1.3 any business losses, or losses to parties who are not consumers.

Loss or damage is foreseeable if they were an obvious consequence of the Gallery’s breach or if they were contemplated by both parties at the time the contract is entered into.

12.2 Nothing in these Terms shall limit or exclude the Gallery liability for

12.2.1 death or personal injury resulting from its negligence;

12.2.2 defective products under the Consumer Protection Act 2011;

12.2.3 for fraud or fraudulent misrepresentation;

12.3 In any event, the total liability of the Gallery in respect of breach of any contract for the sale of Goods or any representation given in connection with such a contract, whether in contract, tort (including negligence), statute or otherwise shall be limited to the purchase price for the Goods.

13. Communication

13.1 All notices shall be in writing and sent by email to the address of the recipient stated in any quotation, order or acknowledgement of order.

13.2 Notices shall be deemed to be received if if sent by email on day of transmission (if sent before 4:00pm).

14. General

14.1 Each right or remedy of the Gallery under the Contract is without prejudice to any other right or remedy of the Gallery whether under the contract or not.

14.2 No failure or delay by the Gallery to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.

14.3 The parties do not intend that any term of these Terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party of it.

15. Disclaimer

15.1 This legal notice should be read as an extension of any Terms and Conditions of the Gallery. 

15.2 The value of works of art and the income derived from them may go down as well as up and you may not receive back all the money which you invest.

15.3 The services described or recommended in our marketing materials or on the website may not be suitable for all people. You should seek your own professional advice as to the suitability of any such investment or service before you enter into any transaction.

15.4 Any information relating to past valuation of Art is not necessarily a guide to future performance.

15.5 Fluctuations in the rate of exchange may have an adverse effect on the value, price or income of non-rand denominated Art.

16. Data Protection

The Gallery will hold any personal information provided to it in confidence and in accordance with the Protection of Personal Information Act 4 2013 and other applicable data protection legislation. The Gallery will use such personal information for the administration and servicing of your purchase and all other related activities; The Gallery may disclose your personal information to its agents and service providers and other members of the Gallery for this purpose. 

17. Copyright and Confidentiality

17.1 Copyright, trademarks, database rights and all similar rights in this website and marketing materials are owned by the Gallery, its licensors or relevant third party content providers. You may use the information on this site and reproduce it in hard copy for your personal reference only. Such information may not otherwise be reproduced, distributed, stored in a data retrieval system or transmitted in any form or by any means without the prior written permission of the Gallery. Nothing in our marketing materials or in this website should be considered granting any license or right under any trademark of the Gallery or any third party.

18. Ownership and Artist Copyright

18.1 Ownership of Goods / artwork is transfered to the Buyer upon full payment being cleared to the Gallery’s account. Copyright to the artwork is reatined by the artist responsible for it’s creation in perpetuity. The ownership rights afforded to the Buyer do not, under any circumstances, allow for the copying or reproduction of the artwork, in whole or in part, in any manner, form, material or format