1. DEFINITIONS (The singular shall include the plural, and vice versa. Any reference to one gender shall include the other)
- “Artwork” shall refer to any Artwork and other chargeable items whatsoever identified in the Gallery, on the Website, Order Confirmation, or in an Invoice.
- "Artist's Resale Royalties" shall refer to any applicable Artist Resale Royalty that must be accounted for in accordance with Clause 9.1.d).
- “Business” unless mentioned otherwise throughout these terms, shall refer to a Buyer being a corporate entity, sole trader, or partnership operating within his trade, Business, craft, or profession. A Business will not qualify as a consumer for the purposes of the Consumer Rights Act 2015 or The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, or any other pertinent legislation conveying consumer rights.
- “Buyer” shall refer to any body, Individual or Business, who makes any enquiry about purchasing Artwork from us, and/or purchases Artwork in line with these Terms.
- “Collection” shall refer to You or a third party courier, either authorised by You or us in writing, removing the Artwork from our premises, or any other premises as authorised by us. Upon Collection, risk of damage or loss to Artwork will pass to you.
- “Consignor” shall refer to any third party Seller we act as agent for in marketing, promoting, and selling their Artwork through a consignment arrangement.
- “Art Advisory Fees” shall refer to the commission we charge for our services in sourcing Artwork for You not in stock or on consignment, including any additional fees for services provided to You, such as framing or installation of Artwork.
- “Contract” shall refer to a Contract for the sale of goods (Artwork) under the Sale of Goods Act 1979, as constituted by these Terms, together with any Sale and Purchase Agreement, the Specification of Artwork in the Gallery, on the Website, the Order Confirmation, or an Invoice, including any confirmation of changes or express referencing to ancillary documentation and correspondence, which together shall form the Contract for the sale of Artwork.
- “Dealer” shall refer to Dellasposa Fine Art LLP.
- “Domain” shall refer to the country, state, origin, or province to which Artwork is to be Shipped.
- “Disbursements” shall refer to such costs as Shipping and insurance, and any other such costs mentioned as Disbursements in an Invoice.
- “Gross Sale Price” shall refer to the total price of the Artwork, together with Art Advisory and Artist's Resale Royalties if applicable, but excluding Disbursements.
- “Individual” for the purposes of the Consumer Rights Act 2015, and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, shall refer to any consumer being a natural person, excluding sole traders, purchasing Artwork for purposes outside their trade, business, craft, or profession.
- “Incoterms” - shall refer to international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when a Contract is formed.
- “Invoice” shall refer to the document we submit to You requesting payment of the Total Cost for any Artwork You have requested to Order. Please note, Invoices will not be sent for purchases made via the Website, which will instead be confirmed via an Order Confirmation email.
- “Dellasposa Fine Art LLP” is an international art Dealership and an incorporated trading name in England and Wales, registered at Companies House under company number OC420922, and whose registered offices are at:
C/O James Cowper Creston, Videcom House, Newtown Road, Henley-Upon-Thames, Oxfordshire, RG9 1HG
Dellasposa Fine Art LLP shall also be referred to as “us”, “our”, and “we”, throughout these Terms, and shall include any directors, officers, employees, affiliates, agents, Contractors, interns, suppliers, and service providers, unless stated otherwise throughout these Terms or additional written correspondence, to expressly relate to these Terms.
- “Net Sale Price” shall only refer to the price of the Artwork, excluding Art Advisory Fees, Disbursements, and other costs as set out in Your Invoice or Order Confirmation.
- “Order” shall refer to any purchase of Artwork made via the Gallery, or the Website, or the verbal or written request by You for us to acquire Artwork and/or sell Artwork, if already in stock, to You.
- “Order Confirmation” shall refer to the email we send to Buyers having submitted an Order to purchase Artwork through our Gallery and/or Website.
- “Our Contact Details” shall refer to our business address for postal letters, which is Dellasposa Gallery, 2a Bathurst St, London, W8 7QG, or the following phone number for telephone enquiries; +44 (0) 203 286 1017, or; Our email address at: firstname.lastname@example.org
- “Packaging” shall refer to any Packaging materials used in the preparation of Artwork for Shipping.
- “Parties” unless mentioned otherwise, shall refer to “us” and “You”.
- “Payment Service Provider” shall refer to our third party payment systems providers, whose payment facility our Website may direct You to.
- "Sale and Purchase Agreement" shall refer to the written agreement to be agreed and entered into with You at our discretion if we source, or agree to source, Artwork with a Net Sale Price of £50,000 or more through our art advisory services, as better explained in clause 4. The terms of a Sale and Purchase Agreement will form part of these terms, with specific clauses of the agreement prevailing in the event of a conflict.
- “Seller” shall refer to any third party we purchase Artwork from, whether or not on Your behalf.
- “Specification” - shall refer to the description of the Artwork as sold, including the title, age, material and technique of the artist, dimensions, edition size, markings, and authenticity, together with any other feature or description, including marks or damage, of the Artwork, which shall either be detailed on our Website or an Order Confirmation for online purchases, or in an Invoice.
- “Shipping" shall refer to any transportation of Artwork within UK mainland or to any other Domain, worldwide.
- “Taking Delivery” unless mentioned otherwise, shall refer to risk of damage or loss to Artwork passing to the buyer upon the Buyer or their representative accepting delivery through the signature of delivery forms when Artwork has been delivered at the delivery address detailed in an Order Confirmation or Invoice. Taking Delivery shall also be as defined by s61(1) Sale of Goods Act 1979.
- “Terms of Business” unless clearly identified as anything different, shall refer to this entire document, which may also be identified as “Terms”.
- “Total Cost" - shall refer to the Gross Sale Price plus Disbursements, as displayed in an Order Confirmation or Invoice.
- “Website” unless mentioned otherwise, shall refer to the Domain name and all content, including the e-commerce sales platform for online purchases, found at www.dellasposa.com or www.dellasposa/shop
- “Writing” or “Written” shall refer to any Writing in a durable form served on the other Party, or electronic text in a lasting form, to include electronic email communications.
- “You” and “Your” shall refer to You as the “Buyer".
2.1. By raising any query with us by any means for the purchasing of Artwork You are confirming You are at least 18 years of age, or at least the age of majority in Your Domain, and agree to be bound by these Terms of Business.
2.2. Any reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time of Contract.
2.4. You hereby accept any Incoterms imposed on You by these Terms or an Invoice, or Order Confirmation.
2.5. Any ‘offer’ is made subject to Contract. Prior to the production of an Invoice or Order Confirmation, the advertisement or disclosure of the Specification of any Artwork is merely an ‘invitation to treat’, and as such, is not an ‘offer’, and may be subject to change.
2.6. In addition to any fraud and anti-money laundering processes of our Payment Service Providers, we reserve the right, at our sole discretion, to:
a) Cancel a Contract and Refuse to sell You Artwork or communicate with You for any reason, including insolvency or bankruptcy, subject to our unfulfilled Contractual obligations under these Terms;
b) Request a bank wire transfer, subject to the provisions of clause 7.2. This will likely be due to your payment account being flagged as medium or high risk by our Payment Service Providers;
c) Ask You any questions in relation to due diligence checks for our anti-money laundering obligations as a high value Dealer for Artwork, including Disbursements, with a Total Cost of €10,000 or more. (The exchange rate for GBP sterling will apply upon the date of Contract);
d) Disclose Your personal or company details, together with those of any known or suspected beneficiaries, to relevant anti-money laundering authorities under our obligations as a high value Dealer;
e) Disclose Your company details with no prior notice you, or the details of Individuals with their express written consent, to any reputable credit reference agencies to deduce your ability to pay for Artwork.
2.7. Where we state that an Artwork is from an open edition, the Buyer should assume that the Artwork was not produced in a limited number and may have been produced over a number of years. We do not warrant that the size of the edition is limited to a specific number.
2.8. Where we state that an edition size is 'reported', this is not a confirmed edition size and we cannot be held liable if the edition size is later proven to be more or less than the reported edition size.
3. PLACING AN ORDER
3.1. We market stock, based on our premises and Gallery, and Artwork on consignment, through various marketing channels, including but not limited to our Website, ‘artsy.net’, 'ocula.com', and 'printed-editions.com' and various online and printed magazines, newspapers, and other such material and mediums, including social media channels and auctions.
3.2. We limit our liability for representations made through our marketing channels and any communications prior to Contract. As Dealers, we sell Artwork ‘as found’, and for Artwork not sold through our Gallery or Website, You shall be responsible for examining and assessing the Specification of Artwork in person prior to placing an Order. For more information on the way in which we limit our liability, please refer to Clause 10 ‘LIMITATION OF LIABILITY’.
3.3. An Order is placed and a Contract is formed when You complete Your purchase of Artwork either through our Gallery or Website, subject to clause 7.2, or You confirm Your acceptance in Writing of an Invoice for purchases not made through the Gallery or Website.
4. ART ADVISORY SERVICES
4.1. An advisory agreement shall be formed when You require us to source Artwork not available through our Gallery or on our Website, in stock, or on consignment, the basic terms of which are as follows, and which we will finalise in a Sale and Purchase Agreement for Artwork with a Net Sale Price of £50,000 or more.
4.2. Prior to engaging us as Your consultant to source Artwork, we will confirm Your instructions by clarifying, or asking You to clarify in Writing, some or all of the following details about Artwork You require us to source: a) Budget, or; b) Size and dimensions, or; c) Editioned or unique Artwork, or; d) Quantity, or; e) Condition, or; f) Rarity, or; g) Historical and social significance, or; h) Provenance, or; i) Any other information we deem necessary to accurately fulfil Your requirements.
4.3. For guidance purposes only, we offer a range of art advisory services for a flat fee. An estimate our Art Advisory Fees for our advisory services to source artwork for You, which do not constitute a formal quote, to be based on the following:
Net Sale Price of Artwork Estimated Art Advisory Fees
£0 – £4,000: £500
£4,001 - £6,000: £750
£6,001 - £10,000: £1,000
£10,001+: 10% of the Net Sale Price
4.4. At our discretion we may require a deposit of up to 50% of the estimated Art Advisory Fees, which is required before our services can be engaged. Please note, irrespective of whether You are a Business or Individual Buyer, beyond 14 days from payment, or after You have engaged any part of our advisory services for the purposes of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 s.28 (1)(b), whichever is sooner, Your deposit payment shall be non-refundable.
4.5. Our Advisory Fees are in addition to any other costs mentioned throughout these Terms, including but not limited to the Total Cost of Artwork.
4.6. Our Advisory Fees, unless mentioned otherwise, will include but is not limited to, sourcing Artwork, negotiating with the Seller on Your behalf, preparing any necessary documentation, liaising with third Parties, arranging the logistics if requested by You, and corresponding with You.
4.7. Payment for Artwork and our Advisory Fees must be made before any Artwork is purchased on Your behalf.
4.8. Together with Your agreement to a purchase, we will notify You of any additional conditions of the Seller over and above these Terms, especially with regard to limitations of resale, if applicable, before purchasing Artwork on Your behalf. Please note, upon Your agreement You will become bound to such additional terms of the Seller.
4.9. If You reject or do not purchase any Artwork we have sourced on Your request, and we are not in breach of these Terms, then, subject to the reasonable fulfilment of Your requirements and any ancillary terms made clear by us in Writing to relate to these Terms, You will become liable to pay our Advisory Fees in full.
4.10. Further to clause 4.4, Contracts formed through the advisory service cannot be cancelled, and unless clause 5.10 applies, the Artwork cannot be returned, and nor can You claim any refund or return of any costs whatsoever, including our Advisory Fees.
4.11. Clause 4.9 and 4.10 is subject to our discretion and Your rights under these Terms, together with Your statutory rights in so far as any implied terms that can be excluded do not contravene these Terms.
5. RETURNS AND REFUNDS
5.1. Business Buyers are not permitted to cancel a contract or return Artwork and receive a refund for any reason unrelated to damage before Taking Delivery, inauthenticity, or Artwork not materially matching the Specification. If, however, You are an Individual based in the UK, or in the EU to the extent the provisions of this clause continues to apply to EU consumers in UK law, You have a right to cancel a Contract for any reason subject to the Consumer Rights Act 2015 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. This means that if You purchase Artwork through the Website or by any other distance selling method, and You subsequently change Your mind or decide for any other reason to cancel the Contract up to the point of Collection or Taking Delivery of Artwork, or within 14 days of Taking Delivery of Artwork, then You can notify us of Your decision clearly in Writing to cancel the Contract by using Our Contact Details.
5.2. If Artwork is returned or the Contract is cancelled under the provisions of clause 5.1, or for any other reason unrelated to damage before Taking Delivery, inauthenticity, or not matching the Specification, You will be liable for all return Packaging, insurance, and Shipping costs. Return addresses must be confirmed by us in Writing, which we shall not unreasonably withhold. Providing the Artwork is returned to us matching its previously described Specification, You will receive a full refund of the Net Sale Price paid into the same account used for payment within 14 days of us Taking Delivery. Please note that this clause in no way affects Your statutory rights, or our rights under clause 4.10.
5.3. Further to clause 5.1, if You cancel a Contract after the Artwork has been Shipped, then we encourage You not to open the Artwork upon Taking Delivery, as this can result in damage and unnecessary handling. Any damage caused to Artwork after You Take Delivery, or Collect Artwork if You arrange for Your own Shipping and insurance, will be subject to deductions in refunds, as calculated either by us as fine art Dealers, or a third party expert appointed by us if we deem the assessment of the nature and extent of damage outside our scope of judgement, which may affect the timescale for refunds in clause 5.2.
5.4. In addition to the timescales for Individual returns and refunds in clauses 5.1 to 5.3, unless You have arranged for Your own Collection, or Shipping and insurance, You must report to us any substantial damage occurred in transit to the Packaging of Artwork before removing Packaging within five (5) working days of Taking Delivery. Beyond such time, subject to clause 8.9, inauthenticity, or Artwork not matching the Specification, we shall have no further liability to You for loss of any sort.
5.5. Subject to clause 5.4, and our confirmation for You to proceed after performing Your obligations in clause 5.4, You must remove Artwork from all Packaging and Shipping containers and inspect for any defects and to report such defects to us within five (5) working days. Beyond such time, and subject to clause 5.7, we shall have no further liability to You for loss of any sort.
5.6. If You are a Business Buyer and acting in an agent or broker capacity, the timescales in clauses 5.4 and 5.5 shall apply upon Your client Taking Delivery. Beyond such time, subject to clause 8.9, inauthenticity, or Artwork not matching the Specification, we shall have no further liability to You for loss of any sort.
5.7. If You have any doubt of the authenticity of Artwork, You must appoint a certified art appraiser to validate authenticity. Please note, any claims against us relating to authenticity must be reported within three (3) years from entering into a Contract with us. Beyond such time, we shall have no further liability to You;
5.8. Any evidence of damage prior to Taking Delivery, or inauthenticity, or Artwork not matching its Specification, must be shown in the form of clear photographs and sent using Our Contact Details. We will respond in Writing either confirming our consent to the return, or rebutting Your request giving valid reasons – neither responses from us will be unreasonably withheld or unlawful. Subject to all consumer rights in relation to returns in clauses 5.1 to 5.3, returns must not be sent without our express authority in Writing;
5.9. Further to clause 5.7 and 5.8, returns must be sent within thirty (30) days of our written authority. Beyond such time, we shall have no further liability to You.
5.10. Further to clause 5.9, providing the Artwork is returned to us matching its previously described Specification on the Website, or Invoice, within 14 days from Taking Delivery we will provide You with a full refund of the Total Cost, either arranging for return Shipping, or reimbursing You of Your Shipping and insurance costs if clause 8.9 applies, subject to the production of all receipts or Invoices from You for such costs. Any applicable Advisory Fees may be re-applied to source alternative Artwork, or returned to You. Please note that this returns policy is subject to the provisions on Shipping and insurance in clause 8, and refunds being paid into the same account used for payment.
6. ANTI MONEY LAUNDERING
6.1. Further to Clause 2.6 we are legally obliged under anti-money laundering legislation to carry out due diligence for any Buyers purchasing any Artwork(s) of which the Total Cost is €10,000 or more.
6.2. As a minimum requirement, we must validate Your identity by You providing us originals or certified copies (by an authorised legal professional) of one of the following documents: a) Your passport, and; b) Your photo driving licence.
We also require two of the following documents to provide proof of address: c) Title deeds and/or tenancy agreement(s) of the property or properties You reside at, or; d) A utility bill from the past 3 months, or; e) Driving licence (if not already provided as ID), or; f) Your bank statement from the past 3 months, or; g) Council tax bill from the past 3 months, or; h) 2 of Your most recent mortgage statements.
6.3. For corporate entities, we may need to verify ownership, including an original copy of the certificate of incorporation, together with documents from clause 6.2 a) to h) for at least one director or partner, who is authorised through the certificate of incorporation, and/or details from Companies House or the relevant incorporation authority in Your Domain, or to where the Artwork is to be Shipped.
6.4. Please note, other due diligence may be carried out on You, and we will either carry this out ourselves or use a third party ID verification agent in your Domain. We will notify You of any such arrangement.
7. PAYMENTS AND INVOICING
7.1. Although the price and the Specification of the Artwork may be discussed verbally or in Writing prior to the production of an Invoice, or displayed on the Website, unless expressly referred to in the Invoice or Order Confirmation, any such details do not form part of the Contract for the sale of Artwork.
7.2 In the interests of fraud prevention, unless payments are made directly inside our Gallery, or through our Website, for any links to Payment Service Providers, or emails enclosing Invoices that are sent to you, we ask that you check the bank details carefully and phone us using the number in our contact details to obtain our confirmation that the request has come from us, and not a fraudulent third party, before making any payments. The number in our contact details must be entered manually.
7.3. Payment will be taken immediately for payments through the Website, subject to sufficient funds in the debited account and processing of our Payment Services Provider. In the event the price or Specification of Artwork purchased in the Gallery or through the Website is incorrect, we will contact you to seek your confirmation to the changes. If you do not agree to the changes, the Total Cost of the Artwork will be refunded to the same account used for payment.
7.4. Invoices are valid and must be paid in full within 7 days via BACS, or Faster Payments bank transfer, or card payments made in the gallery, or via a link to our Payment Service Providers, subject to our sole discretion and as confirmed by us in Writing. Please note that we reserve the rights set out under clause 2.6 b).
7.5. Please note, purchases made by Business Buyers or Individuals outside the EU, may be subject to a small surcharge of between 1.5% and 5.5% to cover the charges of our Payment Services Provider. The exact percentage and corresponding fee will be confirmed in Writing before we take any payment. This clause does not apply to purchases made in the Gallery or through the Website.
7.6. Excluding deposit payments from clause 4.4, payments for Advisory Fees not received within the aforementioned timeframe of clause 7.3 will be classed as late and will incur an interest charge of 4% per annum above the Bank of England’s base rate from time to time, which shall accrue daily until such payments are made in full. You hereby agree to waive Your rights of confidentiality in respect of Your name, address, and any other details relating to any debts for the purposes of debt Collection.
7.7. If payment of the total Sale Price has not been paid by the due date provided for on the front of this invoice, Dellasposa reserves the right (without limitation to Dellasposa's other remedies) to charge interest of 4% per annum above the Bank of England’s base rate on any such late payments until the date of actual payment; and/or elect to terminate the sale of the Work by giving written notice to You and to keep any amount expressed to be a non-refundable deposit.
7.8. Unless on consignment or stored elsewhere, we will hold such Artwork in our storage facilities for the aforementioned periods of time in Clause 7.3. Beyond such time, the Invoice or altered payment confirmation will become invalid, and with no written notice from us to the contrary, we reserve the right to change any prices, quantity, or other Specifications of the Artwork, including Packaging and Shipping costs, or to sell the Artwork to another Buyer.
7.9. In pursuance of Clause 7.6 and Clause 7.7, should another Buyer be willing to purchase the Artwork, we may notify You of this at our sole discretion prior to selling the Artwork.
7.9. In addition to any change in Your requirements as to affect pricing, we reserve the right, at our sole discretion and with immediate effect, to change the Total Cost prior to and after payment in part or full if the following costs to us change outside of our control: a) Foreign exchange fluctuation; b) Currency regulation; c) Alteration of duties; d) Change in delivery dates; e) Quantities or other Specifications; f) Delay or failure by the Buyer to give adequate instructions in relation to any Order .
7.10. Buyers in the United Kingdom must make payments in GBP sterling, and for purchases made by international Buyers outside the United Kingdom, the Buyer is liable to pay any transfer fees.
7.11. Shipping of Artwork, as better explained in Clause 8 below, cannot take place prior to payment in full for the Total Cost including Advisory Fees, if applicable.
7.12. We will endeavour to provide You with a confirmation of payments received, and receipts will be issued in a timely manner upon Your request.
7.13. Without prejudice to any of our other rights or remedies throughout these Terms, we shall hold a general and particular lien (a right to retain Your property) over any Artwork You have bought but we are yet to make available for Collection or Shipping, or release to You as security for all monies and liabilities of whatever sort due or becoming due to us from You in line with these Terms. The lien may be enforced by sale of any sort, and should we permit You to borrow such property held by us in a lien, You must return it to us immediately upon our request.
8. SHIPPING AND INSURANCE
8.1. For any purchases not made via the Gallery, Website, You, or a nominated and authorised third party, shall be responsible for inspecting the Specification of Artwork at any premises the Artwork is held prior to Shipping, including our premises or those of a third party Seller or Consignor. Any of our responses to Your requests of our further opinion on the Specification of the Artwork shall not relieve You from Your duty of inspection.
8.2. For the purchase of Artwork stored in our facilities prior to Collection or Shipping, we hereby guarantee safe storage and full indemnity for any Artwork damaged, or part thereof, up to the Net Sale Price, excluding all other liability for lost profits and other consequential losses whatsoever.
8.3. We will confirm with You in Your Invoice if any Artwork sold to You through consignment is stored at a third party facility and any resulting costs and liability for risk that may pass to You under section 20 (1) Sale of Goods Act 1979.
8.4. Nothing in these Terms entitles You to any ‘set-off’ whatsoever without our express written permission.
8.5. Unless Artwork is Collected, we automatically include, as standard procedure, worldwide cargo and freight insurance through our third party provider for all Artwork sold by us if we arrange Packaging and Shipping. Alternatively, You may prefer to arrange Your own insurance, but please note that if You do, we shall not be liable for any damage or loss to the Artwork after Collection.
8.6. Further to Clause 8.5, our insurance coverage is limited to £150,000, and so for Artwork above a cost of £150,000, it shall be Your responsibility to source adequate insurance, either through us or a third party. Please also note, our insurance coverage also does not cover any damage or loss caused by acts of terrorism or customs inspections.
8.7. Please note that whilst we may liaise with Domain customs authorities, we do so at our sole discretion, and under no circumstances will we comply with requests to mark down the value of Artwork for customs duty purposes, or for any other reason.
8.8. We will either Package Artwork ourselves as fine art Dealers, or use a reputable third party provider to Package and handle Artwork.
8.9. Should You choose Your own methods of Shipment, whether You Collect the Artwork in person or use a third party courier as authorised to us in Writing, ‘risk’ under the Sale of Goods Act 1979 shall pass to You, the Buyer, upon Collection.
8.10. You shall be responsible for complying with any Incoterms and other legislation or regulations governing the importation of Artwork into the country of destination or Domain and for the payment of any duties or taxes on the Artwork. We do not accept liability for the damage or loss of Artwork confiscated, seized, removed or damaged by customs authorities or other government agencies unless this was caused by our negligence or breach of these Terms in any other way.
8.11. Title in the Artwork remains with Dellasposa Fine Art LLP, or our Consignor or Seller if we are acting as agent, until payment of the Total Cost has been made in line with clause 7. Only at this point will title in the Artwork be transferred to You.
8.12. For purchases made via the Gallery, Website, or if we have arranged Shipping, we will endeavor to notify You of expected delivery dates, together with any third party Terms You should reasonably be made aware of in relation to Shipping and insurance.
8.13. You must not to unreasonably refuse delivery of Artwork. Unless notification and sufficient proof can be provided to support a reasonable refusal of delivery within three (3) working days, such as a force majeure event, then Your acceptance of delivery upon the date of arrival of the Artwork will be assumed.
8.14. Subject to our sole discretion, we will accommodate Your reasonable requests for delayed Shipping and Collection for up to 30 days, or as agreed with us in Writing. In this time we will hold Artwork in our storage facilities in line with Clause 8.2. Beyond this time, risk of damage under section 20 (1) Sale of Goods Act 1979 will pass to You and You will become liable to pay us any resulting storage and insurance costs.
8.15. Further to clause 8.14, whether or not You have paid any resulting storage and insurance costs, if You continue to fail to make Collection or Shipping arrangements, or instruct us to do so beyond a further 5 months from risk passing to You, You hereby grant us a right of sale. We will pay to You any proceeds of sale from the best price readily obtainable, minus any reasonable sale costs, including our Advisory Fees as set out in Clause 4.3, auction costs, marketing, storage, and insurance, together with any shortfall in the value of the Artwork, subject to condition.
9. OTHER OBLIGATIONS OF DEALER
9.1. Unless agreed otherwise in Writing (including email), the Dealer hereby agrees to:
a) If requested, Package and Ship Artwork in a timely manner – we estimate 7 days, with delivery normally being made within 30 days, but please note that we make no guarantee of this timescale. We will keep you updated on the progression of Shipment;
c) Affect any waiver to Your obligations throughout these Terms in clear, unequivocal Writing;
d) Comply with our obligations as a Dealer of fine art under the Resale Right Directive 2001/84/EC (or ‘droit de suite’) to ensure that appropriate royalties are paid to an artist, or their heirs, upon a qualifying sale on the secondary market of original Artwork or numbered prints. Any such deductions will be sent to the relevant collection society. The current tariff for the portion of the sales price deducted as Royalties is as follows and up to a maximum limit of €12,500 (or the equivalent in any other currency):
i. 4% up to €50,000;
ii. 3% from €50,000.01 to €200,000;
iii. 1% from €200,000.01 to €350,000;
iv. 0.5% exceeding €350,000 up to €500,000;
v. 0.25% exceeding €500,000.
10. OTHER OBLIGATIONS OF BUYER
10.1. Subject to the statutory rights for Individuals conveyed by these terms, The Buyer hereby agrees:
a) Not to approach a Seller or Consignor to whom we act as agent or otherwise are associated with, if we have directly or indirectly put You in contact with them, or otherwise circumvent us without our written consent and a waiver from us or an agreement between us to any such Advisory Fee entitled by us in relation to the acquisition of any such Artwork by You;
b) Remunerate us for any such Advisory Fee denied to us by Your contravention of subsection a), including any fees as a result of further transactions between You and a Seller or Consignor for a period of five (5) years following Your introduction to a Seller or Consignor;
c) Communicate clearly with us at all times, including but not limited to the disclosure of accurate delivery addresses and instructions, such as any Incoterms that we should reasonably be made aware of, and to notify us immediately on receipt of the Invoice or Order Confirmation if your shipping address is incorrect. We cannot be held liable in any way if you have provided incorrect delivery information to us or a 3rd party through which we market and sell Artwork, or if you do not notify us of an incorrect delivery address immediately on receipt of the Invoice or Order Confirmation;
d) Subject to Clause 8.6, to insure Artwork to any extent You see fit, including cover for Shipping;
e) To accept full responsibility and comply with all laws, regulations, and any other such Incoterms, pertaining to the Shipping of Artwork;
f) Not to contact us or purchase Artwork directly or through any of our Sellers or Consignors for any illegal purposes, whatsoever, including fraud or money laundering;
g) Not to duplicate, pass off, or copy in any other way, any Artwork whatsoever;
h) Indemnify and defend us and our parent and subsidiary companies, affiliates, partners, officers, directors, agents, Contractors, licensors, service providers, subcontractors, suppliers, interns and employees, and hold harmless, from any claim or demand, including reasonable legal fees, made by You or any third-party due to or arising out of Your breach of these Terms;
i) Comply with the same obligations as us under clause 9.1. d) if You sell on any Artwork to ‘art market professionals’. It is Your responsibility to determine the corresponding royalties and Collecting society, and ensure all other obligations are complied with under Resale Right Directive 2001/84/EC.
11. LIMITATION OF LIABILITY
11.1. Further to Clause 3.2, we make no warranty or representation of the Specification of Artwork, including the accuracy of condition, price, images, or other description of the Artwork, until such images and descriptions, including any replacement or additional images, texts, or representations of the Artwork in any way, are confirmed by us in Writing and expressly referred to in Your Invoice, or Order Confirmation, or other written form prior to Collection or Shipping.
11.2. We shall not be liable to You for any defect arising in the Artwork through fair wear and tear, wilful damage, or neglect, together with any failure to follow any instructions in the handling and use of Artwork after Collection or Taking Delivery.
11.3. Unless purported fraudulently by us, we shall not be liable to You by way of any representation, implied warranty, or other Terms, whether at common law or implied by statute, to the extend such liability can be lawfully excluded, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses, or other claims for compensation whatsoever, including that caused by negligence, arising out of or in connection with the supply of Artwork (including delay or failure to supply) or use of Artwork or resale by You. Henceforth, our entire liability under or in connection with the Contract shall not exceed the Net Sale Price of the Artwork, other than as expressly provided for in these Terms.
11.4. The content of our Gallery and Website and other marketing platforms is for general information purposes only, and as such, is subject to change without notice. We also cannot guarantee the availability of our Website and other marketing platforms, nor that they will be free from bugs or viruses, and as such, we exclude our liability to You for any damage or loss caused to You whatsoever in You accessing.
11.5. Subject to clauses relating to Shipping and insurance, risk (under the Sale of Goods Act 1979) of damage to Artwork passes to You upon Taking Delivery of Artwork. As such, any Packaging the Artwork is Shipped in shall not be classed as ‘archive storage’ and it is Your responsibility to arrange appropriate storage of Artwork thereafter.
11.6. The Buyer hereby accepts that no warranty or representation made by us, including any employees, agents, or subcontractors, as to the investment potential of the Artwork, or its worth to other markets and Buyers. Therefore, You also acknowledge that subsequent valuations and sale of the Artwork may yield less than the price You paid to purchase the Artwork.
11.7. Our capacity as a Dealer is made available to You on an ‘as is’ and ‘as available’ basis, free of representation, warranties or conditions of any kind, including merchantability, either express or implied, to the contrary.
11.8. Whether or not Shipping and insurance is arranged by us or You, we make no guarantees of the timeliness of transit.
11.9. Although every effort has been made in our Invoices and Order Confirmations to accurately encapsulate the Contract of sale in conjunction with these Terms, we make no guarantees of the accuracy of the information, and as such, any minor typographical errors are subject to correction by us in a timely manner without any liability to us, providing such corrections do not unreasonably prejudice You. As such, we reserve the right to cancel contracts for the aforementioned reason, including limited stock or logistical problems in relation to Shipping.
11.10. Subject to operating with reasonable care, we cannot accept liability for payments You mistakenly make to third parties, whether these be lawful or unlawful. Your attention is therefore drawn to clause 7.2 for the steps you should take to make payments correctly.
11.11. Whilst every effort is made to accurately represent Artwork in photographs and texts, such material may not constitute a true representation of the Specification of Artwork, and as such, we cannot accept liability for imprecise representations of the Specification of Artwork through photographs.
11.12. In pursuance to Clause 10.1. d) You are liable for the payment of any Artist's Resale Royalties.
11.13. Nothing in these Terms shall affect either Party’s liability for fraudulent misrepresentation, or death or personal injury caused by negligence, fraud, or wilful misconduct by the other Party.
11.14. Nothing in these Terms limits the liability of the Dealer under the Consumer Protection Act 1987.
11.15. Within the meaning of the Unfair Contract Terms Act 1977, all warranties or other Terms implied by statute or common law, are excluded to the fullest extent permitted by law.
11.16. Neither party shall be liable to the other to the extent that any of the following force majeure event prevents that party from performing their obligations under these terms:
a) Terrorism, civil commotion, riot, invasion, war threat or preparation for war;
b) Fire, explosion, storm, flood, earthquake, subsidence, epidemic, bad weather or other natural physical disaster;
c) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
d) Import or export regulations or embargoes;
e) Strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of the Dealer or of a third party).
11.17. In offering Artwork, the Dealer does not warrant that the Artwork cannot be sourced at a lower price from other Sellers operating in the art market, whether trade or private Sellers, including other galleries or auction houses.
12.1. These Terms of Business supersede any prior agreement, understanding or arrangement between You and Dellasposa Fine Art LLP, whether oral or in Writing.
12.2. These Terms of Business are meant to be read as a whole document. Each Clause heading and subheading is merely there for guidance and shall not affect the interpretation of these Terms.
12.3. Anything relating to the following clauses and subsections shall survive the termination or expiration of these Terms:
a) Clause 10.1 a)
b) Limitation of liability
c) Governing law
d) Your liabilities and obligations under Resale Right Directive 2001/84/EC
e) Third party rights
12.4. If you an Individual based in the UK or in the EU and are dissatisfied with the way in which we have handled any of your complaints about Artwork or the processing of your order, please click on the European Commission Online Dispute Resolution, where you will be taken to an online platform for alternative dispute resolution.
12.5. We reserve the right to transfer and/or assign our rights and obligations under these Terms by way of novation through any future merger or acquisition, or anything else. You hereby agree to any future novation providing it will in no way affect Your rights and obligations under these Terms.
12.6. Other than those expressly mentioned in these Terms, including the Resale Right Directive 2001/84/EC, no third party rights, authority, benefits, or enforceability, including any implied by the Contracts (Rights of Third Parties) Act 1999, are created by these Terms.
12.7. If any part of these Terms remains to be enforced, this does not preclude any Party from enforcing that part at a later date and should never be interpreted as a waiver in any way or to mean that any other part of these Terms will not be enforced at a later date.
12.8. If any part of these Terms is found to be unlawful, illegal, invalid or unenforceable, these Terms will be read to the severance of those parts, unless doing so would substantially frustrate the Business purpose of these Terms and create liabilities detrimental to Dellasposa Fine Art LLP. In which case, these Terms of Business, in their entirety but subject to Clause 12.3, shall be terminated without giving any rise to further liabilities.
12.9. Any waiver, side agreement, or annexation to these Terms must be affected and agreed to in Writing by the Parties to clearly relate to these Terms.
12.10. These Terms are governed by English law and You agree to submit to the exclusive jurisdiction of the courts of England and Wales.